Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Cornell University Library KF9219.B62 1S77 V.I Commentaries on the criminal law / 3 1924 020 147 512 (5orn?U ICam i'rlnial ICibtatr^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020147512 COMMENTARIES ON THE CRIMINAL LAW. BY JOEL PRENTISS BISHOP. SIXTH EDITION, BEYISED ADD OBEAILT Vol. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1877. Entered according to Act of Congress, in the year 1865, by JOEL PBEHTIS3 BISHOP, In the Clerk's Office of the District Court of the District of Massachusetts ; Entered according to Act of Congress, in the year 1868, by JOEL PEENTISS BISHOP, In the Cleric's Office of the District Court of the- District of Massachusetts i Entered according to Act of Congress, in the year 1872, by JOEL PKENTISS BISHOP, In the Office of the Librarian of Congress, at Washington j Entered according to Act of Congress, in the year 1877, by JOEL PEENTISS BISHOP, In the Office of the Librarian of Congress, at Washington. cambbidoe: press of john wilson and son. PEEFACE TO THE SIXTH EDITION. This sixth edition does not differ from the fifth in its gen- eral arrangement, in the order and numbering of the sections, or materially in legal doctrine. Nor does it omit the substance of any thing important in the fifth. But, in other respects, it is essentially new. Nearly all of it is either rewritten or otherwise compressed into briefer forms of expression, every case has been compared anew with the original report to see that it is correctly cited, the notes are augmented more than a third in the number of cases cited, the text is enlarged by what those added cases represent, it is by various devices made clearer, each topic is more easily found, and the entire work is brought down to the time of publication. Let me explain. To a mass of material, embracing the substance of sev- eral thousand adjudged cases, which lay by me neither used nor definitively rejected after preparing the last editions of my books on the criminal law, I added the fruits of fresh searchings through the reports for cases which I might have overlooked or too hastily rejected, together with the adjudged law subsequentljA made public. With this mate- rial before me, I went through the entire work; com- pressing, changing, and adding, as already stated. Not a section, unless a quoted one, stands, if I mistake not, in this edition exactly as it did in the last. In dealing with the cases, my aim has continued to be, what it was at first, to read all ; and, upon questions which IV PEEFACE TO THE SIXTH EDITION. divide judicial opinion, to cite all, especially to omit from my notes no case contrary to what I set down as the better law. To find the cases, I have personally handled every volume. of the reports, and consulted all the auxiliary helps known to the profession; and, to have them before me while writing, I have employed the most successful devices hitherto invented. Moreover, in the production of my series of books on the criminal law, I have spent, in un- divided labor, more than half the working years of an average lifetime. Yet I do not claim to have omitted nothing which ought to be, set down, or to have mistaken nothing. While, on questions which divide opinions, and on some others not well settled, I have aimed to cite all the cases, such has not been my purpose throughout. It has been to render the utmost practical help to the reader ; and often I could see that I should serve him best by excluding what would be with him mere lumber. Great numbers of cases have been on this principle rejected. Yet a pretty full citation of authorities has seemed desirable. They are not, as is sometimes assumed, intro- duced to support the text, which, as a general rule, and as viewed by a competent reader, ought to support itself. But they furnish^ to the practitioner and the courts, the means of making a wider and more minute investigation of any topic or proposition than the Umits which an author pre- scribes to himself will permit. Thus the text-book, while it serves its primary purpose, becomes also the *most con- venient index to the cases. Other men may possess abilities which I do not ; but, for myself, I could not, by any form of digest, furnish the profession with so helpful a guide to the cases as I have done in this work, which still is not a digest but a commentary, or treatise. Every sentence in this work, which is set down on the authority of the courts, was produced by me, not to any degree from examinations of other authors, whether Eng- PKEFACE TO THE SIXTH EDITION. . V lish or American, old or new ; but wholly from my personal exairiinations, in the original books of reports, of the cases cited, and others not cited. It has occurred to me, therefore, that the reader might occasionally desire to see how other authors have dealt with the same cases. To ■ satisfy this inquiry, he has only to find my cases in the tables of the other text-books, and thus be referred to the particular passages. But to enable him first to learn whether any other author has a particular case, I have caused such as are cited in any other current text-book, English or American, to be printed in my " Index to the Cases cited," at the end of this first volume, in Italics. And see the note at the head of that index. Again, if I lay down a proposition contrary to what is said by another author, this division' of my cases into Eoman and Italic will indicate with substantial though not absolute accuracy, whether or not the other author had before him the authorities from which my text was produced. In the fifth edition of this work, 7,016 cases were cited. In this sixth edition there are 9,514 ; being an increase of 2,498, considerably more than a third. The English cases, including the Irish and a few Scotch and Canadian, number 3,321; the American, therefore, 6,193. Of the English, 2,494 are cited in one or more of the eight' volumes, by other authors, of current English and American text law, and 827 are not cited in any of them. Of the American cases, 2,560 are cited in some one or more of those eight volumes, and 3,633 are not in any of them. Of the 9,514 cases, being the entire number cited in these two volumes, 5,054 are cited also by some one or more of the other English and American authors, and 4,460 are not cited by any of them ; but, in these volumes, are for the first time, it is believed, reduced to text-law.* ' Those who count the cases in my " Index to the Cases cited " -will find them to number more than is thus set down. The reason is, that, where more reporters than one have a case, they occasionally differ in spelling the names ; and, in this " Index," each diverse spelling stands as a separate case. n • PEEFACE TO THE SIXTH EDITION. %The labor of preparing this edition has been quite be- yond what was originally supposed. After allowing myself what appeared to be ample time for a thorough revision, I arranged to bring out this edition six months ago. Yet the present has proved to be the earliest moment possible. Though the book has been lying out of print and constantly called for, I deemed it for the interest of my readers to take the needful time, and carry to the end what I had undertaken. My hope is, that neither they nor I may see occasion to regret the delay. J. P. B. Cambeidgb, Feb. 1, 1877. PREFACE TO THE FIFTH EDITION. Those who have examined the second edition of my work on the law of Criminal Procedure, published a few months ago, will see that I have done for this work what I did for that. I have rearranged the matter throughout, added some new topics, improved many of the old discussions by presenting the doctrines in new lights and new relations, cited the latest cases, pruned away what could be spared of the old to give place to what is better and fresh, and pre- fixed in a peculiar type headings to the sections to enable the practitioner rapidly to get at the contents of the book. In an Introduction following this Preface, the reader will find ah explanation of the series of books of which the present work is one, and of the plan on which they are executed. When I refer from one book to another of this series, the form of the reference is, for example, " Crim. Proced. II. § 54," or " Stat. Crimes, § 25." This is done to avoid the frequent writing of my own name. When I refer to one of my other books, I do it in the usual way. These refer- ences have their uses ; but I never, except for some very brief thing, repeat in one book what is said in another. To preserve the balance of these volumes in size, and avoid the necessity of transferring to the first volume any of the matter now inserted in the second, I have had the "Index to the cases cited in both volumes " printed at Vlll PREFACE TO THE PITTH EDITIOK. the end of the first. And for the same reason, some of the topics which, as respects the procedure, are treated of ill the second volume of "Criminal Procedure," are, as respects the law, treated of in the first volume of this work. The old English statutes are printed from the edition known as Ruff head's. This explains why the words of these statutes occasionally differ slightly from those found in English text-books. I believe there is no higher authority than Ruffhead, on a question of the true word- ing, in English, of an old statute. Where the same case is in several reports, I often refer to more reports than one, even though the precise point is set down in only one. The double or treble reference helps as much in these instances as in any other. J. P. B. Caubbidoe, August, 1872. INTRODUCTION IN EXPLANATION OF THIS SERIES OF BOOKS. The volumes here presented are a part of a series of five volumes, covering tlie field of Criminal Law, Criminal Pleading, the Prac- tice in Criminal Cases, and Criminal Evidence, both at the common law and under the statutes of our States. The series is arranged as one work, so that what is set down in one of the books is not repeated in another. They are as follows : — " Criminal Law." — The work on the Criminal Law, being the present one, is, as the reader perceives, in two volumes. The first volume was originally published in 1856, and the second in 1858. In a second edition, the two appeared also separate, and at separate times. But in 1865 a third edition was issued of the two volumes together, the order of the discussion was somewhat changed, and the sections were renumbered. A fourth edition, edited and brought down to the time of publication, but without any extensive change, appeared in 1868. In 1872, the fifth edi- tion was published. The discussion on the interpretation of criminal statutes, and some minor portions of the other matter, were taken out for " Statutory Crimes," to make room for re- quired enlargements of the other parts. This made a renumber- ing of the sections necessary. The numbering in that edition is preserved in this ; and it is the author's hope that no future change will be necessary. This work is limited to the law of crime, as distinguished from the pleading, practice, and evidence ; and it does not now embrace discussions of the minor statutory offences, which are given in " Statutory Crimes." X INTEODTJCTION". " Criminal Procedure." — This work was published in 1866. A second edition followed in 1872, enlarged by new topics as well as by the citation of later cases, rearranged, and the sections re- numbered. A small amount of matter was also transferred to " Statutory Crimes." The title " Criminal Procedure " was adopted for short ; the scope of the work being, as the title-page expresses it, on " Pleading, Evidence, and Practice in Criminal Cases." Like the " Criminal Law," it does not, in the second edition, include the minor statutory offences. It is in two vol- umes. " statutory Crimes." — This work is in One volume, published in 1873. It is essentially new ; but, as just explained, considerable matter for it was taken from " Criminal Law " and " Criminal Procedure," yet a good deal changed in form, and mingled with new matter. Its scope will appear from the full title : " Commentaries on the Law of Statutory Crimes ; embracing the general principles of interpretation of statutes, particular princi- ples applicable in criminal pases, leading doctrines of the common law of crimes, and discussions of the specific statutory offences, as to both law and procedure." It occupies ground upon which, until the present author wrote, nothing of importance had ap- peared either in the United States or in England. Precedents, &c. — Something in the way of precedents, and the like, the author has for years been striving to find strength to prepare, and the work is at the time of this writing far progressed. Concerning this Series. — This series is divided into separate works merely for the convenience of purchasers and of persons using it. The collective volumes constitute just as essentially one work, with the least practicable repetition, as if they bore one title, closing with one general index. But — Essential Feature. — An essential feature of this series is, that it is throughout a fresh enunciation of legal doctrine, made on a personal and full examination by the author of the original sources of the criminal law, English and American, old and modern, together. It is difficult to say when any thing of this sort has been attempted before. We cannot regard the works of Archbold, Chitty, Russell, Roscoe, or any of modern date, as quite coming within this attempt, even for England ; or, if we do, it is long since any one of' those authors has edited a book of his own. And this is the only attempt of the sort, of which the INTEODTJCTION. XI present writer has any knowledge, in our own country. Now, how- ever accurate an old English treatise may be in its enunciations of the law of England as it stood at the time when its author wrote, the doctrine may not be identical in our own age and country. To repeat, then, it was the leading object of the author, in this series, to represent the present condition of the American law, as derived from his personal and full examination of its sources, old and modern, English and American. Something of Detail. — What the author proposed in the execu- tion of this undertaking is essentially the same which was at- tempted in his work on the Law of Marriage and Divorce, pub- lished in 1852. Let us look at some particulars. Conflicts in Judicial Opinion. — It has been the reproach of our law that what one judge deemed to be right another deemed to be wrong ; and it has been supposed, that no way exists by which harmony can be obtained, except by the establishment of a Code. Law writers, for the most part, if they have noticed dif- ferences of judicial opinion, have contented themselves with stating the one side and the other of what they have assumed to be " the argument," — that is, what the judges, arguing, had said on the one side and on the other. But while the present author was preparing his work on " Marriage and Divorce," he was led to question this view of things ; doubt ripened into conviction ; and he took an entirely different course, stated in the preface to the first edition thus : " The many conflicts and judicial doubts which have arisen to be encountered, have necessarily increased the size of the volume beyond what would otherwise have been required. In dealing with such questions, I have not always followed the path of argument which has been pursued by either side to the controversy ; indeed it has happened that, in most of these cases, the truth has seemed to me to lie in a somewhat untrodden way. I hope this will not be regarded as impairing the usefulness of the work ; it could not have been avoided con- sistently with the general plan ; and, if I have succeeded in eluci- dating any questions of difficulty, it has been in consequence of this method. Truth, alone and unadorned, with no shadow of con- tiguous error upon its visage, is usually recognized alike hy all men; and the principal reason why differences arise, is because it has never thus been distinctly and accurately seenP In other words, if judges differ on a question, the presumption, which should XU INTEODTJCTION. control the legal author in his preliminary investigations, is, that, though the one or the other of two results must necessarily be right, the question has not presented. itself in its true legal light to the judges on either side. Then, should he find this to be so, he will state how the argument is, in correct principle, his view will be accepted on both sides, and the controversy will end. And this is better than a Code ; for this is the triumph of truth, while the Code is the triumph of power. Continued. — On the theory thus laid down, the work on the Law of Marriage and Divorce was, as just said, written. And the conviction of the truth of that theory has remained so strong on the author's mind that it has been his guide ever since. But no inventor was ever so disappointed in finding his invention to work better than he supposed, as was the writer with regard to this one. His work on " Marriage and Divorce " and his sub- sequent works have contained on almost every page more or less applications of this principle, — they have been full of them, as respects questions of high moment and universal concern, — yet, so far as he is aware, having had occasion to examine the subse- quent cases in preparing new editions, not a single instance ^ has ever occurred in which any judge has examined any one of these original views so as to understand it, without adopting and following it. And this has been going on for more than twenty years, as uniformly as the sun has risen in the morning and set at even- ing. Nor has any instance ever occurred, within the author's knowledge, in which any legal person, who has taken pains to understand a position depending on juridical views which might be deemed his own, has undertaken to assail it by legal argumen- tation.^ The author does not claim abilities superior to those 1 And see post, § 140, note. intents and purposes when ratified by the 2 In this connection I cannot but grat- legislatures of three-fourths of the seoeral ity wliat some readers will call vanity. States." Unluckily the Executive De- by citing, in illustration of what is said partment of our government at Wash- in the text, a passage which occurred in ington, and the majority of the sena- a forum not judicial. I had occasion, tors, without duly considering the in this volume, in the third and fourth question, had come to entertain the editions, to consider the question of the opinion, that, in counting the " legisla- number of States required to ratify a tures," those which did not exist must constitutional amendment proposed by be reckoned the same as those which Congress, at a time when a part of the did, — contrary to tlie rule prevailing States were regarded by the General both in legal and governmental affairs, Government as possessing no legisla- in all other cases of the like sort. One tures, — the Constitution providing that day this question came up in the sen- the amendment "shall be valid to all ate (see Congressional Globe for 1868, INTEODUCTION. xm possessed by even the humblest of our profession ; but, in his own hands, the plan has thus been promotive of harmony in the decisions, and he mentions the fact as a tribute to truth itself. Doubtless there are those who, by reason of their mental aptitudes differing from his, while yet they may be his superiors, would not be able to execute the plan as well ; how many would bring from it better results he cannot say. It is not patented, and he will be pleased to see it tried by other authors. Principles to guide future Causes. — Undoubtedly most legal authors write from the ^ conviction, that, to be useful, they must adapt their works to aid practitioners in future causes, rather than merely impart knowledge of the past. And it is agreed that we are to look to what has been held, to determine what should p. 878) ; and, after a, speech had been made stating the majority doctrine, Mr. Sumner set forth in a few words the opposite view, and added : " I intro- duce here the authority of the best liv- ing text writer on the jurisprudence of our country, who has treated this very point in a manner which leaves no opportunity for reply. I refer to the book of Mr. Bishop on Criminal Law. ... I send to the chair the work of Mr. Bishop, and I ask the secretary to be good enough to read what I have marked." Here was a distinct' chal- lenge for a reply, made under the asser- tion, from a competent source, that tlie legal argumentation in the passage read was such as to admit of none. But no reply was attempted; and the issue presented by the senator, which was therefore not met, was parried in the fol- lowing manner: "Mr. [Reverdy] John- son. . . . The senator is aware that there are on this floor and outside of Congress a great many men who, per- haps, are as able as Mr. Bisliop to write a book upon that subject, who entertain a very different opinion." And now comes on the apology for the men who, during these twenty-five years, have been in the practice of pirating the origi- nal views which my writings have from time to time contained, and putting them forth as their own. It is, that, for aught he knew to the contrary, I might have stolen what I had set down as original ; and, while the mind is in doubt, it is proper to withhold the credit which honesty would otherwise demand. Says tlie judge who does this thing : " Doubtless the fellow stole this chicken ; for there are, on this bench, men as capa- ble of raising chickens as he, who never raised one. Tlierefore, to preserve the dignity of my station, and sliow ttiat the administration of the laws is in proper hands, it becomes my duty to steal the chicken also." Said Mr. Johnson : " I do not know when that particular edition was published; but I am [not] sure that Mr. Bishop has not been con- vinced by the argument of the honor- able member from Massachusetts, and that he may not be considered as merely indorsing the doctrine of the member from Massachusetts. With the knowl- edge I now have, with the lights which are now afforded me, I would rather — and I say it with no purpose of disparag- ing Mr. Bishop, for that cannot be done by such comparison — much rather yield, if I am to yield to authority, to the authority of the honorable raembier than to the author of that book." Poor man ! He was not asked to yield to the authority of anybody ; but he and the majority of his brother senators were challenged to reply to a legal argument, and the challenge was of such a nature that the failure to meet it, by men pres- ent of the ability described by him, was tantamount to yielding the point. ' So the senate dropped the question, and pro- ceeded to other business. XIV INTKODTJCTIOir. be held in the future. But there are different methods of pro- viding for the future out of the stores of the past. The one is to bring to the mind's eye the naked results of adjudications ; the other is to draw from them those living principles which should guide future causes, presenting them, not the mere facts of the past, to the reader's attention. In his original Preface to " Mar- riage and Divorce," the author stated the distinction, and his method, thus : " What is the appropriate sphere of a treatise, or commentary, upon the law, I cannot better express than in the language of Lord Stowell, who shall be my apologist, as I have endeavored to make his instructions in this respect my guide. ' "With regard to the decided cases,' he said,- in delivering one of his most admired judgments, ' I must observe generally, that very few are to be found in any administration of law, in any country, upon acknowledged and settled rules. Such rules are not con- troverted by litigation ; they are, therefore, not evidenced by direct decisions ; they are found in the maxims and rules of hooks of text law. It would be difficult, for instance, to find an English case in which it was directly decided that the heir takes the real, and the executor the personal estate ; yet, though nothing can be more certain, it is only incidentally, and obiter, that such a matter can force itself upon any recorded observation of a court ; equally difficult would it be to find a litigated case in the canon law estab- lishing the doctrine that a contract per verba de prcesenti is a pres- ent marriage, though none is more deeply radicated in that law.' ^ What success has attended my effort to draw from the decided cases such rules as may be followed in future causes I cannot assure the reader ; but in this consists a chief part of whatever merit is claimed for the following pages." Continued. — As the past never repeats itself, and each new case is to be decided on what may be drawn from former ones where the facts were not completely the same, a book for practical use should present to those who consult it, not the mere dead cases, but the living principles deduced by its author from them, as guides for future causes. No book can be com- pletely practical which does not do this. A digest, though useful, is not a practical book. And a book of mere theories as to how the law ought to be, not founded on adjudication, is not practical, 1 Referring to Dalrymple v. Dalrymple, 2 Hag. Con. 54, 93. INTEODTJCTION. XV though it may be instructive. The aim of these volumes is the highest practical utility to students, practising lawyers, and judges. The author, continuing in the same path which he trod in his first work, has endeavored, and, he submits, with reason- able success, to render his books practical by deducing for the reader, and presenting upon his page, ready for use, those princi- iples which the past decisions furnish for the determination of future causes. That, in this, he never erred, he does not claim ; but he is cheered beyond measure in his labors by knowing, that, in all parts of our country, appreciating persons are waiting and longing for new editions and works from his hands, by whom he can count on their being read} 1 For example, as a specimen of many letters I receive, is one which happens now to be before me, in which a lawyer, who is a personal stranger, inquires anx- iously about future books and editions, and adds : " I have carefully read in course every book which you have pub- lished. . . . Upon the subject of crimi- nal law, you have done, &o. . . . Other authors, English and American, have stated what the courts have decided, but it has been reserved for yourself, with singular facility, to present, so to speak, the formula by which to deduce the rule hy which courts have obtained their solution of vexed and complicated questitlns," I have presented this extract simply to show, in another form of words, what has been attempted in these volumes. Of course, it will be said, an author should not puff himself. Yet I care little for critics if I can succeed in helping the reader to un- derstand the peculiar qualities of this series of books. Now, I am going to add, in full, a letter from the late cele- brated German Professor Mittermaier, of Heidelberg, — a name which, long before the close of his honored and labo- rious life, became a household word in every country where jurisprudence is known, or law is respected. It was one of the pleasures attending my labors, that, though he was personally unknown to me, and a limited correspondence was sometimes unfortunate in its passage from the one to the other, and did not, therefore, produce the fruits it otherwise would have done, yet his approval was a cheering presence. He wrote to me, and, I believe, to all his correspondents who spoke our language, in English, which, I think, he learned at an advanced period of his life. The following letter I shall present entire, and in hcec verba ; for, although the greater part of it has no special reference to the present topic, my readers will be glad to see it, as a sort of picture of the great and good man. All will know how to excuse the few peculiarities of his English. " Heidelbe£0, 8 Aug., '60. " Mt deak Sik : " I have received your kind letter (of 10 July ) with a great conflict of feelings. I felt the liighest pleasure receiving a letter from you, and knowing that you have received the work of M. Nypels on Criminal Law, forwarded by me. On the other side, I was much afflicted by your letter which informed me that my letter addressed to you in the last work did not reach your hands. This letter contained the expression of my gratitude for so many enterprises, — works which your kindness forwarded to me. I felt the duty to express to you, in my letter, my admiration, and the acknowledgment of the excellent qualities in waiting on your works, — an abundance of mate- rials, with the profound scientific re- searches, and a very fine practical sense. Your work is duly appreciated as the best about the matter. Every lawyer must acknowledge that he is much In- debted to you for many explanations, important equally for the legislator and the lawyer of every country, in your ex- cellent work on Criminal Law. This is a very scientific and practical work. I XVI rNTEODUCTION. How to use this Series. — These explanations of the aim of the present volumes vi^ill guide the practitioner in the use of them. He will see, that, if he would carry with the court a point derfved from the elucidations of the author, he must make the views understood. It will not sufiSce merely to argue from a case cited in them. For it follows from what has been said, that, although a case may be decided correctly, the true doctrine may not be so presented in the reasoning of the court as to carry con viction with it. There are circumstances in which this hint will be of the utmost practical importance. More might be added, but the foregoing will suffice for the present connection. have the pleasure to eee that my articles published in the Journals on your works hare produced the attention and the study of these important works by Ger- man lawyers. I have forwarded yester- day a copy of the first number of the second volume of the work of Nypels (the first volume you have received) to Triibner, bookseller, in London, with the order to forward the book to you. You shall receive equally the other volumes. I think you will find that this work is a very useful comparison of the French criminal law with the legislation in Ger- many and Italy. I regret that you have not received my letter, in which I have explained the present state of the crimi- nal law in Germany. The science of the criminal law has surely made great prog- ress in Germany ; but there are great defects in our science. The greatest number of our lawyers neglect the study of the human nature, and the duty of every legislator to adapt the criminal law to this nature, and to the exigency of the social state, of the conscience of the people. The legislator should be guided by well ascertained principles. But in Germany, very dangerous princi- ples, namely, that of intimidation, or re- taliation, or imitation of the divine jus- tice, have a bad influence. If you wish to have my opinion on this matter, I shall be ready to explain it in my next letter. I am highly desirous to receive your work on the Criminal Procedure, and am sure that this work will furnish me with excellent information. " Pray, present my best compliments to Mr. . I shall be much obliged to him if he will procure me new publi- cations of your country. " Believe me to be, " With highest esteem, " Your faithful " MlTTEKMAIEE." CONTENTS OF VOLUME 1. BOOK L OUTLINES AND INTRODUCTORY VIEWS. Chapteb Seotiou I. The Natubb and Sotjeces of Juridical Law . 1-21 II. Into what Classes the Law administered by oub Governmental Powers is separable .... 22-29 IIL The Criminal Law 30-42 IV. Military and Martial Law 43-68 BOOK II. JURISDICTION AND LOCALITY. Vl. Jurisdiction of Crime as between the United States and Foreign Nations 99-144 § 99-101. Introduction. 102-108. Territorial Limits of the United States. 109-123. ■ Jurisdiction beyond those Limits. 124-135. Exemptions from her Jurisdiction within those Limits. 186-144. Acts Punishable both by her and by Foreign Governments. VOL. I. * XVm CONTENTS OP TOLTTMB I. Chapter Section VII. Jttbisdiction and Local Limits of the States 145-155 VIII. The Jueisdiction of the UNfTED States within State Limits 156-181 IX. The SorRCEs and Nattjee of the Jukisdio- TIONAL POWEES OF THE UnITED StATES OUT- SIDE THE States 182-188 X. The Common Law within United States Jur- isdiction 189-203 BOOK m. THE SEVERAL ELEMENTS OF CRIME STATED AND ILLUS- TRATED. --—XL Combined Act and Intent 204-208 XII. The Public Good and Deseet of Punishment TO COMBINE 209-211 XIII. The Ceiminal Thing to be of Sufficient Mag- nitude 212-229 § 212-215. Introduction. 216-222. The Intent. 223-229. The Act. XIV. The "Weong as a Public in distinction from A Private Injuet 230-254 § 230-234. Introduction. 235-249. Indict.able Public Wrongs. 250-254. Indictable Private Wrongs. XV. The Injured Pbeson in the Wrong oe Con- senting 255-263 XVI. Liabilities Citil and Criminal from one Trans- action 264-278 XVII. The Constitutional Prohibition of Ex post Facto Laws 279-284 CONTENTS OF VOLUME I. XIX BOOK IV. I i THE DOCTRINE REQUIRING AN EVIL INTENT AS AN ELE- MENT OF CRIME. Chapter Sbctios XVIII. General View of the Doctrine of the Intent 285-291 XIX. Ignorance of Law and Fact 292-312 ' § 292, 293. Introduction. 294-300. Ignorance of Law. 301-310. Ignorance of Fact. 311, 312. Ignorance both of Law and Fact. XX, Carelessness and Negligence 313-322 XXI. The Intent producing an Unintended Re- sult 323-336 XXII. More Intents than one operating together 337-345 XXIII. Necessity and Compulsion 346-355 XXIV. The Husband's presumed or actual Coer- cion of the Wife 356-366 XXV. Infancy as incapacitating for Crime . . . 367-373 XXVI. Want of Mental Capacity 374-396 XXVII. Drunkenness as excusing the Criminal • Act 397-416 § 397,398. Introduction. 399-403. General Doctrine. 404-416. Limitations of the Doctrine. XXVIII. The Capacity of Corporations for Crime . 417-424 XXIX. By -what Words the~ Intent is in Legal Language indicated 425-429 XX CONTENTS OS' VOLUME I. ' BOOK V. THE ACT WHICH MUST COMBINE WITH THE EVIL INTENT TO CONSTITUTE CRIME. Chapteb Section XXX. The Genekal Nature ov the kequieed Act 430-442 XXXI. How THE Subject of the Ceiminai Act MAY BE DIVIDED 443-449 XXXII. Peotection to the Govbenment in its Ex- istence, AUTHOEITT, AND FUNCTIONS . . 450-480 XXXIII. Peotection TO the Relations of the Gov- EENMENT WITH OTHER GOVERNMENTS . . 481-485 XXXIV. Protection to the Public Revenue . . 486-488 XXXV. Protection to the Public Health . . . 489-494 XXXVI. Protection to Religion, Public Morals, AND Education 495-508 § 495. Introduction. 496-499. Religion. 500-506. Public Morals. 507, 508. Public Education. XXX VII. Protection to the Public Wealth and to Population 509-529 XXXVIII. Peotection to the Public Convenience and Safety 530-532 XXXIX. Protection to the Public Order and Tran- quillity 533-543 XL. Protection to Individuals 544-593 § 544-546. Introduction. 547-564. Offences against Personal Preservation and Comfort. 665-590. Against acquiring and retaining Property. 591. Against Personal Reputation. 592, 593. Combinations to commit Private Injuries. XLI. Protection to the Lower Animals , . . 594-597 CONTENTS OF VOLUME I. XXI BOOK VI. TECHNICAL DIVISIONS AND DISTINCTIONS, WITH THEIR ATTENDANT DOCTRINES. Chapter SEprioir XLII. Outlines of Divisions and Distinctions . . 598-606 XLIII. The Division of Crimes into Treason, Fel- ony, AND Misdemeanor 607-625 § 607-610. Introduction. 611-613. Treason. 614-622. Felony. 623-625. Misdemeanor. XLIV, Proximity of the Offender to the com- pleted" Crime 626, 627 XLV. Combinations of Persons rsr Crime .... 628-643 XL VI. The Principal Actor 644-659 § 644, 645. Introduction. 646-654. As to Felony. 655. As to Treason. 656-659. As to Misdemeanor. XLVII. The Accessory before the Fact, and the Like 660-689 § 660, 661. Introduction. 662-671. General Doctrine of Accessory. 672-680. Before the Fact in Felony. 681-684. In Treason. 685-689. In Misdemeanor. XLVIII. The Accessory after the Fact, and the Like 690-708 § 690, 691. Introduction. 692-700 o. As to Felony. 701-704. As to Treason. 705-708. As to Misdemeanor. XLIX. Compounding 709-715 L. Misprision 716-722 XXU CONTENTS OP V0LT7MB I. Chapter Section LI. Attempt 723-772 ; § 723-726. Introduction. 727-730. General Doctrine of Attempt. 731-736. The Kind of Intent. 737-769. Kind and Extent of Act. 770, 771. Combination of Act and Intent. 772. Degree of tlie Offence. LII. The Law's Methods of defining Cbime . . . 773-785 LIII. Mbrgek of Offences 786-790 HV. The Relations of the Specific Offences to ONE another, and TO THE CRIMINAL TRANS- ACTION 791-815 BOOK VII. INCIDENTAL RELATIONS CONNECTED WITH CRIME. LV. Quasi Crime in Rem 816-835 LVI. Defence of Person and Property .... 836-877 § 836, 837. Introduction. 838, 839. General Views. 840, 841. Perfect and Imperfect Defence distinguished. 842-859. The Perfect Defence. 860-863. The Imperfect Defence. 864-874. Defence of one's Person. 875, 876. Defence of one's Property. 877. Assisting others in Defence. LVIL The Domestic Relations 878-891 § 878, 879. Introduction. 880-884. Parent and Child. 885. Guardian and Ward. 886. Teacher and Pupil. 887-889. Master and Servant. 890, 891. Husband and Wife. LVIII. Relations other than Domestic 892-896 LIX. Pardon 897-926 CONTENTS OF VOLUME I. XXlg' BOOK vin. COKSEQUENCES OF CKIME AND ITS PROSECUTION. . Chaptee Section LX. The Punishment bt Sentence of Court . 927—958 § 927-929. Introduction. .930-932. Erroneous Sentences. 933-953. What Punishment should be awarded. 954-958. What Punishment in Joint Convictions. LXI. The Punishment foe an Offence subsequent TO THE First 959-965, LXII. Consequences of the Sentence by Opera- tion OF Law 966-977' LXIII. No Second Prosecution for the same Of- fence 978-1070 § 978, 979. Introduction. 980-994. General Propositions and Views. 995-1007. Waiver, by Defendants, of their Rights. 1008-1011. Sham Prosecutions procured by Defendants. 1012-1047. Rules to determine when there has been Jeopardy. 1048-1069. As to when the Two Offences are the Same. 1070. The Doctrine of Autrefois Attaint. BOOK IX. NUISANCE. LXIV. The General Doctrine of Nuisance . . 1071-1082 LXV. Bawdy-Housb 1083-1096 -LXVI. Combustible Articles 1097-1100 LXVII. Common Scold 1101-1105 LXVIII. Disorderly House 1106-1121 XXIV CONTENTS OP VOLUME I. Chapter Sbctios LXIX. Eavesdeopping 1122-1124 LXX. Exposure of Pbesok 1125-1134 LXXI. Gaming-house 1135-1137 LXXII. Ofpensivb Tbades 1138-1144 LXXIII. Public Shows 1145-1149 LXXIV. Wooden Buildings and the Like , . , . 1150, 1151 Page Index to the Cases cited in both Volumes 649 CRIMINAL LAW. BOOK I. OUTLINES AND INTRODFCTORY VIEWS. CHAPTER I. i /' THE NATTTRE AND SOXJECES OP JXTEIDICAX LAW. / § 1. Law, in Broadest Sense. — Law, in the broadest meaning of the word, is the order which pervades and controls all existence.' In the nature of things, there can be nothing without order; from the Infinite down through all space, among all forms of cre- ation material and' immaterial, each particular thing must have its order of being, and order must constrain the whole, else the thing destitute of it would cease to be. The name which we give to this order is law. Another name, more poetical in sound, yet less apt and full in meaning, is harmony. All happiness flows from harmony, — in other words, from obedience to law. And from disobedience comes all misery. So it is of every thing, ma- terial and immaterial, of which we have cognizance ; and doubt- less order, or law, binds alike the Creator and created throughout the entire universe. § 2. Narrower Meanings of Law. — When we descend to nar- rower meanings, we find the word "law" still to require the same form of definition, limited by the particular subject to which it is applied. Thus, the law of our material world is the order" which pervades and controls it. To one part of this order has been given the name of gravitation ; and, in like manner, we have named and we shall name other parts ^s discovered. So the law which governs the associations of men together is the 1 Bishop rirst Book, § 36. VOL. 1. 1 1 § 5 OUTLINES AKD rNTEODTJCTOEY VIEWS. [BOOK I. order which pervades and controls those associations. And the parts of this law bear their respective names ; as, the law of nature, the law of nations, the law of politeness and good society, the municipal law of the particular country, the law (as in Eng- land), of the unwritten constitution, the law (as in this country) of the written constitution, and so through other specLf].cations not necessary here to mention. § 3. Municipal Laws, &c. — Therefore the municipal, constitu- tional, and other like laws which govern nations and communities are, in their origin and intrinsic force, rules of being given to man by God. But, though man received them from his Maker, he took them as he did the air, the streams, the soil, and their productions, to use, and in a limited degree to form and transform at his pleasure. Practically, therefore, the laws, in the sense in which a legal author employs the term, are a blending of the per- fect and imperfect, — in part the work of God, and in part the work of man. It cannot be otherwise than that the stream of the Primary Wisdom should sometimes become mingled with im- purities while flowing through earthly channels; and the Divine rule itself provides for human modifications of the abstract, adapting it to particular circumstances, views, and wants. And whether the modifications accord with the original right or not, they are alike permitted as laws^ ; being in the one case acts of well-doing, in the other of evil-doing. § 4. What for the Legal Author — (Abstract Justice as Authority). — The legal author is not to trace, in full, the original right through the windings of human affairs ; but to state the conclu- sions of right, and the technical and arbitrary rules, established by legislatures and courts to guide the people. Yet he cannot drop from his own consideration, and should not withhold from his readers, the fact, that, besides the rules already shaped by man into the forms of law, there are others, derivable from Nature herself, waiting around to fill any vacuum discovered in what had been before adopted and approved. In the beginning of our jurisprudence, the courts of necessity decided causes to a greater extent than now by what was supposed to be original justice ; but, even now, while precedents are numerous, the voice of God, uttering the abstract right, is listened to by every good judge, and by the legislature. § 5. Law a Necessity. — To repeat, in part : No two human 2 CHAP. I.] NATUEB AJSTD SOURCES OF JTJEIDICAL LAW. § 8 beings can exist together without rules of association, termed law. For example, it must be a rule, that neither shall occupy the space occupied for the moment by the other : a violation of this rule would end the physical lives of both. And, for the same reason, neither shall attempt to take the other's life : this rule cannot be violated and the association continue. So, if they would not only exist together, but be happy in the relation, they must obey laws tending to promote this object ; as, that neither shall assault the other, or use language wounding the feelings of the other. And the further they carry this class of rules, the more fuU. will be their enjoyment, which will be complete only when, following the injunction of Holy Writ, each loves the other as himself. § 6. Penalty essential to Law. — By law, as the word is here used, is meant, not merely the precept, but the penalty also. Indeed, law, without punishment for its violation, is in the nature of things impossible. It is as though we were to speak of an earth without matter, an atmosphere without air, an existence without existence. If, as just said, no two human beings can exist to- gether without rules of association, so neither can they without tjie penal sanction practically enforcing those rules, whether themselves cognizant of the fact or not. No instance ever was or can be in which this is not so. § 7. Why Law must always exist. — There are those who look for a condition of society to come, in which human laws, as they term rules binding associated men by penal sanctions, shall cease. But this can never be within His dominions who governs all things well ; because, as admitted, in the infancy of any creat- ure, it must have rules of being, and penalties for their violation, and a nature originally given is not changed by growth 'and de-- velopment. Man, indeed, may learn to avoid the punishment; but the law, which includes the punishment, abides. § 8. Further of Rule and Penalty combined. — If we should imagine any existence, mental or physical, to be without law, it could not be made palpable to our reason ; because all of which we can take cognizance concerning any thing is the action of its laws of being. A particle of matter presents to our cognizance a variety of laws ; as the law of extension, the law of gravity, and the like ; but nothing whereof we can take notice except the action of these laws. And" the soul of a man, like the par- 3 § 10 OUTLINES AND INTBODITOTOEY VIEWS. [BOOK I. tide of matter, has its laws, by whose action alone we understand that it exists. And when men come together in communities of many souls, we only know the fact of their association from per- ceiving the effects of the laws of their combined being. Now, if the laws which bind them together, or the laws under which one soul lives, or the laws of a particle of matter, are violated, there is a disturbance of what was before, in all the thing to which the violation relates ; and this disturbance is the penal sanction of the laws. Consequently a law, the violation of which was not attended by the disturbance, would be no law. § 9. Law anterior to Government — and how enforced. — We therefore see, that law, with its punishment, is anterior to organ- ized government. It is then enforced by the party more imme- diately aggrieved pursuing the wrong-doer, or by a company of individuals spontaneously uniting to enforce it, or by various other means such as a rude state of society brings into action. Law the Parent of Government. — But all irregular and mere private modes of administering justice are uncertain, inadequate, and perilous to the peace of the community. Therefore, as civil- ization advances, some one takes into his exclusive hands the en- forcement of the laws, and the power, under the name of king, or chief, or patriarch of his tribe, to modify or change them as circumstances require ; or sometimes, as in the United States, the people establish a government for themselves. Yet this is rather a philosophical view than one historically accurate ; for histori- cally the methods blend ; as, for instance, the laws are partly enforced by a feeble and vicious government, and partly by the arm of private revenge. But — Effect of Government on Law. — The establishment of the gov- ernment 'neither obliterates the law which before existed, nor changes it; being modified only by the act of governmental organization, or by decree or statute of the government itself. § 10. Limit of Governmental Cognizance of Law. — The govern- ment does not take cognizance of all the law of human association in the community. For example, — Etiquette — Honor. — The law, in the larger meaning of the word, provides, that a person civilly spoken to shall return a civU. answer ; but no court will entertain a suit to enforce this provi- sion. The party aggrieved may inflict a mild punishment for its violation, such as to decline speaking to the offending person; 4 f CHAP. I.] NATUBE AND SOTJECBS OP JUEIDICAL LAW. § 11 but, if lie goes beyond certain limits, the legal tribunals will in- terfere. A ease of such interference occurs, when, for an affront not cognizable by the courts, but a real breach of the law of honor,! ^jjg injured one meets the aggressor in a duel. The pen- alty of death is beyond the jurisdiction of the individual to inflict ; and, if it ensues, he is guilty of murder.^ § 11. Further of Jurisdiction to enforce Law. — Therefore the student of our jurisprudence has to inquire, alike, what is the law which existed anterior to the establishment of any govern- ment, how it has been modified and changed by subsequent cus- tom, and by legislation under preceding governments and under the present one, and when the courts assume and when decline jurisdiction to enforce it. Cases in which the jurisdiction is declined are not alone those wherein the offence is too trifling, or not adapted to legal investigation, but they are of many other classes also. Thus,^- Judicial Jurisdiction declined — (Clean Hands — Caveat Emptor). — Though the courts entertain suits for the violation of contracts ; yet, if he who brings a suit has no interest in the question,^ or if the contract is illegal or immoral, and he is particeps criminis in it, so that he does not appear before the tribunal with clean hands,* he will be dismissed ; not because the thing in contro- versy is too small or otherwise improper for judicial investigation, or because the defendant is in the right, but because the plaintiff has no proper status to complain. So the wrong may be of suffi- cient magnitude, and the plaintiff meritorious; but, for some other reason, it may be against good policy to sustain the action. An example of this is seen in the maxim caveat emptor,^ as applied in the common law.^ The meaning of which maxim with us is 1 Blackstone says, honor is " a point perverse judgments neither change the of a nature so nice and delicate that its fact nor its value. And not only the wrongs and injuries escape the notice of ancient Christians said this, buk also the the common law, and yet are fit to be re- philosophers, who said it was the part of dressed somewhere." Therefore, in Eng- a little mind not to be able to bear con- land, the Court of Chivalry, now abol- tumely." Grotius de Jure Belli et Pacis, ished, used to take cognizance of it. 3 II. 1, 10, 2 Whewell's ed. vol. i. p. 215. Bl. Com. 104. Grotius observes : " Honor = Vol. II. § 311. is an opinion of one's own excellence ; ^ Actio non datur non damnificato. An and he who bears such an injury shows action is not given to him who has re- himself excellently patient, and so in- ceived no damage. Jenk. Cent. 69. See creases his honor rather than diminishes, also Nichols v. Valentine, 36 Maine, 322. Nor does it make any difference if some * 2 Bishop Mar. & Div. § 75. corrupt judgment turn this virtue into a ' Broom Leg. Max. 2d ed. 506-538. disgrace by artificial names ; for those ' The common law is the unwritten 5 § 13 OUTLINES AND INTRODITCTORY VIEWS. [BOOK I. in substance, that, if, without_fraud_or wa rra nty, one purchases of another an article or estate open to inspection, he cannot ordi- narily recover any thing of the seller by reason of failure in the title, if it is real estate, or defect in the quality, whether the estate is real or personal ; though he had in fact made the pur- chase confiding in the seller's erroneous representations, and so parted with his money without receiving the return mutually contemplated ; the reason being, according to the better opinion, not that the vendor has acquired any just right to retain the money, but that a denial of the other's demand to recover it would promote the public good, by educating men to be sharp and cautious in trade. In the civil law, this policy seems not to prevail ; therefore it permits the buyer to get back what, accord- ing to both systems of jurisprudence, truly belongs to him, and not to the seller-^ § 12. Discussing Justice of Laws. — ^^ Whether the civil or the common law embodies the purer wisdom, in its application of this maxim, is a question of a class not necessarily for discussion in a book treating of either system of laws as actually administered. Therefore, in unfolding our common law as received in our courts, we shall not often indulge in discussions of this nature. And though, in searchings after light on a question not illumined by the decisions, we may sometimes look toward the Original Rays, the author does not deem it his duty, in general, while explaining doctrines which only legislation can properly change, to point out any departure from abstract right discernible in them. § 13. Technical Limitations of Original Right. — In all countries, the laws take cognizance of the original right ; in all, they recog- nize the necessity of conventional limitations and deflnings of it ; while in nothing do men differ less than in their understandings of what are the original rules. Therefore the technical limita- tions of rules constitute the chief differences in the varying sys- tems of cultivated jurisprudence. Even Religion herself wears a becoming uniformity in her doctrines concerning the primary truth and duty ; while her earthly part divides itself into as many sects as ingenuity can invent. law of England and this country ; the 2 Kent Com. 478 et seq. ; Rawle Gov. civil law, of continental Europe gener- Title, 1st ed. 488 et seq. ; 1 Smith Lead, ally. Gas. 77, and the American notes. 1 See Seixas o. Woods, 2 Gaines, 48 ; 6 CHAP. I.j NATTJEB AND SOXJECES OP JUEIDICAL LAW. § 14 § 14. Law further distinguished from Government. — In the fore- going outline, we have supposed fewer steps in the progress of mankind than have in fact been taken. We cannot absolutely trace the course of any community back to a time when it was without any thing which might in some sense be termed a gov- ernment ; yet we see something of this, even at the present day, in rude and barbarous nations. But the principle, that law, like the atmosphere, pervades human society always, without leaving for a moment any vacuum, be there a government or not, is illus- trated, in daily examples before us. Thus, — California. — In the sudden settlement of California, before a governmental organization was made, law was there recognized, and enforced under the severest penalties. And — Law of Nations. — In the law of nations we have an illustration in point : international law is everywhere acknowledged ; but nations have no common civil tribunal to expound and enforce it,-' therefore they interpret it among themselves according to the lights which reason gives them, and execute the decree by a resort to arms. So, — Laws not change with Government. — When a country is con- quered, or ceded to another country, there being already in it a system of laws, these are not -overturned by the mere change of government ; but they remain in force as before, liable only to be superseded by new laws should the new power elect.^ It is the same when a new organization of government follows a politi- cal revolution.^ Even if there is a rebellion, proceeding to the extent of practically ousting the government for the time, and establishing a new de-facto government, the laws enacted under this new order of things, not in aid of the rebellion, remain after it is suppressed.* 1 1 Kent Com. 2. i occupying authority should ordain." 2 United States u. Power, 11 How. Leitensdorfer v. Webb, 20 How. U. S. U. S. 570; McMullen v. Hodge, 5 Texas, 176, 177. See also Powler v. Smith, 2 34 ; Cass v. Dillon,' 2 Ohio State, 607 ; Cal. 39. Chew V. Calvert, Walk. Missis. 54. ' Shaw, C. J., in Commonwealth v. Therefore, when the United States ac- Chapman, 18 Met. 68, 71 ; The State v. quired the territory of New Mexico, the Cawood, 2 Stew. 360, 362. When a State former laws were by our courts held still of the American Union changes its Con- to prevail, " except so far as they were, stitution, the change does not abrogate in their nature and character, found to prior laws not repugnant to the new Con- be in conflict with the Constitution and stitution. Cass v. Dillon, 2 Ohio State, laws of the United States, or with the 607. regulations which the conquering and * Luter v. Hunter, 30 Texas, 688; 7 § 16 OUTLINES AND INTEODUCTOKY VIEWS. [BOOK I. Emigrants carry Laws, but not Government. — On the same princi- ple, emigrants to an uninhabited country carry with them their own laws to fill the vacuum there ; they go with them step by step from the mother country, and constitute the rule of action and dealing as well before a government and courts are estab- lished for their enforcement as afterward.^ § 15. Nature of Law viewed separate ffom Government. — The law which precedes government is not the pure and unmixed, primary right, as provided by God for human use ; but, fore- shadowing the cultivated jurisprudence, it is more or less mingled with human devices, and restrained in its operation by technical rule. And so it should be. The same reason which casts upon' man the labor of cultivating the soU, and tending the growth of its fruits and its grains, and preparing them by art for the table, demands of him also the labor of fitting the primary right into laws, before it constitutes, even in a rude age, the accepted guide for his conduct. The laws need not, to perform their functions, be written, or passed upon by vote, or even in any way be ordained in words ; for a tacit recognition and assent are, in essence, the same. § 16. Primary and Technical Rules blend variously. — One of the chief labors of legal science is to ascertain the distinction already mentioned, between the law which the courts enforce and the law which they decline enforcing.^ The rules concerning this dis- tinction vary with the time and the country in which the coiirt sits. And, in other respects, the manner and degree in which the technical rules established by man and the primary right fur- nished by God blend, differ with the age, the country, the cir- cumstances of the people, and their enlightenment. But — Will be enforced. — The truth remains, through all changes and in all countries, that there must be law pervading all human affairs ; and that, if the tribunals and the legislature have failed Canfield v. Hunter, 30 Texas, 712 ; 435. See Hedges v. Price, 2 W. Va. 192 ; Culbreath v. Hunter, .30 Texas, 713; Thornburg v. Harris, 3 Coldw. 157; Lerison v. Krohne, 30 Texas, 714 ; Arce- Leach v. Smith, 25 Ark. 246 ; Woodruff neaux v. Benoit, 21 La, An. 673 ; Wat- v. Tilly, 25 Ark. 309 ; Baily v. Milner, son V. Stone, 40 Ala. 451 ; Michael v. 35 Ga. 830 ; Scudder v. Thomas, 35 Ga. The State, 40 Ala. 361 ; Central Railroad 864. V. Collins, 40 Ga. 582 ; Reynolds v. Tay- i 1 Bishop Mar. & Div. § 69. See, fop lor, 43 Ala. 420 ; Ray v. Thompson, 43 a somewhat full discussion. Bishop First Ala. 484 ; Winter v. Dickerson, 42 Ala. Book, § 43-59. 92; The State v. McGinty, 41 Missis. ^ See ante, § 10, 11. 8 CHAP. I.J NATUEE AND SOTJECES OE JUEIDICAL LAW. § 18 to fill the entire space, still Nature fills it ; and, if the judges will not listen to the voice of Nature, other powers will expound her laws and inflict her punishpients. § 17. Courts administer Natural Law. — There is necessarily a diversity of opinion, in different ages and among different people, as to how much of the law of nature shall be administered in the courts. But, said a learned judge, " every nation must of neces- sity have its common law, let it be called by what name it may ; and it will be simple or complicated in its details as society is simple or complicated in its relations." ^ And, however men may deprecate what is sometimes termed arbitrary power in judges, who administer laws not written in the statute-books, such ad- ministration of justice is necessary among every people, whether calling themselves free or not. Great, indeed, would be the calamity, if the courts were to compel mob violence, by refusing justice in every case which the legislature had not foreseen. § 18. Courts not manufacture Law. — These views show the absurdity of the charge sometimes brought against our tribunals, that they manufacture law. Duty as to new Cases. — A court may err, since judges are but human ; yet no error is so monstrous as the denial of admitted right to a suitor who is simply unable to find his case laid down in the statute-book, or in a previous decision. And the tribunals of the present time commit many more errors by refusing to deal out to parties before them the justice which the general principles of our jurisprudence and the collective conscience of mankind confessedly demand — alleging, as a supposed justification for the refusal, the want of a statute or a precedent — than in aU other ways combined. Not thus was it anciently, when the courts of our English ancestors decided controversies with but few statutes and precedents to aid them ; deriving principles for their deci- sions from the known usages of the country, and from what they found written by God in the breasts of men.^ And because it 1 Turley, J., in Jacob v. The State, 3 before ? We will gire judgment accord- Humph. 493, 514. ing to reason, and if there be no reason 2 In an old case, one of the counsel in the books I will not regard them." said, that he had searched the books, and Anonymous, Gouldsb. 96. It must be "there is not one case," &c. ; to which understood, however, that by "reason" Anderson, C. J., responded : " What of here is meant " legal reason." See that 1 Shall not we give judgment be- Bishop First Book, § 80-82. cause it is not adjudged in the books § 20 OTJTLIlsrES AKD INTEODUCTOKT VIEWS. [BOOK I. was not thus formerly, it should not be now ; for, by admitted doctrine, the judges should not decide according to their indi- vidual fancies, but according to the law as they find it ; and we see that the law, as the judges find it, commands them to go, in proper cases, outside the statutes and prior decisions, for princi- ples on which to adjudicate the particular matter before them. § 19. Further of New Cases — Precedents. — These views Will appear more important to the reader in proportion as he becomes truly acquainted with what has gone before in our jurisprudence, and contemplates the ceaseless variety of change in human afPairs, presenting questions as new to-day as were those which came up for decision a thousand years ago. Therefore, though the courts properly adhere to precedents, yet it is as true now as it was in the earlier periods of our law, that precedents have not covered the entire ground. And how absurd it is, that a ques- tion between man and man, or between a man and the commu- nity, should depend, neither on the abstract right of the case, nor on the practical convenience or propriety of one decision of it or another, but solely on the accident, whether it arose in early times, received then an adjudication, and the adjudication found a reporter ! ^ § 20. Expansions of the Law. — In the vast Complications of affairs, requiring new applications of old principles continually to be made ; in the measureless range of thought, bringing new doctrines out of events new and old ; in the immense fields of human exploration, luminous with the light of every species of science, over which the race is always travelling ; in the unlimited expansibility of society, developing new aspects, new relations, new wants ; in the fact, that, although the reported decisions of the courts are numerically considerable, they embrace but com- paratively few even of the questions which have arisen hereto- fore ; in the fact, also, that evermore the surges of time are driving the shores of human capability further toward the infi- nite, — we read the truth, pervading every system of jurispru- dence, that, whenever a question comes before the courts, it is really a call for a new enunciation of legal doctrines ; and that from the past we gather merely a few rays to guide us in the future. We learn that both the old light and the new point to 1 And see post, § 35-37. 10 CHAP. I.] NATUEB ANB SOUECES OP JURIDICAL LAW. § 21 the way of principle for the settlement of all new cases where particular precedents fail. § 21. Sketch of Wider Field — Conclusion. — These views of the nature and sources of jurisprudence comprehend what is here to be said on this branch of our subject. If space permitted, we could profitably enlarge them much. There remain regions into which we have not even looked. There are the rise and progress of the different systems of laws, — the origin of their respective rules, — the influence of morals, of manners, and of religion upon each system, — the scientific and the practical view of. each, ^- the weight given to judicial decision in each ; and unnumbered other things of the like general sort : but only as the common law, in conjunction with the written constitutional and statutory laws of our own country, presents itself to us in the following investigations, can we now examine -these things. Nor, if we could, should we derive from the searching into other systems much useful assistance in the labor of learning our own law. In the adjudications of our common-law tribunals, we have the material from which more of science and of practical wisdom can be drawn than the mind of any one man has yet gathered in the entire juridical field of the world. And if, in the attempt to extract the sweet from this unsightly heap, the author might hope •for any near approach to complete success, it, alone, would be an aspiring to what no single writer on any system of laws ever, in fact, accomplished. 11 § 24 OTTTLINES AND INTRODUCTOBY VIEWS. [BOOK I. CHAPTER II. t INTO "WTTAT CLASSES THE LAW ADMOTISTEEED BY OUE GOV- ERNMENTAL POWERS IS SEPARABLE. § 22. The Law as a TTrdt — There is a sense in which the law of the land — meaning the law of human association as recognized among us and enforced by the governmental powers — is an entirety, without seam or division. The several parts of it, if we speak of parts, are alike authoritative over us all ; and, when the whole is rightly construed and carried into practical effect, there is no conflict between the parts. § 23. The Laws as diverse. — But in another sense there is a diversity. Our laws are derived from different immediate sources, and administered by different functionaries. This is, to a certain extent, so also in all other countries. But in this country we have one peculiarity not known elsewhere, exerting a decided influence, and presenting complications not always readily under- stood. It is — National and State. — We who live in particular States, consti- tuting the mass of our people, are under a double government and a double set of laws ; each of which governments is supreme and sovereign within its sphere, and the laws emanating &om each of which are alike binding upon us. The government of the United States embraces a larger sphere than do the govern- ments of the several States ; while, on the other hand, the State governments for the most part descend to minuter things. § 24. "Written Constitutions. — In this country also, unlike most others, and particularly unlike England whence . we derive our unwritten laws, we have written constitutions restraining the legislative power. There is a written Constitution of the United States, and each State has its written constitution. No State law can be valid if in conflict with the Constitution either of the State or of the United States. A law of the general government, to be of effect, must not be in conflict with the Constitution of 12 CHAP. n.J CLASSES OP LA"W. § 28 the United States. But no constitution, or statute, or local cus- tom, or other law written or unwritten, of any State, can, under any circumstances, restrain or annul the action of the general government proceeding within its constitutional sphere.^ § 25. Judicial and Diplomatic Law. — There exists, likewise, in our country, as in every other, the distinction between the law adininistered in judicial tribunals and the law acted upon in diplomatic and other like affairs between nation and nation. Again, — Military and Martial. — We have the distinction between the law which controls the judicial tribunals in the decision of causes, and the law which guides the military power in times of war. § 26. Unwritten and Statutory. — Another distinction is between the common, or unwritten, law and the statutes. § 27. The Tribunal or Administering Power. — Still other distinc- tions grow out of considerations relating to the particular tribu- nal, or power, which administers the law. § 28. Laws not of Judicial Cognizance. — It is a popular idea, — not unfrequently favored by politicians, who, if more enlightened, stUl deem it desirable to nurse the public delusion, — that there is in this country no law except what is administered in the courts. But the law, for example, which a single branch of the legislature, either of a State or of the nation, enforces when it excludes a member' because it deems him not to possess the quali- fications required by the Constitution,- is just as much a law of the land as is that whereby a man is ejected by judicial process from his estate. In the one instance, the administration of the law is exclusively with the legislative body by whom the exclu- sion is made ; in the other, it is exclusively with the judicial tribunal; and neither the legislative body nor the judicial has any jurisdiction to interfere with what belongs thus exclusively to the other. So the law by which the President of the United States, as commander-in-chief of the armies, expels an invading force from our shores, is precisely as much a law as is either of the others mentioned. And a further branch of the proposition is, that martial law and military law are, within their spheres, as truly laws of the land as is the law by which a creditor collects an ordinary debt in court. 1 Const. U. S. art. 6. And see Stat. Crimes, § 11-26. 13 § 29 OTJTUNES AND rNTEODTJCTOEY VIEWS. [BOOK I. Administration of these Laws. — The responsibilities which de- volve on judicial tribunals, in the administration of the laws within their cognizance, are admitted. But a 'judge, sitting in court, is under no higher obligation to cast aside personal motives, and his likes and dislikes of the parties litigant, and to spurn the bribe if proffered, than are other of&cial persons, acting under a jurisdiction to enforce laws not judicial. From the President, who has extensive powers of this sort, down through the mem- bers of the two houses of Congress, who have also great powers, to the lowest officer of the general government, and through the various grades of State officers, the duty is on all to adminis- ter the laws within their respective jurisdictions justly and im- partially. If we would inform ourselves how this duty is sometimes performed, we have only to observe, for example, the votes of a legislative body in the case of a contested election, and see how absolutely each member is judicially convinced that the contestant of his own party is entitled to the seat claimed. Happy will be the day when public virtue exists otherwise than in name ! § 29. Conclusion — WTiat for these Volumes. — This sketch of the classes into which the law of the land is divisible is not to be all filled up in the present work. It is' here presented that the reader may, at the outset, see more clearly what is the relation of the division of the law here to be imfolded, to the mass of the law which governs us. In general, it is the purpose of these vol- umes to treat only of the criminal law. Yet' a few particulars which do not more intimately belong to a work on criminal juris- prudence than to one on civil will be brought to view in them ; because otherwise things vital to our subject could be shown only in an imperfect light. 14 CHAP, ni.] THE CEIMINAIi LAW. § 32 CHAPTER III. THE CEIMINAL LAW. § 30. Law administered in Courts. — That part of the law of the land which is administered in the judicial tribunals is by far the most extensiye, and of supreme importance. This is the division to which the attention of those professional men who are termed lawyers is almost exclusively directed. Indeed, inconsiderate expressions have sometimes fallen from judicial lips, and from legal gentlemen not in office or politics, more or less in harmony with the utterances of politicians already mentioned, ^ indicating, in one form or another, the idea, that, contrary to what is written ia all our constitutions and daily witnessed in the actual work- ings of governmental affairs, there is no law except the law of our judicial tribunals, and where these are sUent, the voice of justice and the behests of the law are hushed and disregarded. § 31. Law not administered in Courts. — It is chiefly to the law administered in our courts of justice that these volumes are devoted. Yet it would be unwise to keep out of view in these discussions the fact that there are laws of another kind, equally binding upon us as are those which the courts administer. There- fore a glance will now and then be given to military and martial law, and laws of our national and State Constitutions adminis- tered by the legislative and executive powers. Yet we shall bear in mind also that — Criminal Law. — We are not treating of the entire body even of our juridical law, but only of the part termed the Criminal Law. § 32. Criminal Law, what. — It may seem a little strange, yet such is the fact, that no definition distinguishing the criminal law from the other branches of our juridical system can be given, the 1 Ante, § 28. 15 §32 OUTLINES AND INTEODUCTOBY TIE"WS. [BOOK I. correctness of which will be universally acknowledged. Still the author ventures the following : — How defined. — Criminal law treats of those wrongs which the government notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name. Views of the Definition. — "A crime or misdemeanor " is defined by Blackstone to be " an act committed or omitted in violation of a public law either forbidding or commanding it." ^ But this defining fails in precision ; neither is the definition given above as apt as sometimes a writer is able to produce. In the present state of the authorities we may hesitate to say, that in no case is any thing deemed a crime "unless pursuable in the name of the State, or, in England, of the sovereign ; but this is the general, if not universal, rule in the United States. Thus, a sale of intoxicating liquor without license is a criminal offence when a statute prohibits it under a penalty recoverable by indictment ; but otherwise when the proceeding is by action of debt, — a suit on a penal statute being deemed a civil cause.^ Judges fre- 1 4 Bl. Com. 5. And see further, as to what is a criminal offence, Eector v. The State, 1 Eng. 187 ; Durr v. Howard, 1 Eng. 461 ; People v. Ontario, 4 Denio, 260. 2 Indianapolis v. Fairchild, 1 Ind. 315, Smith, Ind. 122; Woodward v. Squires, 39 Iowa, 485 ; Keith w. Tuttle, 28 Maine, 326, 335 ; People v. Hoffman, 3 Mich. 248; United States v. Brown, Deady, 666. See, however, Eeed o. Cist, 7 S. & R. 183 ; Commonwealth v. Evans, 18 S. & R. 426. In Iowa and Michigan, a pro- ceeding against the place where liquors are sold has been deemed criminal. Part of Lot V. The State, 1 Iowa, 507 ; Hibbard V. People, 4 Mich. 125. And see, for further views on this general subject, Graham v. The State, 1 Pike, 79 ; Matter of Attorney-General, Mart. & Yerg. 285 Jacob V. United States, 1 Brock. 520 Mahoney v. Crowley, 36 Maine, 486 Brown v. Mobile, 23 Ala. 722; Ket- land u. The Cassius, 2 Dall. 365; The State V. Mace, 5 Md. 337, 349 ; Kimpton V. London and Northwestern Railway, 25 Eng, L. & Eq. 557 ; Matter of Eggington, 2 Ellis & B. 717, 23 Law J. n. s. M. C. 41, 18 Jur. 224, 24 Eng. L. & Eq. 146; 16 Leavensworth v. Tomlinson, 1 Root, 436 ; Reals V. Thurlow, 63 Maine, 9. In Bel- cher !>. Johnson, 1 Met. 148, it is held, that the proceeding to obtain judgment for a militia fine is civil and not criminal because civil in form. See also Buck- waiter V. United States, 11 S. & R. 193 Ellmore v. Hoffman, 2 Ashm. 159 Rogers v. Alexander, 2 Greene, Iowa, 443; Dickinson v. Potter, 4 Day, 340 Houghton V. Havens, 6 Conn. 805 ; Peo- ple V. Ontario, 4 Denio, 260; Eason The State, 6 Eng. 481; Attorney-Gen- eral V. Radloff, 10 Exch. 84, 26 Eng. L. & Eq. 413 ; Dyer v. Hunnewell, 12 Mass, 271 ; Winslow v. Anderson, 4 Mass. 376. In The State v. Pate, Busbee, 244, it is said, that the test is to inquire whether the proceeding is by indictment or ac- tion ; if the former, the cause is criminal ; if the latter, it is civil. That the action — Webster v. People, 14 111. 365 — is in the name of the State does not make the cause criminal. See also J. F. Stephen Crim. Law, 6, and authorities cited by him. Likewise Reg. a. Ferrall, 1 Eng. L. & Eq. 575, 4 Cox C. C. 43i; 16 Jur. 42; Ward V. Bell, 7 Jones, N. C. 79. A pro- ceeding to compel sureties of the peace CHAP, ni.] THE CEIMINAX, LAW. § 34 quently, however, speak of things as belonging to the general department of criminal jurisprudence, though the form of the procedure is civil ; ^ but we should hardly treat of such things under the title Criminal Law. On the other hand, a mandamus is said to be a criminal process to enforce civil rights ; ^ yet we do not ordinarily regard it as belonging particularly to the criminal law. The words " criminal cases," in the Constitution of Geor- gia, are held not to apply to violations of the local by-laws and police regulations of town and city corporations ; ^ but it is oth- erwise in Illinois.* According to late English cases, a matter is not necessarily criminal merely because an indictment will lie ; ® or civil, merely because the proceeding is at the suit of a private person.^ That an action is in the name of the State, and its object is the recovery of a penalty, does not make it criminal.''' § 33. Criminal and CivU blend. — Indeed, the criminal and civil departments of the law somewhat blend ; consequently the line dividing them is neither at all points distinct, nor drawn by the hand of an exact science. And where there is no doubt to which department a particular controversy belongs, it may still be so like something else of the other department as to be governed partly by its rules ; while yet it follows the rules of its own department in other respects.^ § 34. How these Discussions divided. — In these two volumes on the " Criminal Law," we shall look first at those principles which has been held to be criminal. Deloohery whether the real end or object of the V. The State, 27 Ind. 521. proceeding is punishment or reparation. 1 See 2 Bishop Mar. & Div. § 233. See Mirror of Justice, c. 11, sect. 3 ; 3 2 The State v. Bruce, 1 Tread. 165, Inst., and 1 Keeve, Hist. Eng. Law, 32. 174. The mere fact of a Jine no more shows 8 Williams a. Augusta, 4 Ga. 509. that an indictment is a criminal proceed- See, however, Slaughter w. People, 2 ing, than the ancient fine in trespass. Doug. Mich. 334, note; Mixer v. Man- Vide Reg. ». Chorley, 12 Q. B. 515; new istee, 26 Mich. 422. trial allowed on such indictments. And * Wiggins V. Chicago, 68 HI. 372. see Reg. v. Russell, 3 E. & B. 942, where, ^ Bancroft v. Mitchell, Law Rep. 2 semble, the dictum of Coleridge, J., is the Q. B. 549. In Eeg. v. Paget, 3 Post. & better opinion." And see Rex v. Cotes- P. 29, it was held, that an indictment for batch, 2 D. & R. 265. the obstruction of a highway intended ^ Parker v. Green, 9 Cox C. C. 169. to effect the remoral of the nuisance, is ' The State v. Hayden, 32 Wis. 663 ; in substance a civil, and not a criminal United States v. Brown, Deady, 566. case. The reporter, in a note, says, that And see The State v. Leach, 60 "the distinction taken in the most an- Maine, 58. cient and approved authorities is, not ^ See, for example, post, § 1074-1076, whether the Crown is a party (for so it and the places there referred to. is in mandamus and quo warranto), but VOL. I. 2 17 § 35 OUTLINES AND INTKODUCTOEY -VIEWS. [BOOK I. pprvade alike all its branches. ' Then we shall consider the spe- cific offences. The former will furnish the chief topics for this first volume ; the latter, for the second. Criminal Procedure. — The Subject of " Criminal Procedure," including what, in technical phrase, are termed Pleading, Prac- tice, and Evidence, is treated of in a ;work of two volumes, essen- tially separate from this, while yet it constitutes with this and " Statutory Crimes " a connected series, so that what is discussed in one work is not repeated in another. statutory Crimes. — The leading and older statutory offences, partaking of the natiire of common-law crimes, are treated of in the present work as to the law, and in " Criminal Procedure " as to the pleading, practice, and evidence. In a separate work ,in one volume entitled " Statutory Crimes," the rules of statutory interpretation are considered, with the leading doctrines of pro- cedure on statutes, views of all the statutory offences, and particu- lar and full discussions of the modern and the minor and more purely statutory ones. This work embraces both law and pro- cedure. § 35. Common Law as to Crimes. — It is plain, both on principle and authority, that the common law must extend as well to crim- inal things as to civil.^ Exceptional States. — In Ohio, the court "decided, that the common law, although in force in this State in all civil cases, could not be resorted to for the punishment of crimes and misde- meanors." 2 And, in Indiana, by statute, " crimes and misde- meanors shall be defined, and the punishment thereof fixed, by statutes of this State, and not otherwise." ^ So, in Florida and 1 The State v. Danforth, 8 Conn. 112; lias also been held, by the majority of The State v. Rollins, 8 N. H. 550 ; The the judges, to be in force in Minnesota. State V. Counsil, Harper, 53; Common- The State u. Pulle, 12 Minn. 164. wealth V. Newell, 7 Mass. 245 ; The State 2 Key v. Vattier, 1 Ohio, 132; Van- K. Bosse, 8 'Rich. 276; Brookway w. Peo- valkenburg « The State, 11 Ohio, 404; pie, 2 Hill, N. Y. 558, 562; The State v. Allen ;;. The State, 10 Ohio State, 287, Twogood, 7 Iowa, 252; Smith v. People, 301 ; Smith v. The State, 12 Ohio State, 25 111. 17 ; Barlow v. Lambert, 28 Ala. 466. See Young v. The State, 6 Ohio, 704 ; The State v. Cawood, 2 Stew. 360 ; 435, 438 ; Bloom v. Richards, 2 Ohio Ex parte Blanchard, 9 Nev. 101 ; Chand- State, 387. This Ohio doctrine seems to ler V. The State, 2 Texas, 305, 309; be partly, at least, adopted in Iowa. Grinder v. The State, 2 Texas, 338 ; The Estes o. Carter, 10 Iowa, 400. State V. Odum, 11 Texas, 12. But in ' Ind. R. S. of 1852, p. 352; Hackney Texas it is so by statute. Hartley Dig. v. The State, 8 Ind. 494 ; McJunkins v. Laws, 120. The common law of crimes The State, 10 Ind. 140, 144 • Maloue v 18 CHAP, in.] , THE CBIMINAL LAW. §36 Missouri, there are legislative enactments less broad, yet still restricting, to a limited fine and imprisonment, the right to pun- ish for common-law offences.^ § 36. How in Scotland. — In Scotland, the doctrine that the common law of the country embraces the criminal as well as the civil department, is held in a very clear and just light. There the courts will not listen to the objection of a defendant, that the thing alleged against him is not laid down either in any statute or in any judicial decision as a crime.^ The State, 14 Ind. 219; Beal v. The State, 15 Ind. 378 ; Marvin v. The State, 19 Ind. 181 ; Jennings v. The State, 16 Ind. 335. Indiana Interpretations. — The last-cited case involves a doctrine which, if carried to its full consequences, must, unless legislation is extraordinarily- circumspect, prove a serious embarrass- ment to the punishment of crime. A statute made punishable " notorious lewdness or other public indecency ; " and the court held, that; as it did not " de- fine " what it termed " public indecency," it was in conflict with the statute quoted in our text, and therefore void. See also Marvin v. The State, 19 Ind. 181. We may add, that, as the statute does not " define " " notorious lewdness," the same result would seem to follow under this clause also, thus interpreted. So, in most of our States, the majority of the statutes prohibiting offences do not " de- fine " them, but leave their definitions to the common law, or to the civil law, or to any other system of law in which they were before known in the community, or to lexicography, or to the common un- derstanding of mankind. See Stat. Crimes, § 242, 347. Assuming that these two Indiana statutes are in conflict, so that if the first were incorporated into the Constitution, the other would be void, still, as both are mere statutes, the first, it would seem in reason, should be construed as limited and qualified by the other ; thus, in effect, both would stand. See Stat. Crimes, § 126. The words " public indecency " are well enough de- fined in the common law of crimes ; so that the provision, in this view, becomes specific and direct. Since writing the above, I find, on looking down the re- ports, that the Indiana court has already changed its course of adjudication, sub- stantially in accordance with this reason- ing. Thus, after the enactment of the statute quoted in my text, it was further enacted that " every person who shall perpetrate an assault or assault and bat^ tery, with intent, &c., shall," &c. ; and the court held that this statute was valid. Referring to the above cases, and some others of the like kind, Trazer, J., said : " Upon careful consideration, we are of opinion that these cases are not good law, as applicable to the question now in hand. That the legislature cannot, in such a matter, impose limits and restric- tions upon its own future action, and that, when two statutes are inconsistent, the last enactment stands as the law, are very plain propositions, which, we pre- sume, will not be controverted." Wall V. The State, 23 Ind. 150, 158. And see Stat, Crimes, § 31. 1 Thompson Dig. Fla. Laws, 21 ; Mis- souri R. S. of 1845, c. 100, § 2 ; Ex parte Meyers, 44 Misso. 279. In Florida it is also provided, that no person shall be "punished by the said common law when there is an existing provision by the statutes of the State on the subject." Thompson Dig. ut supra. ^ In one case, the Lord Justice-Clerk remarked : " It is of no consequence that the charge is now made for the first time. Tor there are numerous instances in which crimes which had never before been the subject of prosecution have been, found cognizable by the common law of this country. On this point I refer particularly to the authority of Baron Hume (Vol. I. p. 12). It appears that that learned author had not been 19 §38 OTTTLIKES AND INTEODIJCTOEY VIEWS. [BOOK I. § 37. How it should be. — It is noticeable, that, while some States, wherein the common law originally prevailed, and still prevails in other things, have excluded from judicial cognizance all common-law crimes, punishing as criminal nothing except what is defined — or, at least, mentioned — by legislative enact- ment, Louisiana^ and Texas,^ not originally governed by the common law, have expressly introduced it as to crimes. That the latter is the wiser legislation, few who carefully study this subject will doubt.^ No well-founded reason can be given, why, if we are to have a common law, it should not be applied to acts wrongfully committed against the entire communitj'-, as well as to those committed only in violation of individual rights.* If a dis- tinction must be made, rather let the civil part be abrogated, but by all means preserve the criminal. § 38. Extent of Common-law Sources. — The Common law which our forefathers brought to this country from England includes, not only the principles administered there in what are technically termed the courts of common law, but in all other judicial tribu- nals. Thus, though we have no ecclesiastical judicatories, yet Bufficiently aware of the power of the common law in England ; for, after stat- ing that ' it seems to be held in England that no court has power to take cog- nizance of any new offence, although highly pernicious, and approaching very nearly to others which have been pro- hibited, until some statute has declared it to be a crime, and assigned a punish- ment,' he continues, ' With us the maxim is directly the reverse ; that our supreme criminal court have an inherent power, as such, competently to punish (with the exception of life and limb) every act which is obviously of a criminal nature, though it be such which iu time past has never been the subject of prosecution.' " And Lord MoncreifE added : " We are all agreed, that the present case is the first example of an offence of this nature hav- ing been made the subject of an indict- ment in this court. But that will go but a very little way to settle the question, unless we were also agreed, that that cir- cumstance must be sufficient to render it incompetent for the public prosecutor so to proceed against it. Now it cannot, in my apprehension, be maintained that 20 nothing is an indictable offence, by the common law of Scotland, which has not been indicted before. Indeed, to hold this to be law seems to me to be impossi- ble, without running the whole theory of the criminal system into absurdity. For the common law itself must have had a beginning." GreenhufE's Case, 2 Svvin- ton, 236, 259, 264, 265. 1 The State v. Mullen, 14 La. An. 570, 572 ; The State v. Davis, 22 La. An. 77. 2 Ante, § 35, note. 3 In Ohio, under the rule which ex- cludes crimes not statutory from punish- ment, the court was compelled to hold that it was no offence for a man to at- tempt to have carnal knowledge of a girl under ten years of age when she con- sents. See Stat. Crimes, § 493. Not without evident mortification the judge added : " In this respect our little ones are not so well protected from demoraliz- ing influences as are the children of the country from which we, mainly, derive our laws." Smith v. The State, 12 Ohio State, 466, 474. * And see Bishop First Book, § 59. CHAP. in.J THE CEIMIKAl, LAW. § 39 SO much of the law administered in them as relates to the civil affairs of men,^ and is applicable to our situation, has come to us as a part of our common law ; and, by legislative enactments, it is, variously distributed among our courts. Criminal Laiisr of Scclesiastical Courts — (Fornication — Adultery). — Now, there are criminal offences cognizable, in England, by the ecclesiastical judges ; yet not criminal in precisely the sense of the general common law, but rather as injiu-ing the souls of men. The punishment is ordinarily to pay the costs of prosecution,^ and do penance ; the usual penance being to make confession in the vestry of the church,^ unless the judge will consent to receive, in commutation, " an oblation of a sum of money for pious uses," * or unless the penalty is remitted on accouht of his iU health, or for some other cause.^ But obviously, in the absence both of ecclesiastical courts and an established religion, these offences and punishments do not exist in this country. Therefore, though fornication and adultery are in England cognizable criminally under the ecclesiastical law,^ yet, in the absence of- legislation, they are not punishable in our common-law tribunals, unless, indeed, they are open and notorious, amounting to a public nuisance.^ § 39. Ecclesiastical, continued. — Still, though we have not, in form, the ecclesiastical crimes and punishments, perhaps, in prin- ciple, our courts ought to hold as punishable here some of the offences which in England are cognizable only in the ecclesiasti- cal. Those tribunals sit under authority of law ; and, though their forms of procedure and punishments are not the same which prevail in the common-law courts, the latter might well decline to pursue light offences over which the former exercised a correcting power. This view leaves open the question concern- ing each particular offence which in England is cognizable only in the ecclesiastical courts ; the offence may, if this view is 1 1 Bishop Mar. & Div. § 66 et seq. 5 Coote Ec. Pract. 274 ; Otick v. " Palmer v. Tijou, 2 Add. Ec. 196, Ramsdale, 1 Curt. Ec. 34, 37 ; Woods u. 203 ; Griflaths ». Reed, 1 Hag. Ec. 195, Woods, 2 Curt. Ec. 516, 529 ; Burgess 210 ; Newbery v. Goodwin, 1 Phillim. v. Burgess, 1 Hag. Con. 384, 393. 282, 286. 6 2 Burn Ec. Law, Phillim. ed., title 3 Coote Ec. Pract. 269, 272 ; Courtail Lewdness, 401 ; Wheatley v. Fowler, 2 V. Homfray, 2 Hag. Ec. 1 ; Blaekmore v. Lee, 376 ; Coote Ec. Pract. 145. Brider, 2 Phillim. 359, 362, note. ' The State ^. Moore, 1 Swan, Tenn. * 3 Burn Ec. Law, Phillim. ed., title 136 ; The State v. Smith, 32 Texas, 167 ; Penance, 101 ; 2 Inst. 489. , post, § 501 ; Stat. Crimes, § 625, 654, 655. 21 § 42 OUTLINES AND INTEODTJCTOEY VIEWS. [BOOK I. adopted, be indictable or not with us, according as it falls within or without the boundaries of crime drawn by our general criminal law. § 40. Authorities in Criminal Law. — The principal law authori- ties, therefore, which we shall have occasion to consult in the fol- lowing pages, are our own judicial decisions, and, from England, the reports of decisions in criminal causes at common law, and some old text-books which have acquired a standard reputation. § 41. Continued. — Of course, our subject will now and then sweep a wider English field than is here indicated ; while, in the United States, immense regions of legal wisdom lie before us, unknown to the English investigator. Foreign Laws. — Occasionally, too, we shall look into the Scotch arid other foreign laws, yet not often ; for, as a Scotch judge once said, "In consideriug this question, I pay very little regard to what may be the law of other countries in similar cases. The laws of different nations, and especially the criminal laws, must always depend on the character and habits of the people, and other circumstances.-" ^ The Civil Law. — Especially, in this field, can no advantage be derived from comparisons of the civil law with ours. Though that was a cultivated jurisprudence, and it has left its impress in no slight degree upon the common law as to civil affairs, and though even the claim is not quite unfounded that some resem- blance to the civil law may be seen in our criminal laws, still, happily for the cause of true liberty, and for ,the administration of criminal justice in those countries where the corimon law pre- vails, the civil law of crimes is in no proper sense the parent of ours, it has no authority in our criminal courts, and no wisdom to illumine the understanding superior to the rays of natural light which God has given. § 42. Reason and Conscience. — Besides these authorities, there is another, sometimes apparently disregarded, but never in fact, — derided, it may be, but as certainly bowed before as the forest tree bows before the whirlwind, — namely, the force of the com- bined reason and conscience of mankind. No judge ever did or could stand long in direct opposition to this power. Before it bend the precedents, the statutes, the judicial judgment, and even 1 Lord Justice-General, in Alston's Case, 1 Swinton, 433 473 22 CHAP, in.] THE CRIMINAL LA"W. § 42 the private opinion of the incumbent of the bench. Therefore, in preparing a legal treatise, it is an author's duty to consider, step by step, what is the reason which really controls each deci- sion and formula of doctrine, and whether it accords with funda- mental principle, original justice, and natural right, — whether, in other words, the' conscience of mankind will hereafter pro- nounce it just. For a law book is written, not for the past, but for the future, — not to impart mere historical knowledge, but to help practitioners advise their clients, and win their causes, in matters not yet transpired. Therefore it is — to make his books practically useful — that the author of these volumes continually directs attention to the reasons which underlie the decided points of the law. Moreover, the legal reason is the law;^ and the adjudged points are always wrong — never law — when counter to the legal reason. 1 Bishop First Book, § 80 et seq., and the accompanying chapters. 23 § 44 OTTTLESIIS AND INTEODirOTOKT VIEWS. [BOOK I. CHAPTER IV. MILITABT AND MAETIAL LAW. § 43. Why discussed here. — Though the primary object of this work is to explain the criminal law as administered in our judi- cial tribunals, yet, to distinguish it from military and martial law, with which it is sometimes blended in the apprehensions of men, and for some other reasons of convenience and instruction, the present chapter becomes important. § 44. Military Law, what and how administered. — Military law is " a body of rules and ordinances prescribed by competent au- thority for the government of the military state, considered as a distinct community." ^ It is deemed, in a certain sense, criminal law.^ But it is not properly such, as the latter term is commonly understood in the legal profession. With us, it is chiefly statu- tory ; but, to some extent, it has a common law derived from the mother country, being the law which was there anciently admin- istered in the court of chivalry ,3 or of the constable and marshal. This tribunal, like the chancery and admiralty courts, proceeded after the manner of the civil law ; which, as Hawkins observes, '\is as much the law of the land in such cases wherein it has been always used, as the common law is in others." * At present, both in England and the United States, the military law is ad- ministered chiefly in courts-martial.^ 1 O'Brien Courts-Martial, 26; The 149; Opinion of the Justices, 3 Cush. State V. Davis, 1 Southard, 311. 586 ; White v. MoBride, 4 Bibb, 61 ; Al- 2 3 Greenl Bv. § 469. den v. Ktts, 25 Maine, 488 ; Hall v. 8 1 McArthur Courts-Martial, 8d ed. Howd, 10 Conn. 514 ; Wilkes v. Dins- 13, 18, 20. man, 7 How. U. S. 89, 123 ; The State v. i 2 Hawk. P. C. 6th ed. b. 2, c. 4, § 7, Davis, 1 Southard, 811 ; 3 Greenl. Ev. 11. §470. Military Jurisdiotiou — Courts. s Concerning courts-martial, see Bell — "Military jurisdiction is of two kinds: V. Tooley, 11 Ire. 605; Brooks v. Adams, first, that which is conferred and defined 11 Pick. 441 ; Mills v. Martin, 19 Johns, by statute ; second, that which is derived 7 ; Wise v. Withers, 3 Cranch, 881 ; Con- from the common law of war. Military tested Election of Brigadier-General, 1 offences under the statute law must be Strob. 190 ; Coffin v. Wilbour, 7 Pick, tried in the manner therein directed • but 24 CHAP. IV.] MILITAEY AND MARTIAL LAW. § 45 § 45. Military Law distinguished from Martial. — Military law is distinct from martial law, with which it has sometimes been in- considerately blended.^ Martial Law. — O'Brien says : " Martial law, as Blackstone truly remarks, is in fact no law. It is an expedient, resorted to in times of public danger, similar, in its effect, to the appoint- ment of a dictator. The general, or other authority charged with the defence of a country, proclaims martial law. By so doing he places himself above all law. He abrogates or sus- pends, at his pleasure, the operation of the law of the land. He resorts to all measures, however repugnant to ordinary law, which he deems best calculated to secure the safety of the State in the imminent peril to which it is exposed. Martial law, being thus vague and uncertain, and measured only by the danger to be guarded against, exists only in the breast of him who pro- claims and executes it. It is contained in no written code. . . . Despotic in its character, and tyrannical in its application, it is only suited to those moments of extreme peril, when the safety, and even existence, of a nation depend on the prompt adoption and unhesitating execution of measures of the most energetic character. . . . The Constitution of the United States has wisely, and indeed necessarily, permitted the proclamation of martial law in certain specified cases of public danger, when no other alter- native is left to preserve the State from foreign invasion or do- mestic insurrection." ^ Now, we have seen, that no community can exist without law.^ Contrary, therefore, to some of the above observations, the effect of martial law, truly viewed, can only be to change the administration of the laws, to give them a rapid force, and make their penalties certain and effectual, not to abrogate what was the justice of the commu- nity before. The civil courts are suspended ; but, in reason, the new summary tribunals should govern themselves in their pro- military ofEences which do not come the ' Rules and Articles of War,' or the within the statute must be tried and pun- jurisdiction conferred by statute on ished under the common law of war. courts-martial, are tried by military com- The character of the courts which exer- mission." Lieber Instruct, pi. 13. And cise these jurisdictions depends upon the see Ex parte Vallandighara, 1 Wal. 243. local laws of each particular country. ' 1 McArthur Courts-Martial, 3d ed. In the armies of the United States, the 32 ; S Greenl. Ev. § 468. first is exercised by courts-martial; 2 ygj-ien Courts-Martial, 26. while cases which do not come within ^ Ante, § 5 et seq. 25 § 47 OUTLINES AND INTKODTJCTOEY VIEWS. [BOOK I. ceedings, as far as circumstances will admit, by established prin- ciples of justice, the same which had before been recognized in the courts.^ In the extreme circumstances which justify martial law, it may be proclaimed by a military commander ; ^ or, as in the Dorr rebellion in Rhode Island, by the legislature of a State.^ §46. Military Law not subvert the Civil — How subordinate. — Military law, in the United States and England, however the fact may be elsewhere, is in no way subversive of the other laws, but is in harmony with them. Says O'Brien, concerning the United States : " It is an accumulative law. The citizen, on becoming a soldier, does not merge his former character in the latter. . . . With regard to the civil powers and authorities, he stands in precisely the same position he formerly occupied. . . . He still re- mains subject to them, and is bound to assist and aid them, even in the apprehension of his military comrades. There is no prin- ciple more thoroughly incorporated in our military, as well as in our civil code, than that the soldier does not cease to be a citizen, and cannot throw off his obligations and responsibilities as such. The general law claims supreme and undisputed jurisdiction over all. The military law puts forth no such pretensions. It aims solely to enforce, on the soldier, the additional duties he has assumed. . . . These two systems of law can in no case come in collision. The military code commences where the other ends. It finds a body of men who, besides being citizens, are also sol- diers." * So, in England, " the military law is subordinate to the civil and municipal laws of the kingdom, and does not in any way supersede those laws ; but they materially aid and co-oper- ate with each other, for the good order and discipline of the army in particular, and for the benefit of the community in general." ^ § 47. Proceed by Rule. — Of course, then, military law and its administration proceed by rule. So, we have seen,^ even martial law ought to do. The doctrines of right, as established by the 1 And see Luther «. Borden, 7 How. 45 ; Commonwealth v. Blodgett, 12 Met. U. S. 1; Commonwealth c^. Blodgett, 12 60. See post, § 48, 49. See also, on Met. 56 ; Commonwealth v. Fox, 7 Barr, Martial Law, 1 MoArthur Courts-Martial, 836 ; People v. MoLeod, 1 Hill, N. Y. 377, 35. 415, 435 ; 3 Greenl. Ev. § 4^9. " O'Brien Courts-Martial, 26, 27. ^ 1 Bouv. Inst. 53 ; Johnson v. Dun- ' 1 McArthur Courts-Martial, 3d ed. can, 3 Mart. La. 530 ; 1 Kent Com. 841, 33, and see on p. 84. note. 8 Ante, § 45. » Luther v. Borden, 7 How, U. S. 1, 26 CHAP. IV.] MILITAEY AND MARTIAL LAW. § 49 common consent of the people, and evidenced by the decisions of the courts, should in no emergency be violated, because no emer- gency can call for the commission of wrong. Emergencies may demand new methods and prompt movements in executing the right ; but never the subversion of it, and the execution of the wrong. § 48. States as to Martial Law. — The Constitution of the United States declares, that "no State shall, without the consent of Congress, . . . engage in war, unless actually invaded, or in such imminent danger as will not admit of delay ;"^ yet, as we have seen,^ when, without the consent of Congress, the legislature of Rhode Island declared, for a temporary purpose, and under the pressure of an internal rebellion against the State authorities, .martial law throughout the State, this was held to be constitu- tional. "Unquestionably," said Taney, C. J., "a military gov- ernment, established as the permanent government of the State, would not be' a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evi-^ dently contemplated no such government." The military gov- ernment, in this case, had been set up only to meet an emergency, and the learned judge added : " Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority." ^ § 49. United States and States as to the same. — We have seen,* that the citizen of the United States, who is also a citizen of a State, owes a double allegiance : first, to the government of his own State ; secondly, to the government of the United States. And if the State government can declare martial law over him, it is probable that the United States government can also. The difficulty, in the case of the State, was, whether, as by the United States Constitution the State has no war-making power without the consent of Congress, she, without such con- sent, can declare martial law, which is an act of war. The decision which holds that she can is perhaps justified on the ground, that high necessity may be permitted for the moment to override the express words even of the Constitution ; or, per- 1 Const. U. S. art. 1, § 10. s Luther u. Borden, 7 How. U. S. 1, 2 Ante, § 45. 45. * Ante, § 23. 2T § 50 OUTLLNBS XSD INTRODITCTOET VIEWS. [BOOK I. haps, by a very liberal interpretation, a State may be said to be " invaded " when she is beset by a domestic rebellion.^ But, as ■we shall presently see, the right to declare martial law, as respecis the United States, rests on a broader and firmer foundation. § 50. Military and Martial distinguished under United States Con- stitution. — The Constitution of the United States provides, that Congress shall have power, among other things, " to make rules for the goveirnment and regulation of the land and naval forces ; " ^ also, that " the President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." * In pursuance of the former of these two powers — vsTritten Military Law — Unwritten. — Congress has, by legisla- tive act, established what are termed Articles of War for the government of the armies ; and., in pursuance of the latter, the War Department has caused to be drawn up and promulgated, under the sanction of the President, regulations for the army, and instructions for the government of the armies in the field ; to which may be added orders issued from time to time by the various commanding officers. This is what may be termed the written military law of the country. There is also, in this de- 1 K my opinion were of importance, under art. 4, § 4, of the Constitution, as against that of the Supreme Court of which provides that " the United States the United States, dissented from by one shall . . . protect each of them [the judge only, I should deem the cireum- States] ... on application of the legis- stances of the Rhode Island case itself to lature, or of the executive (when the strengthen the doubt, whether the true legislature cannot be convened), against object of the provision of the Constitu- domestic violence." On such an applica- tion, cited in the last section, was not, tion, it would be determined by compe- among other things, to restrain the State tent authority which was the rightful authorities from entering into a war, government, and the conflict of arms without the concurrence of those of the would ordinarily be avoided. I cannot United States, even to suppress a rebel- but think that this is the true meaning of lion at home. In this Rhode Island case, the Constitution. This view would not there were two parties, each of which prevent the State from Using its military claimed to be the lawful government of power to enforce the decrees of the civil the State ; and, as the case decides, it de- tribunals, and to assist the civil officers volved on the United States authorities in keeping order and the like. It goes to determine between the two. When, only to the extent, that, when the ques- theref ore, it became apparent that the tion becomes one of overturning the civil question could not be settled at home power; and setting up in the place of it without a conflict of arms, and the con- the law of war, the United States shaU flict was in ferment, the governor at the be called in. head of either party should apply to the ^ Const. U. S. art. 1, § 8. authorities of the United States for help ' Const. U. S. art. 2, § 2. 28 CHAP. IV.] MILITARY AND MARTIAL LAW. | 52 partment of the law, as in all others, an unwritten, or common, law.^ The written and unwritten constitute together the body of our law military. But this body of law contains more or less directions concerning martial law. § 51. United States Martial La'w — ^Compared with Military^. — " Martial law," says Lieber, in his Instructions for the Govern- ment of the Armies of the United States in the Field, sanctioned and promulgated by the President and the War Department, " is simply military authority exercised in accordance with the laws and usages of war." ^ If we liken military law to the rules by which legislatures and courts are constituted and their inter- nal machinery is- moved, then martial law will correspond pretty nearly with the laws enacted by the legislature and enforced by the courts for the government of the comfnunity outside. Mar- tial law is rather the law by which the military power governs others than that by which it regulates its own internal affairs and governs itself. § 52. Martial Law elastic. — Martial law is elastic in its nature, and easily adapted to varying circumstances. It may operate to the total suspension or overthrow of the civil authority ; or its touch may be light, scarcely felt, or not felt at all, by the mass of the people, while the courts go on in their ordinary course, and the business of the community flows in its accustomed channels.^ Test whether it exists. — The test by which to determine whether martial law prevails or not, in a particular place, is to consider whether, in a case of conflict between the civil and military authorities, the former bow to the latter, or the latter to the for- mer. Thus, in New Orleans, when General Jackson, assuming with his army the control of the city, arrested one whom a judge thereupon attempted to discharge on a writ of habeas corpus, and upon this the general arrested the judge, and sent him outside of his lines and the city, martial law prevailed ; but, when afterward ^ Ante, § 45. 2. As I understand the opinion, the 2 Lieber Instruct, pi. 4. judge deemed martial law to be no law 3 I cannot doubt that this statement whatever, if indeed he deemed any thing is as near absolute legal truth as I am to be law except what is enforced in the capable of malcing it; though it appears judicial tribunals. But a mere dictum to me to stand at a great remove from from the bench carries no weight be- truth, if we are to accept as sound in yond that of its own inherent reasons, legal doctrine all the language of the See further, as to this case, post, § 64, learned judge who delivered the major- note. ity opinion in Ex parte Milligan, 4 Wal. 29 § 53 OUTLINES AKD INTEODTJCTOET VTEWS. [BOOK I. the judge returned, and in Ms seat fined the general as for a con- tempt, and the latter paid the fine, the civil power prevailed. And if the judge had not, at the former time, attempted to resist the general, but had yielded as gracefully to the military power as the general afterward did to the civil, martial law would have prevailed the same ; while, at the latter time, the civil power would have equally prevailed, though there had been neither arrest nor fine, because the military had withdrawn its hand. More or less Stringent. — "Martial law," say the Instructions by Lieber, approved by the military department of our govern- ment, " should be less stringent in places and countries fully occupied and fairly conquered. Much greater se^verity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed — even in the commander's own country — when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion." ^ § 53. No Martial Law in Peace. — It is a principle of acknowl- edged law, prevailing in our own country, in England, and very lextensively in other civilized countries at the present day, that, in times of peace, and in the absence of any such domestic rebel- lion as calls into action the power of war, there can be no martial law ; because, it is said, the military power must be subordinate to the civil. How in Time of War. — To what extent this principle holds sway in a time of war is a question upon which opinions differ. The fine which the New Orleans judge imposed on General Jack- son — the arrest of the. judge was just before the close of our war of 1812, and the fine imposed on the general was just after its close — was not refunded to that officer until after the lapse ' of many years, when, at length, an act for this purpose passed both houses of Congress, and was approved by the President. And, even then, many senators and representatives who voted for the bill hesitated to say, that it was lawful and constitutional for a general to declare martial law over a city which in a time of war he was defending ; while several, who also_ favored the proposed indemnity, took the ground that the act of declaring martial law 1 Lieber Instruct, pi. 5. 30 CHAP, rv.] MILITARY AND MAKTIAL LAW. § 56 was, on the one hand, unlawful ; and, on the other hand, neces- sary, and they deemed it commendable in a general to do a neces- sary unlawful act. § 54. Necessity as justifying Martial Law. — But we shall see, in the course of the present volume, that, whenever an act is neces- sary in the legal sense, it is, because thus necessary, lawful ; and the rule of necessity furnishes the rule of the law.^ Plainly to com- mend an unlawful thing, on the ground that it is necessary, is to confound, not only all legal distinctions, but all moral ones also. It is to overturn into one lump obedience and disobedience, virtue and vice, heaven and hell. Nothing so absurd can pertain to any system of law or enlightened government. § 55. Power under the National Constitution to declare Martial Law : — Reasonably plain — Beneficial. — The question of the power of official persons administering the national government to declare martial law is not, perhaps, quite so clear on the face of our Consti- tution as are some others. Yet it is believed that the only real dif- ficulty in it lies in the arts of aspirants for office and their abettors, who, to win the votes of the unthinking, represent themselves to be the champions of the people against what they call the tyrann;^ of martial law. The truth is, that martial law is the only kind of law adapted to those circumstances in which a reasonable mili- tary power will ask it to prevail ; and no people or portion of the people can exist even for a day without some kind of law govern- ing them. If the civil tribunals, in the best of faith, endeavor to stretch their precedents and adapt their processes to the emergen- cies which call for martial law, they so change the law of their pro- cedure, which must prevail afterward, as to render it unfitted for times of peace. And as martial law necessarily passes away with the emergency which called it into action, a wise people, fit for freedom, will bow thankfully before it, rejoicing that thus they preserve, uncorrupted by exceptional and temporary influences of a disturbing sort, the permanent jurisprudence of the civil tri- bunals. §' 56. Not a Judicial Power. — The Constitution does not confer on the judges all governmental power, but simply the " judicial." " The judicial power of the United States shall be vested in one 1 Post, § 346-355, 824. 31 § 58 OUTLINES AND INTEODTJCTOEY VIEWS. [BOOK I. supreme court, and in such inferior courts as the Congress 'may from time to time ordain and establish." ^ Now, here is no power of martial law, because it is not a thing pertaining to " judicial power." The United States courts cannot establish it, on the one hand ; or, on the other hand, overthrow or interfere with it, if lawfully established by another department of the govern- ment. Their " power," either for or against, does not extend to martial law. § 57. Judicial distinguished from 'War Power. — The Constitution provides rules for the guidance of " the judicial power." In some of its clauses, express words mention the " judicial " as the power to be guided ; in others, the form of the language points to this power alone. Of the latter, let the fourth and fifth arti- cles of the Amendments serve as samples. They are, consecu- tively, as follows : " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or af&rmation, and particularly describing the place to be searched, and the persons or things to be seized. No person shall be held to answer for a Hapital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use with- out just compensation." Perhaps the last clause is properly con- strued, as it is by the courts, to be a limitation upon the legislative as well as the judicial power ; and indeed the whole restrains the legislature from passing any act which shall command the courts to violate, in their proceedings, the provisions thus laid down. But these provisions have nothing to do with the martial power of war, or with the law which this power executes ; and that this is so, the form of the expression just as conclusively shows as if express words of limitation were used. § 58. War Power distinct from Judicial. — It is obvious that, if I Const. TJ. S. art. 8, § 1. 32 CHAP, rv.j MILITARY AND MAE.TIAL LAW. § 60 no man could, by the war-arm of the government, be piit to death, or be deprived of his liberty, nntU first he had been indicted by a grand jury and found guilty by a petit jury, we should make, as a nation, but a poor headway in martial affairs ; and, in fact, the restriction would be tantamount to a prohibition of all war. Then, if, looking into other parts of the Constitution, we find war to be a thing provided for in it, we are fo draw the conclusion that the particular provisions of the Constitution which do not point expressly or by clear intendment to war are meant to be regulations for the civil branches of the government in affairs of peace, and that they have no reference to war or to martial law. § 59. Sources of War Power — How War made. — We have al- ready seen,^ that, by the Constitution, Congress is to make rules and articles of war, and the President is to be commander-in-chief of the army and navy. So the Congress has power " to declare war," " to raise and support armies," " to provide and maintain a navy," " to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions ; " and, among other things, " to make all laws which shall be neces- sary and proper for carrying into execution the foregoing pow- ers." ^ Congress has made the laws, and they apply both to the suppression of insurrections at home, and to the repelling of inva- sions from abroad. Nor is it always imperative, to justify an exercise of war power, that there should be a declaration of war by Congress.^ §60. The President, as to War. — The President, having the power of war thus put into his hands, takes the oath to " pre- serve, protect, and defend the Constitution of the United States." * In another clause, he is enjoined to " take care that the laws be faithfully executed." ^ And Martial Law. — It is obvious that the word " laws," in this connection, has no restricted meaning ; it is plural in its form, and, if it were singular, it would not be restrictive ; it applies, not alone, perhaps not primarily, to the laws administered by the "judicial power," because the judges, to whom they are expressly committed, are ordinarily competent to execute them. But it applies, in an especial manner, to the law-martial, which is exe- 1 Ante, § 50. * Const. TJ. S. art. 2, § 1. 2 Const. V. S. art. 1, § 8. ' Const. U. S. art. 2, § 3. s Prize Cases, 2 Black, 635. VOL. I. 3 33 § 62 OtTTLINES AND INTRODTTCTOtlY VIE-WS. [BOOK I. cuted by the military forces whereof he is the commander-in-chief. If, by reason of insurrection or rebellion at home, or invasion from abroad, there comes a disturbance which the civil power cannot or will not suppress, he is bound to call into action this power of war, carrying with it the law-martial. §61. ■Who advise President — (Not the Judges). — In circum- stances like these, and in all others, the President, if he wishes for advice concerning his duty, or concerning the meaning of the Constitution or an act of Congress, or concerning any thing else, is to apply, not to the judges, but to the proper cabinet officer. " He may require," says the Constitution, " the opinion, in writ- ing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective of- fices." ^ It is not, therefore, for the judges to advise him of the time or the necessity for calling out the military force of the country to execute the law of war, or law-martial ; but, as he is to act, and to be responsible for what he does or refrains from doing, the duty of judging devolves upon him ; ^ and, if he wishes advice, he is to take it, not from them, but from his cabi- net officer. Therefore, — Courts not limit Martial Law. — It is impossible for the courts to limit the President as to the space over which, within the coun- try, the martial law of the army and navy shall operate. Should any one wish to call in question his conduct in this respect, he must apply to the constitutional tribunal, namely, the two houses of Congress, in whose hands the power of impeachment lies. § 62. Relations of President to Judiciary. — Let not the doctrine be misunderstood. The President may violate law by proclaim- ing martial law, by extending the sphere of it too widely, or by causing the weight of it to fall too heavily ; but, under our Con- stitution, the judicial power is not the one to exercise the restraint. The question is not in its nature " judicial ; " and the courts have, under our Constitution, only " judicial power." If the judges should attempt it, they could not execute their decree without calling upon the military power ; but it, by the Constitu- tion and laws, is controlled in these circumstances, — that is, when used for purposes of war, — by the President, and he can- 1 Const. U. S. art. 2, § 2. Vanderheyden v. Young, 11 Johns. 180 ; 2 Martin v. Mott, 12 Wheat. 19 ; Ela v. Smith, 5 Gray, 121, 136. I/Utber u. Borden, 7 How. U. S. 1,46; 34 CHAP, rv.] MILITAilY AND MAETIAl LAW. § 63 not command it to operate against himself. When, in a time of peace, a judge' calls for a military force to act as a posse to carry out some decree he has made, or to protect the officers of his tri- bunal, the case is entirely different : there, the President is not asked to employ the military force against himself. § 63. Suspension of the Habeas Corpus : — Connected with foregoing Discussion. — The foregoing views — which are intended to be but an outline of doctrine — would be practically imperfect were we not to consider a clause of the Constitution which is sometimes quoted in this connection. It is : — Constitutional Provision. — " The privilege of the writ of habeas I corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it." ^ Habeas Corpus a Judicial Writ. — Now, it is the principal USe of a habeas corpus writ, and its great value is, that, by it, when a man is imprisoned, he may have the lawfulness of his imprison- ment looked into at once, without awaiting the other and slower processes of the law. It is a writ which can be used only where the judicial power has jurisdiction. Prisoner of War. — If a party is held by military arrest under the law-martial, — that is, as a prisoner of war,^ — the judicial tribunals, even, it seems to the writer, by the common law as brought to this country from England, would have no jurisdic- tion to proceed in the case by habeas corpus ; ^ much less has the 1 Const. U. S. art. 1, § 9. to the facts before the court, held wrong- 2 This expression, " prisoner of war," fully as a prisoner. But the writ was is loosely used by some to distinguish- denied. In the second case, faith had those persons who, on being arrested by been broken with the parties applying the military power, are treated in a cer- for the writ, yet they took nothing by tain way and held for exchange, from their motion. Said the court : "If they those who are put on trial for military can show they have been ill-used, it is ofiences, or are otherwise restrained for probable they may find some relief from purposes inconsistent with a redelivery the board of admiralty." In the third to the enemy on cartel. But the distinc- case, the application was for a habeas tion is immaterial to the present argu- corpus ad testificandum. This was re- ment, and the words in the text are used fused. " The court thought there could in the larger and true legal sense. See be no habeas corpus to bring up a pris- post, § 64, note. oner of war ; and the solicitor-general * 1. Consult and compare Eex v. mentioned a case where Aston, J., had Schiever, 2 Bur. 705 ; Anonymous, 2 W. delivered an opinion to that effect. Lord Bl. 1324 ; Furly v. Newnham, 2 Doug. Mansfield said, the presence of witnesses 419. In the first of the above-mentioned under like circumstances was generally cases, the man who asked for his dis- obtained by an order from the secretary charge on habeas corpus was, according of state. But it seems application had 35 §64 OUTLINES AND INTEODTJCTOEY VIEWS. [BOOK I. "judicial power" any such authority under our Constitution, wherein the different functions of the government are intrusted to separate departments with accurately defined jurisdictions, acting independently of one another.^ § 64. By whom Habeas CorpuB suspended — (President — Con- gress). — The habeas corpus, therefore, is a judicial process, — an arm of " the judicial power." This power is not controllable by the President ; but only by Congress, and in the way of legisla- tion. In pursuance of a plain implication in the clause of the been made for such an order in this case without success." Still the court could not interfere. 2. If in none of these cases a habeas corpus would lie, it is difficult to see how such a process could ever be available in favor of a man held by the military power in a time of war. And see, on this subject, Vallandigham's Trial, pub- lished in a volume in Cincinnati, 1863 ; Ex parte Vallandigham, 1 Wal. 243; Bishop Secession and Slavery, 13 et seq. I know, that in Ex parte Merryraan, 24 Law Rep. 78, and some others, there is a doctrine apparently adverse to that of the text ; but those cases were placed by the government upon the assuihed right of the President to suspend the writ of habeas corpus ; and I, for one, should agree with Taney, C. J., and some others, that he has no such right. Yet the right of a judicial tribunal to interfere, by habeas corpus, with the custody of a person held by the military power under military guard, in a time of civil war, is an entirely different thing. Tliat such interference never, in our late civil war, unbarred a prison, shows, that, at least, it does no good. The President controls the army at such a time, and " the judi- cial power " can find in the Constitution no jurisdiction given it to control him, or assume indirectly the command in his stead. 3. But it may be suggested that the writ of habeas corpus could be obtained from a State judge, and he could call upon the militia of the State to assist in its execution. To this suggestion there are two objections : first, it has been held by the Supreme Court of the United States, that the State judiciaries have no 36 jurisdidtion to interfere, by habeas cor- pus, with the custody of any person con- fined by United States authority. " No State," said Taney, C. J., "can author- ize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet the sovereignty is limited and restricted by the Constitu- tion of the United States. And the powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sover- eignties, acting separately and independ- ently of each other, within their respec- tive spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial pro- cess issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye." Ableman v. Booth, 21 How. U. S. 506, 516. In the second place, if this obstacle were not in the way, still, should the militia of a State, under what- ever pretext, just or unjust, make an at- tack, with implements of war, upon a camp, fortification, or other position held, in a time of war by the forces of the United States, this would be an act of war committed by the State, which, as we have seen, ante, § 48, is expressly forbidden by the national Constitution to engage in war without first obtaining the consent of Congress. 1 This doctrine seems to be admitted in Ex parte Milligan, 4 Wal. 2, as to which case see post, § 64, note. CHAP. IV.] MAETIAIi AND MTLITABY LAW. § 64 Constitution above quoted, Congress, by legislation, has author- ized the courts to employ the habeas corpus as one of its writs. And it is not easy to see how the President, who has no legislative, authority within himself alone, can suspend an act of Congress. Nor, as we have seen, is this necessary, or in any degree desir- able, in any case where the martial power of war is called into action. Effect and Uses of Suspension. — The suspension contemplated by the Constitution may be useful in circumstances or localities where the full martial power is not called out, and arrests for crimes are authorized in a way not martial yet it is not prudent to have a public examination of the criminal transaction on an application for the discharge of a prisoner, until the case comes on regularly for trial, or the pressure of some emergency is over. But — Wot justify Arrest. — The bare suggestion, that, to suspend the writ of habeas corpus, even by an act of Congress, will justify an arrest which would not otherwise be lawful, is a monstrosity in jurisprudence ; and, in morals, it is of the ethics of the thief, who holds himself justifiable if he can but escape the pursuing con- stable.i 1 1. Views suggested by Ex parte shall be suspended as aforesaid, no mUi- MiUigan. — Since this discussion prigi- tary or other officer shall be compelled, nally appeared in the third edition of the in answer to any writ of habeas corpus, present work, the subject has been before to return the body of any person or per- the Supreme Court of the United States, sons detained by him by authority of the Ex parte Milligan, 4 Wal. 2. There are President ; but, upon the certificate, reported in this case various expressions, under oath, of the officer having charge even from the bench, not in .accordance of one so detained, that such person is with the doctrine of my text. Still I do detained by him as a prisoner under not think the text needs to be modified, authority of the President, further pro- while yet it is important to examine the ceedings under the writ of habeas cor- case somewhat in this note. pus shall b.e suspended by the judge or 2. The case came before the Supreme court having issued the said writ, so long Court from the Indiana circuit, on a di- as said suspension by the President shall vision of opinion between the judges of remain in foree and said rebellion con- the latter tribunal sitting to hear an ap- tinue." Then, in § 2, it is provided plication for the discharge of a prisoner " that the Secretary of State and the from military custody, under St. 1863, Secretary of War be, and they are here- c. 81, 12 Stats, at Large, 755. This stat- by directed, as soon as may be practica- ute provides in § 1 for the suspension, ble, to furnish to the judges of the Cir- during the then-existing rebellion, of the cuit and District Courts of the United privilege of the writ of habeas corpus. States and of the District of Columbia a " in any case throughout the United list of the names of all persons, citizens States or any part thereof. And when- of States in which the administration of ever and wherevgr the said privilege the laws has continued unimpaired in 37 §65 OTJTLINBS AND ESTTEODUCTOEY VXEWS. [BOOK I. § 65. Concluding Observations : — As to foregoing Discussion. — Thus we have traced, with some the said Federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war." And thereupon the statute pro- ceeds to direct, that, if a prisoner who is thus described as a " state or poUtical prisoner," held " otherwise than as a prisoner of war," shall not be indicted within a specified time, he may be dis- charged by the judicial power in a man- ner therein pointed out. 3. Under these circumstances, MlUi- gan, who was a " prisoner," — but whether he was a, " state or political prisoner," or was a " prisoner of war," was the question on which the whole case really hinged, — made, as I hare said, his application under the statute to be discharged. In fact he was, accord- ing to the papers appearing in the case, as I trust I shall be able to make plain in this note, a " prisoner of war," for whose discharge by the judicial power the stat- ute made no provision. Whether he was rightfully or wrongfully held as a pris- oner of war is another question, upon which there is perhaps room for some differences of opinion. But if the mili- tary power had wrongfully made him a prisoner of war, this, according to the doctrines of the English common law, as already shown (ante, § 63 and note), was a wrong which the civil courts liad no jurisdiction to inquire into, and no au- thority to redress. And if this is so in England, much more is it so in the United States, the jurisdiction of whose civil courts is, by express constitutional provision, as we have already seen (ante, § 56), limited to the exercise of " judicial power." And it can never be a function of "judicial power" to control the move- ments of an army in the act of war. 4. " Prisoner of War " — " State Prisoner." — Contrary to the foregoing view, however, it was rather assumed than decided, that Milligan was detained, not as a prisoner of war, but as a state 38 prisoner. The judges all held him to be entitled to his discharge, but they dif- fered in their reasoning. Chase, C. J., delivering the opinion of the minority, merely said on this point : " Milligan was imprisoned under the authority of the President, and was not a prisoner of war." p. 134. Davis, J., delivering the opinion of the majority, elaborated the point a little more, as follows : " But it is insisted that Milligan was a prisoner of war, and therefore excluded from the privileges of the statute. It is not easy to see how he can be treated as a pris- oner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the States in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana ; but, when tried for the offence, he cannot plead the rights of war ; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penal- ties?" p. 131. 5. When the late civil war broke out, it found the loyal part of our politicians as ill prepared in respect of legal learn- ing as of material accumulations. We had, therefore, from them all sorts of in- congruous, not to say ridiculous, talk under the legal head. Thus, for exam- ple, they sometimes spake of prisoners of war as those, and those only, who were held for exchange by cartel. This sort of loose talk attended unthinking minds, and the minds of men who did not read, in some instances even to the end of the war. But that our whole Supreme Court should, without reflec- tion, and without looking into the author- ities, have accepted this as the true lan- guage of the law, seems at the first view surprising. But the loftiest mind, if it does not think,' places itself on a level with the lowest, and the world never contained even one man, from whom CHAP. IV.] MILITARY AND MARTIAL LAW. §65 care, the thread of juridical argument through the various consti- tutional provisions upon which the question of martial law under thought was not on some occasion ab- sent. 6. According to this judicial defining, therefore, no persons are, when cap- tured, " prisoners of war," except those who were " engaged in legal acts of hos- tility against the government." Either the grand march of the late rebellion was made in pursuance of the behests of law, and the government under which the court sat when it uttered this defini- tion was guilty of the blackest crimes against law in suppressing the rebellion, or, assuming the defining to be correct, there was not so much as one " prisoner of war " taken by the military forces of the United States during the entire bloody period. But the judge certainly could not have meant this ; for, in other places, he spake of the rebellion in terms implying that It was unlawful, and that there were prisoners of war taken, who, therefore, were not " engaged in legal acts of hostility against the government." Perhaps he meant, that, to constitute a prisoner of war, the person captured must have been a regularly enlisted sol- dier of the enemy's army, carrying on the fight according to the approved usages of military law. On this suppo- sition, a member of a guerilla band, for example, could not be a prisoner of war, though captured in battle. 7. Now, if we search for the true meaning of the term " prisoner of war," we shall find it to be any person captured hy a military force carrying on war, and held as an enemy prisoner. He may be wrong- fully or rightfully so captured and held, that is immaterial ; just as one arrested and held by the civil power is a prisoner, ec[ually whether the proceedings against him were right or wrong. And that this is the true meaning, as legal language has been employed down to the time when this opinion was delivered, I need only turn to Vattel to prove; for his work is accepted everywhere as a legal classic on this subject. Under the title, as expressed in the margin, " The Eight to make Prisoners of War," he says : " All those persons belonging to the op- posite party (even the women and chil- dren) he [the prince carrying on a just war] may lawfully secure and make pris- oners," when he deems such a measure to be necessary. Vattel Law of Nations, b. 3, e. 8, § 148. Let it be observed, that these persons, not enlisted in the enemy's military ranks, not even capable of bear- ing arms, are, when captured, termed by this classic author "prisoners of war." Again, under the title, as expressed in the margin, "How Prisoners of War Sive to be treated," he says : " Prisoners may be secured ; and, for tliis purpose, they may be put into confinement, and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case, he is at liberty to punish them." lb. b. 3, c. 8, § 150. Under this head, the case of a spy will occur to the mind of the reader. He is not usually captured in battle, or with arms in his hands, or in any way under the garb of an enemy, but more fre- quently he appears as a friend ; yet he is a prisoner of war, who is to be tried by a military commission, or other mili- tary court, and, by sentence of the tribu- nal, snffer death. " If," said Davis, J., in the above-quoted passage from the opinion of the majority of the court in this Milligan case, " he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties 1 " Assum- ing this expression to mean that, in the opinion of the learned judge, a person captured by the army, in a time of war, ceases to be a prisoner of war when he is made to sufier pains and penalties, and thereupon the judicial power is entitled to take him out of the war-grasp, this ex- position is as new as it is alarming. The doctrine was before, as Vattel tells us, that the infliction of pains and penalties on certain classes of prisoners of war is right and just, and that nevertheless they remain prisoners of war until discharged, or relieved by death. Thus, still treat- 39 65 OUTLINBS AND ESTTEODTJCTOIIY VIEWS. [BOOK I. OUT government depends. It was not deemed necessary to cite, in the notes, all the crude utterances which have fallen from ing of prisoners of war, he says : " As soon as your enemy has laid down his arms or surrendered his person, you have no longer any right over his life, unless he should give you such right by some new attempt, or had before committed against you a crime deserving death." Ibid, b. 3, c. 8, § 149. In this case, the cap- tured person is still a prisoner of war, though the war-arm inflicts upon him pains and penalties. And, whether this is so as a general proposition or not, it is plainly so within the meaning of this particular statute. It gives, as we have seen (ante, par. 2), to the judge or court authority to release from military cus- tody, under the circumstances specified, all persons who are confined " as state or political prisoners, or otherwise than as prisoners of war." The statute contem- plates, it thus appears, two classes of prisoners, — those of the one class being termed " state or political prisoners," and those of the other class " prisoners of war." Into the one or the other of these classes every prisoner arrested and detained by the military power must by construction be held to fall. But I shall now proceed to show, that no prisoner detained, as Milligan was, for trial before a military tribunal, has been heretofore deemed to be a state prisoner. There- fore, as well as for the reasons already given, every such prisoner is, in the con- templation of the statute, a " prisoner of war." 8. The expression "state prisoner," which occurs in the statute, has, there- fore, a meaning equally well defined with the other. It means a prisoner held for some political offence, or offence affecting the state, to be dealt with by the judicial power, and not by the military. The statute itself partly defines it when it says, " state, or political, prisoners." One need only look over the various collections of English " State Trials " to see that this is so. The offences are of a political nature, and the trial is before a civil court. The same thing will appear if one looks into the book known as Wharton's " State Trials of the United States." There is 40 not, in that collection, any one of the numerous cases of spies and other pris- oners of war who have been brought to trial before military tribunals. Such prisoners were never called " state pris- oners," therefore their trials do not have place in a collection of "state trials." 9. The Statute explained. — Now, the statute under consideration was drawn by some one, I know not by whom, possessed of accurate ideas of legal language. It distinguishes, as I have said, between " state prisoners " and " prisoners of war," and it contem- plates the arrest and temporary deten- tion of the fornier by the same power which should also make prisoners of war ; and, especially, their arrest by order of the President, who, while he is commander-in-chief of the army and navy, is chief executive officer also of the civil department. It requires, there- fore, that the two classes shall be distin- guished the one from the other. For this purpose, lists of the state prisoners were to be made out and sent to the judges ; and jurisdiction was given them over these prisoners, but not over the others. 10. The Case. — When Milligan was arrested, his name was not returned as a state prisoner. On the other hand, the military power proceeded to deal with him as a prisoner of war, trying him by a military commission for the following offences, of a military sort : " Conspiracy against tlie government of the United States.; affording aid and comfort to rebels against the authority of the United States ; inciting to insurrection ; disloyal practices ; and violation of the laws of war." p. 6. That some of these were civil offences renders them no less military. Milligan was found, by the military commission, guilty of all. He was no less capable of being a rebel, — or, in other words, an enemy, — because he lived in Indiana, than if he had re- sided in South Carolina. Vattel says: " I account as associates of my enemy those who assist him in his war without being obliged to it by any treaty. Sipce CHAP. IV.] MILITAEY AND MARTIAL LAW. §65 judges and from legislators on this subject. But such as were deemed of special importance, or as authoritative expositions of the law, have been referred to.^ they freely and voluntarily declare against me, they, of their own accord, choose to become my enemies. If they go no further than furnishing a deter- mined succor, allowing some troops to be raised, or advancing money, — and, in other respects, preserve towards me the accustomed relations of friendship or neutrality, — I may overlook that ground of complaint ; but still I have a right to call them to account for it." Vattel Law of Nations, b. 3, . Gillespie, 7 137. And see post, § 115, and note, par. S. & R. 469, 478. 9 ; Attorney General v. Kwok-a-Sing, '^ See, as explaining the principle, Law Rep. 5 P. C. 179, 8 Eng. Rep. 143, Stat. Crimes, § 76, 82, 88, 114, 12.5, 181- 169, 160. 62 CHAP. VI.] tTNITBD STATES AND FOREIGN NATIONS. § 112 in respect of any such case, &c., may be dealt with, inquired of, tried, determined, and punished in the county or place in Eng- land in which such death, &c., shall happen, in the same manner, in aU respects, as if such offence had been wholly committed in that county or place." Thereupon it was held, that, where a person was beaten on board an American ship bound from New York to Liverpool, and died in Liverpool of the beating so inflicted, none of the parties being English subjects, and the ship, it is seen, not being English, the English court had no ju- risdiction of the offence. Said Willes, J. : " That section ought not, therefore, to be construed as making a homicide cognizable in the courts of this country by reason only of the death occur- ring here, unless it would have been so cognizable in case the death had ensued at the place where the blow was given;" For the court considered, that the English legislature had no right to make what was done by foreigners, on board a foreign ship, a crime against English law.^ And the fact that the ship had, under false representations, been registered, as British, if it was not in truth British, could make no difference.^ In New Jersey, under a statute construed to apply to murder- only, not also to manslaughter, it was attempted to convict one of the latter form of homicide, where the blow was in New York, and the death in New Jersey. But the court deemed, that, even if the act had been less narrow, it could not have this operation ; and, by Vre- denburgh, J., observed : " Such an enactment, upon general prin- ciples, would necessarily be void ; it would give to the courts of this State jurisdiction over all the subjects of all the governments of the earth, with power to try and punish them, if they could by force or fraud get possession of their persons, in all cases where personal injuries are followed by death. . . . No act is done in this State by the defendant. He sent no missile, or letter, or message, that operated as an act within this State. The coming of the party injured into this State afterwards was his own vol- untary act, and in no way the act of the defendant. . . . An act, to be criminal, must be alleged to be an offence against the sover- ' Keg. V. Lewis, Dears. & B. 182, 186, 198 ; Reg. v. Seberg, Law Rep. 1 C. C, 7 Cox G. C. 277. And see Reg. v. Ber- 264, 11 Cox C. C. 520 ;.Hoong v. Reg., 7 nard, 1 Tost. & F. 240; Attorney General Cox C. C. 489 ; Reg. v. Sattler, Dears. & V. Kwok-a-Sing, supra; Reg. v. Ander- B. 625, 7 Cox C. C. 4.31. son. Law Rep. 1 C. C. 161, 11 Cox C. C. ^ Reg. .-. Bjornsen, Leigh & C. 545. 53 § 114 JURISDICTION AND LOCALITY. [BOOK IL eignty of the government. This is the very essence of crime punishable by human law. How can an act done in one jurisdic- tion be an offence against the sovereig;ity of another ? " ^ § 113. Continued — (Whether Locality of Homicide follows Place of Bipw or Death). — The reader perceives, that, according to these cases, the crime in felonious homicide consists in inflicting the blow, while the act of dying, which is performed by the in- jured person, does not constitute any part of it, or at least such a part as to lay the foundation for a jurisdiction over the offence. This accords with what was before held in England, that a homi- cide is committed in a county if the blow is inflicted in it, though the death takes place elsewhere.^ It accords also with the Ten- nessee doctrine ; there, a statute having provided, that, " in all criminal cases, the trial shall be had in the county in which the offence may have been committed," this was adjudged to require the trial to be in the county of the blow, though the death had taken place in another county. " It would be doing violence to language," observed Green, J., " to say that the offence was com- mitted in the county where the death happened, although the stroke were given in another county." ^ It accords, moreover, with adjudication in California, that a homicide is committed when the fatal blow is struck, and not afterward when the death occurs.* And it accords with much more to be found in the books ; though, on the other hand, there are authorities which hold that the complete offence is not committed, in point of law, in the county where the blow is given, if the death is in another.* § 114. Continued. — Holding to the latter view, the majority of the Michigan court, and the undivided court in Massachusetts, have pronounced judgments directly contrary to the English and New Jersey doctrine. Thus, in Michigan, by statute, " if any such mortal wound shall be given, or other violence or injury 1 The State v. Carter, 3 Dutcher, 499, stroke, which is the cause of the death, 500, 501. being pardoned, all the effects of it are ^ Grosvenor v. St. Augustine, 12 East, consequently pardoned." 2 Hawk. P. C. 244. Blow pardoned. — "Also," says Curw. ed. p. 538, § 21. See also People Hawkins, " it liath been adjudged that, v. Gill, 6 Cal. 637. if a general act of pardon extend to all ' Riley u.. The State, Humph. 646, felonies, offences, injuries, misdemean- 657. ors, and other things done before such a * People v. Gill, 6 Cal. 637. day, it pardons a homicide from a wound ^ See, for a collection of authorities given before the day, whereof the party on both sides, Crim. Proced. I. § 51, 52. died not till after the day ; because the 54 CHAP. VI.] UNITED STATES AND EOEEIGN NATIONS. § 115 shall be inflicted, or poison administered, on tlie high seas, or on s i any other navigable waters, or on la ad, eit her within or wi thout'^^'^^ the limits of this State, by means whereof death shall ensne in any county thereof, such offence may be prosecuted and punished iij the county where such death may happen ; " and it was adjudged, Campbell, J., dissenting, that, where the mortal wound was given on a river within a county in Canada, and the death was in Michigan, the person inflicting the blow was indictable in Michigan, though he did not appear by any evidence to be a citi- zen of the State. Said Manning, J. : " The shooting itself, and the wound which was its immediate consequence, did not consti- tute the offence of which the prisoner is convicted. Had death not ensued, he would have been guilty of an assault and battery, not murder ; and would have been criminally accountable to the laws of Canada only. But the consequences of the shooting were not confined to Canada. They followed Jones [the deceased] into Michigan, where they continued to operate until the crime was consummated in his death. If such a killing did not by the common law constitute murder in Michigan, we think it the clear intent of the statute to make it such, to the same extent as if the wounding and the death had both occurred in this State." ^ The Massachusetts statute is in substance the same with this one, and the (30urt reached the like result by the like reasoning ; holding, that, where blows and other injuries had been inflicted on a sea- man in a British ship on the high seas, by persons not citizens of Massachusetts, and the seaman died of the injuries in Massa.chu- setts, the offenders could be convicted and punished by the courts of the latter Stata.^ §115. Continued — (How in Principle). — If we look at this question in the light of legal principle, guided also in a good measure by adjudication, the following will be the result. When the citizen abroad commits an offence, it is competent, and con- sistent with the law of nations, and in every respect just, for his own government to provide for his punishment through its own courts. . But in most other circumstances, one government has no just right to punish what is done within the territorial limits, or the ships on the high seas, of another government. Now, felo- 1 Tyler v. People, 8 Mich. 320, 334. ^ Commonwealth u. Macloon, 101 See also Bromley v. People, 7 Mich. 472 ; Mass. 1. People V. Tyler, 7 Mich. 161. 55 §115 JUEISDIOTION AOT> LOCALITY. [book n. nious homicide consists, in a certain sense, of the twofold element of a mortal injury inflicted on a human being, and death actually following. But, in reason, and on the better authorities, the mere death is not such a part of the offence as to furnish proper found- ation for taking jurisdiction over an act done under another goy- ernment by persons in no way amenable to ours. And a statute, like the English one, the one in Michigan, and the one in Mas- sachusetts, which, in general terms, authorizes a jurisdiction in this class of cases, should be construed in harmony with the law of nations,-' and be held to apply only to citizens of our own country or State, or, if to foreigners, to be limited to those cases in which some special ground for interference, consistent with international law, exists. The question is not one of constitu- tional authority, but of the construction of statutes in connection with the law of nations. Some further views, with observations on one of the cases, follow in a note.^ 1 Ante, § 112. 2 1. Commonwealth v. Macloon, 101 Maes. 1, already cited, is, I think, the lat- est American case on this subject. For the English cases, see ante, § 112, note. I shall n^ake the doctrines of the text more clear, and help the reader in vari- ous respects, if, in a sort of review of this last American case, I point out some of the errors into which one, not care- fully considering the subject, may fall. Let us look at two instances in this case illustrating the liability to err, then pass to the main question. 2. First. The learned judge, in re- viewing the dissenting opinion of Camp- bell, J., in the Michigan case, says : " It is further asserted that ' there are very high authorities for saying that at com- mon law a trial might always be had in the county where the mortal blow was given, for that alone is the act of the party, and the death is but' a conse- quence ; ' for which are cited 1 East ¥. C. 361, 1 Hale P. C. 426, and 1 Bish- op's Crim. Law, § 454 [a misprint for § 554]. But both Lord Hale and Mr. East are speaking only of the ' more common opinion ' before the Stat, of 2 & 8 Edw. 6, c. 24 ; and the words ' that alone is the act of the party ' are an ad- dition of Mr. East, not to be found in 66 Lord Hale, who iinmediately afterwards says, ' On the other side, as to some re- spects, the law regards the death as the consummation of the crime, and not merely the stroke,' of which he gives, several illustrations, besides some al- ready mentioned in the earlier part of this opinion." p. 19. The learned judge then proceeds to other parts of his argu- ment. What inference is the reader to draw with regard to the third citation made by Campbell, J. ? ^ The inference of most men, and the one which the learned judge must be presumed to have intended, would be, that Bishop fnerely followed Hale and East, and added noth- ing further by way of authority. In fact, however, there is, at the place thus referred to (Crim. Law I. § 554, 555 of the 1st and 2d editions, transferred after- ward to Crim. Proced. I. § 67, 68 of the 1st edition, and § 51, 52 of the 2d) a pret- ty full, though not perfect, collection of authorities on both sides. For example, the Tennessee case, cited to ante, § 113, is there ; in which it was held that the offence is committed at the place of the blow, though the death is elsewhere, within a statute requiring " aE criminal cases " to be tried " in the county in which the offence may have been com- mitted." Said Green, J., in delivering CHAP. VI.] TTlillTED STATES AST) FOREIGN NATIONS. § 116 § 116. How in Principle. — In reason and according to the bet- ter authorities, when a crime is really committed a part in one the opinion of the court : " The statute of Edw. 6 was enacted to remove all doubt upon the subject, because differ- ent opinions, growing out of the require- ments of that period of the common law, had been expressed. We find no deci- sion in which it had been held that the murderer, in such case, could be indicted in neither county. On the contrary. East says, the common opinion was, that he miglit be indictefi where the stroke was given. That alone is the act of the party. He commits this act, and the death is only a consequence. Therefore, when the legislature enact that the party shall be tried in the county where the offence may have been committed, they intended where the active agency of the perpetrator was employed." Eiley v. The State, 9 Humph. 646, 658. 3. Secondly. Two objections had been made to the indictment, one that it was multifarious, and the other that it did not charge the injuries to have been "mortal." The former was clearly not well taken ; but the court dispose of the ' two together, thus : " In such a case it is abundantly established by precedents that it is sufficient to allege that the death resulted from all these means, without otherwise alleging either of them to have been tnortal, and to -prove that it resulted from all or any of them. 2 West's Simb. § 301, 308 ; Weston's Case, 3 Inst. 50, 135 ; Jackson's Case, 18 How- ell St. Tr. 1069, 1075, 1111; 2 Hawk. P.^C. c. 23, § 83 ; Rex v. Clark, 1 Brod. & B. 473 ; Commonwealth v. Stafford, 12 Cush. 619." p. 23, 24. Now, on the point whether or not the word " mortal " should be employed, there is nothing in any one of the places referred to afford- ing any real light whatever. The brief forms in West's Simboleography, how- ever, do not happen to contain the word ; but, even if this were a book of author- ity, the omission would amount to noth- ing as against actual adjudication ; for it is common to see forms taken from books of high standing pronounced ill for some cause which did not occur to the compiler. But weak as this refer- ence is, it is the strongest in the CQllec- tion, — in no one is it said, or by any words except as just stated is it inti- mated, that the presence of the word "mortal "is unnecessary. In the cases thus referred to generally, the indict- ment is not given in full, this question was not raised, and whether it contained the word " mortal " or not we cannot know. The passage referred to in Haw- kins does not relate to this point, but the other. Now, in fact, from early times to the present day, the law, as actually ad- judged and administered, has required the word " mortal." Thus, if the death proceeds from a wound inflicted by the defendant, the allegation is that it was "mortal" (Crim. Proced. II. § 521); if from the defendant's neglect, the indict- ment charges, that, by reason of it, the deceased " sickened and languished with a mortal sickness," &c. (Crim. Proced. II. § 538) ; if death proceeded from starva- tion, the charge is, that the deceased became " mortatty emaciated and con- sumed " (Crim. Proced. II. § 557) ; or, if from poisoning, the indictment alleges that the deceased was made " mortally sick and distempered in his body " (Crim. Proced. II. § 553). The doctrine is laid down by Hale thus : " As well in the in- dictment of manslaughter as murder, the stroke is to be alleged to be mortalis plaga, and given felonice, and in both cases in- terfecit." 2 Hale P; C. 186. And in 1773, while our original States w^ere English colonies, this question came for solemn adjudication before all the judges of England, De Grey, C. J., only being ab- seht, and they " unanimously agreed " that the word " mortal " is essential, and adjudged the indictment in controversy bad for omitting it. Rex v. Lad, 1 Leach, 4th ed. 96. This doctrine, to which the practice has conformed, is laid down in all the text-books, to the present day. For example, it is in 1 East P. C. 343 ; 1 Stark. Crim. PI. 2d ed. 93; 3 Chit. Crim. Law, 752; 2 Deac. Crim. Law, 928; 2 Gab. Crim. Law, 241 ; 1 Russ. Crimes, 3d Eng. ed. 661 ; Train & Heard Prec. 250. This is the general doctrine. And 6T §116 JUKISDICTIOlSr AKD LOCALITY. [book n. country and a part in another, the tribunals of either may prop- erly punish it ; provided, that what is done in the country which it is in terms affirmed in a subsequent case in Massachusetts, reported in the very next volume of reports. Common- wealth V. Woodward, 102 Mass. 155, 160. Some of the text-books speak of it in connection merely with cases in which the death proceeded from a stroke or wound ; and, in Lad's case, the fact was that the death was caused by ravish- ment. Whether the doctrine does really extend to every kind of felonious killing — or, if not, what are its limits — is a question which seems not to be settled by adjudication. In this Macloon's ease, blows producing wounds were charged as one of the means of the killing, the wounds were not alleged to be mortal either alone or in combination with the rest ; and so, even if we should admit that the injury suffered from the neglect need not be charged as mortal (and cer- tainly no reason appears in principle why it need not be), the part alleging the blows and wounds must, in principle, at least be rejected as surplusage. A good count might perhaps still remain ; but irrelevant testimony had, in this view, been admitted at the trial to the prejudice of the defendants. I do not say what the consequence would be. The learned judge observed : " It is suf- ficient to allege that the death resulted from all these means, without otherwise alleging either of them to have been mor- tal, and to prove that it resulted from all or any of them." In this case, therefore, if blows alone were proved (what was the fact, I do not know), then the defend- ants were certainly convicted on an al- legation uniformly held to be inadequate. If the learned judge was aware of this state of the law, it was extraordinary to turn off the point thus. If he looked into any of those books to which lawyers seeking information on questions of this sort go first, he saw how it stood. If he did not, but, avoiding them, and avoid- ing the digests, went direct to West's Simboleography, to Coke's posthumous Third Institute, to the State Trials, and, as we see in other parts of the opinion, to the Year Books, to Selden's ]?ortescue, 58 and to the Hargrave Manuscripts, to- gether with various other ancient books, which, however worthy of regard, are not the first to be consulted, still we are conducted to the same conclusion. It is, that, for some reason, and it is immate- rial what, the judicial mind was not, when this decision was pronounced, in a condition of such enlightenment as to render it of weight in the scale of general judicial authority. 4. We come now to consider a few of the questions involved in the general dis- cussion. One is, whether, by the princi- ples of the common law, a homicide is committed in the locality in which the blow is given, or in that in which the death takes place, or partly in the one and partly in the other. (See, for a col- lection of authorities, ante, § 113 ; Crim. Proced. I, § 51, 52.) It has been as- sumed, that, if we can ascertain what was the county in which under the an- cient common law the indictment should be found, we should then have the whole difficulty solved. But, even as to this, we have little light; since, in 1648, a statute (2 & 3 Edw. 6, c. 24, § 2) directed that the indictment might be in the coun- ty of the death, and this statute is com- mon law in our country. Crim. Proced. I. § 52. Yet, to my mind, the effect of the inquiry into the county in which the indictment must have been found under the ancient common law requires some observation. In the' early times, the petit jurors were the witnesseSf and the wit- nesses were the jurors. And the jurors/ in cases of life and limb, were not per- mitted to find a verdict on their belief produced by the testimony of others, they must speak of their own knowl- edge. They could not be summoned from out the county in which the indict- ment was found, or even from the whole body of the county. The grand jury were required to find the particular vill, parish, ward, or other minor locality in which the offence was committed, as a guide to the sheriff in searching for the jurors. Crim. Proced. I. § 36:^366. From this, it seems to me, it must have CHAP. VI.J UNITED STATES AITD FOREIGN NATIONS. §116 takes the jurisdiction is a substantial act of wrong, and not merely some incidental thing, innocent in itself alone. But evi- happened, though the proposition is dis- puted, that sometimes, if a blow were given in one county and death took place in another, the grand jury could not find an indictment in either; because it could not, in eitlier, find witnesses both to the blow and the death. Plainly the deatli mist be proved, whether regarded as a part of the offence, or as a collateral cir- cumstance like the ownership in larceny, or the ciharacter of the building as a dwelling-house or not in burglary, and so on. Accordingly Starkie says : " It seems to have been held, that no collat- eral circumstance could be inquired of, if it happened in a second county, though the facts in which the oflfender was per- sonally concerned were confined wholly to the first ; so that (see preamble to 2 & 8 Edw. 6, c. 24; Staunf. 89 ; 2 Hale P. C. 163; 6H.7, 10; 10 H. 7, 28 ; 10 H. 7, 20; Fitz. Ind. 23), if A inflicted a mortal wound on B in one county, of which B died in the adjoining one, A could be in- dicted in neither ; for a jury of the first [being, as I have just said, witnesses, and compelled to find their verdict, not in any degree on the testimony of others, but wholly on their personal knowledge] could not take notice of the death in the second, and a jury of the second could not inquire of the wounding in the first. Though it appears from the preamble to the Stat. 2 & 3 Edw. 6, c. 24, that such was the law at that time with respect to indictments of homicide, yet it was other- wise with respect to appeals of death, which, when the blow was struck in one county and the party died in another, used to be tried by a jury from both counties. 4 H. 7, 18; Br. Cor. pi. 141 ; 1 Hawk. P. C. c. 31, § 13 ; 2 Hawk. P. C. c. 23, § 35 ; 2 Inst. 49. . . . But it was held that an indictment must be taken in one county only. 4 H. 7, 18. And the difficulty was frequently avoided by carrying the dead body back into the county where the blow was struck, and there [where the wit- nesses to the stroke, who were to be the jurors, might identify the body, and thus learn of their own knowledge that the man was dead] a jury miglU inquire both of the stroke and of the death. 6 H. 7, f . 10 ; 1 Hawk. P. C. c. 31, § 13 ; 7 H. 7, f. 8. And even without such remoyal it seems to have been doubted, whether a jury of the county where the stroke was given might not inquire of the felony." 1 Stark. Crim. PI. 2d ed. 3 and note. This practice of removing the dead body and its effect are spoken of in other books in the same way as by Starkie, — it is so in the opinion of the court in this Macloon case, p. 9, — yet persons in modern times, who have commented on it, seem strangely to have overlooked its signifi- cance. . I have never seen it disputed, while it is asserted often, that, whatever might he the legal rule in the absence of the dead body, if the body were brought back to the county where the blow was given, there might, before the statute of Edw. 6, be an indictment and conviction in such county. Yet every fact, essen- tial to the crime, must have transpired in the county where the indictment was found. Crim. Proced. I. § 54. Now, the bringing back of the dead body could not change facts. It was as true after the body was brought back as before, that the death took place in the otlier county. And if the law was really as it is thus asserted on all sides to have been, it is thereby demonstrated, that the death was but a collateral circumstance, thqugh a necessary one ; and, in contemplation of law, the guilt of the homicide consisted in giving the " mortal " stroke. Hence the necessity of alleging, as, we have seen, the law required the pleader to do, that the wound wa? mortal; otherwise the complete criminal act would not ap- pear to have been committed at the time and place when and where the blow was charged to have been inflicted, the blow not being shown to be any thing more than a battery. One thing is, certain; namely, that, if the effect of bringing the body back to the county of the blow was as thus stated, nothing was necessary to constitute the complete offence except the mortal wound and the dead body. Is, then, the mere dead body a part of the crime ■! And, after a man is felon- 59 §116 JTJKISDICTION AST) LOCALITY. [book n. dently this principle should not be carried to all lengths. Sup- pose, in homicide, we regard the death as a part of the crime, stiU iously elain, can the friends of the de- ceased take the dead body,' and, consist- ently with sound principles of jurispru- dence, cause the offender to be indicted in any civilized country where he can be confronted with it? Yet, in reason, the absurdity of such a proceeding would hardly exceed that of Indicting the of- fender wherever, in a foreign state whose laws were not yiolated by the blow, the man might choose to die. I have never seen any case cited in our law, from analogy to which the latter proceeding would seem to me to be jus- tified. Let us look at some which have been supposed to be analogous. 5. In Macloon's case, the doctrine of larceny in one county or State and the stolen goods carried into another is men- tioned. We shall see (post, § 137-143), that there is in the books much fog on this subject. But goods may be stolen, by the same thief, or different ones, over and over, as many times as wickedness prompts, and come out fresh and ready to be stolen again. On the other hand, a felonious homicide can be committed on the same person but once. And those doctrines of larceny which have been supposed to furnish analogies for our present subject rest on the idea that the goods have been stolen a, second time. Larceny is constituted by any manual removal, however slight, of the goods, by trespass, where the trespasser has the felonious intent to convert them to his own use. If, therefore, a man steals per- sonal effects in Maine and brings them into Massachusetts, they are not his here, — our laws, taking no cognizance of the felony in Maine, do still look into the ownership in Massachusetts, — then, if he commits on them the trespass of re- moval here, as he does in bringing them however short a distance across the line, and if, while he is committing the tres- pass, he means to steal them, he commits a complete larceny in this State under our ordinary laws. Let us see what analogy to homicide this doctrine pre- sents. In the one case, the injured per- son is he whose goods are stolen ; in the 60 other, he who receives the blow. In both, the injury was inflicted in Maine. The wounded man comes to Massachu- setts and dies here. Then, to carry the comparison along, the one whose goods were taken, not the goods, must come to Massachusetts, and enter bankruptcy. But no one pretends that this will make the thief liable for larceny in Massachu- setts, — why, then, should it make the one who inflicted the blow liable for homicide here ? But, if the thief brings the goods to Massachusetts, instead of the injured person coming here ; then, to make the analogy good, the assailant must bring his club here, while the wounded man remains and dies in Maine. No in- struction can be drawn from this view. 6. The other supposed analogies may be answered in similar ways. But the answers will occur to the reader. If the new doctrine is to be carried out to its legitimate consequences, let us see what we shall have. A man sends to another a libellous letter, indictable because of its tendency to create a breach of the peace. The consequences of this letter do not end, any more than do those of a mortal blow, when it is received. They continue to act on the person who re- ceived it as long as he keeps it in his pocket. But the writer starts off' on for- eign travel. The other starts after him, still clinging to the letter. According to the new doctrine, the writer may be in- dicted in any country on whose soil the other sets foot. In like manner, it is not sufficient to hold, as the courts do, that, if a man publishes a libel in Maine and sends it into Massachusetts, he may be indicted in the latter State ; but the analogy goes further and produces the doctrine which the courts do not hold, that, if one in Maine, to whom a libel is sent, of his own motion sends it to Mas- sachusetts, the original offender may be indicted here. So, if an assault creat- ing a wound not mortal is given in Maine, and the injured person comes to Massachusetts, where he feels a pain from it, the offender may be indicted in Massachusetts for the battery. CHAP. VI.] imiTED StTATBS AND POEBIGN NATIONS. §116 it is not a part whicli has occasioned any breacli of the peace of the country in which it takes place. Thus, if, where all is within 7. But it is not proposed to go over this whole ground. Since our States have local limits, and all intercourse with foreign nations is by the general government, it seems important that, if a foreigner is to be called to answer for what he did in his own country or on board a foreign ship, it shall be by the United States, not by a State. If the foreign state complains, it should be able to complain to the power by which the prosecution was carried on. In this Macloon case, one of the defendants was a citizen of Maine. He was, therefore, a citizen of the United States ; and, per- haps, in strict law, only a citizen of the United States when he was beyond the jurisdiction of Maine. There ought to have been a law of Congress under which he could be punished. The other defend- ant, who was convicted, was an Eng- lish subject, and he ought to have been demanded by the British government, surrendered under the treaty, and pun- ished at home. If Congress had failed to provide a proper law for the one case, and the British government was remiss in its duty in the other, that furnishes no reason why Massachusetts should inter- fere, unless she had a jurisdiction based on sound legal principles. And it is not generally, among men, recognized as sound to hold, that a wound, not even described as mortal, is a force from him who inflicts it, operating as an abiding presence of the wrong-doer, in every country into which the injured person may choose to carry the wound. 8. The true view, therefore, is, that the infliction of the mortal blow consti- tutes the crime in felonious homicide ; yet, until death, the mortality of the wound cannot be established in evidence. Therefore it is contrary to sound doc- trine to hold a foreigner responsible to our laws, which he violated by no act, merely because this collateral evidence culminated on our territory. True, the United States tribunals have held, that, if a blow is given on the high seas and ' death follows on Iftnd, this is not a homi- cide fully committed on the high seas. (See United States v. McGill, 4 Dall. 426 ; United States v. Bladen, 1 Craneh, C. C. 548.) But this holding has been mainly in consequence of the early cases not having been well argued, and is a rem- nant of the old doctrine which necessarily prevailed when the petit j urors were also the witnesses. And it is not uncommon in the law, even where no obscurity / clouds the vision of the judges, to cling to a technical rule when the reason of it has passed away. Thus, in this very matter, the rule that the indictment must allege in what vill or other local place within the county the offence was com- mitted, in order to guide the sheriff in selecting the men who were to serve in the double capacity of witnesses and petit jurors, was continued in England long after the reason of it had become obsolete ; and it appears not to have been fully overthrown till 1825, or per- haps 1851, when the doctrine long before demanded by the altered law was estab- lished by statute. Crim. Proced. I. § 365-368. Yet all such doctrine, resting on a technical reason, is, admitting for the argument's sake that it is sound, a mere peculiarity of the jurisprudence of those countries in which the common law prevails, and it cannot claim a place in the law of nations. 9. But it is said, that the courts must follow the legislative mandate, whether wise or unwise, and whether conformable to sound principles of law and of inter- national rule or not, unless it is repug- nant to some provision of the Constitu- tion. Now, how far this may be so, we need not inquire ; because, thus far, there has been no call for the applicar tion of any such doctrine. All statutes are to be construed in connection with one another, with the common law, with the Constitution, and with the law of nations. Stat. Crimes, § 86-91, 123. "For example, a statute general in its terms is always to be taken as subject to any exceptions which the common law requires. Thus, if it creates an offence, it includes neither infants under the age of legal capacity, nor insane persons, nor 61 §117 JUKISDICTION AND LOCALITY. [book n. one jurisdiction, a man inflicts a mortal wound, then repents and strives to bring back to health the dying person, this repentance does not mend his case, but he. is guilty the same as though he had not repented. Yet if the blow is given by a foreigner in a foreign vessel on the high seas, then he repents and turns to our shores that he may administer comfort to the dying man on land as he could not at sea, — in such a case, so far from our peace being broken, we have received the light of an angel visit, to revenge which by hanging the visitor would be to violate every principle of justice. And in any view it cannot be a disturbance of our peace for a man to die among us ; so that, even if the wrong-doer were responsible, as ordinarily he is not, for the man's coming here, this could not be a just ground for inflicting punishment on a foreigner who had done np wrong on our territory.^ § 117. Offences on Shipboard. — The vessels of a nation, whether public or private, traversing the ocean, which is the common high- ordinarily married women acting in the presence and by the command of their husbands. If it creates a forfeiture, it does not apply to women under cover- ture." lb. § 131. And, in the language of Story, J., speaking for the whole Supreme Court of the United States : " The laws of no nation can justly ex- tend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sover- eignty or rights of any other nation, within its own jurisdiction. And how- ever general and comprehensive the phrases used in our municipal laws may be, they must always be restricted, in construction, to places and persons upon whom the legislature have authority and jurisdiction." The ApoUon, 9 Wheat. 362, 370; Stat. Crimes, § 141; ante, § 112; post, § 121. Now, the Massachu- setts statute, in like terms with the Michigan, is: "If a mortal wound is given, or other violence or injury in- flicted, or poison is administered, on the high seas, or on land either within or without the limits of this State, by means whereof death ensues in any county thereof, such offence may be prosecuted and punished in the county where the death happens." p. 4, 5, in the report of 62 Macloon's case. If, therefore, a citizen of Massachusetts inflicts a blow on any person, outside the limits of the State, it is, by the principles of our law, an " of- fence " against his own State, and it would be punishable at the common law but for the want of a cqurt having ju- risdiction over it. Post, § 121. This statute removes the difficulty, and gives a jurisdiction in cases where, and only where, death follows within a county. But for an Englishman to beat another Englishman on board a British merchant vessel is no " offence " with us ; and, by the very terms of the statute, such a case is excluded. Still, if this were not so, the principle stated by Story, J., as above quoted — a principle sound in itself, and everywhere followed by the courts (see post, § 121) — would lead to the same re- sult. A similar course of reasoning ap- plies to the British statute, which differs not greatly from this one. At all events, no just ground appears for construing the Massachusetts statute less favorably to defendants than the British. 1 Consult, on the subject of this sec- tion, the dissenting opinion of Campbell, J., in Tyler v. People, 8 Mich. 320, and the case of Commonfrealth v. Macloon, 101 Mass. 1. CHA?. VI.] UNITED STATES AND FOEBIGN NATIONS. § 118 way of nations,^ are deemed to be floating parts of her territory ; and, over a crime committed on board, and not within the bounds of any other nation, the courts of the country to which the vessel belongs have a complete territorial jurisdiction.^ In Foreign Port, or on Tidal River. — If the vessel is a private one, and enters a foreign port, all on board are, while there, as we shall by and by see,^ subject to the laws of the foreign country ; but it does not follow that they are not also subject to their own laws, criminal * and civil, except in particulars directly repugnant to the local law. If this conflicts with theirs, it must evidently prevail ; and the clear deduction from well-settled principles would be, that, on the ground of necessity, the persons attached to such vessel are excused at home for doing what is thus com- pelled. And this doctrine, of' the binding effect of the laws of one's country upon subjects afloat in her ships and belonging to them, even while within the territorial limits of foreign states, appears to be recognized alike in the legislative acts and judicial decisions both of England and the United States.^ § 118. Offences on High Seas not under recognissed Flag. — Since the oceans are common to all nations, the inference may seem to be, that, if persons on them, not under the protection of the flag of any nation, commit an offence there, they may be arrested and punished by any power.^* The offence, however, must be disturb- ing to the common peace of the travelling nations ; because it is fundamental doctrine in the criminal law that injury done must precede punishment inflicted. 1 Ante, § 103. States u. Gordon, 5 Blatch. 18 ; trnited ^ Wheaton International Law, 158, States «. Stevens, 4 Wash. C. C. 547 174 ; Poison Law of Nations, 25 ; United Church v. Hubbart, 2 Cranch, 187 States u. Pirates, 5 Wlieat. 184 ; United United States a. Pirates, 5 Wheat. 184 States 0. Imbert, 4 Wash. C. C. 702; United States v. Smith, 1 Mason, 147 United States k. Holmes, 5 Wheat. 412; United States v. Ross, 1 Gallis. 624 United States v. Wiltberger, 5 Wheat. United States u. Hamilton, 1 Mason, 152 76 ; Beg. v. Serva, 2 Car. & K. 53, 1 Den. United States v. Imbert, 4 "Wash. C. C, C. C. 104; Reg. B. Bjornsen, Leigh & C. 7^2; Rex ». Depardo, 1 Taunt. 26 545. And see Reid v. Ship Vere, Bee, United States v. Howard, 3 Wash. C. O. 66; United States «. Palmer, 3 Wheat. 340; United States v. Wiltberger, 5 610 ; Rex v. Amarro, Euss. & Ry. 286. Wheat. 76 ; United States v. Holmes, 5 » Post, § 130. Wheat. 412; Keg. v. Lopez, Dears. & B. * Poison Law of Nations, 25. 525 ; People v. Tyler, 7 Mich. 161. Act « Rex V. Allen, 7 Car. & P. 664, 1 of March 3, 1825, c. 65, § 5; R. S. of Moody, 494 ; Reg. v. Menham, 1 Post. & U. S. § 730. P. 369; Reg. v. Anderson, Law Rep. 1 ^ See United States v. Tflintock, 5 C. C. 161, a Cox C. C. 198; United Wheat. 144. 63 § 120 JTJRISDICTION AND LOCALITY. [BOOK n. § 119. Continued. — Again, this doctrine of principle should not be so applied as to render punishable, for instance, by the tribunals of our country, persons, not our citizens, doing some of the minor acts of wrong which might be brought within it ; simply on the ground that the government to Vhich they were attached had not been recognized by ours. The general proposi- tion, that our tribunals can take cognizance of no foreign govern- ment whose existence has not been acknowledged by the executive authority of the United States,^ has its limitations ; ^ and the one now suggested should be added to those already received. § 120. Continued. — But there is not much occasion for practical resort to the general principle above stated, whether qualified or not ; and, though we assume it to be sound, it probably cannot be said to be actually adopted into the law of nations. Some- thing like it is applied to the one offence of — Piracy. — Piracy, however, is usually committed under the flag of some known governnjent ; and the rule in it, therefore, reaches to the further point, that the crew of any vessel committing it casts off thereby its national character ; and so the guilty persons, though the acknowledged subjects of some known government, may be apprehended and punished by the authorities of any nation.^ This rule refers only to piracy as defined in interna- tional law, not to offences made such by the local jurisprudence of a particular country.* Yet — Distinction. — We should not forbear to notice the distinction, that, when a vessel is sailing under a recognized government, it is thereby made a part of the territory of the government, as such is protected from being encroached upon by authority of other governments, and piracy is deemed a crime of so great and general enormity as to break down this protection ; while, on the other hand, if a vessel were sailing with no such charmed lines 1 Berne ». Bank of England, 9 Ves, 610 ; United States v. Gibert, 2 Sumner, 347; The Nueva Anna, 6 Wheat. \%Z. 19, 24, note; 4 Bl. Cora. 71; United See The Santissima Trinidad, 7 Wheat. States v. Demarchi, 5 Blatch. 84 ; Whea- 283. ton International Law, 6th ed. 185. ° The Josefa Segunda, 5 Wheat. 838 ; * Wheaton International Law, 6th ed. United States v. Palmer, 3 Wheat. 610 ; 185 ; Dole v. New England, &c. Ins. Co., Stoughton V. Taylor, 2 Paine, 655. 2 ClifE. 394, 418 ; Attorney-General v. 8 United States v. Pirates, 5 Wheat. Kwok-a-Sing, Law Rep. 5 P. C.'179, 200, 184 ; Adams ». People, 1 Comst. 173, 8 Eng. Rep. 143, 161 ; In re Ternan, 9 177; The Marianna Flora, 11 Wheat. 1, Cox C. C. 522; Vol. IL § 1057 et seq. 40; United States y. Palmer, 3 Wheat. 64 CHAP. VI.j UNITED STATES AND FOREIGN NATIONS. § 121 around her, crimes of less magnitude would seem, on common principles, to justify the interference of any adequate corrective power.^ Arrests abroad — On High Seas. — The like distinction forbids us to go upon the territory of another State to arrest an offender against our own laws ; ^ while we can go thus upon the high seas.2 § 121. Criminal Injury by one to another Subject abroad. — Says Lord EHenborough : " The king has an interest in the protection of his subjects in parts beyond the realm ; and there is a writ known to the law of England, if subjects have suffered in their persons, or goods in foreign parts. And the persons who have maltreated them there, when they come into this country, are called upon by a writ out of chancery to answer for it : so that the king's subjects are considered as under the protection of the king, even out of the realm." * Therefore an indictment at com- mon law was adjudged to lie against a British subject for murder- ing another British subject in a foreign state, — a statute having merely created a tribunal with a jurisdiction adequate to try the case.^ According to international law, the person offending must be a subject of the government whose tribunals call him to account ; ^ and, therefore, — How the statutes construed. — A statute creating a jurisdiction over offences committed abroad is construed to apply only to citi- zens ; '' and, perhaps, in general, but certainly not of necessity, only to what is done to the injury of a citizen.^ Yet — ^ And see "Wheaton International brought into our porta for adjudication." Law, 6th ed. 159. 1 Kent Com. 122. 2 Post, § 135 ; Tyler v. People, 8 « Rex v. Sawyer, 2 Car. & K. 101, 111. Mich. 320. ' Rex v. Sawyer, supra, reported also, ' Prancis v. Ocean Insurance Com- hut more briefly, Russ. & Ry. 294, Car. pany, 6 Cow. 404. See Rose v. Himely, Crim. Law, 3d ed. 103. See likewise 4 Cranch, 241; Hudson v. Guestier, 6 The State v. Dunkley, 3 Ire. 116, 122; Cranch, 281. A distinction doubtless Respublica v. De Longchamps, 1 Call. prevails between the arrest in a foreign 111 ; Rex v. Speke, 3 Salk. 358. vessel, sailing under the foreign flag, and ^ Wheaton International Law, 6th ed. that of offenders not so protected. 174, 175 ; The State «. Knight, 2 Hayw. Chancellor Kent observes, referring to 109. And see Commonwealth v. Gaines, The Marianna Flora, 11 Wheat. 1, 42 : " It 2 Va. Cas. 172. has been held, in this country, that for- ' See ante, § 112. eign ships, offending against our laws, * Rex v. Depardo, 1 Taunt. 26, Russ. within our jurisdiction, may be pursued & Ry. 134; Rex v. Helsham, 4 Car. & P. and seized upon the ocean, and rightfully 394 ; Rex v. De Mattos, 7 Car. & P. 458 ; VOL. I. 5 65 § 122 JUEISDICTION AND LOCALITY.. [BOOK H. Subject injuring Foreigner abroad. — A legislative act may well provide for the punishment, at home, of depredations committed by the subjects of our government on those of other governments abroad, either in or out of their own country,^ if indeed the right is not suificiently inherent in the common law without the help of any statute. § 122. Jurisdiction to try Offence abroad — (Foreign Government consenting or not). — Yet neither can our courts sit abroad, nor our law exclude the local law there, however it may operate con- currently with it, without the consent of the foreign government ; for each independent nation is supreme within its own dominions.^ But — Consular Jurisdiction and Courts. — We have with some nations treaties under which the consuls of each in the other's territory exercise limited judicial powers both civil and criminal.^ ' Thus, observes Mr. Lawrence, the editor of a late edition of Wheaton's " International Law : " * " In the treaty of 1828, with Prussia, art. 10,^ there is a provision, that the consuls, vice-consuls, and commercial agents shall have a right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities ; unless the conduct of the crews or of the cap- tain should disturb the order and tranquillity of the country, or the consuls should require their assistance. An act of Congress, passed 8th of August, 1846, for carrying into effect the provisions of this and similar treaties, gives authority to the Circuit and District Courts of the United States, and the commissioners appointed by them, to issue the necessary process to enforce the award, arbitration, or decree of the consul.^ A provision similar to that in the treaty with Prussia is to be found in the 12th art. of the treaty of 1837, with Greece ; 8th art. of the treaty of 1832, with Russia ; in the 9th art. of the treaty of 1846, with Hanover ; Keg. V. Azzopardi, 1 Car. & K. 203, 2 2 Foster v. Glazener, 27 Ala. 391. Moody, 288; TheApoUon,9 Wheat. 362; s And see Dainese v. Hale, 1 MacAr. Eeg. V. Lewis, Dears. & B. 182, 7 Cox 86, reversed 8 Chic. Leg. News, 97. C. C. 277 ; Stat. Crimes, § 141 ; ante, * Wheaton International Law, 6th ed. § 115, note, par. 9. 171, 172, note. And see lb. p. IBS, 166. 1 Reg. V. Azzopardi, 1 Car. & K. 208, 2 ' 8 U. S. Statutes at Large, 382. Moody, 288 ; Reg. v. Zulueta, 1 Car. & » 9 U. S. Statutes at Large, 79. K. 215. CHAP. VI.] TTNITBD STATES AND FOREIGN NATIONS. § 124 and in the 1st art. of the treaty of the 3d of April, 1852, between the United States and the Hanseatic towns." ^ § 123. Continued. — So " the consuls of the Christian states of Europe have, throughout the Levant, for centuries, exercised jurisdiction over their countrymen, as well as over others under their protection ; and controlled, to a greater or less degree, the relations of the Franks with the people of the country." ^ stm ampler Jurisdiction. — By our treaty with China, and the laws passed pursuant to it, we have over our citizens there almost as complete and exclusive a government, with the necessary judi- cial tribunals, as over the District of Columbia at home.^ So also has the British government over the ubjects of Great Britain in China.* Other illustrations might be cited,^ but these will give form to the general idea ; while persons seeking fuller information will find it in other books. III. Exemptions of Persons within our Territorial Limits. § 124. Our Laws govern All. — In the United States, there are few exemptions of foreigners from the duty of obeying our laws while here ; for, beyond provisions like those in the treaty with ? See 8 and 9 TJ. S. Statutes at Large, of wills, contracts, and other instruments ut supra, and Treaties of United States, executed in presence of the consul ; and 1854, p. 95. to the administration of the estates of ^ Wheaton International Law, 6th ed. their fellow-subjects, deceased within the 172, note. territorial limits of the consulate. The ^ Wheaton International Law, 6th ed. resident consuls of the Christian powers 166, 173, note. in Turkey, the Barbary States, and other * A curious illustration of this ap- Mohammedan countries, exercise both pears in the case of Hart u. Gumpach, civil and criminal jurisdiction over their Law Rep. 4 P. C. 439, where, two British countrymen, to the exclusion of the local subjects being in the employ of the Chi- magistrates and tribunals. This juris- nese government, one of them was per- diction is ordinarily subject, in civil mitted to maintain, in " Her Majesty's cases, to an appeal to the superior tribu- Supreme Court for China and Japan," nals of their own country. The criminal sitting at Shanghai, a, suit against the jurisdiction is usually limited to the in- other for an alleged .wrong done him by fliction of pecuniary penalties; and, in the latter in official acts performed in the offences of a higher grade, the functions service of the Chinese government ! of the consul are similar to those of a ^ " Among Christian nations it [con- police magistrate, or juge d' instruction. sular jurisdiction] is generally confined He collects the documentary and other to the decision of controversies in civil proofs, and sends them, together with cases, arising between the merchants, the prisoner, home to his own country seamen, and other subjects of the sljate, for trial." Wheaton International Law, in foreign countries ; to the registering 6th ed. 166. 67 § 126 jrcTElSDICTION AND LOCALITY. [BOOK H. Prussia before meiitioned,^ we have never permitted any foreign laws to supersede our own, further than they are entitled to do under the general law of nations.^ Exceptions by Law of Nations. — To the law of nations every government is bound to conform,^ and every municipal statute is construed as subject to the exceptions required by it.* Let us see what the exceptions are ; or, in other words, in what cases our laws do not operate within our own territory. § 125. Foreign Sovereign and Attendants. — First. If a foreign friendly sovereign comes personally upon our territory, he has our implied license exempting him and attendants from responsibility to our laws. His sovereignty covers alike him and them and his effects. And whether he is passing through our country, or temporarily sojourning here, neither he nor they can be proceeded against in our courts for any criminal act committed.^ § 126. Embassador, &c. — Secondly. If the sovereign, instead of coming himself, sends his embassador or other diplomatic agent, such an agent occupies, concerning the exemption, the place of his master. It protects him while coming, remaining, and going ; and, according to the better opinion, it also protects one not sent to us, but passing through our territory, on his way to or from another country.^ The person of such a functionary, his secretary, attendants, and retinue ; his house and household ; his carriages, his couriers, and even his domestic '' servants, — are privileged. They cannot be arrested ; his house cannot be broken open or entered, even under civil process (but he is not permitted to furnish therein an asylum for persons not attached to him) ; and neither he nor his is liable to our laws for crime. ^ The only 1 Ante, § 122. Cranch C. C. 173. It would be a mis- 2 Post, § 134. take to infer, from this case, that the a Pollard v. Bell, 8 T. E. 434, 437 ; Supreme Court of the United States The Le Louis, 2 Dods. 210, 251. could take jurisdiction of a crime cora- « See ante, § 112, 115, note, par. 9 ; mitted by the privileged person. See also ante, § 121. the statute of 1789, c. 20, § 13, 1 Stats, at 5 1 Phillim. Int. Law, 364 ; Poison Large, 80, and R. S. of U. S. § 687. See Law of Nations, 25 ; Wheaton Interna- also Who Privileged from Arrest, 1 Opin. tional Law, 6th ed. 143, 146. Att'y Gen. 26. 8 Wheaton International Law, 6th ed. 8 Vattel Law of Nations, b. 4, § 80-82, 801-304 ; Vattel Law of Nations, b. 4, 117-124 ; 1 Kent Com. 38, 39 ; Wheaton § 84 ; 1 Kent Com. 88 ; Dupont v. Pichon, International Law, 6th ed. 143, 284, et 4 Dall. 321. seq. ; The State v. De La Foret, 2 Nott ' United States o. Lafontaine, 4 & McC. 217 ; Respublica v. De Long- 68 CHAP. VI.] UNITED STATES AND EOEBIGN NATIONS. § 129 remedy for his misbehavior is to discharge him and send him I home.^ § 127. Continued — (Conduct in Nature of Treason). — The gen- eral law of nations seems to have excepted, out of the rule, the extreme case of the minister's having undertaken the death of the sovereign to whom, or the overthrow of the government to which, he is accredited ; and to hold, that for such an offence he forfeits his protection, and the government menaced may proceed against him in self-defence.^ But our legislation provides, in the broadest terms, that' " any writ or process " against a foreign minister dr other exempted person shall be void.^ And all per- sons who participate in violating this provision are punishable.* Yet,— Self-defence. — If a public minister assaults a citizen, the latter i is not debarred the 'right of self-defence; he may repel force by/ force.^ § 128. All Public Ministers — Secretary of Legation. — The im- munity extends to every class and order of public ministers ; ^ including the secretary of legation, who, receiving his appoint- ment directly from his government, carries ministerial dignity in himself.^ § 129. Consuls. — Consuls, being " commercial agents, appointed champs, 1 Dall. Ill ; Bowyer UniverBal Public Law, 67 ; . Schooner Exchange v. McPaddon, 7 Cranch, 116. 1 1 Kent Com. 38, 39. " The person offended may prefer a complaint to his own sovereign, who will demand for him an adequate satisfaction from the minis- ter's master." Vattel Law of Nations, b. 4, § 80. " Vattel Law of Nations, b. 4, § 99- 101 ; Rex v. Owen, 1 Eol. 185. But see Wheaton International Law, 6th ed. 285. And see Commonwealth v. KosIofE, 5 S. & R. 545. ' VS. S. Stats, at Large, 117, act of April 30, 1790, c. 9, § 25 ; E. S. of U. S § 4063. * lb. § 26; R. S. of U. S. § 464 United States v. Benner, Bald. 234 United States v. Liddle, 2 Wash. C. C, 205; United States v. Ortega, 4 Wash C. C. 531. And see Respublica v. De Longqhamps, 1 Dall. Ill ; United States ». Hand, 2 Wash. C. C. 435. 5 Vattel Law of Nations, b. 4, § 80 ; United States v. Benner, United States V. Liddle, and United States v. Ortega, supra. 6 Vattel Law of Nations, b. 4, § 69^ ■ 74 ; 1 Kent Com. 39. ' Vattel Law of Nations, b. 4, § 122 ; Ex parte Cabrera, 1 Wash. C. C. 232. And see United States v. Benner, Bald. 234 ; Respublica v, De Longchamps, 1 Dall. 111. A secretary of legation, in charge of the executive of the legation, under direction of the minister plenipo- tentiary, and acting as charg€ d'affaires in the latter's absence, is, within 7 Anne, u. 12, " a public minister of a foreign prince,'' entitled to the privileges of an embassador ; and it appears that he does not lose his protection in the courts by engaging in trade. Taylor v. Best, 14 C. B. 487, 23 Law J. n. s. C. P. 89, 18 Jur. 402, 26 Eng. L. & Eq. 383. 69 § 131 JTJEISDICTION AND LOCALITY. [BOOK n. to reside in the seaports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation deputing them," ^ do not enjoy this immunity.^ And " if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, re- jvoked, and to be punished according to the laws of the country I in which he is consul ; or he may be sent back to his own country, at the discretion of the government which he has offended."^ He is, in general, as to both civU and criminal affairs, "subject to the local law in the same manner with other foreign residents, owing a temporary allegiance to the state." * 1 § 130. Foreign Friendly Army — Armed Vessels. — Thirdly. The I sovereignty of every country goes with its army and navy. There- fore, if an armed vessel of a foreign power enters our waters peaceably, or lies peaceably at our wharves, Ve extend to it by implication the exemption from our laws. And the same princi- ple applies where we permit a foreign army to pass through our territory. But — Foreign Merchant Ship. — A foreign merchant ship coming within our harbors is subject to our local jurisdiction, the same as any foreign private person,^ except where we may have agreed otherwise by treaty.^ § 131. Enemies in War. — Fourthly. When war comes between sovereign powers, the men who compose the respective armies are not deemed criminal for what they do in the heat and conflict of battle ; "^ or, in general, for belligerent acts.* On a like principle, Mr. Wheaton even lays it down, that — Privateer Depredating on Wrong Nation. — " The officers and CreW of an armed vessel, commissioned against one nation, and depre- dating upon another, are not liable to be treated as pirates in 1 1 Kent Com. 41. 5 United States v. Diokerman, 2 Otto, 2 Wheaton International Law, 6th ed. 520 ; Schooner Exchange v. McFaddon, 304 ; 1 Kent Com. 44 ; United States v. 7 Cranch, 116 ; as to which see The San- Eavara, 2 DaU. 297, 299, note; The tissima Trinidad, 7 Wheat. 283. And State V. De La Foret, 2 Nott & McC. 217 ; see Poison Law of Nations, 25 ; Wheaton Commonwealth v. Kosloff, 5 S. & R. 545. International Law, 6th ed. 144. ' 1 Kent Com. 43. See Respublica v. 6 Ante, § 122. De Longchamps, 1 Dall. 111. 7 i Hale P. C. 59 ; and the authorities * Wheaton International Law, 6th ed. cited in the next section. 305; Flynn u. Stoughton, 5 Barb. 115. « Commonwealth v. Holland, 1 Du- See further, as to the office of consul, vail, 182. See The State u. Cook, Phil- Eobson V. The Huntress, 2 Wal. Jr. 59 ; lips, 635. The Adolph, 1 Curt. C. C. 87. 70 CHAP. VI.] XmiTBD STATES AND POEEIGN NATIONS. § 132 thus exceeding their authority. The state by whom the commis- sion is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority." -^ § 132. Hostile Acts in Peace — in War. — In principle, but per- haps not certainly on judicial authority, if .a foreigner who is not a spy,^ or within the same reason, .comes here during either peace or war by command of his sovereign, with whom in times of peace we maintain diplomatic relations, and upon our territory commits any wrong, our courts are not to pursue him as for a crime, but we are to look for redress solely to his sovereign. All admit this to be so, if the two nations are at war ; but it must be so also while they are in other respects at peace. One reason is, that, as the subject acted under compulsion from the highest earthly power above him, he should be permitted to set up this compulsion in excuse, on the ground of necessity, — a reason, however, which might not be quite conclusive alone. Another is, that, as in all crimes the government is the party offended,^ it should not seek a double redress, both of the immediate offender and of the sov- ereign who commanded him, but suffer the greater to absorb the less ; for this is a widely different case from those ordinary ones in which the principal and his agent are alike punishable. But the controlling consideration is,' that, if we first take our full re- dress, according to the measure which our law deems proper for the offence committed, out of the servant, we have no claim left to present to his master ; or, if we have, still such a proceeding would embarrass the settlement with the master. An immense public evil would thus be done ; while the philosophy of the criminal law is, that no man shall receive punishment, however he may merit it, unless it wUl promote the public good.* Hostile Act not commanded, but after-ward ratified. — By such reasoning we may carry the doctrine to the extent, doubtful on more general principles pertaining to the criminal law and to the sovereignty of nations, that, if the foreign subject acts under color of authority from his government, or in its name expecting his doings will be approved at home but without authority in 1 Wheaton International Law, 6th ed. ' Ante, § 32. 184. 4 Post, § 209-211. 2 Vattel Law of Nations, b. 3, § 179. 71 § 133 JTTBISDICTION AND LOCALITY. [BOOK H. fact ; still, if his government afterward adopts Ms act, he is to be held exempt in the same manner as if he had originally pro- ceeded under command from his sovereign. Our jurisprudence furnishes some analogies for the latter doctrine ; ^ and, on the whole, it seems to be just ; though it is a little exceptional to sufPer any action of a foreign power to defeat the operation of our law after it has once attached.^ But — Our own Citizen. — One of our own citizens cannot set up, in this way, foreign authority in excuse for the violation of our law.^ § 133. Further of the Reason. — Practical views of just states-, manship render the foregoing doctrine imperative. If we were to punish the agent of the foreign government, it would follow, that, should a technical difficulty in making proof, or any other technicality, or any confusion or perverseness of the jury, pro- duce the acquittal of the agent in the courts, our government must deem the alleged injury not to have been done. And the settlement of a grave international wrong would thus be com- mitted, in the first instance, not to the head of the government, but to a judge of perhaps inferior jurisdiction, and twelve men casually drawn to s§rve as petit jurors, — a result contrary to the entire framework and spirit of every well-organized government ; 1 Case of Thorshaven, Edw. Adm. contrary, held, that these facts together 102, 108 ; The Emulous, 1 Gallls. 563, would furnish no defence for the a)ris- 568 ; Vattel Law of Nations, b. 2, § 74. 'oner ; but the decision did not give uni- 2 This question was drawn into very versal satisfaction to the legal profession, full discussion, in 1841, in the case of The defendant was finally acquitted on Alexander McLeod, a British subject, the facts. People v. McLeod, 1 Hill, indicted in the State court in New York, N. Y. 377, 25 Wend. 483 (where the cor- for the murder, in 1837, of Amos Durfee, respondence between the two govern- an American, in Niagara County. The ments is given in the notes) ; McLeod's homicide was committed in the execu- Trial, by Gould, pamphlet. For the cor- tion of military orders, during a rebel- respondence between Mr. Webster and lion in Canada. The defendant, with Lord Ashburton, see 6 Webster's Works, others, had come over the river to de- 247. And for reviews and discussions of stroy, on the American side, a steamboat the case, see 4 Law Reporter, 169 ; 26 supposed to be employed in carrying aid Wend. 663; 3 Hill, N. Y. 635; 1 Am. to the rebels ; and, in the course of the Law Mag. 348. See also Commonwealth transaction, Durfee lost his life. The v. Blodgett, 12 Met. 56 ; Maisonnaire v. British government approved the act, Keating, 2 Gallis. 325, 335 ; Suits against and demanded the release of her subject. Foreigners, 1 Opin. Att'y Gen. 45, 46 ; The American government conceded. Actions against Foreigners, 1 Opin. Att'y that, after this approval, the defendant Gen. 81 ; Buron v. Denman, 2 Exoh. 167 ; could not be convicted ; but maintained, Phillips v. Eyre, Law Rep. 6 Q. B. 1, 24. that the discharge must come from the « United States v. Pirates, 5 Wheat, courts, not from the executive authority. 184. And see The Santissima Trinidad, The Supreme Court of New York, on the 7 Wheat. 283. 72 CHAP. VI.] UNITED STATES AND FOEEIGN NATIONS. § 135 and, in our case, contrary to the national Constitution, which in effect leaves such things with the President and Senate, or, in some circumstances, with the entire national legislature. For the proposition is too plain for doubt, that no executive would be justified in assuming the fact of a particular violation of law, if the accused person had been tried by a court of the executive's country, and by it pronounced innocent. § 134. Our Laws bind and protect All. — Subject to the excep- tions enumerated above, which severally rest on peculiar reasons, the doctrine is general, that our laws bind alike all persons, natives and foreigners, found within our territory.^ On the other hand, also, they equally protect all ; ^ and thus, — Killing Alien Enemy. — If, even in time of war, an alien enemy comes here, it is murder to kill him, except in the actual heat and exercise of war.^ If he submits, and lays down his arms, his life must be spared.* § 135. Arrest and Surrender of Fugitives — (Effect here of unlaw- ful Arrest abroad). — A foreign power cannot carry away a fugi- tive from its justice found within our territory ; for the arrest would be an unwarrantable interference with the local sovereignty of our government.^ Yet the fugitive himself, arriving home, could not there so take advantage of the unauthorized proceeding as to have the prosecution against him dismissed.^ We may, perhaps, surrender such fugitives if we will ; " though the gov- ernor of one of our States has not the authority, derived solely from his office ; ^ neither, it appears, have our courts.^ Indeed, the whole question of the surrender of fugitives to foreign powers 1 1 Kent Com. 36 ; 1 Hale P. C. 59 ; 9 B. & C. 446 ; The State u. Smith, 1 Adams u. People, 1 Comst. 173 ; People Bailey, 283 ; The State v. Brewster, 7 Vt. V. McLeod, 1 Hill, N. Y. 337, 406, 423 ; 118, 121. Eex 11. Delamotte, 1 East P. C. 53 ; ante, ' Mure v. Kaye, 4 Taunt. 34, 43 ; Rex § 124. V. Kimberley, 2 Stra. 848. 2 The State v. Jones, Walk. Missis. 83. « Ex parte Holmes, 12 Vt. 631. In 8 4 Bl. Com. 198 ; 1 East P. C. 227. Holmes v. Jennison, 14 Pet. 540, the ma- * Vattel Law of Nations, b. 3, § 146. jority of the court were of opinion, that ^ People V. MeLeod, 1 Hill, N. Y. 377, the governor cannot do so, even if he has 25 Wend. 483, 581 ; ante, § 119. See the authority of State law ; because the Church 1). Huhhart, 2 Cranch, 187. And Constitution of the United States impli- so the sheriff of one State cannot pursue edly forbids. " The power," said Taney, into and retake in another a person who C. J., " is a part of the foreign inter- has escaped from his custody. Bromley course of this country." V. Hutchins, 8 Vt. 194. ^ Case of Jose Ferreira dos Santos, » Ex parte Scott, 4 Man. & R. 361, 2 Brock. 493. 73 // § 137 JUEISDICTION AND LOOAXiITY. [BOOK H. pertains, not to our States, but to our national government.^ But whether on general principles of international law we should in any case make the surrender, is uncertain ; ^ the doctrine of our tribunals, established after some conflict of opinion, seems to be, that we should not.^ Yet we have treaties with some foreign governments, under which, in cases and circumstances therein mentioned, we give up the fugitives.* As between our States. — Likewise between the States, the Con- stitution of the United States requires the surrender of fugitives from justice, on demand of the executive of the State whence they escaped.* IV. Acts punishable both by our Grovemment and a Foreign one, § 136. Same Act an 0£fence against both. — It is evident, On con- sideration of what is set down in the foregoing discussions of this chapter, that, under various circumstances, the same act of wrong may be a violation of the laws and a disturbance of the peace of each of two distinct governments. Whether both will punish it, is a question for another connection.^ But, — Our Government punish, if other does not. — Though an act of wrong is properly punishable by another sovereignty, yet, if the other does not punish it, this liability to punishment abroad fur- nishes no good reason why we should not pursue the offender for violating our laws. § 137. Larceny of the same G-oods within two Jurisdictions : — Distinct Larcenies of same Goods. — Larceny may be Committed any number of times of the same goods.'' Punishable where committed. — And this offence, like every 1 People I). Curtis, 50 N. Y. 321 ; In « As to which see Jones v. Van Zandt, re Vogt, 44 How. Pr. 171. 5 How. U. S. 215; Commonwealth v. 2 Wheaton International Law, 6th ed. Tracy; 5 Met. 536, 550 ; United States v. 176. Smith, 4 Day, 121 ; The State v. Howell, ' Wheaton International Law, 6th ed. R. M. Charl. 120 ; The State v. Loper, 177 ; 1 Kent Com. 86, 37, and notes ; Ga. Deois. part ii. 33 ; The State v. M- Commonwealth v. Deacon, 10 S. & R. len, 2 Humph. 258 ; Matter of Fetter, 8 125 ; Ex parte Holmes, 12 Vt. 631 ; Case Zab. 311. See also Crim. Proced. I. of Jose Ferreira dos Santos, 2 Brock. 493. § 219-224. ^ Wheaton, ut supra ; British prison- « Post, § 983 et seq. ers, 1 Woodb. & M. 66 j In re Metzger, . 7 Ante, § 115, note, par. 5 ; Vol. IL 1 Barb. 248, 1 Parker C. C. 108 ; In re § 781, 789, 839. Heilbonn, 1 Parker, C. C. 429. 74 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 138 other, is punishable in the jurisdiction where committed ; yet not / in any in which it is not committed. "What results from this. — From these two propositions, each of which is axiomatic, we derive the answer to a question which has greatly vexed our tribunals. It is, in the misleading form in which it is generally put, whether, if a man commits larceny of goods in one country, or in one State of our Union, and carries them into another country or State, he can be convicted of lar- ceny of them in the latter locality, in analogy to the rule which holds where goods are stolen in one county, and conveyed by the thief into another one, within the same State. ^ Now, this form of the question, being the common form, betrays the misappre- hension out of which the differences have arisen. Our courts cannot punish offences against a foreign government ; neither can a man excuse himself for a criminal act done here, by alleg- ing that he did the like elsewhere. From which propositions we conclude, that, as a question of principle, a man can neither be punished nor escape punishment for a larceny here, by reason of his having committed larceny of the same goods also in another State or country. § 138. Larceny abroad not punishable at Home. — Therefore when, in a Pennsylvania case, the jury found, " that the defend- ant did feloniously steal, take, and carry away the goods . . . within the State of Delaware, and that he brought the same into the city of Philadelphia, within the jurisdiction of this court," the judges properly refused to pass sentence on the verdict.^ A tribunal in Pennsylvania cannot punish a man for a theft in Dela- ware. But, — Larceny at Home punishable. — On a proper indictment, these facts would have justified the jury in finding, had they chosen, that the prisoner stole the goods in Pennsylvania. Always, when a man has with him property in the State where any legal inquiry concerning it arises, the courts look into the legal relation he sustains to it there ; if he stole it in another State, he has not even the right to its custody in the new locality ; and the rule of larceny is, that, when a man, having in his mind the intent to steal, makes any removal or carrying away of goods to the custody of which he has no title, he commits the crime. 1 Crim. Proced. I. § 59, 60; II. § 727- " Simmons v. Commonwealth, 5 Binn. 729. 617. 75 § 140 JUEISDICTION AND LOCALITY. [BOOK U. § 139. Compared to Larcenies of same Goods in tvro Counties. — The question now under discussion differs, in one aspect, from that of goods stolen in one county and conveyed by the thief into another in the same State. In another aspect, it is the same. /There can be no conviction for any offence, except on proof of its • complete commission within the county.^ If the first taking is in the same State, but in another county, this fact appearing at the trial shows the relation of the thief to the goods to be felonious ; hence an inference of theft in the second county proceeds from the mere added fact of a possession there. Yet where the first taking is abroad, no such inference can be drawn from the mere possession ; while, if inquiry establishes also a trespass in our State, then the fact of there being in the possessor here no right to the possession, to the custody, or to any handling whatever of the goods, added to proof of intent to appropriate them wrong- fully here, with a knowledge of the ownership being in another, establishes the full offence. This is not convicting one here for what he did abroad, but for his felonious act, on our own soil, against our own laws. Our courts cannot ignore the existence of the property here, or the relation sustained to it by the de- fendant here, or the trespass committed upon it here, or the felonious intent which here existed. And to let him go free of punishment for the felony which he has committed against our laws because he had before committed a similar felony against the laws of another country is to suffer foreign laws to suspend the action of our own. § 140. Foreign Laws not suspend ours — Further Seasons. — .The proposition, that a man is to escape punishment for the violation of our laws because he first violated those of a foreign coun- try, is absurd in itself, and mischievous in its practical applica- tion. Nothing is plainer than that, when a man is found here with property, our courts will inquire after the owner of it, equally whether such owner is alleged to be a foreigner or a citi- zen, present personally, or absent. Nothing is plainer than that our courts will protect the rights of property, equally whether it is in the owner's grasp, or wrongfully in the grasp of a felon. And no principle in the law of larceny is better established, as general doctrine, than that any physical removal, however slight, of the entire physical thing alleged to be stolen, to which thing 1 Crim. Proced. I. § 54. 76 CHAP. VI.J UNITED STATES AND EOEEIGN NATIONS. § 140 the remover has not the right of possession, though he has it law- fully or unlawfully in custody, is, where the felonious intent exists, larceny. If, therefore, the complete offence is not com- mitted here, by oiie bringing here from a foreign country personal . goods which he has there stolen, using them here as his own, and meaning at the same time here to deprive the owner of his ownership therein, then is it impossible for any man, under any circumstances, to do acts completely falling within all the descrip- tions and definitions given in the books of this offence.^ Another View. — There is another path through this discussion, conducting to the same end. Though our courts are not per- mitted to recognize a foreign larceny, and punish it, they can take cognizance of a foreign civil trespass to personal goods ; and, if they obtain jurisdiction over the parties, they wUl redress the wrong done in the foreign country. The method under the com- mon-law procedure is by the familiar transitory action of trespass.^ ' In The State v. Bennett, 14 Iowa, 479, the court affirms both the reasoning of these sections and the conclusion to which it conducts. So also do the courts in Ferrill v. Commonwealth, 1 Duvall, 153; Watson v. The State, 36 Missis. 593 ; and The State v. Newman, 9 Nev. 48. And see Graves o. The State, 12 [Wis. 591. Axiomatic Propositions. — ^ There are, in the law, propositions which, to minds accustomed to legal investiga- tion, are so much in the nature of axio- matic truths that to be stated is equiva- lent to being proved ; and one who an- nounces such a proposition knows, on its announcement, that it will work its way against all opposition, and any amount of venerable authority, as surely as the electric forces will, when the conditions have matured, part the cloud. The fore- going propositions of my text are of this sort. When, therefore, in preparing the first edition of this work, I discovered that all the cases discussing this subject had proceeded on inadequate views of the principles involved ; perceiving the axiomatic nature of the foregoing propo- sitions of my text, I said to myself, " I will make this simple statement of the true principles, and thus the contlict will be ended." Having done so, I observed the cases afterward decided on this sub- ject, to discover whether the prediction was yet verified. Case succeeded case in the same eclipse of the judicial under- standing which had prevailed before; each containing indubitable internal evi- dence that the judges had not looked into my book upon the subject. And it was not until I came to prepare the fourth edition that I was able to cite any one case decided by judges who had seen the views thils presented. The result could not, in the nature of things, be otherwise than as anticipated. In nu- merous instances of axiomatic views pre- sented, differing from what had been before entertained, I have witnessed the like result; and, indeed, I never knew the instance wherein any competent law- yer or judge withheld his assent from a truth of this sort, after it had been so brought to his mind that he really understood it. Not all the law can thus be reduced to axiomatic propositions ; but such of it as can, is as absolutely certain to gain in the end the assent of the entire legal fra- ternity as if it were a demonstration in geometry. 2 Mostyn v. Fabrigas, Cowp. 161 ; Glen V. Hodges, 9 Johns. 67. 77 § 141 JTTRISDICTION AND LOCALITY. [BOOK n. Now, in every, larceny there is a civil trespass, as well as a crimi- nal one.i This civil trespass, when committed abroad, our courts can recognize, and practically enforce rights growing out of it, to the same extent as if done on our own soil. So much is settled doctrine, about which there is no dispute. It is equally settled doctrine in larceny, that, if one has taken another's goods by a mere civil trespass, even though it was unintended, then, if find- ing them in his possession the intent to steal them comes over him, and with such intent he deals with them contrary to his duty, this is larceny .^ Applying these two plain doctrines to the present case we have the result, that, where a thief brings goods from a foreign state into ours, our courts are required to look upon him as a trespasser ; and, when he commits any asportation of them here, such as he necessarily did in bringing them across the territorial line, the intent to steal impelling him, they should regard him as a felon under our laws.^ § 141. How in Authority. — When we turn to the authorities, we find that they have not always proceeded on the principles thus stated. In an old English case, where goods seized pirati- cally on the ocean were carried by the thief into a county of Eng- land, the common-law judges refused to take cognizance of the larceny, and committed the offender to answer to the admiralty ; "because," said they, "the original act, namely, the taking of them, was not any offence whereof the common law taketh 1 Post, § 264, 267, 268, 271. on their guard against a seducing error, ^ Vol. II. § 839. and the cause of juridical truth will be ' The case of Stanley v. The State, 24 promoted. " It is conceded," said Mc- Ohio State, 166, decided in 1873, holds, Ilvaine, J., " that, in order to convict, the that it is not larceny in Ohio to steal Jury must have found that the goods goods in Canada and bring them into the were stolen by the defendant in the do- State. The court was referred to the minion of Canada, and carried thence by discussion of this subject in my fifth edi- him to the State of Ohio." Therefore tion ; and, when I first partly read the we see that the case had been unfortu- case, I thought that the learned judge nately argued. I cannot imagine how had made himself acquainted with my any counsel could have made such a con- views, and, dissenting from them, had cession. After this, one cannot blame set himself to answering them. But, on the court, however it may have drifted, looking at it further, I discovered to my The reasoning of the learned judge is, at regret that he had not. It is much to be its principal points, based on misappre- desired, that, when a court suffers a text- hensions of the law of larceny. I was book to be cited, it should look into the about to show this ; but I see it would author's views. Then, if they are dis- make my note long, and, on the whole, covered to be unsound, the learned judge it may not be necessary, can explain wherein, others will be put 78 CHAP. VI.J UNITED STATES AND FOREIGN NATIONS. § 141 knowledge ; and, by consequence, the bringing of them into a county could not make the same felony punishable by our law." ^ And the doctrine has been since applied, in England, to goods stolen both in other parts of the king's dominions ^ and in foreign countries.^ This doctrine has been followed by the courts of , New York,* New Jersey,^ Pennsylvania,^ North Carolina,'' Ten- nessee,^ Indiana,^ Louisiana,^'' and Nebraska.^^ It has been dis- carded, and the opposite '^ held in Connecticut,^^ Vermont,^* I Maine,^^ Mississippi,^^ Iowa,i^ Kentucky,^^ Nevada, ^^ Illinois,^"!' and Oregon.2^' In Massachusetts, the court discarded it also, holding defendants liable where the original larceny was in an- other of the United States ; ^ but afterward, where it was in one of the British provinces, the conviction was overthrown,^^ — a distinction which the Maine tribunal has refused to recognize, deeming it without foundation.^ So, in Ohio, a conviction was sustained where the original taking had been in another State of the Union,^^ but reversed where it had been in Canada.^^ The rule which holds the offender guilty in the State to which he brings his stolen goods has likewise been prescribed, by statute, in' New York "^^ since the before-mentioned adjudication was made ; 1 Butler's Case, cited 13 Co. 53, 3 Inst. 15 The State v. Underwood, 49 Maine, 118. And see Keg. v. Wallace, Car. & 181. M. 200. w Watson v. The State, 36 Missis. 593 ; 2 Rex V. Anderson, 2 East P. C. 772; ante, § 140, note. Rex V. Prowes, 1 Moody, 349. " The State v. Bennett, 14 Iowa, 479 ; 8 Reg. V. Madge, 9 Car. & P. 29 ; Reg. ante, § 140, note. V. DebKuiel, 11 Cox C. C. 207. " Ferrill v. Commonwealth, 1 Duvall, * People V. Gardner, 2 Johns. 477 ; 153 ; ante, § 140, note. People «. Schenck, 2 Johns. 479. See " The State w. Newman, 9 Nev. 48; People V. Burke, 11 Wend. 129. ante, § 140, note. 5 The State t. LeElanch, 2 Vroom, 20 Myers «. People, 26 111. 173. 82. 21 The State v. Johnson, 2 Oregon, 115. ' Simmons v. Commonwealth, 5 Binn. 22 Commonwealth o. CuUins, 1 Mass. 617. 116 ; Commonwealth v. Andrews, 2 Mass. ' The State v. Brown, 1 Hayw. 100. 14 ; Commonwealth v. Rand, 7 Met. 475, * Simpson ». The State, 4 Humph. 477 ; Commonwealth v. Holder, 9 Gray, 7. 456, 459. 23 Commonwealth v. Uprichard, 3 ' Beal V. The State, 15 Ind. 378. Gray, 434. 1" The State v. Reonnals, 14 La. An. "4 xhe State v. Underwood, supra. 278. 25 Hamilton v. The State, 11 Ohio, " People ». Loughridge, 1 Neb. 11. 435. 12 Ante, § 137. 28 Stanley v. The State, 24 Ohio State, " The State ». Ellis, 3 Conn. 185; The 166 ; ante, § 140, note. State ». Cummings, 33 Conn. 260. 27 People v. Burke, 11 Wend. 129. " The State 0. Bartlett, 11 Vt. 650. 79 § 143 JTJEISDICTION AND LOCALITY. [BOOK H. also in Alabaina,^ Missouri,^ Kansas,^ Michigan,* and some other States.^ § 142. Further of the Doctrine. — And it is remarkable, that, in all the discussion which this question has received, the precise aspect of it presented in the foregoing sections had, until the cases mentioned in a note to the section before the last occurred, been no more than indistinctly shadowed ; while evidently the view there taken places it, to one familiar with the principles governing the offence of larceny, beyond doubt. Yet where this view has partially appeared, the objection seems to have arisen, I that it renders the prisoner liable to be twice convicted and pun- ished for one offence, in violation of the spirit of the common law ; but this objection is without weight. The common law either admits of two convictionsin such a case, or it does not ; if it does, there is nothing in the objection ; if it does not, then the first conviction, in whichever locality it takes place, may be plea^edjn bar of the second. The common law, however, knows no such ]^ea in defence of a prosecution as liahility to indictment elsewhere.^ § 143. Other Offences: — In General. — And the doctrine may be laid down generally, in respect to States, as to counties, that, if a complete offence is committed in the locality of the prosecution, quite immaterial is it what is done or attempted in a foreign locality.^ Thus, — Duel. — A challenge here to fight a duel in another State 1 The State v. Seay, 3 Stew. 123 ; The doctrine, Commonwealth v. Cone, 2 Mass. State V. Adams, 14 Ala. 486 ; Murray v. 132 ; Commonwealth u. Judd, 2 Mass. The State, 18 Ala. 727 ; La Vaul v. The 329; Commonwealth v. King, 1 Whart. State, 40 Ala. 44. « 448 ; The State v. Carr, 5 N. H. 867 ; 2 Hemmaker o. The State, 12 Misso. People v. Babcock, 11 Wend. 586 ; Rex 453 ; The State v. Williams, 35 Misso. v. Dick, 1 Leach, 4th ed. 68 ; Bex v. Kirk- 229. wood, 1 Moody, 311 ; Johnson v. People, 8 McFarland v. The State, 4 Kan. 68. 4 Denio, 364 ; Rex v. McKay, Russ. & * Morissey v. People, 11 Mich. 327; Ry. 71; Rex v. MoKeay, 1 Moody, 130; People V. Williams, 24 Mich. 156. Commonwealth u. Hensley, 2 Va. Cas. 6 And see Fox v. Ohio, 5 How. U. S. 149; Cummings v. Commonwealth, 2 Va. 410, 434 ; United States v. Pitman, 1 Cas. 128 ; People o. C^sar, 1 Parker C. Sprague, 197 ; The State v. Stimpson, C. 645 ; Morgan v. Pettit, 3 Scam. 529 ; 45 Maine, 608 ; Henry v. The State, 7 The State v. Haskell, 33 Maine, 127 ; Coldw. 331. People v. Burke, 11 Wend. 129 ; Lewis v. « As to the form of the indictment, Commonwealth, 2 S. & R. 551 ; People v. see Crim. Proced. II, § 727-729. Flanders, 18 Johns. 164. ' And see, as illustrating the general 80 CHAP. VI.J UNITED STATES AND FOEBIGN NATIONS. § 144 is indictable, the same as if the duel were to be fought here.' Blow and Death in Homicide. — It has indeed been held by some tribunals, as we have already seen,^ that, when a blow is inflicted on the high seas, and death follows on land, or in one State and the person expires in another, there can be no indictment for the murder as committed in the former place ; but even this doctrine, which we also saw does not rest well on principle, proceeds sim- ply on the error, that the murder is not complete where the blow is given. § 144. Conclusion. — Thus we have embraced, within a single chapter, many questions of vast magnitude and immense national importance. Some of them are more fully discussed in the works on international law ; but, in this briefer view and simpler picture, what is most material appears, and, it may be, more distinctly before the eye of uninformed readers than where separated over wider spaces and enveloped in superfluous words. i The State v. Farrier, 1 Hawks, 487; The State v. Taylor, 1 Tread. 107, 3 Brev. 243. 2 Ante, § 112-116. VOL. I. 6 gj^ § 14T JUEISDICTION AND LOCALITY. [BOOK H. CHAPTER VII. JXTBISDICTION AND LOCAL LIMITS OF THE STATES. § 145. Outward Boundaries. — We have already considered tlie boundary lines of the United States, viewed as one nation.^ The outward boundaries of the States on the borders are coincident with these.^ § 146. Counties. — States are divided into counties. A State may have portions of its territory not within any county, though it has the right ^ to extend its county lines over the whole. Thus — County Lines on the Sea. — On the seaboard and against the open sea, a county, at common law, reaches only to the water- margin, and there the line pulsates in and out, with the ebb and flow of the tide ; * while, as we have seen,^ the territory of the State, and consequently its territorial jurisdiction, reach beyond low-water mark to the distance of a marine league. But at points where the sea puts up inland, the rule is different ; for arms of the sea, as rivers, harbors, creeks, basins, and bays, so closely em- braced by land that a man standing on the one shore can reason- ably discern with the naked eye objects and what is done on the opposite shore, are within county liniits.^ And it is not material to this rule, whether the shore is main-land or island. § 147. Boston Harbor. — On this principle, the harbor of Boston, enclosed by numerous islands with narrow straits between, belongs 1 Ante, § 102-108. * Constable's Case, 5 Co. 106 a, 107 a; 2 United States v. Berans, 3 Wheat. 8 Inst. 11-3; 2 East P. C. 803; 1 Gab. 336 ; Commonwealth v. Peters, 12 Met. Crim. Law, 815 ; 2 Hal& P. C. 17, 20 ; 2 387, 394; Commonwealth v. Alger, 7 Hawk. P. C. 6th ed. c. 9, §14; United Cush. 53, 81-83 ; Pollard v. Hagan, 3 States v. Grush, 5 Mason, 290. See Reg. How. U. S. 212 ; People v. Tyler, 7 Mich. v. Gee, 1 Ellis & E. 1068. 161 ; The Martha Anne, Oleott, 18. And ^ Ante, § 104. see Neal v. Commonwealth, 17 S. & R. « 2 East P. C. 805 ; 1 Gab. Crim. Law, 67 ; The State v. Cameron, 2 Chand. 172 ; 815 ; Rex u. Bruce, Russ. & Ry. 243, 2 Smith V. Maryland, 18 How. U. S. 71. Leach, 4th ed. 1093. And see Rex o. » See post, § 149. Soleguard, Andr. 231, 234. 82 CHAP. Vn.] JTJEISDICTION AND LIMITS OP THE STATES. § 149 to the county of Suffolk, in which Boston is situated. Yet the precise limits of the county outward appear not to be settled.^ " Upon the evidence before me," said Story, J., " I incline strongly to the opinion, that the limits of the county of Suffolk, in this direction, not only include the place in question [between Lovel's Island, George's Island, and Gallop's Island] , but all the waters down to a line running across from the light-house on the Great Brewster to Point Alderton. In the sense of the common law, these seem to me to be the fauces terrce, where the main ocean terminates." ^ § 148. statutes as to Counties on the Sea. — In New York,^ in Virginia,* and in some other States, there are statutes by force of which the counties are made to extend seaward as far as the State lines reach. Long Island Sound. — Long Island Sound is not a part of the State either of New York or of Connecticut.^ But — Islands — Goose Island. — The islands adjacent the Connecticut shore belong to this State. Among them is Goose Island, in Long Island Sound.^ § 149. County Lines between Shores. — It seems to be the doc- trine in England, that, if there are tide waters between two shores, and the land on both sides belongs to the British crown, and the waters themselves are within British territorial jurisdic- tion, the counties extend over these waters.^ In such a case, should there be counties on the opposite sides of a channel, doubtless the line between them will be the middle of the chan- nel.^ , On our Great Lakes. — And probably the ordinary common-law rule, as to the bounds of counties on the sea, does not apply to our great lakes ; ^ so that over them the counties extend to the 1 Commonwealth v. Peters, 12 Met. ther, as to this matter in New York, Peo- 387 ; United States v. Grush, 5 Mason, pie v. Wilson, 3 Parker C. C. 199 ; Stry- 290 ; United States v. Bevans, 3 Wheat, ker v. New York, 19 Johns. 179. 336. 6 Keyser t. Coe, 9 Blatch. 32, 37 2 United States u. Grush, 5 Mason, Conn. 597. 290, 802. 7 Eeg. v. Cunningham, Bell C. C. 72. ' Manley v. People, 3 Scld. 295; Peo- I understand the doctrine of tiie text to pie V. Wilson, 3 Parker C. C. 199. be deducible from this case, tliough it ia * Commonwealth v. Gaines, 2 Va. Cas. not therein stated in exact words. 172. 8 Ante, § 108; post, § 150. 6 The Elizabeth, 1 Paine, 10 ; The ^ Ante, § 105, 108 ; post, § 173, 176. Martha Anne, Olcott, 18. And see fur- 83 § 152 JTJEISDICTION AND LOCALITY. [BOOK H. limits of the State. ^ In New York, those bordering on Lakes Ontario and Erie reach, by statutory direction, to the division line between the United States and the British dominions. § 150. Line between States. — The line between two States is generally an easy fact to determine if the place be land. If it be water, doubtless the rule which runs it in the middle of the stream'^ will commonly prevail. But — Ohio River — (Kentucky and Ohio) . — The Ohio River, where it flows between Ohio and Kentucky, is all within the latter State ; and Ohio extends to the ordinary low-water mark on her side of the stream.* Hudson River — (New York and New Jersey). — In like manner, the exclusive jurisdiction over the waters of the Hudson, where they divide the States of New York and New Jersey, is in the former State.* Potomac — ; Chesapeake. — " By the charter of Maryland, the Potomac River to its mouth belonged originally to Maryland; and by the charter of Virginia, the Chesapeake from its mouth to the mouth of the Potomac belonged originally to Virginia. The Compact of 1785 gave a right in common to both States to the river and the bay." ^ § 151. states in own Territorial Limits. — The jurisdiction of a State is not in all respects absolute even in its own territory ; because the United States government has, by the Constitution, control over some things within State limits, sometimes ousting entirely the State jurisiiiction, and sometimes acting concurrently therewith. But this topic is for another chapter. § 152. Extra-territorial Jurisdiction of States. — That a State of our Union has no diplopaatic power, is, we have seen,^ plain. But it does not quite follow from this, that she may not exercise some sort of extra-territorial control over her own citizens ; punishing them for wrongs done abroad. At the same time, there may be reason to suppose that a State can have no authority, even over 1 People V. Tyler, 7 Mich. 161. ' So it was observed by counsel in 2 Ante, § 108 ; Philips t. The State, The State v. Hoofman, 9 Md. 28 ; refer- 55 111. 429. See The State v. Mullen, 35 ring to Binney's Case, 2 Bland, 99, 123. Iowa, 199. Georgia and Alabama. — As to tlie line 8 Booth V. Shepherd, 8 Ohio State, between Georgia and Alabama, see Ala- 243; McPall v. Commonwealth, 2 Met. bama v. Georgia, 28 How. U. S. 506. Ky. 394. 8 Ante, § 100; post, § 183-186. * The State v. Babcock, 1 Vroom, 29. 84 CHAP. Vn.] JtTEISDICTION A2fD LIMITS OF THE STATES. § 152 its own citizens, upon the high seas beyond its own lines ; because there is the point of contact with other nations, and all interna- tional questions belong to the general government. There is room for doubt also, whether always, when a citizen goes out of his own State, though not intending to abandon it, he is not so far a subject of the United States in distinction from the partic- ular State, as to be exempt from the criminal laws of the latter, and answerable only to those of the locality where he is, and of the general government. But in a Virginia case, the court took the exact contrary view.i ' So did the Wisconisin couxt.^ In North Carolina it was said : " This State cannot declare that an act done in Virginia [another State], by a citizen of Virginia, shall be criminal and punishable in this State ; our penal laws can only extend to the limits of this State, except as to our own citizens."^ On the other hand, a case before some of the judges i of New York goes apparently to the extent, that the legislature/ of one State cannot make indictable any act done in another! State, even by one of its own citizens.* And this has been heldj in Michigan,^ and probably elsewhere, and it is perhaps the better doctrine in principle.^ Still, in many and perhaps most of the cases in which this question was properly involved, it has been taken for granted, without inquiry or discussion, that one of our States occupies the same position as an independent nation with respect of the right to take cognizance of criminal acts performed by one of its citizens abroad. 1 Commonwealth v. Gaines, 2 Va. war, and hold diplomatic intercourse Cas. 172. with other nations. This every State in " The State v. Main, 16 "Wis. 398. the Union is forbidden to do. Even ' The State v. Knight, 2 Hayw. 109, within the Union, the citizens of one Taylor, 65. State are protected in another by virtue * People V. Merrill, 2 Parker C. C. of the Federal Constitution. Their own 590. On the subject of this section the State cannot protect them. And upon reader may profitably consult the cases no principle can its peace and dignity be cited post, § 154. considered as invaded, where, if its own * In Tyler v. People, 8 Mich. 320, 342, citizens are aggrieved, it has no right, as Campbell, J., said : " I do not conceive a State, to communicate with the public that any State of this Union has any authorities at all, whether to supplicate extra-territorial power over its citizens, or to demand their rights." This ex- This power is inseparably connected tract is from a dissenting opinion, but I with the duty of protection. This duty do not understand that the views of the cannot, under our Federal Constitution, other judges differed from these on this be exercised abroad by the individual point. States. It belongs to the power which * But see The State v. Main, 16 Wis. can levy troops, maintain navies, declare 398. 85 § 155 JXJEISDICTION AND LOCALITY. [BOOK H. § 153. Belligerent Act abroad by Command of State. — We may also doubt wliether one can justify himself in a foreign country for committing there an act in violation of the law of the place, by showing that he did it under command from his State, as he could do if the command proceeded from the general government.^ The Federal Constitution having shorn the States of diplomatic and war-making authority, the reason of the doctrine would not apply in such a case ; moreover, the foreign government would not know the State.^ § 154. Indian Territory. — Questions have arisen, concerning the power of the States to extend their jurisdiction over Indian territory within their limits,^ and concerning the power of Con- gress to exercise the Federal jurisdiction over Indian territory within the States ; * but, as these questions are not of universal interest, it will be sufficient for us simply to refer to some adjudi- cations. Further of Indianp. — Our Indian tribes are independent politi- cal communities." Congress has, by the Constitution, power to "regulate commerce . . . with the Indian tribes;"^ and this is held to authorize the suppression of the traffic in sphituous liquors between such tribes or their members, within or without State limits.'^ § 155. state and United States Jurisdiction over same Act. — A wrongful act may violate the peace both of the United States and of a State. Therefore each government has the authority to punish it, and either may take the jurisdiction regardless of the other's claims. Perhaps, likewise, in principle, when one has in- , 1 Ante, § 132, 133. U. S. 567 ; United States v. Bailey, 1 2 Commonwealth v. Blodgett, 12 Met. McLean, 234 ; United States v. Yellow 66. And see Luther v. Borden, 7 How. Sun, 1 Dillon, 271 ; s. c. nom. United V. S. 1 ; United States v. Bright, 1 States v. Sacoodacot, 1 Abb. U. S. 377 ; Whart. Pa. Dig. 6th ed. p. 506. United States v. Cha-to-kah-na-pe-sha, Hemp. 27 ; United States o. Sanders, Hemp. 483 ; United States v. Rogers, Hemp. 450 ; United States v. Ragsdale, Hemp. 497 ; Hunt u. The State, 4 Kan. 60. '' McKay v. Campbell, 2 Sawyer, 118. 6 Const. U. S. art. 1, § 8. ' United States v. Shaw-mux, 2 Saw- yer, 364. And see United States v. Seve- 3 Worcester u. Georgia, 6 Pet. 515 United States i>. Cisna, 1 McLean, 254 Caldwell v. The State, 1 Stew. & P. 327 The State v. Tassels, Dudley, Ga. 229 The State o. Foreman, 8 Yerg. 256 United States v. Ward, McCahon, 199 United States v. Stahl, McCahon, 206 United States v. Sacoodacot, 1 Abb. U. S 877 ; The State v. Tachanatah, 64 N. C 614. lofe, 2 Sawyer, 311. * United States v. Rogers, 4 How, 86 CHAP. Vn.J JUEISDICTION AND LIMITS OF THE STATES. § 155 flicted its punishment, the other may inflict its punishment also, notwithstanding what has been suffered.^ There is authority, also, both for this doctrine and its opposite, and for various modi- fications of doctrine between these two extremes. The question will come under review in other connections.^ 1 Ante, § 142 ; post, § 984, 987-989. 84 Cal. 183 ; Jett v. Commonwealth, 18 2 See post, § 178, 179, 987-989 ; and Grat. 933 ; The State v. MoPherson, 9 see Crim. Prooed. II. § 271 ; Sizemore v. Iowa, 53 ; The State v. Brown, 2 Oregon, The State, 3 Head, 26; Commonwealth 221 ; People v. Kelly, 38 Cal. 145; Com- V. Tenney, 97 Mass. 50 ; People v. White, monwealth v. Felton, 101 Mass. 204. 87 § 158 JXJBISDIOTION AND LOCAIilTY. [BOOK H. CHAPTER VIII. THE JXTBISDICTION OF THE tOJTETED STATES WTTHIN STATE MMITS. § 156. Defined by Constitution. — We slioiild distinguish be- tween the powers of our general government within State limits and without. As to the former, the Constitution is express: " The powers not delegated to the United States by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." ^ § 157. Powers " Prohibited to States." — The words " prohibited by it to the States " are important ; because, from them, the infer- ence is irresistible, that, if a particular thing pertaining to govern- njiental authority is by the Constitution prohibited to the States, or is found not to be within what is practicable for the States to exercise, it therefore pertains to the United States. Rejecting this construction, we should witness masses of governmental things dropping from existence, — contrary to reason, contrary to the necessities of government, contrary to the usages of nations, and contrary to what is practicable among men. Indeed, the United States is, by the Constitution, made a nation in very dis- tinct terms ; ^ therefore, as to all things pertaining to nationality, wherein the individual States are forbidden to act, or are in any way found to be wanting in the rightful jurisdiction, the jurisdic- tion may be deemed to be, by express force of the Constitution, in the general government. § 158. United States beyond State Limits. — As the States have no power beyond their local limits, it follows that the jurisdic- tional power of the United States is there full and complete^ — to be exercised, of course, in accordance with the principles laid down in the Constitution. This was somewhat considered in the chapter before the last ; it will be more exactly discussed in the next chapter. 1 Const. TJ. S. amend, art. 10. » Post, § 182 et seq. 88 CHAP. Vin.J UNITE-D STATES WITHEST STATE LIMITS. § 161 § 159. Ports, Dock-yards, &c. — " The Congress," says the Con- stitution, " shall have power ... to exercise exclusive legisla- tion . . . over all places purchased, by the consent of the legis- lature of the State in which the same shall he, for the erection of j forts, magazines, arsenals, dock-yards, and other needful build- ings." ^ Over such localities the sway of the several States does not extend, except that sometimes a special reservation in the -act ceding the place otherwise provides.^ The difficulty as to such places is, whether the State authority has ceased before Congress has exercised over them its full legislative powers.^ Where the statute of the State ceding the place reserves " concurrent juris- diction " to serve in it State processes, civil and criminal, this does not restrain the United States from exercising over it exclusive legislative and judicial authority.* An offence, there- fore, is triable, not in the State court, but the United States.^ The mere purchase of lands within a State, by the United States, for national purposes, does not, of itself alone, oust the jurisdic- tion and sovereignty of the State over them. § 160. Whence United States Jurisdiction 'within State Limits. — The sources of the national jurisdiction upon State territory are in |f the Constitution. To point out all is beyond the bounds of the present work. But — § 161. Guarantee of Republiccin Government. — One source of a special temporary jurisdiction, by the general government, over a State and all its concerns, is the guaranty clause of the Constitu- tion. It is : " The United States shall guarantee to every State in this Union a republican form of government." ^ 1 Const. U. S. art. 1, § 8. And see act, ceding to the United States lands for Dnited States u. Donlan, 5 Blatch. 284; national cemeteries, is held not to ex- Unlted States u. Barney, 5 Blatoh. 294 ; elude the State from executing process Franklin I). United States, 1 Col. Ter. 85; within the cemetery grounds, and pun- Eeynolds i: People, 1 Col. Ter. 179. ishiug offences therein committed. But ^ United States ». Bevans, 3 Wheat, over adjacent grounds, while temporarily .338 ; United States «. Davis, 5 Mason, occupied by the United States forces in 356; New Orleans v. United States, 10 preparing the cemetery, the national Pet. 662, 737; Mitchell v. Tibbets, 17 jurisdiction is exclusive. Wills v. The Pick. 298 ; United States v. Cornell, 2 State, 3 Heisk. 141. MUitary Beserva- Mason, 60. tion. — Kansas exercises criminal juris- " See United States v. Berans, 3 diction over the military reservation at Wheat. 336. Fort Leavenworth. Clay u. The State, * United States v. Davis, 5 Mason, 4 Kan. 49. 856. 6 Const. U. S. art. 4, § 4. The whole 6 Mitchell V. Tibbetts, 17 Pick. 298. section is : " The United States shall | National Cemetery. — The Tennessee guarantee to every State in this Union a J 89 §162 JTJEISDICTION ASD LOCALITY. [book n. § 162. Republican Government, continued. — When, for any rea- son, — as, for instance, when a State has passed what has been termed an ordinance of secession, — there ceases to be within it a government under the Constitution of the United States, the " guaranty " of this section attaches, and " The United States " becomes obligated to provide for it " a republican form of govern- ment." To see this distinctly, we should bear in mind, that our State governments are recognized by the national, the same as are- those of foreign nations; and that the national government may refuse to recognize a particular government of a State, or may withdraw a recognition already given. Thus, in Rhode Island, in the time of the Dorr rebellion, there were two govern- ments, each of which claimed to be the lawful one, and " The United States " recognized one of them, rejecting the other.^ And when South Carolina and several other States " seceded," as it was called, " The United States," though requested, declined to recognize the new governments, deeming them to be unauthorized and null. Yet, in fact, they occupied the places of the old ones in those States ; which, therefore, ceased to have governments ■#\inder our Constitution. Consequently the relations of the republican form of government ; and ghall protect each of them against inva- Bion ; and, on application of the legisla- ture, or of the executive (when the legis- lature cannot be convened), against domestic violence." I have separated the parts of this section, by semicolons, into three clauses. Bj' the first clause, to be more fully expounded in the text, " The United States " undertalces, when- ever any State shall cease to have what it (the United States) can recognize as a government under the national Constitu- tion, to give to it one, to wit, " a repub- lican form of government." By the second clause, " The United States " un- dertakes to protect the State " against in- vasion," — the word " invasion " denoting a hostile force coming upon the State from without. The third claus? requires " The United States," when there is a State government, to interfere for the suppression of domestic violence from within the State, provided application for help is made by the legislature or the governor. If there is an attempt to set up, within a tate, a monarchy^ in oppo- 90 sition to the will of the republican State government, tlie case is provided for in the third clause ; if a foreign power un- dertalses to establish a, monarchy within the State, the case is provided for by the second clause ; and, as these are the only two cases in which, while there is a re- publican State government within the State, there can be any question about the establishment of a monarchy, it fol- lows that the first clause did not contem- plate, and was not intended as a pro- vision against, this kind of emergency. The first clause is operative when, and only when, there has ceased to be, within the State, what the Constitution terms " a republican form of government." If the State ceases to have any government, then it ceases to have a republican form of government, and the case is within this clause. If it has a government, but the government has lapsed from the re- publican form, this clause controls the case also. And see Texas v. White, 7 Wal. 700. 1 Luther v. Borden, 7 How. U. S. 1. CHAP. Vm.] XTOTTED STATES WITHIN STATE LIMITS. § 165 United States to those States were upon this controlled by the clause now under consideration, and by such others as might be found specially applicable. §163. Continued — (United States full Power in State). — We have thus a State without a State government, and a power — to wit, the United States — under obligation to give it one. Mean- while it is absurd to suppose that the State waiting for the gov- ernment to be conferred upon it, is to abide ungoverned. Over the people of the State, therefore, in this emergency, and until the new State government is organized, full governmental power is, by the Constitution itself, conferred on " The United States." The locality, indeed, stiU bears the name of State ; yet the rela- tions between it and the general government have changed in law with the change in facts, in a manner which the Constitution^ itself points out.^ It is thus : by various clauses, all govern- 1 mental powers are prohibited to the States which have not gov- ernments within the Union ; but this instrument has no provision whereby any governmental power is annihilated. Yet, as we have seen,2 1^ j^^g ■^;jr^^^ jj^g^^ u ^j^g powers not delegated to the United States by the Constitution, nor prohibited by it to the States, arS reserved to the States respectively, or to the people." The power of local government is, in these circumstances, " prohibited to the State ; " therefore it is not " reserved " to the State or to its peo- ple, and, of necessity, it is in the United States until the new State government is organized. § 164. Continued. — That there can be no governmental power in a State without a government is plain ; because only through a government is a governmental power exercised. And this axiomatic proposition is made a doctrine of the Constitution by conclusive words. For example, " the members of the several State legislatures, and all executive and judicial officers ... of the several States, shall be bound by oath or affirmation to sup- port this Constitution." ^ And there are some other provisions having a similar effect. Therefore, when a State ceases to have these officers, it is barred by the Constitution from exercising any governmental functions ; since governmental acts can be done only through them. § 165. Continued. — Except, therefore, for the clause guaran- 1 Bishop First Book, § 112, 113. 3 Const. U. S. art. 6. 2 Ante, § 156. , 91 § 167 JTTEISDICTION AND LOCALITY. [BOOK H. teeing republican governments to the States, " The United States " might, if it chose, after a State has committed what is called an act of secession, or otherwise ceased to have a government, legis- late for it for ever, to the exclusion of any subsequent State leg- islation. But the clause under consideration provides that " The United States " shall " guarantee " to the State " a republican form of government." Therefore, as soon as the guaranty is executed, the right of legislation, received from the defunct State government, ebbs back into the new State government. § 166. Views relating to the Guaranty. — The following should be borne in mind : First, it is by judicial decision settled, that the President and the two houses of Congress are to decide whether or not a particular government within a State is republican, and to recognize it or not accordingly; and their determination of this question is conclusive, binding the courts, the State itself, and the nation. In other words, the term " United States," in this clause of the Constitution, refers primarily to the President and the two houses of Congress.^ It is not, therefore, for any Iclass of persohs, in a State which has ceased to' have a govern- Iflient, to set up one on their own motion ; though, should a class I do so, and Congress with the President recognize the irregularly organized government, the act of recognition would bind the coun- try and the courts.^ Such action, however, might be reversed by Congress afterward. § 167. Continued. — In the next place, the word " guarantee " refers to a duty which first rested on a party called the principal ; but, this party having failed in its performance, it afterward is cast upon another, called the guarantor. Now, cannot the prin- cipal, after a lapse, stiU step in and perform, if he will, and thus relieve the guarantor ? He can, if in a condition to perform ; otherwise, not. A State that has ceased to have a government is not in a condition to perform. To order an election, to deter- mine who shall be the voters, to fix the basis of representation, and other similar things, — these require governmental action, 1 Luther v. Borden, 7 How. V. S. 1. ized manner, — formed, while a Terri- 2 Such a case of irregular proceeding tory, a State Constitution without a would be, in a good measure, analogous previous act of Congress, and was after- to what took place in the admission of ward admitted, and its government reo- California ; which State, it is remem- ognized. And there are other precedents bered, — acting, of course, through un- of the like sort. authorized persons, and in an unauthor- 92 CHAP. Vm.] UNITED STATES WITHIN STATE LIMITS. § 169 and, where there is no government, they cannot be done. There- fore, as the Stat6 cannot do them, Congress must. True, as already- said, if the President, or a general in the field, or irresponsible persons do it, and Congress afterward adopts the act, the proceed- ing, though irregular, binds the country and the courts. §168. Continued. — Finally, the government which "The United States " guarantees to each State is " a republican form of government." The jurisdiction to decide what is such a gov- ernment and what is not, is, we have seen, in the President and Congress, composing the political department of the United States government.^ Now, what, by competent authority, is held in our country to be "a republican form of government " ? When the Constitution was adopted, there were, and there have been ever since. State governments, recognized as republican, with principal and well-known features alike ; but differing chiefly in this, that a part of them rested on a basis of what is called universal suffrage, while in others the right of suffrage was restricted to persons of specified property qualifications, or to white persons. There have always been those who deemed, that no government is republican wherein the suffrage is not universal ; or, that none is republican wherein a part of the people are slaves. And there can be no slaves now under our amended Constitution. But whatever be the true doctrine in principle, the adjudged law is, that each of the differing forms of government mentioned above is repub- lican.2 § 169. TWhat a Republican Government for a State. — It would seem, therefore, that, as a general proposition, unless Congress is prepared to overrule her own " precedents," when she undertakes to establish, in a State whose government has become vacated, a new State government, she may select any one of the forms pre- viously in use in any one of the States. Yet — Under Special Facts. — The circumstances of the particular case may limit her choice. Thus, if a part of the people of a State 1 Luther v. Borden, 7 How. U. S. 1. as to be elected by voters who were con- 2 This question has been, in effect, stitutionally disqualified would disqualify passed upon by each of the two houses the member, and as members hare al- ' of Congress, not once, but by a sort of ways been present elected by these sev- continuous action, ever since the Constl- eral kinds of constituency, and no objec- tution was adopted. For, as each house tion has been made, there has been, in is by the Constitution the judge of the effect, a series of adjudications too vast qualifications of its own members, and, to be numbered. 93 § 170 JUEISDICTION AND LOCALITY. [BOOK U. throw off their State government in an act of rebellion against the government of the United States, Congress has no constitu- tional power, in establishing the new State government, to make those persons who rebelled voters, and exclude from the elective franchise those who did not rebel.^ § 170. Continued. — The proposition just stated is supported by the following consideration : The duty to guarantee the repub- lican government rests on Congress from the moment there ceases to be a government, under the national Constitution, in the rebel- lious State. If Congress discharges it promptly, the fact at the time of its discharge is, that the rebels are unwilUng to carry on a republican government under the Constitution, while the others are willing ; and a republican government can rest only on a basis of willing voters. Therefore Congress is bound to accept the willing. If Congress postpones the pierformance of a constitu- tional duty, such postponement cannot divest rights which have already vested in individuals or classes of individuals. And though a pardon may be granted to the rebels, and they may be thus restored to the elective franchise, yet, since the right to the franchise had already vested in those who were not rebels. Con- gress cannot take it away. If one Congress should attempt to do so, and in pursuance of the attempt should acknowledge a government in one of these States based on the action of a few 1 As this subject borders on political mocracy, or liberty, there would be no discussions, there are persons who, on certainty in the law, no fixed rules of account of political views, will not be decision. These are proper guides for pleased to see, in a law-book, the par- the legislature, where the Constitution is ticular doctrines which the law com- silent, but not for the courts. It is not pelled me to state. But I never yet bent for the judiciary or the executive depart- what I deemed to be the truth, to meet ment to inquire whether the legislature any man's politics, even my own ; neither has violated the genius of the govern- did I ever, in a law-book, dodge the dis- ment, or the general principles of liberty, cussion of any legal question which and the rights of man, or whether their fairly and properly sprang up in my acts are wise and expedient or not; but path. And I am here presenting purely only whether it has transcende.d thejlm- legal views, not political. I adopt, as my its prescribed for it in the Constitution, guide on every occasion of this sort, the By these alone is the power of that body rule which, in The Louisville and Nash- bounded; that is the touchstone by ville Railroad v, Davidson, 1 Sneed, 637, which all its acts are to be tried ; there was laid down for the court. Said Ca- is no other. It would be a violation of ruthers, J. ; " If the construction and ad- first principles, as well as their oaths of ministration of our laws, supreme or sub- office, for the courts to erect any other ordinate, were to be governed by the standard. There is no ' higher law' than opinions of judges as to the genius or the Constitution known in our system of general principles of republicanism, de- government." p. 668. 94 CHAP. Vin.J TXNITBD STATES "WITHIN STATE LIMITS. § 172 only of the voters, constituting an oligareliy, or based on the votes of those who had rebelled, excluding the mass of the people who had not, it would be the constitutional duty of a subsequent Con- gress to undo the work, by withdrawing the acknowledgment, and ordering a new election for a constitutional convention in the State, with the right of the always loyal to vote. § 171. Further of Legislation for State -without Government. — We have seen, that, if a State is without a government, Congress may legislate for it while in transition to a new government of its own. Now, suppose the argument by which that conclusion was reached is not sound, still it is derivable also from the guar- anty clause alone. . For, as Congress is to give the State a new republican government, this obligation carries with it the govern- ing power over the State during the transition period, in pursu- ance of a doctrine, expressed by Lord Coke, and recognized by all our tribunals, as follows : " When the law granteth any thing to any one, that also is granted without which the thing itself cannot be." ^ To constitute a grant by implication within this doctrine, the thing implied need not be absolutely inseparable from the thing mentioned ; as, in the case wherein these words occur, a statute authorizing justices of the peace to take the oaths of persons was held to confer the power to compel their appear- ance by writ, though it was physically possible to go personally to their homes and administer the oaths there. A State cannot exist without a government ; therefore, if it has none, the power bound to give it one may legislate for it during the interval. Indeed, if governmental jurisdiction over the State were not thus fully in the United States, the latter could not transfer it to a new governmental body ; in other words, " The United States " must take up the full governmental authority which the defunct State government laid down, in order to pass it to a new State government. § 172. National Powers not forbidden to States. — There are ju- risdictional powers granted by the Constitution to the United States, yet not forbidden to the States. As to these, the true rule of construction undoubtedly is, that, until Congress acts, the States may exercise the full governmental authority, if the thing be within their territorial limits ; but, after Congress has 1 Oath before the Justices, 12 Co. 130, 131. And see Heard v. Pierce, 8 Cush. 338, 343, 345 ; Stat. Crimes, § 137. 95 § 174 JURISDICTION- AND LOCALITY. [BOOK H. acted, the thing is, or may be made by the national statute, no longer within the competency of the States.^ Without tracing this doctrine into detail, let us look at some things adjudged. § 173. Maritime Jurisdiction within States. — " The judicial power of the United States shall extend," says the Constitution, " to all cases of admiralty and maritime jurisdiction ; " ^ and mari- time jurisdiction is by our courts held, contrary to the English rule, to embrace locally, not only the high seas, but all the inter- nal navigable waters, as rivers and lakes; on which commerce is borne.^ "Regulate Commerce" — Offences on Public Ways. — The United States have also constitutional power " to regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; " * which power extends to the regulation of navigation,* and necessarily implies certain rights of creating, by legislation, offences against commerce, committed on the public ways of the nation. § 174. states and United States as to PubUo Ways. — Still the powers thus given to Congress by the Constitution of the United States, over navigable waters within the States, slumber until legislation awakens them into practical life.^ Therefore, as a general proposition, the law permits the States to- exercise full control over public ways of all kinds, both by land and water, within their respective localities.^ Even roads may be laid out 1 See Weaver v. Fegely, 5 Casey, 27 ; 3 Cow. 713 ; Ogden v. Gibbons, 4 Johns. People V. Westchester, 1 Parker C. C. Ch. 150; Gibbons k. Ogden, 17 Johns. 488; 659; Newport v. Taylor, 16 B. Monr. Livingston «. Van Ingen, 9 Johns. 507; 699 ; Mobile v. The Cuba, 28 Ala. 185 ; Mobile v. The Cuba, 28 Ala. 185 ; Brig ^ople V. Coleman, 4 Cal. 46. Wilson o. United States, 1 Brock. 423 ; 2 Const. U. S. art. 3, § 2. Gilman v. Philadelphia, 3 Wal. 713. ' Genesee Chief v. Fitzlmgh, 12 How. ^ Waring v. Clarke, 5 How. U. S. 441 U. S. 443 ; Fretz v. Bull, 12 How. U. S. United States v. New Bedford Bridge, 1 466. Previously to these decisions, it Woodb. & M. 401. See Pennsylvania v. was understood to extend only to tide- Wheeling and Belmont Bridge, 13 How. waters. The Thomas Jefferson, 10 U. S. 518 ; Bailey v. Philadelphia Rail- Wheat. 428 ; Steamboat Orleans v. Phoe- road, 4 Harring. Del. 389 ; Georgetown bu8,llPet. 175; United States v Coombs, v. Alexandria Canal, 12 Pet. 91 ; People 12 Pet. 72 ; Waring v. Clarke, 5 How. U. v. St. Louis, 6 Gilman, 351 ; People i-. S. 441 ; Rossiter K.Chester; 1 Doug. Mich. Coleman, 4 Cal. 46; Commonwealths. 154. And see Steamboat New World v. New Bedford Bridge, 2 Gray, 339. King, 16 How. U. S. 469 ; The Huntress, ' People v. St. Louis, 6 Gilman, 361 ; Daveis D. C. 82. Commonwealth v. Alger, 7 Cush. 58 ; * Const. U. S. art. 1, § 8. Moore v. Sanborne, 2 Mich. 519 ; Bailey 5 Gibbons v. Ogden, 9 Wheat. 1 ; v. Philadelphia Railroad, 4 Harring. Del. North River Steamboat Co. v. Livingston, 389 ; Rogers v. Kennebec and Portland 96 CHAP. VIII.J UNITED STATES "WITHESr STATE LIMITS. § 175 by a State across lands within its limits belonging to the United States ; being a matter with which the general government can- not interfere.^ But Congress, under the power to regulate com- merce, may exercise any jurisdiction over the public ways of the country required for this object ; ^ and perhaps some authority also under other provisions of the United States Constitution.^ Perhaps the United States courts, under their general equity powers, without special legislation, may order the abatement of bridges and other structures over navigable rivers, if clearly they embarrass commercial intercourse between the States, though authorized by the legislatures of the States in which they are located.* This power has been denied where the river is entirely within the territorial limits of the State, not extending, as a pub- lic highway, into any other State.^ There has, indeed, been much question of the right, in any case, thus to go in advance of the action of the legislative department of the government ; and, whether those courts which have maintained the right have done well or not, they surely should not act under it in any doubtful circumstances. § 175. Continued. — A statute of the State may go as far as the legislature chooses, subject only to the interference of the United States tribimals or of Congress, as respects even the large rivers and the harbors of the country.^ But where, in these cases. Railroad, 35 Maine, 319, 323 ; Eldredge 2 United States c;. New Bedford V. Cowell, 4 Cal. 80 ; Cox v. The State, Bridge, supra ; Pennsylvania v. Wlieel- 3 Blaokf . 193 ; Depew v. Trustees, 5 Ind. ing and Belmont Bridge, 18 How. U. S. 8 ; Kellogg v. Union Company, 12- Conn. 421 ; Gibbons ». Ogden, 9 Wiieat. 1. It 7 ; Willson v. Black Bird Creek Marsh, may forbid or regulate the construction 2 Pet. 245 ; Savannah v. The State, 4 of a bridge across the Mississippi. Ga. 26 ; Stoughton v. The State, 5 Wis. United States v. Milwaukee and St. Paul 291 ; Morgan v. King, 18 Barb. 277 ; Railway, 5 Bis. 410. Withers v. Buckley, 20 How. U. S. 84; ^ See Pennsylvania v. Wheeling and Parker v. Cutler Mill Dam, 20 Maine, Belmont Bridge, supra. ■ 353 ; Illinois River jacket Co. v. Peoria * Pennsylvania v. Wheeling and Bel- Bridge, 38 111. 467 ; Chicago v. McGinn, mont Bridge, 18 How. U. S. 518, 18 How. 51 111. 266 ; Attorney-General ». Stevens, U. S. 421 ; Georgetown v. Alexandria Saxton, 369 ; Hutchinson v. Thompson, 9 Canal, 12 Pet. 91 ; United States v. Rail- Ohio, 52 ; Flanagan v. Philadelphia, 6 road Bridge Co., 6 McLean, 517 ; Oilman Wright, Pa. 219 ; People u. Tibbetts, 19 .;. Philadelphia, 3 Wal. 713. N. Y. 523 ; Mobile v. Eslava, 9 Port. 577 ; 5 Milnor v. New Jersey Railroad, 6 Avery v. Fox, 1 Abb. U. S. 246 ; Dela- Am. Law Reg. 6, Grier, J. See SilUman ware and Hudson Canal v. Lawrence, 2 v. Hudson River Bridge Co., 1 Black, Hun, 163. 582. 1 United States v. Railroad Bridge " See cases cited to the last section ; Co., 6 McLean, 517. Hudson v. The State, 4 Zab. 718 ; Palmer VOL. I. 7 97 §176 JUEISDIOTION AND LOCALITY. [book n. the national legislature has already laid down a rule, it bounds the legislative authority of the State.^ Congress may constitu- tionally legalize a bridge already erected.^ § 176. Continued — Crimes against Commerce. — Although Con- gress may regulate the ways of commerce within the States, con- currently with them,^ or doubtless even to the exclusion * of State laws should she be so unwise ; yet, as to crimes, she has not to I any considerable^ extent provided against what is done within I counties. Therefore, — Within Counties. — Within the counties, the dominion of the States, and the common-law jurisdiction of their courts, are prac- tically almost as exclusive as if Congress had no constitutional authority in exceptional localities there.^ But some things are by acts of Congress made punishable when done " upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State ; " ^ the construction of which words appears practically to be, that " out of the juris- diction of any particular State " do not qualify " high seas," but 17. Cuyahoga, 3 McLean, 226 ; Common- wealth V. New Bedford Bridge, 2 Gray, 339. 1 Columbus Insurance Co. v. Cur- tenius, 6 McLean, 209 ; Columbus In- surance Co. V. Peoria Bridge, 6 McLean, 70 ; Jolly v. Terre Haute Draw-Bridge, 6 McLean, 237; Gibbous v. Ogden, 9 Wheat. 1. 2 Clinton Bridge, 10 Wal. 454. 3 See Waring v. Clarke, 5 How. U. S. 441. And see Bex v. Bruce, Buss. & Ry. 243, 2 Leach, 4th ed. 1093. * Commonwealth ». Peters, 12 Met. 387. ' See People v. Westchester, 1 Parker C. C. 659. An act of Congress provided, that, " if any person or persons shall I plunder, steal, or destroy any money, goods, merchandise, or other effects from or belonging to any ship, or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked, lost, stranded, or cast away upon the sea or upon any reef, shoal, bank, or rocks of the sea, or in any other place, . . . every person so offendiag shall be deemed guilty of 98 felony," &e. And it was held, that the courts of the United States have juris- diction over the offence, — the statute proceeding on the power to regulate commerce, — if committed while the wrecked vessel is -lying upon the shore, and even after the property is thrown upon the shore, separated from the ves- sel. United States v. Pitman, 1 Sprague, 196 ; United States v. Coombs, 12 Pet. 72. See R. S. of U. S. § 5358. ° United States v. Bevans, 8 Wheat. 336 ; Thompson v. Steamboat. Morton, 2 Ohio State, 26. Internal Commerce of States — Oysters. — The States may regulate their own internal commerce. And a law forbidding citizens of other States to take oysters from the waters of the State has been held to be constitu- tional. Corfield a. Coryell, 4 Wash. C. C. 371. Gold Mines. — So of a law requir- ing from foreigners a license fee for the privilege of working the gold mines of a State. People v. Naglee, 1 Cal. 232. ' And see R. S. of U. S. § 5339, and some subsequent provisions. CHAP. •Vm.] TINITBD STATES WITHIK STATE LIMITS. § 178 do qualify the subsequent words : so that, if the offence is upon seas washing an open coast, and within the marine league belong- ing to the territory of the State, still it is punishable as com- mitted against the United States ; but not, if it is in a harbor or the like place, within the limits of a county.^ The consequence seems to be, that whatever of wrong is done on the open coast below the water-margin is exempt from punishment ; unless it is within some act of Congress, or unless the State has made, as Virginia has,^ a statutory provision for such localities ; or has extended over them her county lines, as has New York.^ § 177. Nature of Criminal Thing. — The nature of the Criminal thing done, though within the local limits of, a State, may make it an offence against the United States.* Therefore, — Treason. — Treason is a crime against either the United States or an individual State, according as it aims at the subjugation of the one government or the other.^ But — Statute required. — As we have no common-law national crimes, the thing cannot be deemed an offence against the general gov- ernment unless there is a statute, within- the constitutional pow- ers of Congress, forbidding it and probably also prescribing the punishment.^ § 178. Acts offending both United States and State. — There are, we have seen,'' wrongful acts of a nature to violate duties both to the United States and a particular -State. And some of these* acts are declared crimes by the positive laws of each. It is prob- ably the doctrine of the courts, though not free from doubt in principle, that, whenever Congress has the constitutional power to render a thing punishable as a crime against the United States, she can make this legislation exclusive of State law.^ But how- ever this may be, if the national statute neither in 'terms nor by 1 United States v. Grush, 5 Mason, line, 20 Ala. 19 ; United States v. Bailey, 290; Commonwealtli v. Peters, 12 Met. 9 Pet. 238; United States v. Barton, Gil- 387 ; United States v. Bevans, 3 Wlieat. pin, 439. 336. ,And see further, on this question, ^ Charge on Law of Treason, 1 Story, United States ». Wiltberger, 5 Wheat. 614 ; People v. Lynch, 11 Johns. 549. 76 ; United States v. Holmes, 5 Wheat. « Post, § 194. 412. 7 Ante, § 155. 2 Commonwealth K.Gaines, 2 Va.Ca8. 8 Ante, § 176. See Fox v. Ohio, 6 172. How. U. S. 410 ; Commonwealth o. Ful- 3 Ante, § 149. ler, 8 Met. 313 ; The State ». Pitman, 1 * See, for illustrations. United States Brev. 32 ; Commonwealth v. Barry, 116 V. Coombs, 12 Pet. 72 ; The State v. Caro- Mass. 1. 99 §180 JTJRISDICTIOSr Airo LOCALITY. [book n. necessary implication excludes the State law, the latter is not superseded.^ Therefore — Counterfeiting and the like. — Indictments are maintainable in the State courts for the ofPence, against the State, of counterfeit- ing the coin or bills of the United States, or foreigi} coin made current by act of Congress ; while proceedings will also lie, under United States statutes, before the national tribunals, for doing the same thing as an offence against the United States.^ Congress has not attempted to restrict the power of the States.^ other Crimes. — And there are other cases of like concurrent jurisdiction.^ § 179. WTiether both Governments prosecute. — The question whether, on just principle, or on authority, both governments should prosecute the offender, where the laws of each are broken, -is partly of another sort, — to be considered further on.^ § 180. Offices Exclusive. — It seems to be a doctrine established in authority, while it is just in principle, and promotive of har- mony in the workings of our States and the States are sj to itself, as many persons, as it needs, — to exempt other government, — and to ms sive as to prevent their rend( pleated system, that the United entitled to appropriate, each its governmental functions all conflicting duties to the B the appropriation so far exclu- hg any service to the other gov- ernment.^ In such a case, however, a man in the employ of the United States, for instance, could not be permitted, further than 1 Ante, § 172 et seq. ; Harlan a. Peo- ple, 1 Doug. Mich. 207; Fox a. Ohio, supra ; Moore v. Illinois, 14 How. U. S. 13 ; People v. Kelly, 38 Cal. 145. 2 Fox V. Ohio, 5 How. U. S. 410 ; The State w. Antonio, 3 Brev. 662, 2 Tread. 776; The State ». Tutt, 2 Bailey, 44; Harlan v. People, 1 Doug. Mich. 207 ; Sutton V. The State, 9 Ohio, 133 ; Chesa V. The State, 1 Blackf. 198; Common- wealth V. Fuller, 8 Met. 313 ; The State V. Pitman, 1 Brev. 32 ; Hendriok v. Com- monwealth, 5 Leigh, 707 ; Jett v. Common- wealth, 18 Grat. 933; Sizemore u. The State, 3 Head, 26. See Rouse v. The State, 4 Ga. 136; Manley v. People, 3 S.eld. 295, 302, 303 ; The State v. Brown, 2 Oregon, 221. And see Vol. IX. § 283- » Vol. II. § 179 and note ; The State u. Adams, 4 Blackf. 146 ; Harlan a. Peo- ple, 1 Doug. Mich. 207 ; Fox u. Ohio, supra ; The State v. McPherson, 9 Iowa, 53 ; People «. White, 34 Cal. 183. * See People v. Westchester, 1 Parker C. C. 659. As to perjury in naturaliza- tion papers, see Vol. II. § 1023 ; Rump V. Commonwealth, 6 Casey, 475 ; People !>. Sweetman, 3 Parker C. C. 358. 6 Post, § 983-989. And see Fox v. Ohio, 6 How. U. S. 410, 432; United States V. Marigold, 9 How. U. S. 560; Moore v. Illinois, 14 How. U. S. 13, 20. ^ The State v. Martindale, 1 Bailey, 163 ; Kentucky v. Ohio, 24 How. U. S. 66. And see Commonwealth v. Enox, 6 Mass. 76. 100 \ -J c J CHAP. Vin.] UNITED STATES ■WITHIN STATE LIMITS. § 181 ^ :'-■.■''' i. .'■ ', official duty required, to violate the law of a State ; ^ but what are all the limitations and the entire consequences of this doctrine we may not be able to say. Tax on Salaries. — One proposition is, that neither the United States ^ nor a State * can tax the salaries of the ofl&cers of the other. § 181. Consuls. — Consuls are neither indictable nor pursuable civiUy in the State courts, but only in those of the United States.* j The doctrine appears to be, that the offence itself, or the civU j wrong, for which the consul is called in question, may be in vio-' lation of the laws of a State ; the mere forum, in such a case, being the national tribunal. 1 United States v. Hart, Pet. C. C. 1 Green, N. J. 107 ; United States v. 390. Lathrop, 17 Johns. 4 ; Valarino v. Tliomp- 2 The Collector v. Day, 11 Wal. 113. son, 3 Seld. 576 ; Commonwealth v. Kos- « Dobbins v. Erie, 16 Pet. 435. loff, 5 S. & R. 545 ; Griffin v. Dominguez, * Const. U. S. art. 8, § 2 ; Mannhardt 2 Duer, 656 ; United States v. Eavara, 2 V. Soderstrom, 1 Binn. 138; Hall v. Dall. 297. And see United States v. Young, 3 Pick. 80 ; Sartori v. Hamilton, Ortega, 11 Wheat. 467 ; 1 Kent Com. 45. 101 § 183 JUKISDICTION ASTD LOCALITY. [BOOK H. CHAPTER IX. THE SOTJECBS AND NATURE OP THE JURISDICTIONAL POWER OF THE UNITED STATES OUTSIDE THE STATES. §182. Scope of this Chapter. — In a previous ohapteri^ the juris- diction which a nation is entitled to exercise outside her territorial limits was considered. The purpose of this chapter is to show, that, within the doctrines there stated, the United States is, under the Constitution, a nation. § 183. Constitutional Provisions, grouped. — The more important provisions, leading to this consequence, are the following: The President " shall have power, by and with the advice and consent of the Senate, to make treaties, . . . and he shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers, and consuls." ^ " The Con- gress shall have power ... to regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; ... to define and. punish piracies and felonies commit- ted on the high seas, and offences against the law of nations ; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies ; ... to provide and maintain a navy ; to make rules for the government and regulation of the land and naval forces," &0.8 On the other hand, it is also provided, that "no State shall enter into any treaty, alliance, or confederation ; grant let- ters of marque and reprisal ; " or, " without the consent of Con- gress, . . . keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded or in such imminent danger as will not. admit of delay." * 1 Ante, § 109 et seq. s Const. U. S. art. 1, § 8. 2 Const. U. S. art. 2, § 2. 4 Const. U. S. art. 1, § 10. 102 CHAP. rS.] UNITED STATES OXTTSIDB THE STATES. § 187 §184. Other Provisions — Effect of All. — These provisions are somewhat strengthened by others, conducting to the same result ; namely, that, as laid down in a previous chapter,^ — United States a Nation. — The States are not known as powers outside their territorial limits; while, on the other hand, the United States is a complete government, having, outside the local bounds of the States, the full jurisdiction and functions of a na- tion, as recognized by the law of nations. § 185. Powers Specific and Defined — Implied. — It is indeed often said, particularly in political circles, that ours is a govern- ment of specified powers ; having, therefore, it is added, none but those which, in terms, are enumerated in the Constitution. Not such, however, is the judicial interpretation, or the interpretation of reason. Judicially the Constitution is held to admit of im- plied ^ as well as of express powers ; and it is known that when Congress was discussing the amendment quoted in our last chap- ter, that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," ^ a proposition to insert the word " expressly " before delegated was rejected, it not being deemed wise thus to restrict the interpretation.* And, in reason, if no powers were implied in an instrument so brief, those ex- pressly granted would be of no avail, for they could not be carried into effect. § 186. United States a Nation, continued — (" Reserved " Powers). — But the question of " reserved " powers is not important in this discussion. That question relates to the authority of the general government within State limits. Outside those limits, if the constitutional provisions above quoted and others give to the United States complete national jurisdiction, nothing remains to be " reserved." § 187. District of Columbia. — From the foregoing views it re- sults, that, without any express provision of the Constitution, the United States would have full jurisdiction over the District of Columbia ; it not being within the limits- of any State. But, to avoid all question, this instrument provides, that " the Con- ^ Ante, § 145 et seq. United States v. Fisher, 2 Cranch, 358 ; ' McCuUoch V. Maryland, 4 Wheat. Story Const. § 1237, 1256, 1258. 316 ; Gibbons v. Ogden, 9 Wheat. 1, 187 ; = Ante, § 156. * Story Const. § 433, 1907. 103 § 188 JXTEISDICTION AND LOCALITY. [BOOK n. gress shall have power ... to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the accept- ance of Congress, become the seat of government of the United States." 1 § 188. Territories. — In like manner, no 'special words are re- quired to give the Nation jurisdiction over its Territories ; being its possessions outside State limits. But the Constitution has the following, sometimes referred to as the basis of this jurisdic- tion : " The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property of the United States." ^ It has been denied, particu- larly in political circles, that this clause refers to any thing legis- lative or judicial ; but, in reason, there appears to be no sufficient ground why it should not be held, as it generally is, to embrace these powers among the rest. The question, it is seen, is not of practical consequence. 1 Const. U. S. art. 1, § 8. « Const. U. S. art. 4, § 3. 104 CHAP. X.] UNITED STATES AND COMMON LAW. § 190 CHAPTER X. THE COMMON LAW WITHIN UNITED STATES JUEISDICTION. § 189. Purpose of this Chapter. — In this chapter, we shall en- deavor to discover whether to any and what extent the common law confers on our national tribunals a jurisdiction over crime, or furnishes the rule for decision. Creneral Views: — Common Law in States. — The rule is familiar, that colonists to an uninhabited country carry with them, to their new home, the laws of the mother country applicable to their altered situation and wants ; which laws, in the new locality, are termed common law, whether in the old they were common or statutory. From this source is the common law of our States.^ § 190. Common Law as to United States. — Before the organiza- tion of our general government, the several States were substan- tially independent nations : each had its system of jurisprudence ; but, between them, there was no common law except the law of nations. Now, we have seen, that a mutation of governments neither creates nor annihilates law ; but all laws existing before exist afterward, until repealed or modified by the new legislative power.2 If, therefore, the State governments had been entirely superseded by the national, upon the formation of our Constitu- tion, this would have brought into being no law, and destroyed none ; but whatever was law in the several States would have remained such, in their particular localities. In other words, no national common law would have been introduced ; but as many distinct systems of local law would have continued in force as there were States dissolved into the new nation. Then, a fortiori, as the sovereignty of the States was preserved, they only surren- ^ See, also, for a discussion of this and, more fully, Bishop First Book, subject, 1 Bishop Mar. & Div. § 66-86 ; § 48-59. 2 Ante, § 14. 105 § 193 JTJEISDICTION AND LOCALITY. [BOOK Xl. dering certain powers which the general government assumed,^ the partial change could not effect what a total would have failed to do. Therefore we can have no national common law, as a uniform system, prevailing within the territorial limits of the States ; imless one has been introduced, either by the Constitu- tion itself, or by acts of Congress made in pursuance of some constitutional authority. § 191. Continued. — In another form of words, before the Con- stitution of the United States was framed, there were laws in the several States; full, occupying all the space, and leaving no vacuum. Whatever mutation of government had then been made, the result must necessarily have been, that the space occu- pied by the prior laws would remain occupied by them, until and except as the new power should otherwise ordain. But no such complete thing was done by the establishment of the general gov- ernment : it only assumed some authority which the States sur- rendered to. it ; consequently, not beyond the fair construction of their grant, could any other law become of force as a national system. § 192. Continued — Exception. — Yet, in reason, it is obvious that there are circumstances under which, not a national common law, but the somewhat varying local laws of each of the several States, constitute an unwritten rule for the tribunals of the United States. If, for example, jurisdiction over a particular subject arising within the States is transferred to the national government entire, leaving no authority over it in the States, then, as to that subject, the case is as though ^ the several govern- ments of the States had been wholly superseded by the new national government. We have no authority on which to base this proposition 5 and the author does not propose to predict, whether or not the, courts will adopt it. § 193. Law and Courts distinguished. — We should carry in our minds the distinction between law and courts to administer it. Thus,— Law without Courts. — Colonists, We have seen,^ carry to an uninhabited country the laws, but not the tribunals, of the coun- 1 United States Constitution, amendm. 2 Ante, § 190. art. 10 ; Woodbury, J., in United States 3 Ante, § 14 and note. V. New Bedford Bridge, 1 Woodb. & M. 401, 416 ; ante, the last three chapters. 106 CHAP. X.] UNITED STATES AND COMMON LAW. § 194 try they leave. In tlie new locality, the laws remain in a practi- cally torpid condition, yet still their existence as laws continues, until courts are established with jurisdiction to administer them. Even, in Massachusetts, down to 1857,^ a part of the equity law which the colonists had brought from England had no tribunal to give it force ; yet the full jurisdiction ia equity then conferred on the courts created no new law, but only a power to execute what already was. And the United States courts could always administer the whole, whenever the residence of the parties or other circumstance gave them authority in the premises.^ § 194. No National Common Law. — Now, neither any clause in the United States Constitution, nor any act of Congress, adopts the common law as a national system. But — United States Courts enforce State Laws. — An act of Congress has directed, — what would seem substantially to follow from general principles without it,^ — that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision iu trials at common law in the courts of the United States, in cases where they apply." * Therefore the estab- lished doctrine is, that w^ have no national common law ; but, in the language of Marshall, C. J., " when a common-law right is asserted, we must look to the State in which the controversy originated."^ Yet it has been laid down that this provision does not apply to questions of a general nature, not based on any local statute or usage, or rule affecting title to land, or principle which has become a rule of property.^ The Procedure. — Neither does this provision extend to the pro- cedure, which is regulated by other national laws.^ So inflexible 1 Stat. 1857, c. 214. 24 ; Thompson v. Phillips, Bald. 246, 274 ; " 1 Bishop Mar. & Div. § 70. Parsons v. Bedford, 3 Pet. 433 ; Story 8 Ante, § 190-193. Const. § 1758 ; Bains v. The James, Bald. 4 Act of 1789, 0. 20, § 34; R. S. of 544, 558; United States v. Reid,12 How. U. S. § 721 ; Elmendorf v. Taylor, 10 U. S. 361 ; The Independence, 2 Curt. Wheat. 152, 159; McNiel v. Holbrook, C. C. 350; Matter of Ereematt, 2 Curt. 12 Pet. 84 ; Law on Jurisd. 68-70. C. C. 491 ; Lanmon u. Clark, 4 McLean, 5 Wheaton v. Peters, 8 Pet. 591, 658 ; 18 ; Suydam u. Seals, 4 McLean, 12 ; Lorman ». Clarke, 2 McLean, 568; Daw- Mitchell v. Harmony, 13 How. U. S. 115; eon V. Shaver, 1 Blackf . 204, 205 ; Peo- Parks v. Turner, 12 How. U. S. 39 ; Sears pie I). Folsom, 5 Cal. 378. v. Eastburn, 10 How. U. S. 187 ; Bank of ' Boyce ». Tabb, 18 Wal. 546. Hamilton v. Dudley, 2 Pet. 492 ; Parsons 7 Wayman v. Southard, 10 Wheat. 1, v. Bedford, 3 Pet. 433 ; Evans v. Eaton, 107 § 195 JUEISDICTIOK AND LOCALITY. [BOOK H. are these, that, even in States where, as in Louisiana, equity is unknown as a system separate from law, or where, as formerly in Massachusetts, the State courts have only a limited equity juris- diction, the national tribunals administer the local jurisprudence in their own equity forms. ^ The Criminal Laws of States. — Moreover, it has been said,^ and in respect of a particular interpretation held,^ that the above act does not apply in criminal cases. And it is plain that it cannot, as a general rule, consistently with some other results which the courts have reached.* But the statutory terms would seem to include, in their proper meaning, criminal cases, the same as civil, being " trials at common law ; " and we may doubt whether there are not circumstances in which they may have this force without violating other established doctrines.^ § 195. Sources of National Judicial Powers. — The judicial pow- ers are derived, under the Constitution, from various sources. One is the subject-matter of the controversy. Under this head is the provision that " the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." ^ This source of jurisdiction does not give the courts permission to act in advance of a statute or treaty creating matter to act upon.' But — Laws of states. — Even here, in questions reaching beyond the statute or treaty, the court looks for its common-law principles, 7 Wheat 356; Lane v. Townsend, Ware, 5 Du Ponceau Jurisd. 38 et seq. ; Law 286 ; United States v. Douglass, 2 Blatch. on Jurisd. 68, note. And see post, § 196- 207 ; T^ese v. Phelps, 1 McAI. 17. 200. 1 Gaines v. Relf, 15 Pet. 9 ; Lorman « Const. U. S. art. 3, § 2. And see 0. Clarke, 2 McLean, 568 ; United States Home Insurance Co. v. Northwestern I). Rowland, 4 Wheat. 108, 115 ; Robin- Packet Co., 32 Iowa, 223. son V. Campbell, 3 Wheat. 212, 222 ; Ben- 7 " It has often been held, that, where nett V. Butterworth, 11 How. U. S. 669 ; by the Constitution a power is vested in 1 Bishop Mar. & Div. § 70. Story Const, the government of the United States § 1645, seems to state the doctrine other- over any particular subject or class of wise ; but without support from the au- subjects, the Constitution does not, by thorities he cites. its own force, confer a power on the 2 United States t). Burr, 1 Burr's Trial, courts of the United States." Shaw, 482; Du Ponceau Jurisd. 5 ; 1 Kent Com. C. J., in Commonwealth v. Peters, 12 833. Met. 387, 392 ; s. p. United States v. New ' United States v. Eeid, 12 How. U. S. Bedford Bridge, 1 Woodb. & M. 401, 861. 486. 4 Post, § 199, 200. 108 CHAP. X.] UNITED STATES AND COMMON LAW. § 198 not to any national system of unwritten laws, but " to the State in which the controversy originated." ^ § 196. Continued. — There are various circumstances in which the national courts have a jurisdiction derived from the Consti- tution to administer, not the laws of the United States, but of a State, where not even the subject-matter is within the legislative power of Congress. It is so in most cases of "controversies between two or more States, between a State and a citizen of another State, between citizens of different States, between citi- zens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects." ^ And it is generally so in " cases affecting embassadors or other public ministers and consuls," * where the State courts have no jurisdiction.* But plainly, in these cases, if the person of the party is not altogether protected, but the national tribunals may entertain the suit, the laws of a State may still furnish the rule for decision,^ And in none of the circumstances brought to view in this section is there either scope or need for a national common law. § 197. Observation. — The foregoing outline relates more to civil jurisprudence than to criminal, but it will help us to a better understanding of what particularly concerns the criminal law. § 198. Specific Views as to the Criminal Law : — Crime and Court to punish it, distinguished. — There may be a crime, but no court authorized to punish it ; or, an authorized tribunal, yet no law making the act a crime. Keeping this dis- tinction in mind, — first, are there common-law offences against the United States ? secondly, if there are, has jurisdiction over them been given to any judicial tribunal ? Du Ponceau ® does 1 Wheaton v. Peters, 8 Pet. 591, 658, 545 ; Davis o. Packard, 7 Pet. 276. Con- whioh was a question of copyright ; tra, the majority of the court in The ante, § 194. State v. De La Foret, 2 Nott & McC. 217. 2 Const. U. 8. art. 3, § 2 ; Lorman v. 6 gee Commonwealth v. Kosloff, Clarke, 2 McLean, 568, 572 ; United supra ; Da Ponceau Jurisd. 34 et seq. States V. Lancaster, 2 McLean, 431, 433 ; See further as to consuls, GrlfiBn o. Do- Cohens V. Virginia, 6 Wheat. 264. This minguez, 2 Duer, 656 ; Taylor v. Best, provision is partly restricted by amendm. 14 C. B. 487, 18 Jur. 402, 25 Eng. L. & art. 11. Eq. 383. » Const. U. S. art. 3, § 2 ; ante, § 181. « " A Dissertation on the Nature and * Mannhardt v. Soderstrom, 1 Binn. Extent of the Jurisdiction of the Courts 138; United States v. Ravara, 2 Dall. of the United States." Philadelphia, 297 ; Commonwealth v. KosloflF, 5 S. & E. 1824. This writer " has ably examined 109 § 200 JUBISDICTION AND LOCALITY. [BOOK H. not put the questions in these words, hut he draws the distinction they indicate, and seems to answer the first in the affirmative, and the second in the negatire. Now, — Whether Common-law Crimes against United States. — If, by OUT Constitution, the governments of the States had been entirely absorbed into the general government, obviously all acts-which before were offences against the several States, in their particular localities, would become such against the United States.^ But what was done did not supersede State sovereignty entirely, and thus one ingredient, essential to this result, is wanting. § 199. Continued — Jurisdiction. — Contrary, therefore, to Du Ponceau, we answer the first question in the negative ; and thus conclude, that common-law offences against the general gov- ernment do not, in the broad sense of the proposition, exist within the local limits of the States, even if the tribunals have full criminal-law jurisdiction. Whether they have such full ju- risdiction is the next question. Our judiciary acts have expressly given to the Circuit and District Courts together — we need not inquire how divided between them — exclusive cognizance of aU crimes against the United States, committed either on land or sea;^ and it is difficult to doubt that these words are broad enough to include common-law crimes, if such there are. But, whether the answer to the first or second or both of the above questions is in the negative, the conclusion is the same, supported by the decided cases, which have at last reached the result by a path of doubts, uncertainties,. and contradictions, that the United States courts cannot punish offences against the general govern- ment until specified and defined by an act of Congress.^ Still, — § 200. Limits of the Doctrine. — If our own course of reason- ing, conducting to the same result through a different path, is correct, there must be, in some special instances, common-law the subject, and shed strong light on in 1 Gallis. 488 ; United States v. Lan- this intricate and perplexed branch of caster, 2 McLean, 431, 483; United the national jurisprudence." Chancellor States v. Ravara, 2 Dall. 297 ; United Kent, 1 Kent Com. 339. States v. Worrall, 2 Dall. 384 ; United 1 Ante, § 9, 14, 190, 192. States v. New Bedford Bridge, 1 Woodb. 2 Act of Sept. 24, 1789, c. 20, § 9, 11 ; & M. 401 ; United States v. Babcock, 4 Stat. 1842, c. 188, § 3 ; R. S. of U. S. McLean, 118, 115 ; United States u. Mau- § 663, 629, 711, 4300-4306. rice., 2 Brock. 96 ; United States v. Scott, 3 United States i;. Hudson, 7 Cranch, 4 Bis. 29. See also Anonymous, 1 Wash. 82; United States v. Coolidge, 1 Wheat. C. 0. 84. 416, reversing the decision of Story, J. 110 CHAP. X.] UNITED STATES AND COMMON LAW. § 201 offences against the United States, even within the territorial limits of the States.^ And, aside from this, there is ground for the following qualification ; namely, that, — Rule of Law — Procedure. — Where an act of Congress has de- fined a crime, the courts in giving meaning to the act will look to the jurisprudence of the locality in which the offence was committed; while the procedure in bringiiig the offender to jus- tice, including the rules 6f evidence, must be what is laid down by the national legislature.^ Indeed, the procedure has been decided to be " the law of the State, as it was when the courts of the United States were established by the Judiciary Act of 1789." 8 § 201. Common-law Crimes beyond State Limits. — When we pass beyond State bounds, the question is, in reason, entirely changed. We have seen, that there the States are unknown, and their power and jurisdiction together cease, while the United States is as completely a nation and its authority as perfect and full as if there were no States.* In just principle, therefore, the unwritten law of crime as applied in such localities by the Eng- lish jurisprudence,^ and the unwritten law of nations, must, in all places not within State limits, and not within some exceptional rule, constitute a common law of the United States. Accord- ingly, in reason, the United States tribunals would appear to have common-law cognizance of offences upon the high seas, not defined by statutes ; and of all other offences within the proper cognizance of the criminal courts of a nation, committed beyond the jurisdiction of any particular State. This conclusion, how- ever, does not as yet rest on a sufficient basis of judicial author- ity to be received as absolute law, and it is contrary to the dicta in some of the cases.* Yet it brings into harmony with the gen- eral doctrine several decisions which must otherwise be deemed * unsound; and it is in direct conflict with perhaps but one case.^ This case was decided without argument, and the court in effect 1 See, particularly, ante, § 192. 5 See, however. The State v. Sluby, 2 Ante, § 194; United States v. Haw- 2 Har. & McH. 480. thorne, 1 Dillou, 422; United States v. « See cases cited ante, § 198, 199, and Shepard, 1 Abb. U. S. 431. particularly United States v. New Bed- 8 United States v. Reid, 12 How. U. S. ford Bridge, 1 Woodb. & M. 401, 438. 361. And see Ex parte BoUman, 4 Cranch, 75. * Ante, § 145 et seq., 182 et seq. 192. ' United States v. Coolidge, 1 Wheat. 415. Ill § 203 JURISDICTION AND LOCAXITY. [BOOK H. declared that it should not be a precedent for the future. "We may deem, therefore, that the question is open for further discus- sion in our courts.^ § 202. Continued. — If this doctrine were judicially established, it would give a completeness to our national government with- out impairing any one right ever claimed for the States. It would tend to harmony in our intercourse with foreign nations. And it would promote justice in cases not foreseen by the legis- lature. Evidently, too, it would carry into effect the meaning of the framers of our Constitution. To suppose, that, in the organ- ization of our government, a whole system of laws was submerged in the depths of the, ocean, beyond the reach alike of the national and State tribunals, is repugnant to reason, to the nature of law, to public policy, and not honorable to our country.^ § 203. District of Columbia. — As to the District of Coliimbia, the question was by statute settled according to the principles just indicated, when it was acquired ; the prior laws being there continued in force. ^ Therefore there are in this locality common- law crimes against the United States, the same, and to the same extent, as there are, in the several States, common-law crimes against the State.* 1 " Whatever room there may be for States v. Bevans, 3 Wheat. 336 ; United doubt as to what common-law offences States v. Wiltberger, 5 Wheat. 76; are offences against the Unitdd States, United States v. Smith, 5 Wheat. 153. there can be none as to admiralty of- ^ See ante, § 157, 192. fences." Story, J., United States v. » Du Ponceau Jurisd. 69-73 ; Kendall Coolidge, 1 Gallis. 488 ; United States v. v. United States, 12 Pet. 524, 613 ; Bird Eavara, 2 Dall. 297; Commonwealth v. v. Commonwealth, 21 Grat. 800. And Kosloff, 5 8. & E. 645; Du Ponceau see McKenna v. Ksk, 1 How. U. S. 241, Jurisd. 9-14, 57-62. And see Common- 249. wealth V. Peters, 12 Met. 387 ; United * Bishop First Book, § 109. 112 CHAP. XI.] COMBINED ACT AND INTENT. § 204 BOOK III. THE SEVERAL ELEMENTS OF CRIME STATED AND ILLUSTRATED. CHAPTER XI. COMBINED ACT AND INTENT. § 204. An Act is essential. — We have seen,^ that the tribunals take notice of wrongs only when the complaining party is entitled to complain. And he is so entitled only when, besides having an interest in the matter, he has suffered. Now the State, that com- plains in criminal causes,^ does not suffer from the mere imagin- ings of men. To entitle her to complain, therefore, some act must have followed the unlawful thought. This doctrine is fun- damental, and, in a general way, universal ; but slight differences in its common-law applications appear in the books, and now and then a statute is enacted departing from judicial precedent. Thus,— Having a Thing in Possession — Procuring it — (Counterfeits — Tools — Obscene Libel). — It is no offence at the common law to have in one's possession counterfeit coin, or forged paper, or bills of a *^ f ^ non-existing bank, with the intent to pass them as good ; or tools for forging, with the intent to use them ; or an obscene libel, with the intent to publish it ; because the bare possession is not an act.3 But to procure such money or other things, with the crim- inal intent, is an offence ; because the procuring or receiving is an act.* This is a nice distinction ; yet the principles of the com- 1 Ante, § 11. & B. 435, Dears. 64, 22 Law J. n. s. M. C. 2 Ante, § 32. 60, 17 Jur. 546 ; The State v. Penny, 1 ' Rex 11. Stewart, Euss. & Ry. 288 ; Car. Law Eepos. 517 ; Rex v. Rosenstein, 8. 0. nom. Rex v. Stuart, 1 Russ. Crimes, 2 Car. & P. 414. But see Reg. v. Willis, 8d Eng. ed. 48 ; Reg. v. Fulton, Jebb, 48 ; Jebb, 48, note. Rex 1). Heath, Russ. & Ry. 184; Com- * Rex v. Fuller, Russ. & Ey. 308; monwealth v. Morse, 2 Mass. 138 ; Dug- Dugdale v. Reg., 16 Eng. L. & Eq. 380, 1 dale V. Reg., 16 Eng. L. & Eq. 380, 1 ElUs Ellis & B. 435. VOL. I. 8 113 ^. §206 ELEMENTS OE CEIMB. [book m. i mon law clearly require it. There are, however, English and American statutes which make the. bare possession, when accom- panied with the intent, a sufficient act in the particular cases for which they provide ; and possibly some of the older of these English statutes are common law in this country.^ "Having," as Evidence of "Procuring." — So, at the common law, a possession may be shown in evidence against a prisoner on a charge of procuring.^ § 205. Evil Intent also essential. — Prompting the act, there must be an evil intent, — to be explained further on.^ For ex- ample, if a child is too young to have an evil intent,* or if a person of any age is insane and therefore incapable of having such intent,^ or if one acts honestly under a misapprehension of facts,^ there is no evil purpose, and consequently no crime. § 206. Act and Intent to combine. — From the foregoing views results the rule, established in the legal authorities, that an act and evil intent must combine to constitute in law a crime.^ 1 See Rex v. Sutton, Cas. temp. Hardw. 370, 373, 2 Stra. 1074. Contrary Common-law Views. — From the report of this case in Strange we should Infer, that a possession is alone a sufficient act at the common-law ; whence some mod- ern writers have supposed that the rule was so anciently, and was changed by later decisions. But the more extended report in Cas. temp. Hardw. supra, seems to put this case on one of the Enghsh statutes. See also Rex v. Lennard, 2 W. Bl, 807, 1 Leach, 4th ed. 90, 1 East P. C. 170. The reporter's head-note to Rex V. Parker, 1 Leach, 4th ed. 41, is : " Having the possession of counterfeit money, with intention to pay it away as and for good money, is an indictable of- fence at common law." The date of this case is 1750. But the report shows, that no opinion was ever delivered in it by the judges. In a note, the reporter derives the doctrine from Rex v. Sutton, supra. And he adds : " The cases of Rex v. Lee, Old Bailey, 1689 [stated Cas. temp. Hardw. 871], for having in his custody divers picklock-keys with intent to break house and steal goods ; Rex v. Brandon, Old Bailey, 1698 [stated Cas. temp. Hardw. 372], for having coining instru- ments with intent, &c. ; Rex v. Cox, Old 114 Bailey, 1690 [stated Cas. temp. Hardw. 372], for buying counterfeit shillings, with intent, &c , — were cited in support of the prosecution ; for per Lee, J., ' all that is necessary in this case, is an act charged and a criminal intention joilied ' to that act.' " p. 42. From this, the dis- tinction between " procuring " and " hav- ing " would seem not to have occurred to the court or to Mr. Leach. 2 Rex V. Fuller, Russ. & By. 308; Brown's Case, 1 Lewin, 42, s Post, § 285 et seq. 4 Post, § 867 et seq, 6 Post, § 374 et seq. " Post, § 301 et seq, ' Rex V. Scofield, Cald. 397, 403 ; 1 East P, C, 58, 225 ; 2 East P, C. 1028, 1030; Commonwealth », Morse, 2 Mass. 138, 139 ; Ross v. Commonwealth, 2 B. Monr, 417 ; Respublica v. Malin, 1 Dall, 33 ; The State v. Will, 1 Dev, & Bat. 121, 170 ; Rex v. .Warne, 1 Stra. 644 ; Rex V. Heath, Russ. & By. 184 ; Rex v. Stewart, Buss. & Ry. 288 ; Toes v. The State, 4 Eng. 42 ; Torrey v. Field, 10 Vt. 358, 409 ; United States w. Twenty-eight Packages, Gilpin, 306 ; Respublica v. Roberts, 1 Dall. 39 ; Gore's Case, 9 Co. 81 a ; Dugdale c. Beg., 16 Eng. L. & Eq. 880, 1 EUis & B, 435; United States ». CHAP. XI.] COMBINED ACT AKD INTENT. § 208 § 207. Whether simultaneous. — And generally, perhaps always, / the act and intent must, to constitute an offence, concur in point' of time.^ Therefore — Larceny. — Larceny, composed of the act of trespass and the superadded intent to steal,^ is not committed when this trespass and this intent do not exist at the precise moment together.^ And, — Burglary. — To Constitute a burglary, the intent to commit the felony in the place broken must exist at the moment of the break- ing and entering.* Possible Exceptions. — It is difficult to say, that, by no possibil- ity, can there be any exception to the rule which requires the act and evil intent to concur in point of time. If, for example, a man should send to a distant place an agent to do a criminal thing for him there,^ then should repent, but before the counter- mand reached the agent the thing should be done, it would be a novel question, the decision of which could not be predicted, whether or not this ineffectual repentance and countermand would free the principal from criminal responsibility. § 208. Permission abused — Trespasser ab initio. — In civil juris- prudence, we have the rule, that, when a man does a thing by Eiddle, 5 Cranch, 311 ; Gates v. Louns- Glass, 1 Den. C. C. 215, 2 Car. & K. 395; bury, 20 Johns. 427 ; Rex v. Green, 7 People v. Eeynolds, 2 Mich. 422 ; Long Car. & P. 156 ; Reg. v. Chapman, 1 Den. v. The State, 12 Ga. 293 ; Reg. v. Good- C. C. 432, Temp. & M. 90, 13 Jur. 885; body, 8 Car. & P. 665 ; The State v. Bra- Case of Le Tigre, 3 Wash. C. C. 567, den, 2 Tenn. 68 ; Rex v. Charlewood, 1 572; Rex v. Sutton, Cas. temp. Hardw. Leach, 4th ed. 409, 2 East P. C. 689; 370, 2 Stra. 1074 ; Reg. «. Turvy, Holt, Reg. v. Brooks, 8 Car. & P. 295 ; Rex v. 364. Leigh, 2 East P. C. 694, 1 Leach, 4th ed. ' See the subsequent cases cited to 411, note ; Reg. «. Evans, Car. & M. 632 ; this section ; also The State v. Will, 1 The State v. Smith, 2 Tyler, 272 ; Reg. Dev. & Bat. 121, 170; Bullock v. Koon, v. Peters, 1 Car. & K. 245; Rex v. Pope, i Wend. 531 ; Morse v. The State, 6 6 Car. & P. 846 ; The State v. Roper, 3 Conn. 9 ; Eex v. Hughes, 2 Lewin, 229, Dev. 473 ; Reg. v. Thristle, 1 Den. C. C. 232, 1 Euss. Crimes, 3d Eng. ed. 21; 502, 2 Car. & K. 842; Eex v. Pear, 1 Rex B. Smith, 5 Car. & P. 107, 1 Moody, Leach, 4th ed. 212, 2 East P. C. 685, 697. 314; Brooks v. Warwick, 2 Stark. 389; And see Norton v. The State, 4 Misso. Reg. V. Sutton, 2 Moody, 29. 461 ; Ransom v. The State, 22 Conn. 153 ; 2 Post, § 342. The State v. Conway, 18 Misso. 321 ; 5 Reg. 0. Preston, 8 Eng.L. & Eq. 589, Eex v. HoUoway, 5 Car. & P. 524. But 2 Den. C. C. 353 ; People v. Anderson, see The State v. Burk, 4 Jones, N. C. 7. 14 Johns. 294; People v. Cogdell, 1 * Kelly v. Commonwealth, 1 Grant, Hill, N. Y. 94 ; The State v. Ferguson, Pa. 484. Of course, the case supposed in 2 McMuUan, 502 ; The State v. Weston, the text is not one of breaking out ; as to 9 Conn. 527 ; Reg. v. Riley, 14 Eng. L. & which, see Vol. II. § 99. Eq. 544, Dears. 149, 17 Jur. 189 ; Reg. v. 5 See ante, § 110, 111. 115 § 208 ELEMENTS OF CEIMB. [BOOK in, permission of law, — not by license, but by permission of law, — and, after proceeding lawfully part way, abuses the liberty the law had given him, he shall be deemed a trespasser from the be- ginning, by reason of this subsequent abuse.-* But this doctrine does nqt prevail in our criminal jurisprudence ; for no man is punishable criminally for what was not criminal when done, even though he afterward adds either the act or the intent, yet not the two together.^ 1 Broom Leg. Max. 2d ed. 221 ; Allen ^ The State v. Moore, 12 N. H. 42 ; V. Crofoot, 5 Wend. 506 ; Sackrider v. Commonwealth v. Tobin, 108 Mass. 426. McDonald, 10 Johns. 253 ; Hopkins o. And see the other cases cited to this seo- Hopkins, 10 Johns. 369; Gates v. LoUns- tion; also Vol. II. § 1028, 1122. bury, 20 Johns. 427. See Wheelock o. Archer, 26 Vt. 380. 116 CHAP. Xn.] PUBLIC GOOD AND DBSBBT OV PUNISHMENT. § 210 CHAPTER XII. THE PUBLIC GOOD AND DESERT OF PUNISHMENT TO COMBINE. § 209. Law aims at Practical Results. — In the criminal depart- ment, the same as in the civil, the object of our system of legal doctrine and its judicial enforcement is to produce practical results, not to ^^ndicate mere abstract theories of right. For example, in morals, the rule laid down by our Saviour in a case of adultery is, that the mere imagining or designing of evil is equivalent to the doing ; but we have just seen,^ that in our jurisprudence no such rule prevails, because neither the commu- nity nor a third person, but only the individual himself, is harmed by an evil imagining from which no act proceeds. And from this view we are conducted to another, which is, that, in determining whether or not a particular thing is, or should be made, cogniza- ble by the criminal law, we are not simply to look at the morals of it, or even at the practical enormity of the evil to be remedied ; but still more, and primarily, to the question, as one of sound governmental judgment, whether to punish the wrong-doer will as a judicial rule promote, on the whole, the public peace and good order. § 210. Object of Punishment. — The object of punishing crimi- nals is often stated to be, to deter others from crime, and so pro- tect the community ; as well as, when the life is not taken, to reform the offender.^ Some writers have objected to the first part of this proposition ; suggesting, that the government has no right to impose suffering on one of its subjects for the good of the rest. This suggestion is clearly founded on a correct princi- ple ; yet it appears quite harmonious with the other branch of the proposition, when both branches are rightly viewed. The ' Ante, § 204. Wayland Moral Science, 10 ; Paley 2 Beccaria on Crimes, c. 12; Eden Moral Pliil. b. 6, c. 9; Ruth. Inst. b. 1, Penal Law, 3d ed. 6; 4 Bl. Com. IG; c. 18, § 3, 16. 117 § 211 ♦ ELEMENTS OP CEIME. [BOOK IH. courts, as we have seen,^ do not take cognizance of all crime. Therefore, — Offender's Desert and Public Good to combine. — On the one hand, no man is to be punished unless he deserves punishment in pure retributive justice, aside from all extraneous considerations ; while, on the other hand, though a penalty is merited, it will not be inflicted by the governmental powers, which do not assume the full corrective functions of the Deity, iinless a public good may thereby be done.^ § 211. Criminal Law a Practical Science. — The considerations thus brought to view are of wide influence. They teach us, that, while the criminal law is a science, it is for use, not speculation. Hence, also, — Technical Rules. — Though, in the criminal law, there are and must be technical rules, no such rule is to be carried so far as to produce results plainly detrimental to the public repose, or to a sound administration of the judicial system. Again, — Justice to Defendants. — No theories, however fine, should ever persuade a court to pronounce against a defendant a judgment to which the conscience of mankind will refuse to respond. When, as it once happened,^ it is seen that the judgment will be of this sort, and the promptings of the understanding compel the court to continue the case expressly to give the defendant an oppor- tunity to apply for a pardon, the further question should be care- fully revolved, whether or not the decision itself is sound in law. Finally, — Practical Effect of Proposed Law. — If the legislator would pro- ceed wisely, he must consider as well how a proposed law will practically work, as how far it is intrinsically just. A measure of legislation may be just, while to adopt it will be an abomina- tion.* 1 Ante, § 10, 209. •> Commonwealth v. Mash, 7 Met. 2 "State punishments are to be con- 472; post, § 903; Stat. Crimes, § 356. sidered as founded on, and limited by, * And see the views of the late Prof, first, natural justice; secondly, public Mittermaier, ante, Introduction, note, utility." Eden Penal Law, 3d ed. 6. 118 CHAP. Xin.j MAGNITUDE OP CEIMtNAL THING. § 213 CHAPTER XIII. THE CEIWaNAL THING TO BE OP SUPPICIENT MAGNITCDE. § 212-215. Introduction. 216-222. The Intent. 223-229. The Act. § 212. Maxims as to Small Things. — There are in our law two maxims from which is derivable the doctrine, that jurisdiction will not be assumed by the courts over things trifling and small. One of these maxims is, Be minimis non curat lex, the law does not concern itself about trifles ; ^ the other is. In jure non remota causa sed proxima spectatur, " in law the immediate, and not the remote, cause of any event is regarded." ^ § 213. Whether applicable in Criminal Law. — Each of these maxims is, it is admitted, of wide influence in the civil depart- ment of our law. Writers on the criminal law, in times past, have seldom or never mentioned either of them. But it does not follow, from this, that they are not equally applicable in the criminal department as in the civil ; and an examination of the decisions shows, that, in point of actual doctrine, they are. Yet, in the language of Lord Stowell, as quoted in the Introduction,* " it would be difficult to find an English case," or an American, in which " such a matter could force itself upon any recorded observation of a court ; " consequently, though it is " deeply radicated " in our law of crimes that the tribunals will not assume jurisdiction over things trifling and small, this can hardly be deemed "directly decided" in words.* 1 Broom Leg. Max. 2d ed. 105. matter of substance, and therefore the 2 Broom Leg. Max. 2d ed. 165. first motive, as showing the intention, ' Ante, Introduction. must he principally regarded." Broom * An excellent English writer, speak- Leg. Max. 2d ed. 170 ; referring to Bac. ing of the latter of the two maxims Max. vol. 4, p. 17. But we shall see, quoted in the last section, says : " Neither that the adjudged law as to the motive does the above rule hold in criminal is directly the other way. Post, § 339- ' cases, because in them the intention is 341. He illustrates his proposition thus : 119 § 215 ELEMENTS OP CEIJIE. [BOOK HI. § 214. Biffioultiea of the Subject. — To SO treat this subject, therefore, as to satisfy all readers is practically difficult. It would not be so but for the fact that many persons look upon legal doctrine and judicial dictum as identical, and fail to see how the decisions of the courts can establish a proposition otherwise than by the judges iterating and reiterating it in words. Doubt- less, therefore, there are those who will even deny that any con- sideration is to be given to the magnitude of the act, or of the intent, or to the amount of evil it is calculated to produce, urg- ing that the attention should be directed solely to its nature. But there is no man, lawyer, judge, or juror, whose conduct in the trial of a criminal cause will not show that truly his mind assents to the general doctrine, — to which, perhaps, he thus in form objects, — though he may be unconscious of the fact him- self. How the Doctrine proved. — The proof of this doctrine, like any other, consists in comparing it with the adjudged law. If the decisions are harmonized by it, and if without it they would appear in confusion and discord, it necessarily is the rule on which they proceeded. By thus comparing fact and assumed rule, man has learned every law of nature which he knows, and thus is ascertained every other law within human cognizance. What for this Chapter. — It will be the purpose of this chapter * to call to mind a few leading facts in the law of crime illustrat- ing its doctrine ; namely, that jurisdiction, in criminal causes, will not be assumed by the courts over things trifling and small. But the complete proof of the doctrine can, in the nature of things, appear only on a consideration of the entire system of rule and decision to be unfolded in these volumes. § 215. How the Chapter divided. — We shall pursue the inquiry as respects, I. The Intent ; II. The Act. " As, if A, of malice prepense, discharge tent." Broom Leg. Max. 2cl ed. 170, 171 ; a pistol at B, and miss, him, whereupon referring to Bac. Max. reg. 1. What is he throws down his pistol and flies, and thus said by way of illustration is doubt- B pursues A to kill him, on which he less sound in law, but it tends in no de- turns and kills B with a dagger ; in this gree to support the proposition it would case, if the law considered the immedi- illustrate. If one kills another of malice, ate cause of the death, A would be justi- this is murder; and, in the case thus sup- fied as having acted in his own defence ; posed, the fact that A, before he fled, \ but, looking back, as the law does, to the discharged at B his pistol, shows nialit^e I remote cause, the offence will amount to to have still existed in him when he sue- ) ' murder, because committed in pursuance Deeded in accomplishing his intended/ and execution of the first murderous in- work of killing. 120 CHAP. Xin.] MAGNITUDE OF CKIMINAIi THING. § 217 \ I. 27ie Intent. §\216. Carelessness. — Carelessness, we shall by and by see,^ is, ■when certain evil results flow from it, criminal. But from the c^octrine of this chapter it follows, that there may be a degree of caWessness so inconsiderable as not to be taken into account as criminal by the law. We may not find it easy, on principle, to shov the exact line distinguishing the less and greater degrees ; and, wi^en we seek for it in authority, it there appears variable and uncertain. Thus, — § 217. 1 Medical Practitioner Careless — (Homicide). — Not every degree oi carelessness in a medical man will, if the death of the patient eh^ues, render him liable for manslaughter : it must be gross ; ^ or\ as more strongly expressed, the grossest ignorance or most criminal inattention.^ Others catiping Death. — In respect to persons generally who cause death ili pursuing their lawful business, the criterion is said to be, "to ei^mine whether common social duty would, under the circumstances, have suggested a more circumspect conduct;"* yet we may doujbt, on the authorities, whether this expression is not a little too strong against the accused. Omission — Dia|:inguished from Commission — (Homicide). — It appears to have been sometimes laid down, that merely omitting to do an act will n^t render one liable for homicide, though death follows.^ And such is generally, perhaps universally, the just doctrine where the Omission is not connected with a legal duty ; * but not wJbere it is.' ^ The difference between omitting and doing is not so much in priiioiple as in degree.^ The delinquency must 1 Post, § 313 et seq. e Rex v. Allen, 7 Car. & P. 153 ; Eex 2 Rex V. Long, 4 Car. & P. 898 ; Eex v. Smith, 2 Car. & P. 449 ; Reg. o. Bar- V. Van Butchell, 3 Car. & P. 629, rett, 2 Car. & K. 343 ; Eex v. Squire, 1 ' Rex V. Williamson, 3 Car. &P. 635; Russ. Crimes, 3d Eng. ed. 19; Reg. n. Vol. II. § 6B4. Edwards, 8 Car. & P. 611 ; Rex v. Saun- * 1 East P. C. 262. And see, as to ders, 7 Car. & P. 277 ; Reg. v. Vann, 8 what ia sufficient carelessness, Reg. o. Eng. L. ^ Eq. 596, 2 Den. C. C. 325, 5 Conrahy, 2 Crawf. & Dix C. C. 86 ; Rex Cox C. C. 379. V. Waters, Q Car. & P. 328 ; Rex v. Con- ' Rex v. Friend, Buss. & Ry. 20 ; Reg. ner, 7 Car. & P. 438 ; The State v. Hil- v. Lowe, 3 Car. & K. 123, 4 Cox C. C. di-eth, 9 Ire. 440; Matheson's Case, 1 449,7 Best. Law Reporter, n. s. 375 and Swinton, 593. See also Vol. II. § 656 4, note, 1 Ben. & H. Lead. Cas. 49. 681, 690. 8 On this topic a Scotch law writer ' Bex V. Green, 7 Car. & P. 156. observes : " The general principle," says 121 219 ELEMENTS OP CEIME. [book m. be of a certain magnitude for the courts to take cognizance of it. § 218. Carelessly selecting Agent — (Master and Servant — Sheriff and Deputy — Escape). — We shall see in another connection,^ that one may be so careless in employing a servant as to become liable criminally for the latter's acts in his service. And from some of the older books it appears, that a sheriff may be indicted for a mere negligent escape ^ suffered by a deputy, as his jailer ; tecause he " ought to put in such a jailer as for whom he will be answer- able." ^ But we may doubt whether the doctrine of the sheriff's liability would be carried so far now, in the absence of special circumstances ; and it seems in a general way to be setcled, that he cannot be held criminally for the conduct of his deputy ; * though he may be liable in proceedings quasi criminal, for the enforcement of civil rights.^ § 219. Further of Principal and Agent. — We shall see,^ that the j general doctrine of the criminal law is the one which exempts the master, or principal, from responsibility for a crime by the ser- vant, or agent. Thus, — Alison, " is, that, in acts either of duty or amusement, all persons are bound to take due care that no injury is done to, any of the lieges ; and that, if death en- sue from the want of such care, they must be answerable for the consequences. Of course, the degree of care which the law requires varies with the degree of peril which the lieges sustain from its want. It is greatest where the peril is most serious, and diminishes with the decrease in the danger incurred by negli- gence or inattention. Thus the masters of steamboats, who are intrusted with the guidance of floating vessels of im- mense size, and moving with the greatest velocity, are bound to exercise the high- est degree of vigilance : the drivers of stage-coaches are answerable for the next degree of diligence, then drivers of ordinary carriages and riders on horse- back. This arises from the different de- grees of peril which the lieges sustain from such negligence, and the greater degree of skill expected from those who are intrusted with the direction ot the higher species of vehicles." 1 Alison Crim. Law, 113, and see several of the 122 succeeding pages la this author. The Scotch law would seem to require rather less carelessness in degree to constitute what it terras culpable homicide, than the English, to constitute the correspond- ing offence of manslaughter. Mr. Ben- nett has discussed the distinction be- tween negligent omission and commis- sion, in a note to Reg. v. Lowe, 1 Ben. & H. Lead. Cas.49, reported, as above men- tioned. 1 Post, § 816 et seq. = See post, § 316, 321. 8 Rex 0. Fell, 1 Ld. Raym. 424, 5 Mod. 414. 416 ; 1 Hawk. P. C. Curw. ed. p. 198, § 29. But see the report of Rex V. Fell, in 1 Salk. 272. See also Rex v. Lenthal, 3 Mod. 143, 146 ; Reg. v. Bel- wood, 11 Mod. 80. * Commonwealth u. Lewis, 4 Leigh, 664 ; The State v. Berkshire, 2 Ind. 207 ; Overholtzer v. McMichael, 10 Barr, 139 ; 1 East P. C. 381. 5 Matter of Stephens, 1 Kelly, 584; Overholtzer v. McMichael, .10 Barr, 139. And see Miller v. Lockwood, 5 Harris, Pa. 248. 6 Post, § 817. CHAP. Xin.] MAGNITUDE OF CKIMINAi THING. § 220 Servant selling Liquor, &c. — Under the statutes forbidding the sale of intoxicating drinks without license, and the former en- actments against selling goods to slaves without the consent of their masters, it is sufficient in defence that the sale was made by the defendant's clerk, unauthorized either absolutely or by impli- cation.^ Even where the statutory words were, " by an agent or otherwise," the Connecticut court held, two judges dissenting, that the servant's want of authority would excuse the master ; and Ellsworth, J., in delivering the opinion of the majority, ob- served : — Continued — Distinctions as to Master's Iiiability — (Libel — Book- seller, &o.). — "The master is never liable criminally for acts' of his servant, done without his consent, and against his express orders. The liability of a bookseller to be indicted for a libel sold from his store by his clerk is nearest to it. But the charac- ter of these cases has not always been understood. If carefully examined, they will be found to contain no new doctrine. The leading ease is Rex v. Almon.^ Other cases followed, as may be seen.^ But, having examined these cases, we speak with confi- dence that they contain no new doctrine. They make a sale in the master's store high, and, unexplained, decisive evidence of his assent and co-operation ; but they will not bear out the claim that a bookseller is liable at all events for a sale by his general clerk. Lord Mansfield said, in Rex v. Almon, ' The master may avoid the effect of the sale, by showing that he was not privy nor assenting to it, nor encouraging it.' So in Starkie it is said, that the defendant in such cases may rebut the presumption by show- ing that the libel was sold contrary to his orders, or under circum- stances negativing all privity on his part." * § 220. Principal's Liability, continued. — But it is obvious that these are distinctions lying on the border line, between cases wherein the carelessness of the principal in employing the agent is so great as to render him criminally responsible, and thosel 1 Hipp V. The State, 5 Blackf . 149 ; 8 Esp. 21 ; Rex ». Gutch, Moody & M. The State !). Dawson, 2 Bay, 360 ; Barnes 433,437; Attorney-General v. Siddon, 1 V. The State, 19 Conn. 398. And see Cromp. & J. 220, 1 Tyrw. 41 ; Attorney- Ewing V. Thompson, 13 Misso. 132; General v. Eiddle, 2 Cromp. & J. 493; Caldwell v. Sacra, Lltt. Sel. Cas. 118. 8. c. nom. Attorney-Greneral v. Biddell, " Eex V. Almon, 5 Bur. 2686. 2 Tyrw. 523. " 2 Stark. Slander, 2d ed. 34 ; 2 Hawk. * Barnes v. The State, 19 Conn. 398. P. C. 7th ed. c. 73, § 10; Eex v. Walter, 123 § 222 ELEMENTS OF CEIMB. [BOOK HI. ■wherein it is too small for the law's notice. In determining whether it is too small or not, we are to look at the particular sort of offence to which it relates^, the specific act with which it is connected, and the policy of the law regarding the offence, as shown in previous adjudications. § 221. Contiimea. — Whatever be the doctrine in the law of libel, as to the employer's responsibility for the criminal acts of the employed, it is carried less far under most other titles of the criminal law. But, — As to Libel. — Difficulties would attend the proof of participar tion in a libel published through an employee, were a particular, consent required to be shown, sufficient to justify the very strong rule that the employer shall be prima facie held to have cora- manded the publication. So far, at least, the rule very properly extends on the authorities. And the doctrine, on the other hand, is wisely laid down, that cases may exist in which a proprietor of a newspaper will not be answerable criminally for what appears in his paper.i Still the authorities seem to go further, indeed to the extreme point, that such proprietor is generally answerable, though the paper is conducted by his servants, and he has no knowledge of the matter put into it, which, on its coming to his notice, he disapproves.^ Nuisance — Quasi Civil. — The case of a nuisance, to be consid- ered further on,^ perhaps occupies special ground ; for, as to it, the public has a quasi civil right to establish ; and in later pages we shall see * that, in some criminal things, what is complained of is a sort of public tort, rather than a pure crime. § 222. Observations.-;- The discussions under this sub-title are intended merely as suggestions to the reader, to be borne in mind through the remaining pages of these volumes. They will im- press him with the general truth, that, in the criminal department as well as in the civil, our law, under proper circumstances, declines to take into its account things trivial and smaU. And 1 Eex V. Gutch, Moody & M. 433 ; 3 ment might have been pressed upon the Greenl. Ev. § 178. In Eex v. Holt, 5 jury." T. E. 436, 444, Kenyon, C. J., observed : 2 Rex v. ■WilliamB, LofEt, 759 ; Anon- " It the defendant could have shown that ymous, Lofft, 644, 780 ; Eex v. Gutch, he pubhshed the paper in question with- Moody & M. 438, 437 ; Eex v. Walter, 3 out knowing its contents, as that he Esp. 21. could not read, and was not informed of ' Post, § 316. its tendency until afterwards, that argu- * Post, § 1074-1076. 124 CHAP. Xni.] MAGfNITUDE OF CKIMINAL THING. § 225 the illustrations under the next sub-title will serve the -same end. Most of the minuter applications of the doctrine will appear, in subsequent pages, interspersed with the discussions under other titles. II. The Act. § 223. Two Consequences — (General — Partioular). — Paley ob- serves, that an act is followed by two classes of consequences, — particular and general. " The particular bad consequence of an action," he adds, "is the mischief which that single action directly and immediately occasions. The general bad conse- quence is the violation of some necessary (jr useful general rule." ^ Now, the criminal law looks more to general conse- quences than to particular. And out of this proposition grow some distinctions in the application of the doctrine that the thing done, to be indictable, must not be trivial and small. Thus, — § 224. Larceny — (Value Small). — If a rnan should steal, for example, a thing of small value, he would as essentially violate a rule necessary to the good order of society as if the value were great. It is therefore held, that an indictment for larceny may be maintained, however little the thing taken is worth, if it is of some value, even though less than thp smallest coin or denomi- nation of money known to the law.^ Again, — Arson — (Trifle burned). — In arson and other like criminal 1 burnings, if any of the fibres of the wood are wasted by fire, it is immaterial how small is the quantity consumed.^ Therefore, in cases of this kind, the doctrine under consideration does not apply.* ^ § 225. 'General and Particular ill Consequences. — But where, taking into view both the general and special ill consequences of an act, the evil in each aspect appears small, it will not be [adjudged a crime in law, though it is such as an enlightened con- science would notice and avoid, and the divine displeasure is pre- > Paley Phil. b. 2, c. 6. Moody, 218 ; Wilson v. The State, 1 Port. ' Eeg. V. Morris, 9 Car. & P. 349 ; Reg. 118. And see Bishop Pirst Book, § 177- V. Perry, 1 Car. & K. 725, 1 Den. C. C. 181. 69 ; Bex ». Bingley, 5 Car. & P. 602 ; » The State v. Mitchell, 5 Ire. 350 ; People V. Wiley, 3 Hill, N. Y. 194. See Stat. Crimes, § 310. also The State v. Slack, 1 Bailey, 330 ; * And see Seneca Road v. Auburn Payne v. People, 6 Johns. 103 ; People v. and Rochester Railroad, 5 Hill N. T. Loomis, 4 Denio, 380 ; Rex v. Vyse, 1 170. 125 § 227 ELEMENTS OE CEIMB. [BOOK HI. sumed to follow. How intense the evil must be is one of the principal questions lying before us in these commentaries ; and it could only be fully answered on an examination of all suppos- able circumstances of wrong-doing, in the light of the adjudica- tions. And, — Statutes creating New Offences. — Frequently,^ in the progress of society, the legislative body, deeming the courts to have gone not far enough, or deeming a wider judicial cognizance over par- ticular wrongs to be required by changes in the public situation or wants, creates by statute what is called a new offence. And we have elsewhere seen that this new offence is to be deemed a mere added part pf the general system of laws into which it is introduced, to be shaped into uniform proportions with the rest.^ § 226. Participation more remote as Crime heavier. — It will be more fully shown in subsequent pages than here, that, when the law has defined an offence, an act of one to be criminal in respect of it must be greater'or less in magnitude, or nearer or less near to the principal transaction, according as the offence is of greater or less enormity. Thus, — Treason and low lOisdemeanor compared. — Treason, for example, ' is the highest crime known to the law ; and, when it is committed by a levying of war, those who perform very minute acts, and « remote from the scene of operations, are guilty erf the fuL. offence.^ And if a man takes no part, even remote, in a treason, but knows that it has been committed by another, and does not disclose the fact, he becomes by this omission of duty guilty of an inferior crime, called misprision of treason.^ But, descending to the lower form of jnisdemeanors, he who does some remote action, or encourages another, toward its commission, or even stands by while another whom he urges on does it, is not punishable.* But these are extreme points, between which there are various shades and degrees. § 227. Nuisance in Small Degree. — So likewise, 'to present a somewhat different illustration, where the owners of the soil 1 Stat. Crimes, § 86-90, 123, 124. 476; O'Blennis v. The State, 12 Misso. 2 Ex parte Bollman, 4 Cranch, 75. 311. And see The State u. Brady, 9 And see Eden Penal Law, 3d ed. 117, Humph. 74; Rex v. SoleguarS, Andr. 118 ; Vol. XI. § 1232. 281, 235 ; The State v. demons, 3 Dev. 3 1 East P. C. 189, 140 ; Eden Penal 472 ; The State v. Goode, 1 Hawks. 463 ; Law, 8d ed. 202 ; post, § 717, 722. Anonymous, March, 83, pi. 186 ; post, 4 Commonwealth v. WiUard, 22 Pick. § 667-659, 688, 706. 126 CHAP. Xm.] MAGNITUDE OP CErMTNAIi THING. § 229 adjoining a harbor were indicted for a nuisance in erecting planks in it ; and the jury found specially, that, " by the defendant's works, the harbor is in some extreme cases rendered less secure," — the court adjudged, that no offence was established ; for " no person can be made criminally responsible for consequences so slight and uncertain and rare as are stated in this verdict to result from the works." ^ Slight Provocation in Homicide, &c. — And, in felonious homi- cide, the provocation to the blow which results in death must, to reduce the killing to manslaughter, be sufficient in degree.^ From these illustrations, which might be added to ^ indefinitely, the gen- eral scope of the doctrine will appear. § 228. General View of the Doctrine. — A general vieW of the doctrine of this sub-title is the following. Inasmuch as the tri- bunals neither take cognizance of all moral wrong, nor punish every remote injury to the community, the evil of each act must be measured in two ways, to determine whether it should be pun- ishable or not. The one is by its nature, and the other is by itsj magnitude. And that the magnitude of the act, as well as itsl nature, should be considered, results from the plainest principles! of reason and justice. For, if not, then would the courts under- take to exercise, in one direction, the full supervision of the Deity over men.* Indeed, the proposition is too obvious to render jus- tifiable any extended elucidation of it, where, as here, we are considering the mere general doctrine of the criminal act. Its application, however, is in many circumstances attended with difficulty; yet with no difiieulty comparable with what would follow its rejection. That would make impossible the adminis- tering of the law in multitudes of cases. § 229. Conciuaion. — If any solid instruction could be imparted by multiplying illustrations, the importance of the subject would justify the extending of the chapter to much greater length. But the further views will best appear in connection with the several topics to be discussed as we proceed. 1 Eex V. Tindall, 1 Nev. & P. 719, 6 In a Scotch case, a charge of culpable A. & E. 143. homicide was abandoned, under direction " 1 East P. C. 234 ; Rer v. Lynch, 6 of the court, because of the small degree Car. & P. 324. And see ante, § 216, 217. of blame attributable to the defendant. ' See Reg. v. Phillpot, 20 Eng. L. & Matheson's Case, 1 Swinton, 593. Eq. 591. SmaU Blame in Homicide. — « See ante, § 209-211. 127 232 ELEMENTS OF CBIME. [BOOK HI. CHAPTER XIV. THE WEONG AS A PUBLIC IN DISTINCTION FKOM A PEIVATB INJTTKY. § 230-234. Introduction. 235-249. Indictable Public Wrongs. 250-254. Indictable Private Wrongs. § 230. Public must suffer. — In Criminal prosecutions, the pub- lic, under the name of King, Queen, State, Commonwealth, People, or the like, is the party complaining ; ^ consequently the public must suffer an injury, for the individual to be guilty of crime. § 231. Injury to Individual vie'OT'ed as Public Injury. — It is plain, in philosophical speculation, that an act which injures any mem- ber of the body politic injures the body of which the individual constitutes a part ; just as, when a man's hand is wounded, the man is wounded. The inference would be, that every such act, though it thus falls directly on an individual only, is of a nature to be indictable. But this philosophical view is limited, in its practical application, by the doctrine, that the law does not take cognizance of small things.^ If an injury affects directly and primarily only a single person, though it may be great in magni- tude as respects him, it is still, in general, a small thing as to the public. Therefore, — Injury to One. — For an injury to one person alone, an indict- ment wni not ordinarily lie. § 232. Continued — Better Statement of Doctrine. — Such is the general proposition ; yet it has, in the law, so many exceptions as to become almost valueless as a rule for practical guidance. A better practical statement of the doctrine is, that, for the act to be indictable, either it must be in its nature injurious to the pub- lic at large in distinction from individuals, or it must be a wrong to individuals of a nature which the public takes notice of as 1 Ante, § 82. a Ante, § 212 et seq. 128 CPAP. XrV.] THE WRONG AS BEING PTJBLIC, § 235 injurious to itself.^ The books are full of expressions going fur- ther, to the effect, that, in all cases, the act must be a public wrong in distinction from a private. But clearly such expres- sions proceed from misapprehension ; because, to illustrate the true view, — Larceny — Other Crimes against Individuals. — Nothing can be more purely a tort to the individual alone than a simple larceny, where there is no breach of the peace ; no public loss of property, since it only changes hands ; no open immorality, corrupting the minds of the young ; no person in any way afPected but him who takes, and him who loses, the thing stolen. And, as in larceny, so it is in many other crimes ; a public offence is committed, while only an individual directly suffers. § 233. Wrongs to Individuals indictable. — Whenever, therefore, the public deems that an act of private wrong is of a nature requiring the public protection for. the individual, it makes the act punishable at its own suit ; or, in other words, makes it a crime. What acts are deemed of this sort, and what are not, can be learned only by consulting the unwritten and statutory law in detail. Let us look at the whole doctrine a little further. § 234. How the Chapter divided. — We shall consider, I. Indict- able Public Wrongs ; II. Indictable Private Wrongs. I. Indictable Puhlio Wrongs. § 235. Individuals suffer from Wrongs to PubUc. — As the public partakes of the sufferings of its individual members,^ so does each individual suffer when the public does. Therefore every injury to the public is an injury to each individual.^ Yet, — When Private Action not maintainable. — When the suffering of one member of the community is no more than that of every other member, it is small ; and, small or great, if the injury is common to the whole community, affecting no one person specially, the law would be unreasonable to allow each to bring his separate suit, where all could alike complain, and overwhelm the trans- gressor with litigation.* Therefore the rule of the law is, that, under such circumstances, no one can have his private action.* 1 See ante, § 32, 210. * 4 Bl. Cora. 167. 2 Ante, § 231. « Broom Leg. Max. 2d ed. 156. 3 See 4 Bl. Com. 5. VOL. I. 9 129 § 237 ELEMENTS OF CEIME. [BOOK III. When Indictment maintainable. — But if there were no public remedy, the wrong would go unredressed. When, therefore, a thing is done to the injury of the whole community, and suffi- cient in magnitude for the tribunals to notice,^ it is cognizable criminally. It need not be more intensely evil than torts for which, being directed merely against an individual, only a civil remedy is provided.^ Thus, — ' § 236. Nuisance Public or Private — Injury to one, or Community. f — If a man goes on his neighbor's land and deadens a tree there growing, he exposes himself to a civil suit ; if, on public land, to a criminal.^ Or, if a nuisance affects the public, it is indictable, while actionable if it affects only individuals.* But it would be difficult to show the act to be more evil in nature or degree in the latter cases than in the former ones. § 237. What a statute prohibits, indictable or not. — It is obvious that whatever is made the subject of statutory prohibition is thus brought to the notice of the tribunals. So we see, carrying in our minds the principles stated in the last section, how it is, that, as observed in another connection, when a statute forbids a thing affecting the public, but is silent as to any penalty, the doing of it is indictable at the common law.^ If it were a special injury to an individual, he would have his common-law action ; ^ and an 1 Ante, § 212 et eeq. mings, 5 Mod. 179 ; Rex v. Hemmings, 8 2 See Rex v. Gaul, Holt, 363 ; Crou- Salk. 187 ; Crofton's Case, 1 Vent. 63, 1 ther's Case, Cro. Eliz. 654 ; Anonymous, Mod. 34 ; Reg. v. Nott, 4 Q. B. 768, Dar. Lofet, 185; Pennsylvania v. Gillespie, & M. 1 ; Griffith «. Wells, 3 Denio, 226 ; Addison, 267 ; Rex v. Lesingham, T. Colburn v. Swett, 1 Met. 232 ; The State Raym. 205 ; Anonymous, Comb. 46 ; v. Thompson, 2 Strob. 12 ; Rex v. How- Rex V. Ford, 2 Stra. 1130 ; Common- ard, 7 Mod. 307 ; Commonwealth v. Shat- wealth V. Webb, 6 Rand. 726. tuck, 4 Cush. 141, 146 ; Tate w.The State, s Commo]) wealth K. Eckert, 2 Browne, 5 Blaokf. 73 ; People v. Norton, 7 Barb. Pa. 249. 477 ; Rex v. Rogers, 2 Keny. 373 ; The 4 Rex V. TrafCord, 1 B. & Ad. 874, State v. Lenoir Justices, 4 Hawks, 194 ; where Tenterden, C. J., said : " We think The State v. Williams, 12 Ire. 172 ; Penn- there can be no doubt, that, if the wrong sylvania v. Gillespie, Addison, 267 ; Rex [a nuisance] would have entitled an indi- v. Sparkes, 2 Show. 447 ; Smith v. Lang- vidual owner of land to maintain an ham. Skin. 60, 61 ; Rex v. Wright, 1 Bur. action for it, it is properly the subject of 548, 545 ; Waterford and Whitehall Turn- an indictment like the present for a pub- pike v. People, 9 B^rb. 161 ; Keller t. lie nuisance." p. 886. The State, 11 Md. 525 ; Phillips u. The 5 Stat. Crimes, § 138 ; and, besides State, 19 Texas, 158. Contra, The State the cases there cited. Rex v. Jones, 7 Mod. a. Ashley, Dudley, Ga. 188. And see the 410, 2 Stra. 1146 ; Rex v. Vaughan, Skin. State v. McEntyre, 3 Ire. 171. 11 ; Rex V. Gregory, 2 Nev. & M. 478, 5 « Beckford v. Hood, 7 T. R. 620 ; Bar- B. & Ad. 655 ; Rex v. Smith, 2 Doug, den v. Crocker, 10 Pick. 383 ; Colburn v. 441 ; W.'s Case, Lofft, 44 ; Rex v. Com- Swett, 1 Met. 232 ; Jonner v. Joliffe, 9 130 ' CHAP. XrV.J THE WHONG AS BEING PUBLIC. § 238 indictment would not lie, unless it were also injurious to the pub- lic.^ And, for the same reason, — Attempt to violate Statute. — When an act is by legislation made criminal, an unsuccessful attempt to do it, carried far enough to attract the law's notice, is an indictable misdemeanor, not under the statute, but at the common law.^ § 238. Prohibition without Penalty, continued. — It is sometimes an embarrassing question, whether a particular prohibition is open to the construction of laying the foundation for a common- law indictment, by reason of its being accompanied in the same statute with a disconnected penalty, — it is elsewhere discussed.^ Again ; the difficulty may arise, whether the thing prohibited is of the peculiar nature which the common law makes indictable ; because evidently, if it is, not, no common-law indictment lies on the prohibition, — the remedy being either a civil suit to be pros- ecuted by the party aggrieved, or some special proceeding de- Johns. 381 ; Broom Leg. Max. 2d ed. 64 ; Ferguson «. KinnouU, 9 CI. & IT. 251. Eight to Advertise Post-Offloe Letters. — According to a New York case, how- ever, no action will lie hy the pulblisher of a newspaper against a postmaster for refusing to receive proofs that his paper is, by reason of its larger circulation, entitled to advertise letters remaining in the post-office, under an act of Congress and instructions from the Postmaster- General; the reason beings that the law was intended for the public good only. Johnson, J., observed : " To give a right of action for such a cause, the plaintiff must show that the defendant owed the duty to him personally. Wherever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the ad- vantage to be derived to the party prose- cuting, by its performance, is merely incidental, and no part of the design of the statute, no such right is created as forms the subject of an action. In this I apprehend all the authorities will be found to agree. Martin v. Brooklyn, 1 Hill, N. r. 545 ; Bank of Kome v. Mott, 17 Wend. 554; 19 Vin. Abr. 518, 620; Ashby V. White, 6 Mod. 45, 51, 1 Salk. 19. In the latter case. Holt, Chief Jus- tice, laid down the rule, that it must be shown that the party had a right vested in him, in order to maintain the action. And this, I apprehend, is the true rule." Strong V. Campbell, 11 Barb. 135, 138. It is not within the plan of these vol- umes to discuss questions of mere civil right ; but there is reason for the opinion that the decision in this case might have been put on a firmer ground of principle. If a statute was passed for the exclusive 1 benefit of a particular person, no doubt another could not claim a right under it. J But where it is for the public, and an ' individual suffers under it an injury not common to other members of the public, the doctrine to be discussed, post, § 264, seems to give him the right of action. Yet such injury may be too remote from its cause, may be too vague and uncer- tain, and so on, for the law's notice; in ■which circumstances his remedy fails througlj the operation of other princi- ples. Into this latter class the case under consideration seems to fall ; though per- haps it falls into the former also. 1 Hex V. Leginham, 1 Mod. 71. And see Crumpton o. Newman, 12 Ala. 199; Hex V. Watson, 2 T. E. 199. 2 Stat. Crimes, § 138. 3 Stat. Crimes, § 249-253. 131 § 240 ELEMENTS OF CRIME. [BOOK m. manded by the particular case. In considering these statutes, therefore, the mind mugt sometimes traverse the entire field of our jurisprudence. Thus is beautifully illustrated the general truth, that no one can understand well the doctrines of any given title in the law without some knowledge of the entire law. § 239. Breach of Common-law Duty indictable. — The principles which govern these statutes are not peculiar to the statutory law, but they pervade the common law as well. For the doctrine is general, that, whenever the law, statutory or common, casts on one a duty ^ of a public nature, any neglect of it, or act done in violation of it, is indictable.^ Still, — Limits of Doctrine. — As said many times in these pages,^ there are duties, clear and well defined in morals, of magnitude so small, or even otherwise of such a nature, as not to be taken into account in the law. Such duties are not included in our rule. In this particular, as in others, we must be guided by the land- marks which adjudication has laid down.* ' § 240. Breach of Magistrates' Order. --- The English books fur- nish illustrations of our rule in cases where magistrates, in ses- sions or otherwise, pass an order of a nature affecting the public, — as, to support poor persons,^ or a woman and her bastard child,* or to pay the costs of an appeal to the poor's rate,^ or to admit an individual to membership in a friendly or benefit society,* and other like orders ^ within the jurisdiction of the magistrates, — the doctrine being, that disobedience to the order is indictable at the common law. In principle, the like doctrine must prevail in our country .1" But most of these orders are unknown in our practice, or they are founded on a statute which itself provides a 1 That the duty must be a legal one, ' ' Eex v. Boys, Say. 143. see Eeg. w. Vann, 8 Eng. L. & Eq. 596, 2 8 Rex v. Gilkes, 3 Car. & P. 52 ; Eex Den. C. C. 825, 6 Cox C. C. 379 ; The v. Wade, 1 B. & Ad. 861 ; Eex v. Byce, State V. Bailey, 1 Fost. N. H. 185 ; Eex Bott, P. L. 324. II. Everett, 8 B. & C. 114. 9 Rex v. Gash, 1 Stark. 441 ; Eex v. 2 See People u. Norton, 7 Barb. 477 ; Mytton, Cald. 536, 1 Bott P. L. 439, note, post, § 313 et seq. 4 Doug. 333 ; Eex v. Eobinson, 2 Bur. 8 See ante, § 212 et seq. 799, 2 Keny. 518 ; Eex v. Boyall, 2 Bur. 4 And see the observations of Dade, J., 832, 2 Keny. 549 ; Eeg. v. Wood Ditton, in Anderson v. Commonwealth, 5 Eand. 18 Law J. n. s. M. C. 218 ; Eex v. Wig- 627, 631. got. Comb. 205 ; Eeg. w. Crossley, 2 Per. s Eex V. Turner, 5 Mod. 329. & D. 319, 10 A. & E. 132, 3 Jur. 675. 6 Eex V. Moorliouse, Cald. 554, 4 ^^ And see, under this title, " Con- Doug. 888 ; Eeg. v. Brisby, 8 New Sess. tempt of Court." Vol. II. § 264-266. Cas. 591, Temp. & M. 109, 1 Den. C. C. 416, 13 Jur. 620. 132 CHAP. Xrv.] THE WEOKG AS BEING PUBLIC. § 242 remedy, or practically it is more convenient to proceed by process for contempt. Again, — Order of Quarantine. — In England, disobedience to a lawful order of the privy council, concerning the performance of quaran- tine, is indictable.! Officer disobeying Magistrate. — So an ofl&cer ^ commits a criminal misdemeanor who refuses to serve ^ or return * a magistrate's war- rant in a criminal case ; or, having served it, disobeys the magis- trate's mandate to take the arrested person to prison during an adjournment of the examination ; and it is no defence to have him otherwise in custody, and produce him at the adjourned hear- ing.^ This sort of ill conduct is, in most of our States, cognizable by the magistrate as a contempt ; ^ and, in practice, the summary process is usually resorted to, but undoubtedly an indictment is equally maintainable where common-law offences are known. 1 241. Neglect to repair Way, &o. — Moreover, as we shall see in another place,' if the law casts upon an individual or corpora- tion the duty of repairing a public way, a neglect of this duty is consequently indictable at the common law. We might add numerous other illustrations of the doctrine ; but we should thereby only anticipate, with small compensatory advantage, a large part of the particular discussions of these volumes.' § 242. Doctrine Epitomized. — The foregoing views may be con- densed, thus : The law has its bounds of duty, drawn with refer- ence to practical ends, and it seeks to keep people within them, not to compel a compliance with the entire rule of ethics ; and, whenever one steps over these bounds, it pursues him according to the method appropriate to the case. If the transgression is in a thing affecting the public directly, in distinction from a mere wrong to an individual, then an indictment is the appropriate method.^ ^ Rex V. Harris, 2 Leach, 4th ed. 549, high Scotch authority may be interest- 4 T. R. 202. . ing. Says Erskine : " Acts, though not 2 See The State v. Berkshire, 2 Ind. of their own nature immoral, if they had 207. been done in breach of an express law ^ Rex V. Mills, 2 Show. 181. to which no penalty was annexed, and " Reg. V. Wyat, 1 Salk. 380 ; s. c. which, by the Roman law got the name nom. Reg. v. Wyatt, 2 Ld. Raym. 1189. of crimina extraordinaria, having been by ' Reg. V. Johnson, 11 Mod. 62. them deemed criminal, were punished as * Vol. II. § 244, 263. proper crimes ; and indeed it seems to ' Vol. II. § 1281. be a rule founded in the nature of laws, 8 How in the Scotch Law. — Upon that every act forbidden by law, though this general subject, some views from the prohibition should not be guarded 133 §244 ELEMENTS OP CEEWB. [book hi. § 243. Mow many must an Act injure to he deemed injurious to the Public : — Adapted for General Injury. — For an act to be injurious to the public, withiQ the foregoing doctrines, there is no need it should, in fact, injure every one. But it must be of a nature to produce injury to a,ll ; and, when carried fully out, must in fact injure all who are in the particular locality, or otherwise within the iniiu- ence of the act. Thus, — Nuisance. — An indictment for nuisance must allege that the thing done was to the common nuisance of all the citizens in the place, not merely of divers citizens.^ § 244. Continued — (Remote or Populous — " Three Houses "). — Yet many things are indictable nuisances when done in populous places, being therefore actually detrimental to many, while inno- cent in a retired locality, to which, at the same time, many might, if they chose, resort.^ And if what is done affects only a small by a sanction, is punishable by the judge according to its demerit, as a transgres- sion of law and a contempt of authority ; otherwise all such proliibitory statutes might be transgressed with impunity. Lawyers, however, are generally of opin- ion, that the transgression in that case, though it ought not to escape all cen- sure, is not punishable as a proper crime, unless the act be in itself criminal, i.e., contrary to the law of nature, though there had been no such prohibition. If the law forbid any act to be done, or deed to be granted, under any special penalty of a civil kind, the transgression of it cannot be tried criminally, though the act done in breach of the prohibition should be in its nature criminal ; because the law, by annexing a special civil pen- alty to the transgression of it, appears to have excluded all other punishment." Erskine Inst. 4, 4, 4. Plainly the " cen- sure," which, according to the "Scotch lawyers as explained in this paragraph, should be visited upon the violator in cases not amounting to " proper crime," cannot, according to the rules of our common-law practice, be visited other- wise than by proceeding against the wrong-doer as for a. criminal misde- meanor. And I do not understand that the Scotch " censure " is less than what 134 we should call a punishment, to be in- flicted pursuant to the sentence of the judge. Agreeing substantially with Ers- kine, that older, but highly esteemed Scotch writer, Mackenzie, says : " Law- yers assert, that such as disobey and transgress any prohibiting law may be punished arbitrarily as contemners of the law, suitably to the degree of their contempt, though they cannot be pun- ished criminally as guilty of a crime. The transgressing any municipal law, which prohibits that which eithet the law of God or the civil law punishes criminally by corporal punishment or a pecuniary mulct, is a crime ; and thus the poinding oxen in time of laboring was declared a crime in the former deci- sion ; because, though it was prohibited by an express statute, which did bear no punishment, yet it ought to have been punished according to the civil law, whereby it is declared to be a crime." Mackenzie Grim. Law, 1, 1, 3. ' Commonwealth v. Smith, 6 Cush. 80; Commonwealth o. Faris, 5 Rand. 691 j Rex V. Medley, 6 Car. & P. 29a ; Reg. V. Webb, 1 Den. C. C. 338, 2 Car. & K. 933, Temp. & M. 23, 13 Jur. 42. And see Crim. Proced. II. § 862-864. 2 See Ellis v. The State, 7 Blackf. 534; Rex V. Pierce, 2 Show. 327 ; Rex v. Cross, CHAP. XrV.J THE -WEOKG AS BEING PUBLIC. § 245 . number of persons, — in one case, it was said, the inhabitants of three houses,^ — it is not indictable .^ So — Exposure of Person to One. — To indecently expose the person to one, even in a place in some sense public, yet not within public view, is not an indictable nuisance ; while, if the exposure were ' to several, or if many could have seen it, being public, had they looked, the offence would be committed.^ This is a distinction sometimes made on a question not well settled in authorities which are perhaps not uniform.* Public Way. — In such a nuisance as the obstruction of a way,, actual damage to any particular individual need not be shown, itl being sufficient that the obstruction is calculated to injure all who may choose to travel, the way.^ § 245. Continued. — But in cases of the last-mentioned class, ! the way, for instance, must be one over which all the inhabitants I of the country are privileged to travel.^ Way for less than Entire Public. — If it belongs merely to a town, whose inhabitants only are entitled to use it,^ and, a fortiori, if it is simply the private way of an individual,^ an obstruction of it will not be indictable.^ Immaterial who repair. — Yet whether it is called a town or a 2 Car. & P. 483 ; Rex v. Watts, Moody & "Way for Nine Farishea. — The case of M. 281 ; Reg. v. Wigg, 2 Salk. 460, 2 Ld. Rex v. Richards, 8 T. R. 634, decides, Raym. 1163 ; Beatty v. Gilmore, 4 Har- that, if commissioners under an enclo- ris. Pa. 463, 469 ; Ray v. Lynes, 10 Ala. sure act .set out a private road for the 63; Rex v. Carlile, 6 Car. & P. '636; Rex use of the inhabitants of nine parishes, V. Neville, Peake, 91. directing the inhabitants of six of those ' Rex V, Lloyd, 4 Esp. 200. parishes to keep it in repair, no indict- 2 Rex V. Hornsey, 1 Rol. 406. ment lies for the non-repair. The court ' Reg. V. Webb, 1 Den. C. C. 338, said, "that those matters only which Temp. & M. 23, 13 Jur. 42, 2 Car. & K. concerned the public were the subject of 933, and the cases there cited ; Fowler v. an indictment. That the road in ques- Tlie State, 5 Day, 81, 84 ; Common- tion, being described to be a private road, wealth V. Catlin, 1 Mass. 8 ; Reg. «. did not concern the public, nor was of a Holmes, 20 Eng. L. & Eq. 597 ; Reg. v. public nature, but merely concerned the Orchard, 20 Eng. L. & Eq. 598,3 Cox individuals who had a right to use it.' 0. C. 248 ; Reg: v. Watson, 20 Eng. L. & That the question was not varied by tlie I Eq. 599, 2 Cox C. C. 376. See, however, circumstance that many individuals were The State v. Millard, 18 Vt. 674. liable to repair, or that many others were * Post, § 1125 et seq. entitled to the benefit of it; that each * See Vol. II. § 1272-1277. party injured might bring his action 8 And see, as illustrative. People v. against those on whom the duty was Jackson, 7 Mich. 432 ; The State v. Rye, thrown." 35 N. H. 368. s The State v. Randall, 1 Strob. 110. 1 Commonwealth ». Low, 3 Pick. 408 ; ' And see Reg. v. Saintiff, Holt, 129 ; The State v. Strong, 25 Maine, 297. Commonwealth v. Webb, 6 Rand. 726. 135 § 246 ELEMENTS OF CEEMB. [BOOK HI. county way, or, like a turnpike road, the way of a particular pri- vate person or corporation, in respect of the person bound by law to keep it in repair, is immaterial ; provided all the people have a right to its use, on conforming to the terms required by law.^ § 246. Refusal to accept Local Office. — A refusal to accept office of a public nature being indictable,^ in reason it need not be one giving the incumbent sway over the whole country ; as a public road is not required to span the entire land, to render it^ obstruc- tion a crime. Therefore the refusal is held to be suffibient, though the office is one of a mere local nature ; as that of common- councilman or the like in a municipal corporation ; or overseer of the poor, constable, sheriff, or any town officer.^ Still there are circumstances in -which a court, acting under a discretion, will not interfere by information, while yet an indictment will lie ; * and possibly instances in which a public corporation has power to provide a remedy superseding even the indictment.® And, among things special to exceptional cases, the local character of an office may doubtless be numbered. Bribery as to Local Office. — In like manner, bribery may be committed by promising one money to vote at the election of members of a corporation " created for the sake of public govern- ment." ^ 1 Commonwealth o. Gowen, 7 Mass. 417 ; The State v. Hoit, 8 Post. N. H. 378 ; Commonwealth v. Wilkinson, 16 355, there being, however, in New Hamp- Pick. 175 ; The State v. Sturdivant, 18 shire, a statute. But see The State v. Maine, 66; The State «. Atkinson. 24 MoEntyre, 3 Ire. 171; The State w. Listen, Vt. 448; The State «. Commissioners, 9 Humph. 603. Libel. — In an old case, Riley, 146 ; Rung v. Shoneberger, 2 it was doubted whether the words, " The Watts, 23 ; The State v. Commissioners, mayor and aldermen of Hertford are a 8 Hill, S. C. 149 ; Perrine v. Farr, 2 Zab. pack of as great villains as any that rob 856. on the highway," — were indictable ; for 2 Post, § 458. " what is it to the government that the ' Rex w. Denison, 2 Keny. 259 ; Rex mayor, &c., are a pack of rogues'!" Rex V, Bernard, Holt, 152 ; s. c. nom. Rex v. v. Granfield, 12 Mod. 98. Barnard, Comb. 416 ; Rex v. Betts worth, * Rex v. Grosvenor, 1 Wils. 18, 2 Stra. 2 Show. 75; Rex v. Lone, 2 Stra. 920; 1198; Rex v. Denison, 2 Keny. 259; Attorney-General v. Read, 2 Mod. 299; Anonymous, 11 Mod. 132; Reg. v. Hun- Rex V. Woodrow, 2 T. R. 781 ; Rex v. gerford,. 11 Mod. 142. Jones, 7 Mod. 410, 2 Stra. 1146 ; Rex v. » See Anonymous, 11 Mod. 132 ; Reg. Prigg, Aleyn, 78; Reg. v. Soley, 11 Mod. v. Hungerford, 11 Mod. 142; The State 115 ; Rex v. Cripland, 11 Mod. 387 ; Rex v. McEntyre, 3 Ire. 171 ; Rex v. Grosve- V. JoUifEe, 1 East, 154, note ; Rex v. nor, 2 Stra. 1193. Commings, 5 Mod. 179 ; Rex v. Hem- 6 Rex v. Plympton, 2 Ld. Raym. 1877, mings, 8 Salk. 187 ; Rex v. Corry, 5 East, 1879; Vol. .II. § 88, note. 372 ; Commonwealth v. Silsbee, 9 Mass. 136 CHAP. XrV.] THE -WBONG AS BEING PUBLIC. § 248 § 247. How Intense the JEvil : — Varying. — A wrong to the public need not, we liave seen,^ be more blameworthy to be indictable than a mere private tort, for which a civil action only will lie. And, on the other hand, there are public wrongs of the greatest magnitude. Subject to Rules varying with Enormity. — The law, as we have partly seen,^ treats offences in many respects differently, accord- ing to their differing degrees of blameworthiness. The lowest, for example, approximate closely to civil torts ; while the highest receive an opposite consideration. It seems often to be regarded ^ as a legal virtue to forbear prosecuting the lowest ; but" he who knows that the highest has been committed is even indictable if he does not lay the facts before the authorities to procure a prose- cution.* Yet the lowest come fully within other distinctive prin- ciples of the criminal law. For illustration, they must, in nearly and perhaps all cases, be committed, like the highest, with the criminal intent to be explained in our chapters on that subject ; because this doctrine flows from considerations which concern alike all grades of public wrong-doing. It does not so largely apply to civil suits ; since these are brought to enforce a compen- sation in damages for a loss or injury, where both parties may be innocent of intended wrong, yet one of them must necessarily suffer. But criminal prosecutions are not for the recovery of pri- vate damages ; they are ordained to correct public wrongs, and prevent their repetition.^ § 248. Another Form of the Doctrine. — Perhaps the better ex- pression is, that, in consequence of the complications of human affairs, any exact division of wrongful acts into civil and criminal is impossible ; while yet there is a complete gradation in wrongs, beginning with those most purely against the individual, and 1 Ante, § 235. Bur. 654, 2 Keny. 386 ; Eex v. Phillips, 2 Ante, § 221, 226, -235. Cas. Temp. Hardw. 241 ; Eeg. «. Harris, 8 Cases like the following, for exam- 8 Jur. 516 ; Ex parte Beauclerk, 7 Jur. pie, can hardly be upheld unless we rec- 373 ; Anonymous, Lofft, 272 ;, Reg. v. ognize the doctrine of the text : Reg. c;. JoUie, 1 Nev. & M. 483, 4 B. & Ad. 867 ; Lawson, 1 Q. B. 486, 1 Gale & D. 15, 5 Eeg. v. Saunders, 10 Q. B. 484 ; Rex o. Jur. 387 ; Ex parte , 4 A. & E. 576, Murray, 1 Jur. 37 ; Keg. v. Hext, 4 Jur. note ; Eex v. Dodd, 9 East, 516 ; Eex v. 339. Harries, 13 East, 270; Eex c. Bishop, 5 * Ante, § 226 ; post, § 604, 716-722. B.& Aid. 612; Ex parte Lee, 7 Jur. 441; 5 See ante, § 210, 218-221 ; post, Eex .;. Smith, 7 T. E. 80; Eex v. Mar- § 287, 288, 301, 306, 330. shall, 13 East, 322 ; Eex v. Fielding, 2 137 .§ 251 ELEMENTS OF CEIME. [BOOK HI. ascending all the way to those which are most purely against the State. But every proceeding in the courts must wear either the civil or the criminal form. Yet the form of the proceeding does not change the essence of the thing proceeded against. § 249. Observation. — Thus are brought to view some of the leading doctrines by which to determine what is a crime against the entire community. And let it be borne in mind, that they concern only this sort of crime, not the wrong which, committed primarily to the injury of the individual, is pursued by the pub- lic because of its generally dangerous character. To some con- siderations relating to the latter the reader's attention is now" invited. II. Indictable Private Wrongs. § 250. Good from Evil. — In all ages and countries, the path of human improvement is macadamized with bones and wet with blood. The strong tread down and trample out the feeble ; and, by ending them, diminish the average weakness of the race ; while the conffict which goes on among those who survive, strengthens their bodies and minds, and the acquired vigor passes to succeeding generations. When one party, tribe, or nation has so prevailed as to preclude further contest, a decay commences, progressing untU they who were strong become weak, and are themselves overthrown. True, indeed, Christianity has opened a- way bloodless and bright, by which our race could perfect itself if it would, but " few there be that find it." ^ This view does not justify men in preying on one another ; yet it shows how, in fact, good comes from the antagonisms of evil. Our Saviour expressed the idea, in words brief and weighty, thus: " Ji must needs he that offences come ; hut woe unto that man hy whom the offence cometh." ^ § 251. The Doctrine how in Law. — This doctrine, that permitted evil brings forth good, is one of the forces which have given shape to our law. While the individuals are contending with one another, they are ordinarily adding to the general sum of power, and the community is not injured in a way justifying a criminal prosecution ; or, should this be otherwise, the evil inflicted on the community is too small for the law's notice, as already explained.^ I Matt. vii. 14. 8 Ante, § 212 et seq. " Matt, xviii. 7. 138 CHAP. XIV.] THE WKONa AS BEDifG PITBLIC. § 253 The law, therefore, merely allows a civil suit for the redress of the private wrong ; not in vindication of public justice, but as an instrument in the hands of the party to obtain what is his due. § 252. Limit of Doctrine. — But in the conflicts of men there is a point beyond which, if they proceed, they injure the com- munity in a way requiring a criminal prosecution for what is done. When two or more, engaged in any of the contests of life, occupy toward one another fair ground, they do not interfere with any public interest, however far they proceed ; because, though one should press unduly on another, yet only good comes to the public from this. But when they cease to maintain this fair rela- tion toward one another, the contest ceases to be strengthening, and becomes rather one of destruction. Therefore, — 1 Unfair Advantage indictable. — If two or more are engaged in / any of the contests of life, and one of them assumes toward] another or the rest what the law deems to be unfair ground, the community interferes and punishes the wrong by a criminal pros- ecution. What, in a just estimate, is unfair ground, may be a question of difficulty. We are simply to inquire how the law regards it. The old common law, originating in an age of unpol- ished minds, iron sinews, and semi-barbarous manners, demanded less to fairness than is required by the superior culture and finer/ moral sentiment of modern times. And the demand increases asl we progress in civilization. The consequence is, that the com-j mon law itself has expanded by slow and insensible gradations ;1 and a more rapid expansion is carried on by legislation^ which both adds to the number of crimes, and enlarges the boundaries of the old ones. Thence it has resulted, that crimes against the individual, now being considered, have been more multiplied by statutes than those against the entire community; and, although they do not embrace so many distinct offences, they give occasion for more criminal prosecutions, and encumber the reports with more decisions. § 253. Explanation. — For the benefit of the student not yet familiar with criminal-law books, it becomes necessary here to state that the subject is treated of in this chapter in some degree differently from what it is in the works of preceding authors, and generally in the opinions of the judges. In legal substance, there is no difference ; for this chapter states the law as actually ad- judged. But most tell us, in words, that nothing is punishable 139 § 254 ELEMENTS OP CJBIMB. [BOOK ni. except what is to the injury of the public ; yet their explanations show the same things to be punishable which are found to be so when tested by the standards of this chapter. It is embarrassing to a learner in any science to see a doctrine laid down in terms, followed by an explanation contradicting the doctrine. ^ And it has been a leading object with the author, in all his legal works, to avoid as much as possible this sort of clashing and contradic- tion. ' § 254. Conclusion. — But it is better to defer the particular illustrations of the doctrine of this sub-title, till we come to con- sider the various propositions of the criminal law which are illus- trated by it : for, if we should enter upon illustrations here, they would need to be repeated elsewhere, and thus space would be consumed with no compensating benefit to the reader. « 1 And see Bishop First Book, § 353-356. 140 CHAP. XV.] INJTJEBD PERSON "WEONG OE CONSENTING. § 256 CHAPTER XV. THE rNJTJEED PERSON IN THE WEONG OE CONSENTING. § 255. Scope of this Chapter. — It is the purpose of this chap- ter to inquire, whether, or in what circumstances and to what extent, the wrong of one person, or his consent, will excuse an' act of apparent crime committed by another to his injury. § 256. Merit in Person injured. — In civil jurisprudence, a plaintiff to prevail must come into court with no just imputation on him of wrong in the particular matter about which he com- plains.i But there is little scope for the operation of this princi- ple in the criminal law ; because the plaintiff is, not an individual, but the State, that, in theory of law, can commit no wrong. Therefore, for example, — Contributory Negligence. — The doctrine of contributory negli- gence, familiar in civU jurisprudence, does not prevail in criminal.^ But,— Favor asked — Information. — Even in criminal cases, jf one asks of the court as a favor the privilege of wielding its processes for his own advantage, the rule will be applied to him. Therefore he cannot ordinarily have a criminal information ^ against another who has injured him, unless free himself from blame in the trans- action complained of, and prompt in the pursidt of his remedy.* 1 Post, § 267, 268. Jur. 37 ; Hex v. Symonds, Cas. temp. 2 Eeg. V. Hutchinson, 9 Cox C. C. 556, Hardw. 240 ; Eex v. Webster, 3 T. E. 557; Vol. 11. §662 a. 388; Anonymous, LofEt, 272; Eex v. 8 Grim. Proced. I. § 145. Larrieu, 7 A. & E. 277 ; Reg. v. Lawson, ' * Anonymous, Loflt, 314 ; Rex v. Has- 1 Q. B. 486, 1 Gale & D. 15, 5 Jur. 387 ; well, 1 Doug. 387 ; Rex v. Miles, 1 Doug. Ex parte Beauclerk, 7 Jur. 373 ; Rex v. 284; Eex u. Jollie, 1 Nev. & M. 483, 4 B. Dennison, LofEt, 148 ; Rex v. Wright, 2 & Ad. 867 ; Rex v. Dummer, Holt, 364 ; Chit. 162 ; Rex v. Marshall, 13 East, 322 ; Eeg. .;. Saunders, 10 Q. B. 484; Rex tf. Rex v. Smith, 7 T. R. 80; Rex v. Bicker- Eden, LofEt, 72; Eex v. Hankey, 1 Bur. ton,l Stra. 498. And see Eex v. Burn, 316 ; Rex v. Draper, 3 Smith, 390 ; Eeg. 7 A. & E. 190, 1 Jur. 657. V. Harris, 8 Jur. 516; Rex v. Murray, 1 141 § 259 ELEMENTS OP CRIME. [BOOK IH. But this rule is to some extent relaxed when the injury is one of a more general and public nature.^ § 257. One's Wrong or Neglect not excuse Another's. — It is, therefore, in criminal jurisprudence, ordinarily no defence for a man who has done a wrong, that the person injured has done a wrong also, or been negligent or careless regarding the same thing.2 But — Limit of Doctrine — (Self-defence — False Pretences — Larceny). ; — This principle does not exclude, in every case, all considera- tion of the conduct of the injured person ; because such conduct sometimes justifies in law the other's act. For example, since a man may defend himself by blows, if, in such defence, in which he goes no further than the law allows, he maims the assailant, he is not guilty of mayhem.^ And in false pretences tlie New York court held, that an indictment will not lie where the com- plainant parted with his money under circumstances to have made the transaction criminal in him if the pretences had been true,* — a doctrine, however, not everywhere accepted.^ In larceny, it is no defence that the person from whom the goods are stolen, himself stole them, or procured them by other wrong.^ Unauthorized Consent. — Obviously a consent from one having no legal right to give it avails nothing.' § 258. Continued — Civil and Criminal, distinguished. — What would defeat a civil action will not necessarily an indictment. If, as in a few exceptional cases, a consent to an act ordinarily criminal changes its nature, it may not be a crime ; but no man, and no power short of the legislature, can license crime. A private license, therefore, will not justify him who commits it ; neither is it an excuse for A, that B has also broken the law. § 259. Consent Unlawful. — There are injuries which no man 1 Rex V. Williams, 1 D. & R. 197, 5 Kel. 26 ; Hutton's Case, 1 Swinton, B. & Aid. 595 ; Rex v. Haswell, 1 Doug. 497. 387 ; Reg. v. Gregory, 1 Per. & D. 110, 8 » Hayden v. The State, 4 Blackf. 546. A. & E. 907. 4 People v. Stetson, 4 Barb. 151 ; Vol. 2 Rex V. Beacall, 1 Car. & P. 310, 454 ; II. § 469. See Rex u. Beacall, 1 Car. & Rex V. Wellings, 1 Car. & P. 454; Reg. P. 454. ' V. Longbottom, 3 Cox C. C. 439, 17 Law « Vol. II. § 4fi8, 469. And see Reg v. Reporter, 379, and note on p. 881; Reg. Hudson, Bell C. C. '263, 8 Cox C. C. 305; !•. Swindall, 2 Car, & K. 230 ; Reg. w. Reg. v. , 1 Cox C. C. 260. Williamson, 1 Cox C. C. 97 ; Reg. «. Hoi- » Vol. II. § 781, 789. land, 2 Moody & R. 351 ; Rex v. Rew, J. 7 Riley „. xiie State, 16 Conn. 47. 142 CHAP. XV.] INJUKED PERSON "WEONG OE CONSENTING. § 260 may lawfully inflict even on himself ; and, to these, consent is of no avail. Thiis — Homicide. — A man may not take away his own life ; conse- , quently another, who takes it at his request, incurs the same| guilt as if not requested.^ It is thus where death is inflicted in a duel.2 So likewise, — Mayhem. — It being the gist of the crime in mayhem that the injured person is rendered less able in fighting,^ one may not innocently maim himself;* and, if at his request another maims him, both are guilty.* But — Crimes incompatible with Consent. — There are crimes which, from their, special nature, cannot exist where there is consent. Among these is — Rape. — If a man has carnal intercourse with a consenting woman not his wife, his offence is not rape ; because, although her consent, being unlawful, does not justify his act, yet rape is constituted only by a connection to which the woman does not yield her will.^ § 260. Crimes incompatible with consent, continued. — Any in- jury which one has the right to inflict on himself he may inflict by the hand of another, who will therefore not be answerable to the criminal law. Thus, — Larceny. — A man may give away his property ; therefore another, who takes it by his permission, does not commit lar- ceny.^ Battery. — He may inflict self-torture, at least to a limited degree, though, as we have seen,^ he must neither maim nor kill himself ; consequently another who in good faith whips him at his request,^ or with his consent does any other act which under 1 I{ex V. Hughes, 5 Car. & P. 126. Lit. 127 a ; People o. dough, 17 Wend. And see Reg. v. Alison, 8 Car. & P. 418 ; 351, 352. Rex V. Russell, 1 Moody, 356 ; Reg. v. 6 Wright v. The State, 4 Humph. 194 ; Fretwell, Leigh & C. 161, 9 Cox C. C. The State v. Murphy, 6 Ala. 765; Vol. 152. II. § 1115, 1122-1126. 2 Rex I). Tavemer, 1 Rol. 360, 3 Bulst. * Dodge n. Brittain, Meigs, 84 ; Dodd 171 ; Rex v. Rice, 3 East, 581 ; Reg. o. v. Hamilton, N. C. Term R. 31 ; The Young, 8 Car. & P. 644 ; ante, § 10. And State v. Jernagan, N. C. Term R. 44. see McAfee v. The State, 31 Ga. 411. And see The State v. Chambers, 6 Ala. » Stat. Crimes, § 316; Vol. II. 855. § 1001; post, § 510. 7 Ante, § 259. * Rex V. Wright, 1 East P. C. 396, Co. ^ The State v. Beck, 1 Hill, S. C. 363. 143 §261 ELEMENTS OF CRIME. [book ni. ordinary circumstances would amount to an indictable battery,^ commits no crime. § 261. Consent obtained by Fraud, Force, &o. — But if in these cases the consent is obtained by fraud ; ^ or if the person from tender years ^ or other cause is incapable of consenting ; or if, without absolute fraud or actual incapacity, the will is overpow- ered,* as by an array of force,^ or by the false pretence, the accused being a physician, that the act done is necessary in a course of medical treatment ; ^ the law deems that there was no consent. For it is a doctrine extending through all the depart- ments of the law, that whatever is procured by fraud is to be deemed as though it did not exist.'" Still — Rape — Assault — Adultery. — The peculiar offence of rape is not committed where a fraud procures the consent,* as where the man personates the husband of the woman ; ^ though the act is in law an assault.^" Such act is also adultery in him, in those 1 Smith V. The State, 12 Ohio State, 466 ; Reg. v. Martin, 9 Car. & P. 213, 215, 2 Moody, 123 ; Reg. v. Meredith, 8 Car. & P. 589 ; Wright v. The State, 4 Humph. 194 ; Commonwealth v. Parker, 9 Met. 263 ; The State v. Cooper, 2 Zab. 52 ; Reg. v. Banlis, 8 Car. & P. 574 ; Duncan v. Commonwealth, 6 Dana, 296 ; Reg. V. Johnson, Leigh & C. 632. As- sault and Battery. — In an English jury case the judge observed, that, if two go out to strike each other, and do so, it is an assault in both, and it is quite imma- terial which strikes the first blow. Reg. V. Lewis, 1 Car. & K. 419. This is doubt- less 80 in some circumstances ; as wliere the parties are in anger, and each intends to beat the otlier, allowing himself to be beaten as little as possible. Here neither can be said to consent to the blows he receives. See Vol. II. § 85. Prize-flght. — So if they engage in a prize-fight there is a breach of the peace to which they cannot consent. Rex v. Perkins, 4 Car. & P. 537 ; Vol. II. § 35. But ordinarily, if two persons fight together with the fist, by agreement, though they may under some circumstances commit an of- fence, it is not the offence of assault and battery. Champer v. The State, 14 Ohio State, 437. See further as to prize-fights, 144 Reg. u. Hunt, 1 Cox C. C. 177; Com- monwealth V. Welsh, 7 Gray, 324 ; Com- monwealth B. Barrett, 108 Mass. 302; Reg. 0. Young, 10 Cox C. C. 871 ; post, § 536. 2 Reg. V. Saunders, 8 Car. & P. 265; Reg. V. Williams, 8 Car. & P. 286. 8 Reg. V. Read, 1 Den. C. C. 377# Temp. & M. 52, 3 New Sess. Cas. 405, 13 Jur. 68, 2 Car. & K. 957 ; Hays v. People, 1 Hill, N. Y. 351 ; The State v. Handy, 4 Harring. Del. 666 ; Reg. u. March, 1 Car. & K. 496 ; Davenport v. Common- wealth, 1 Leigh, 588. And see Reg. v. Banks, 8 Car. & P. 574 ; Reg. v. Martin, 9 Car. & P. 213. * Hays V. People, 1 Hill, N. Y. 351 ; Reg. V. Day, 9 Car. & P. 722 ; Rex v. Nichol, Russ. & Ry. 180. 6 Reg. V. Hallett, 9 Car. & P. 748. 8 Reg. V. Ellis, 2 Car. & K. 470; Reg. V. Case, 1 Eng. L. & Eq. 544, 1 Den. C. C. 580, Temp. & M. 318. And see Rex v. Rosinski, 1 Moody, 19. ' Bishop First Book, § 66-99, 125; Vol. II. § 36, 751, 752, 811, 1122-1126. ' So also in Alabama, The State v. Murphy, 6 Ala. 765. 9 Vol. n. § 1122. 10 Rex V. Jackson, Russ & Ry. 487; Reg. V. Saunders, 8 Car. & P. 266 ; Reg. V. Williams, 8 Car. & P. 286. And see CHAP. XV.J INJTJKED PBKSON WEONG OB CONSENTING. § 262 localities where the latter offence is indictable. And it is rape when committed on a woman laboring under delirium so deep as to be insensible to what is done.^ § 262. Flans to entrap — (Larceny — Burglary). — If a man sus- pects that an offence is to be committed, and, instead of taking precautions against it, sets a watch and detects and arrests the offenders, he does not thereby consent to their conduct, or furnish them any excuse.^ And, in general terms, exposing property, or neglecting to watch it, under the expectation that a thief will take it,^ or furnishing any other facilities or temptations to such or any other wrong-doer,* is not a consent in law. A common case is where burglars, intending to break into a house and steal, tempt the occupant's servant to assist them ; and, after commu- nicating the facts to his master, he is authorized to join them in appearance. For what the burglars personally do under such an arrangement they are, by all opinions, responsible ; but the Eng- lish doctrine seems to be, that, if the servant opens the door while they enter, they are not guilty of a breaking.^ In principle, probably they are not, if the servant is to be deemed the master's agent, not theirs, in opening the door. But, as they had requested him to join them, and the master's consent was merely for their d^ection, the better view would appear to be to consider him their agent in the breaking, and hold them responsible for it.® An Irish case even decides, that, where persons intending to com- mit burglary knock at the door of the house of one, who, apprised of their purpose and prepared for them, himself opens it, and, on their rushing in and locking the door, seizes and secures them, the offence is committed.^ Beg. V. Stanton, 1 Car. & K. 415 ; Eeg. Rex v. Headge, 2 Leach, 4th ed. 1033, II. Catnplin, 1 Car. & K. 746. Russ & Ry. 160 ; Rex v. Whittingham, 1 Eex I). Chater, 13 Shaw's J. P. 766, 2 Leach, 4th ed. 912 ; Reg. v. Lyons, Archb. New Crim. Proced. 306 ; Vol. II. Car. & M. 217 ; Eex v. Ady, 7 Car. & P. § 1121, 1123. 140. 2 Thompson v. The State, 18 Ind. 386. 5 Reg. v. Johnson, Car. & M. 218 ; Rex ' Rex V. Egginton, 2 Leach, 4th ed. v. Egginton, 2 B. & P. 508, 2 Leach, 4th 013, 2 B. & P. 508; 8. c. nom. Rex v. Eg- ed. 913, 2 East P. C. 494, 666 ; Rex v. gington, 2 East P. C. 494, 666 ; Eeg. v. Dannelly, 2 Marshall, 471, Euss. & Ey. Williams, 1 Car. & K. 195 ; The State v. 310 ; Eeg. v. Johnson, Car. & M. 218. Covington, 2 Bailey, 569 ; Eeg. v. Eath- And see Eeg. o. Williams, 1 Car. & K. bone, 2 Moody, 242', Car. & M. 220 ; Eeg. 195. ». Gardner, 1 Car. & K. 628; Eeg. v. 6 And see Alexander v. The State, 12 Johnson, Car. & M. 218 ; United States Texas, 540. 0. Eoye, 1 Curt. C. C. 364. ' ^ Rex v. Bigley, 1 Crawf. & Dix C. C. * Rex V. Dannelly, Euss. & Ey. 310 ; 202. VOL. I. 10 145 § 263 ELEMENTS -OF CEIME. [BOOK HI. Force or Fraud. — And the doctrine as to the breaking seems to /be, that a consent to it obtained by fraud ^ or by force ^ will not (protect the wrong-doer. § 263. lUegal Trading. — It was held in North Carolina during slavery, that, if one delivers an article to his slave, and then stands by to detect a person trading for it with the slave, contrary to a statute, this does not make the trading lawful.^. But, — Larceny not contemplated. — Where the master goes further, and, instead of merely attempting to detect a crime already con- templated, directs his servant to deliver property to a supposed thief, who had not formed the design to steal it, the latter, tak- ing i't with felonious intent from the servant, does not commit a larceny.* ' Eex V. Cassey, J. Kel. 62, 69 ; Rex « Rex v. SwaUow, 1 Russ. Crimes, 3d V. Hawkins, 2 East P. C. 485. See Den- Eng. ed. 792; Stat. Crimes, § 312. ton's Case, cited Poster, 108. Enticing 8 xiie State v. Anone, 2 Nott & McC. Occupant to open Door, &e. — Where 27; Tlie State v. Sonnerkalb, 2 Nott & the burglar enticed out of the house McC. 280. its occupant, who left the door open, * Dodge v. Brittain, Meigs, 84 ; Eemp and fifteen minutes afterward entered v. The State, 11 Humph. 320; Dodd v. through the open door, he was held to Hamilton, N. C. Term R. 31 ; The State be guilty ; though, had the entry been v. Bama, N. C. Term R. 44. Compare, instantaneous, the case would have been with these cases, Alexander v. The State, otherwise. The State v. Henry, 9 Ire. 12 Texas, 540. And see Vol. II. § 811- 463, Ruffln, C. J., dissenting. See ante, 822. § 261 ; Stat. Crimes, § 312. 146 CHAP. XVI.] CIVTL AND CRIMINAL TOGETHER. § 265 CHAPTER XVI. LIABILITIES CIVIL AND CRIMINAL EROM ONE TRANSACTION. § 264. Both may exist together. — From the foregoing discus- sions it appears, that civil and criminal suits are diverse in their natures and objects. Therefore, as general doctrine, subject to qualifications and exceptions, a private person and the State may severally carry on, the one a civil suit and the other a criminal •prosecution, simultaneously, for the same act of wrong, if both have suffered from it ; or the one proceeding may go in advance of the other, or there may be but the one, and the one will have no effect on the other .^ Thus, — § 265. Assault and Battery — Nuisance — V/ay. — An action for assault and battery ,2 or for the recovery of damage done by a common nuisance,^ may proceed at the same time with the indict ment for the same thing. As a question of law, in the case of the common nuisance, the plaintiff to recover must have suffered some special injury, not merely have partaken with the public in what equally affects all.* Therefore, " if A dig a trench across ^ 12 Co. 128 ; Blassingame v. Glaves, injury to a particular person is prohib- 6 B. Monr. 38 ; Harrison v. Chiles, 3 Litt. ited by act of Parliament, the party may 194 ; Wheatley v. Thorn, 23 Missis. 62 ; have his action, but yet 'tis indictable Kennedy v. McArthur, 5 Ala. 151 ; The also." Holt, C. J., in Rex v. Hummings, State V. Stein, 1 Rich. 189 ; Drake v. Comb. 374. And see ante, § 237-239 ; Lowell, 13 Met. 292; Rex v. Spiller, 2 Chiles v. Drake, 2 Met. Ky. 146. Show. 207 ; Reg. v. Best, 6 Mod. 137 ; '^ Jones v. Clay, 1 B. & P. 191. Rex c Stanton, 2 Show. 30; Foster v. * Burrows u. Pixley, 1 Root, 362; Commonwealth, 8 Watts & S. 77 ; Simp- United States v. New Bedford Bridge, 1 son V. The State, 10 Yerg. 525 ; Thayer Woodb. & M. 401 ; Allen v. Lyon, 2 Root, V. Boyle, 30 Maine, 475; The State v. 213; Abbott v. Mills, 3 Vt. 521, 529; Rowley, 12 Conn. 101 ; Shields v. Yonge, Franklin v. White Water Valley Canal, 16 Ga. 349 ; Hedges v. Price, 2 W. Va. 2 Ind. 162 ; Francis v. Schoellkopf, 53 192 ; Commonwealth v. Elliott, 2 Mass. N. Y. 152 ; Harvard College v. Stearns, 372 ; Commonwealth v. Bliss, 1 Mass. 15 Gray, 1. And see Nichols v. Pixly, 1 32; Phillips w. Kelly, 29 Ala. 628 ; Gor- Root, 129. don V. Hostetter, 37 N. Y. 99. See Bost- * Low t>. Knowlton, 26 Maine, 128 ; wick V. Lewis, 2 Day, 447 ; Hyatt v. Baxter u. Winooski Turnpike, 22 Vt. Wood, 4 Johns. 150; Phelps v. Stearns, 114; Carey v. Brooks, 1 Hill, S. C. 365; 4 Gray, 105. " Where a thing that is an Stetson v. Faxon, 19 Pick, 147 ; Barden 147 § 266 ELEMENTS OP CKIME. [book IU. the highway, this is the subject of an indictment ; but, if B fall into it, and sustain a damage, then the particular 'damage thus sustained will support an action." ^ And, in general terms, if one /makes an excavation in a public way, or places in it an indictable obstruction, he will be civilly responsible also for whatever may be suffered by individuals during its continuance.^ But the damage must be special to the individual, not merely such as all sustain.^ Yet, according to the better opinion, it need not be direct; it is sufficient, if consequential, though, as just observed, it must accrue specially to the individual.* §266. Judicial Discretion — (information). — Yet COUrts, when called upon for a favor, as to grant a criminal information ^ to one injured by an assault and battery, will usually, not always, refuse, if the applicant has pending for the same thing a civil suit, unless^ he will waive it.^ But — As of Right — (indictment). — A prosecution by indictment, I which is a matter of right, and a civil suit, may go on, as before I observed, simultaneously.'' And a defendant who has borne the V. Crocker, 10 Pick. 383; Harrison o, Sterrett, 4 Har. & McH. 540; Hart u. Basset, T. Jones, 156 ; Chichester v. Lethbridge, Willes, 71, 73 ; Rose v. Miles, 4 M. & S. 101 ; Cole v. Sprowl, 35 Maine, 161 ; McLauchlin v. Charlotte and South Carolina Railroad, 5 Rich. 583 ; Yolo v. Sacramento, 36 Cal. 193 ; Brown v. Wat- son, 47 Maine, 161 ; Ingram v. The C. D. and M. R. R. Co., 38 Iowa, 669. And see Weightman v. Washington, 1 Black, 39 ; Herron v. Hughes, 25 Cal. 555 ; Ayres v. Lawrence, 63 Barb. 454. 1 Broom Leg. Max. 2d ed. 156 ; Ash- by V. White, 2 Ld. Eaym. 938, 955. 2 Portland v. Richardson, 54 Maine, 46 ; Osbom «. Union Ferry, 53 Barb. 629 ; Brown v. Watson, supra ; Benja- min V. Storr, Law Rep. 9 C. P. 400. 8 Lamphier ». Railroad, 33 N. H. 496 ; Johnson v. Stayton, 6 Harring. Del. 362. * Baxter o. Winooski Turnpike, 22 Vt. 114; Lansing v. Smith, 4 Wend. 9; Stetson II. Faxon, 19 Pick. 147 ; Wilkes V. Hungerford Market, 2 Bing, N. C. 281, 293; Rose v. Groves, 6 Scott N. R. 645, 654. And see Cook «. Bath, Law Rep. 6 Eq. 177 ; Willard v. Cambridge, 3 Allen, 574 ; Allen v. Monmouth, 2 Beasley, 68. 148 6 See Crim. Proced. I. § 143. " Rex o. Phillips, Cas. temp. Hardw. 241 ; Rex v. Fielding, 2 Bur. 654, 2 Keny. 386 ; Rex o. Sparrow, 2 T. R. 198 ; Ex < parte , 4 A. & E. 576, note ; Rex v. Mahon, 4 A. & E. 575. See, as illustrat- ing the principle, Reg. v. Marshall, 4 Ellis & B. 475, 24 Law J. n. s. Q. B. 242, 30 Eng. L. & Eq. 204. 7 Jones V. Clay, 1 B. & P. 191 ; The State V. Frost, 1 Brev. 385. Contra, The State V. Blyth, 1 Bay, 166; Rex u. Rhodes, 1 Stra. 703. Continuing one till other disposed of. — Whether the court, as matter of discretion, will con- tinue one of the cases, and which one, until the other is disposed of, depends on the special circumstances, on the usage of the tribunal, and on what the individ- ual judge may deem best adapted to pro- mote justice. See Commonwealth v. El- liott, 2 Mass. 372; Commonwealth v. Bliss, 1 Mass. 32 ; People v. The Judges, 13 Johns. 85; Anonymous, 1 Sid. 69; Rex V. Ashburn, 8 Car. & P. 50 ; Peddell V. Rutter, 8 Car. & P. 337, 340 ; Wakley V. Cook, 11 Jur. 377 ; s. o. nom. Wakley V. Cooke, 16 Law J. s. s. Exch. 226; Buckner v. Beck, Dudley, S. C. 168; CHAP. XVI.] CIVIL AND CEIMINAL TOGBTHEE. § 267 full penalty criminally, cannot in a civil proceeding show this fact either in bar or in mitigation of damages.^ In an English case, however, it appearing that the plaintiff, besides procuring a criminal conviction of the defendant, had received on the certifi- cate of the judge a portion of the fine, Lord Tenterden directed that he recover no more than the nominal damage of one farthing, and reprimanded the attorney for undertaking the cause. ^ statutes abridging Double Prosecution. — Likewise statutes haVS in some localities abridged the right of double prosecution.^ § 267. In Felonies : — Conflicting Views. — The foregoing doctrines do not, in England and a considerable part of our States, fully apply to the higher offences known as felonies. Upon this subject judicial views are very conflicting ; the question being, not one of two sides, but of many. The following statement is deemed by the author to pre- sent the subject in its true light. Worthiness of Plaintiffs. — A man who carries on a civil suit must himself be worthy. The expression sometimes is, that he must come into court with clean hands ; in other words, he must be free from blame in the thing about which he complains ; * or, says Lord Kenyon, "must show that he stands on a fair ground when he calls on a court of justice to administer relief to him." ^ Now — Duty to prosecute Felons — (Compounding — Misprision of Felony) . — The law deems it in some sense incumbent on all to prosecute crimes, especially the more aggravated ; consequently, makes it indictable to compound them, whether treason, felony, or misde- meanor,® as will be more fully explained in a subsequent chapter.'^ A mere neglect to prosecute is a dereliction of the like sort, but further removed from the principal offence, therefore less repre- Mathison v. Hanks, 2 Hill, S. C. 625; A. & E. 635, 7 Dowl. P. C. 774; Hartley Eeg. V. Willmer, 15 Q. B. 50. v. Hindmarsh, Law Eep. 1 C. P. 553. 1 Jefferson v. Adams, 4 Harring. Del. * Ante, § 11. 321 ; Wheatley v. Thorn, 23 Missis. 62; ■' Booth v. Hodgson, 6 T. E. 405, 409. Story D. Hammond, 4 Ohio, 376 ; Wilson ^ Commonwealth v. Pease, 16 Mass. V. Middleton, 2 Cal. 54. 91 ; Jones v. Eice, 18 Pick. 440 ; Bell v. 2 Jacks V. Bell, 3 Car. & P. 316. And Wood, 1 Bay, 249 ; Mattocks v. Owen, 5 see Porter v. Seller, 11 Harris, Pa. 424. Vt. 42 ; Plumer v. Smith, 5 N. H. 553 ; ' The State v. Stein, 1 Eieh. 189 ; The Cameron v. McFarland, 2 Car. Law State !.•. Arnold, 8 Eich. 39. As to Eng- Eepos. 415 ; Corley v. Williams, 1 Bai- land, see Harding ». King, 6 Car. & P. ley, 588 ; Hinesburgh v. Sumner, 9 Vt. 427 ; Skuse v. Davis, 2 Per. & D. 550, 10 23. 7 Post, § 709et aeq. 149 § 267 ELEMENTS OP CEIME. [BOOK m. Sensible. Where the principal offence is only a misdemeanor, the law, following the rule of not regarding small things,^ takes no notice of the simple neglect. But where it is felony, the neglect to prosecute the felon or discover his offence to the magistrate becomes an indictable misdemeanor, known as misprision of fel- ony.^ Therefore, — No Civil Suit while neglecting to prosecute. — If a plaintiff in a f^f civil cause alleges that the defendant has committed a felony to T,"^ / his injury, he shows himself guilty, though in a less degree, in 3 I tiie very thing about which he complains, unless he has exerted ( himself to bring the felon to justice. Even if the law did not ' hold this neglect indictable, — still such a plaintiff would not ' stand in court " on a fair ground," with " clean hands ; " and the defendant, in availing himself of the objection, would take ad- vantage, not of his own wrong, but of the plaintiff's. Therefore, when one has suffered from a felony, he cannot maintain against the felon a civil action for the injury, until he has discharged his duty to the public by carrying on, or at least by setting on foot, a criminal prosecution for the public wrong. If the felon is either convicted, or, without the plaintiff's fault or collusion, acquitted, — or if the plaintiff has presented to the grand jury a bill which was thrown out, — this is sufficient, and he may then maintain the action.^ * But after any Discharge from Duty to prosecute. — When the duty to prosecute no longer rests on a party, he may then carry on his civil suit ; as, if another has prosecuted the felon to conviction ; * 1 Ante, § 212 et seq. Ala. 640 ; Middleton v. Holmes, 3 Port. 2 3 Inst. 139 et seq. ; 1 Hale P. C. 372, 424. It is also said in Coke's Ee- 874; 1 Euss. Crimes, 3d Eng. ed. 45, 131 ; ports : " The law has imposed this Anonymous, Sir P. Moofe, 8 ; 1 Hawk, penalty on the owner [of stolen goods] P. C. 6th ed. 0. 59 ; 4 Bl. Com. 121 ; that, if the thief by his industry and post, § 716 et seq. fresh suit be not attainted at liis suit 8 Higgins V. Butcher, Yelv. Met. ed. (scil. in appeal of the same felony), he 89 and note ; 1 Hale P. C. 546 ; Crosby shall for his default lose all his goods V. Leng, 12 East, 409, and the cases there which the thief at the time of his flight cited ; Golightly v. Eeynolds, Lofft, 88, waived. But if the thief has them not 90; White v. Fort, 8 Hawks, 251; Bel- with him when he flies, having perhaps knap V. Milliken, 23 Maine, 381 ; Poster hid them (as it is said), there no default ■;. Tucker, 3 Greenl. 458 ; Morgan v. can be in the party ; and therefore they Rhodes, 1 Stew. 70 ; McGrew v. Cato, shall not be forfeited, for if he make Minor, 8 ; Grafton Bank v. Flanders, 4 fresh suit after notice of the felony it is N. H. 289 ; Crowell v. Merrick, 19 Maine, suflicient." Poxley's Case, 5 Co: 109 o. 392; Broom Leg. Max. 2d ed. 159, 160; See also Rex v. Paul, 6 Car. & P. 323. Patton V. Freeman, Coxe, 113, and the * Chowne v. Baylis, 31 Beav. 851. reporter's note ; Morton li. Bradley, 27 150 CHAP. XVI.J CIVIL AND CEIMINAIi TOGETHER. § 269 or, if the judge ordered the indictment not to be brought on for trial, deemiilg that the ends of justice were satisfied by a sentence pronounced on another indictment to which the prisoner had pleaded guilty.^ §268. Suit against Receiver — (Guilty — ^Innocent}. — In like manner, one cannot maintain his suit against a guilty receiver of stolen goods, whom he has neglected to prosecute ; for such re- ceiver, too, is a felon.^ But against an innocent third person, in whose hands the goods may be, his suit is maintainable ; because, I although he has not prosecuted the thief, his neglect does not! attach to the thing about which he complains ; namely, that the | defendant wrongfully detains property to which the purchase &om the thief gave him no title.^ § 269. HoTv take Advantage of Neglect to prosecute. — Accord- ing to some cases, the court, on the disabling fact appearing in evidence at the trial, will nonsuit the plaintiff;* though Park, J., once submitted the question to the jury.^ But in a later case before the Queen's Bench in England, doctrines were maintained which seem almost to abrogate the law itself. One brought an action in two counts to recover the value of a gold brooch ; the one count in trover and the other in trespass, to which the defend- ant pleaded not guilty and not possessed. After a verdict at nisi prius for the plaintiff, the defendant applied for a new trial on the groimd that, if the evidence proved the allegation against him, the facts established a larceny (which, at the same time, he denied), and he had not been prosecuted for the larceny. The 1 Dudley and West Bromwich Bank- p. 16. Security for the Civil ludebted- ing Co. 0. Spittle, 1 Johns. & H. 14; Sir ness. — If, alter a theft, but in advance W. Page Wood, V. C, observing: "Until of a criminal prosecution, the thief the cases which arose out of Eauntle- secures to the injured party the return roy's forgeries, there seems to have been of what he stole, the security is good a floating impression that the debt was after his conviction. Chowne u. Bay- absolutely gone where it was connected lis, supra. with a felony committed by the debtor. ^ Gimson v. WoodfuU, 2 Car. & P. 41, But it was then settled that the debt re- 43 ; Pease v. McAloon, 1 Kerr, 111. mains good, though the right of recover- ' White v. Spettigue, 13 M. & W- 603 ; ing it is suspended until the creditor Broom Leg. Max. 2d ed. 160 ; Dame d. takes those steps which the purposes of Baldwin, 8 Mass. 518. But see Pease v. justice and public policy require, to bring McAloon, supra. See, as illustrative, the offender to justice. The object of Buck v. Albee, 27 Vt. 190. this rule is to prevent attempts to com- * Gimson v. Woodfull, 2 Car. & P. 41 ; promise a felony by compensating the Pease v. McAloon, 1 Kerr, 111. person injured on the terms of allow- * Prosser v. Rowe, 2 Car. & P. 421. ing the criminal to escape prosecution." 151 § 271 ELEMENTS OF CRIMB. [BOOK Ul. court refused the new trial, and the judges were of opinion, that a judge at nisi prius can try only the record sent down to him, and, if matter of this sort is not pleaded, he can neither nonsuit the plaintiff nor direct a verdict for the defendant. Neither can a defendant set up his own crime and plead the felony in defence. So that, unless the plaintiff alleges the felony, or the court itself interposes to postpone the trial, as it may do, there would seem to be no way in which this sort of matter can be made available in defence.^ § 270. Whether the foregoing Doctrines, as to Felony, are appli- cable in our States : — Ho'w in Principle — (Our Procedure and English, distinguished} . — In this country, criminal prosecutions are not carried on, as in England, almost exclusively by private individuals ; but we have local public attorneys, with other officers and their assistants, to represent the government in them. Still we have no substitutes for the individuals in the duty of making disclosures of crimes to the authorities, or ordinarily in taking other incipient steps ; but they are perhaps not required to go as far here as in England. Yet we should not forget,^ that a statute in affirmative words is merely cumulative, and does not take away the prior law unless repugnant to it ; so that there may be doubt to what extent affir- mative statutory provisions, directing official persons to aid in the prosecution of offenders, relieve individuals of any duty before recognized in the law. In other words, perhaps, on prin- ciple, persons who in this country have suffered from the felo- nious acts of others need not do more than take the initiatory steps against the offenders, before carrying on, even to final judg- ment, their civil suit ; yet this proposition is by no means clear even on principle, while hitherto the tribunals seem not to have recognized the distinction by any direct decision. But though, in consequence of our different procedure, qualifications of the doctrine may be required here, not permissible in England, the I main doctrine itself would seem to be as applicable here as / there. § 271. How in Adjudication. — Plain as this question appears, thus stated, it has received from our tribunals almost every sort I 1 WelU V. Abrahams, Law Rep. 7 pressly overruled in White v. Spettigue, Q. B. 554. It is observed in this case, 13 M. & W. 603. that Gimson v. WoodfuU, supra, was ex- 2 gt^t. Crimes, § 154 et seq. 152 CHAP. XVI.] CIVIL AND CErMINAL TOGETHEE. §272 of diverse solution. In some States, as Alabama,^ and perhaps New Hampshire (where it is doubtful),^ the full English doctrine is held. The Maine tribunal,^ apparently sustained by some early Massachusetts authorities,* restricted the rule to robberies and larcenies ; but a subsequent statute altogether removed the dis- ability.^ In South Carolina,® Massachusetts,'^ Mississippi,^ and/ apparently Tennessee,® the English doctrine has been utterly dis-[ carded. The Connecticut court seems to have limited it to suclJ felonies as are punishable capitally ; ^^ and the Georgia, to felonies at common law, in exclusion of those created by statute.^^ In New Jersey,^^ Virginia,^^ North Carolina,^* Missouri,^^ Michigan,^® and Texas,^" the question appears to be in doubt, with perhaps a tendency against the English doctrine.^^ In Arkansas the civil suit is authorized by statute.^® It is so also in New York.^" § 272. Continued. — The New Hampshire court has held, that one suffering from a felony need not wait till the criminal cause is disposed of before bringing his action ; it is sufficient to delay till then the trial.^^ This distinction appears to harmonize the ' Morgan v. Rhodes, 1 Stew. 70 ; Mc- Grew V. Cato, Minor, 8 ; Morton v. Brad- ley, 27 Ala. 640; Martin v. Martin, 25 Ala.' 201; Bell v. Troy, 35 Ala. 184; ante, § 267. For a partial qualification created by the construction of a statute, see Lankford v. Barrett, 29 Ala. 700. 2 Grafton Bank v. Flanders, 4 N. H. 239 ; Pettingill v. Kideout, 6 N. H. 454. 8 Crowell V. Merrick, 19 Maine, 392 ; Belknap v. Milliken, 23 Maine, 381 ; Fos- ter V. Tucker, 3 Greenl. 458 ; Boody u. Keating, 4 Gteenl. 164. * Boardman v. Gore, 15 Mass. 331. * See reporter's note to Belknap u. Milliken, 28 Maine, 381. 6 Cannon v. Burris, 1 Hill, S. C. 372 ; Robinson v. Gulp, 1 Tread. 231, 3 Brev. 302. ' Boston and Worcester Railroad v. Dana, 1 Gray, 83. ' Newell V. Cowan, 80 Missis. 492. ' Ballew V. Alexander, 6 Humph. 433. And see post, § 272, note. '» Cross V. Guthery, 2 Root, 90. " Adams v. Barrett, 5 Ga. 404 ; Neal V. Farmer, 9 6a. 555 ; Dacy v. Gay, 16 6a. 203. •2 Patton V. Freeman, Coxe, 113. i' Allison D. Farmers' Bank, 6 Rand. 204 ; Cook v. Darby, 4 Munf. 444., 1* White V. Fort, 3 Hawks, 251 ;' Smith V. Weaver, Taylor, 58, 2 Hayw. 108. 1^ Nash V. Primm, 1 Misso. 178 ; Mann V. Trabue, 1 Misso. 709. 16 In Hyatt v. Adams, 16 Mich. 180, 189, 202, the question ^rose incidentally, and in a dictum Christiancy, J., discard- ed the English doctrine, and Campbell, J., declined expressing any opinion upon it, because not essential to the decision of the case. " Mitchell V. Mims, 8 Texas, 6. w See also Piscataqua Bank v. Turn- ley, 1 Miles, 312; Plummer v. Webb, Ware, 76 ; Dunlop i;. Munroe, 1 Cranch C. C. 536. '« Brunson v. Martin, 17 Ark. 270. 20 Van Duzer t. Howe, 21 N. Y. 581, 538; Koenig K. Nott, 2 Hilton, 323. And see Fassett v. Smith, 23 N. Y. 252, and the cases there cited ; Franklin v. Low, 1 Johns. 396; Pease v. Smith, 5 Lans. 519. 21 Pettingill v. Rideout, 6 N.'H. 454. And see Smith v. Weaver, Taylor, 58, 2 Hayw. 108, as sustaining the same view. See also Ballew v. Alexander, 6 Humph. 153 § 274 ELEMENTS OV CEIMB. [BOOK HI. common-law authorities, with none of which it is directly in con- flict. The plaintiff is in no fault while he is doing all he can, and as fast as he can, to bring the offender to justice ; and, in reason, he should be permitted to pursue at the same time his civil rem- edy, only not hastening its steps in advance of public duty. § 273. Some Discussion of Reasons : — Rule ceasing with its Reason. — It is believed that the leading cause for the rejection, in some of our States, of the doctrine of the English common law on this subject, as being inapplicable to what are assumed to be our altered circumstances, is a misappre- hension of the true legal reason on which it is founded. It has been assumed to rest on the English law of forfeiture of life and property in cases of felony ; and to stand thus, that, as the goods are for the crown, and the body is for the gallows, no benefit could result to the plaintiff from a judgment in the civil suit. And the American argument has been, that, since the goods in this country are not forfeited, and the felon's life is not ordinarily taken, the consequence of this removal of the foundation must be the fall of the superstructure, in obedience to the maxim, Ces- sante ratione legis, cessat ipsa lex,^ the rule of law ceases with its reason. § 274. Continued — (Nature of a LegEil Reason). — Now, a rea- son of the law is a thing adhering in the law itself, constituting* of it the soul, and is not a formula of words uttered by a judge. Some of the law's reasons are exactly what the judges have stated them to be, others are partly such, and still others are not such to any degree. True Reason of Present Doctrine. — In the instance now before us, the reason just mentioned cannot be the true one ; because, if it were, the felon could no more be sued on a claim separate from the felony, and by one not the sufferer, than by the latter for the precise thing ; and because he could no more be sued after a con- viction than before. But as the law does not contain these effects, neither consequently does it their cause. Hence if every judge, English and American, and every text-writer, had laid down this reason, we should see that aU had erred. Then let us 433, which may really rest on this country. See also Deakin v. Praed, 4 ground, tliough the judge who delivered Taunt. 825. the opinion stated, as the reason, that the ' Broom Leg. Max. 2d ed. 118. English doctrine is not applicable in this 154 CHAP. XTI.J CIVIL AST) CEIMINAL TOGETHER. § 276 inqiiire wliether the reason assigned a few sections back is the true one. We perceive that, by all the authorities/ the only im- pediment to carrying on the civil suit is the neglect to prosecute , for the crime ; and that the right to proceed civilly keeps even pace with the removal of this neglect. Hence the reason why the sufferer cannot maintain his civil proceeding, in those cases in which the law refuses him, is because he has not prosecuted. The proposition may assume either the precise form given it in these pages', or the similar form it wears in most of the English cases ; namely, that the policy of the law requires this stimu- lant to induce men to bring felons to justice. The resiilt is the same. § 275. Law ceasing with Reason, again. — While the maxim, that a rule of the law fails with its reason,^ is just and is important, it is particularly liable to be misapplied. Often, after some reassn has created a rule, the reason gradually crumbles away, and the rule in the same gradual manner becomes crystallized and solidi- fied ; so that it remains a mere technical doctrine, resting simply on the judicial authority of ages. We recur to the reason whence it originally sprang, only to learn its quality, extent, and force. Reason of this Rule not changed — (^Compounding — Misprision} . — Whether the rule now under examination should be regarded as one of these crystallized rules ^ it might be well to inquire, had we not found * that the reason has not materially changed in this country, but it remains substantially what it was in England when our forefathers brought hither the body of the common law. Besides, if the reason had ceased, and if on this account the rule must cease also, then it would seem to follow, that the criminal offence of compounding crimes must no longer be recognized ; for it comes from exactly the same reason," and Cessante ratione legis, oessat ipsa lex. But the compounding of crimes is regarded as a common-law offence in all the States where common-law offences are known.® It is the same, also, with misprision of felony. § 276. Another Line of Argument. — One method of argument 1 Ante, § 267, 268. compounding felony] 1 It is the conceal- 2 Ante, § 273. ing oi the crime, and ahstaining from 'And see Crowell v. Merrick, 19 prosecution, to the detriment of the pub- Maine, 392. lie." Commonwealth v. Pease, 16 Mass. * Ante, § 270. 91, 93. ' " "What is the gist of the offence [of 6 See ante, § 267. 155 § 278 ELEMENTS OP CRIME. [BOOK HI, on this question, by wMcli to reach a conclusion different from that here indicated, suggests itself. It is to consider, that mis- prision of felony, which stands a step further from the principal offence than compounding, has ceased to be indictable because of the small degree of guilt it involves ; and that also the policy of the law no longer requires individuals to communicate to the officers of justice information of the existence of felonies. True we have no legal authority for either, much less for both, of these propositions ; and it would be difficult to sustain either by argu- ments weighty in the law. But, if both were admitted, they might lead to the result of overturning the English doctrine. § 277. Why this Discussion — Legal Reasoning illustrated. — This discussion, so extensive, is a departure from the general plan of this work. It is indulged in here, not so much on account of the importance of the subject, as because it exhibits some principles of legal reasoning, and shows the difference between it and rea- soning addressed to a legislator, — the difference, in other words, between the processes by which we ascertain what the law is, and those whereby we form our judgments as to what it should be. If a paan were in discussion before a legislator on this question, he might say to him, what (discarding the method intimated in the last section) would hardly be relevant if spoken to a court, — that the officers can do all the prosecuting ; that there is no dan-* ger but felons will be sufficiently pursued ; that the rule is favored in England because a judgment against a dead felon whose goods are forfeited can do no good, which reason does not exist in the United States ; and he might add any other like con- siderations. And the person addressed, sitting as a legislator, might deem the considerations presented conclusive ; but, sitting as a judge, quite too light to be taken into the balance. § 278. Caution to the Header. — This discussion, moreover, enables the author to address to the reader a caution in language which will be understood. Those who, throughout these vol- umes, examine the decisions cited in the notes in connection with their perusal of the text, will sometimes observe reasons given in the text differing from those which the judges have assigned in the decisions. It would occupy too much space, and serve but slightly any useful purpose, to pause and explain these differ- ences in every instance in which they occur. They proceed, in some instances, from the author's not thinking the reasons stated 156 CHAP. XVI.] CIVIL AND CEIMQfAL TOGETHER. § 278 in the cases to be the true legal ones ; and, in others, from his thinking, that, while they are good, those which the peculiar aspect of the discussion rendered it important to state in the text are good also.^ Not unfrequently a doctrine of the law rests on more reasons than one, each one of which would alone sustain it ; and some doctrines repose thus on many reasons, distinct, or even differing in their natures. Where, however, the subject is par- ticularly important, or there is a wide difference in reasoning between the author and judges, and the explanation is deemed helpful to the reader, it is given. 1 And see ante, Introduction. 157 § 280 ELEMENTS OF CEIMB. [BOOK HI. CHAPTER XVII. THE CONSTITUTIONAIi PKOHTBITION OP EX POST FACTO LAWS.^ § 279. Constitutional Provision. — Natural justice forbids the infliction of punishment for what was not punishable when done. This principle has found expression in two clauses of the Consti- tution of the United States, — the one, referring to the general government, providing, that " no . . . ea; post facto law shaU be passed," the other, that " no State shall . . . pass any . . . ex post facto law." ^ Hew interpreted — (Ex post Facto Law defined). — This provi- sion relates to the criminal department of our laws, not in any de^ee to the civil.^ In various places in " Statutory Crimes" it is brought under notice, and an ex post facto law is there defi.ned to be one which makes punishable what was innocent when commit-* ted, or subjects the doer to a heavier penalty than was then pro- vided.* A statute diminishing the punishment is not ex post facto, but one increasing it is.^ § 280. Not affect Procedure — The Court. — In " Statutory Crimes" we saw, that this provision does not bind the legislative power as to the procedure ; but, for example, a statute may pro- vide that an offence be punished by a different court from the 1 See, for matter on the subject of v. "Van Kleeck, 7 Johns. 477, 488 ; Strong this chapter, Stat. Crimes, § 29, 85, 180, v. The State, 1 Blackf. 193, 196 ; Com- 185, 265-267. monwealth v. Lewis, 6 Binn. 266, 271 ; 2 Const. U. S. art. 1, § 9, 10 ; Stat. Davis u. Ballard, 1 J. J. Mar. 563, 570 ; Crimes, § 180, 185, 265 ; Woodruff k. The Locke i'. Dane, 9 Mass. 360,363; Wat- State, 3 Pike, 285; Dupy w. Wiokwire, 1 son i*. Mercer, 8 Pet. 88, 110; Boss's D. Chip. 237 ; Charleston «. Feckman, 3 Case, 2 Pick. 165, 170. Rich. 385 ; Grinder v. Nelson, 9 Gill, 299 Perry v. Commonwealth, 3 Grat. 632 Commonwealth v. Phillips, 11 Pick. 28 Commonwealth v. Edwards, 9 Dana, 447 8 Story Const. § 1345. * Stat. Crimes, § 266 ; post, § 281. 5 Stat. Crimes, § 185 ; Turner v. The State, 40 Ala. 21 ; Commonwealth v. Wy- The State v. Dunkley, 3 Ire. 116 ; Woart man, 12 Cush. 287, 239 ; Storv Const. V. Winnick, 3 N. H. 473, 475; Fisher v. § 1345. Cockerill, 5 T. B. Monr. 129, 133; Dash 158 CHAP. XVn.] EX POST EACTO LAWS. § 282 one which had jurisdiction of it at the time of its commission.^ And the same rule relates to other branches of the procedure.^ § 281. Doctrine restated. — In the leading case, Chase, J., sit- ting in our National Supreme Court, said : " I will state what I consider ex post facto laws within the words and the intent of the prohibition. 1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal ; and punishes such action. 2. Every law that aggravates a crime, and makes it greater than it was when committed. 3. Every law that changes the punishment, and inilicts a greater punishment than the law annexed to the crime when committed." It is per- ceived that the second and third of these heads are in effect one ; because the measure of every crime is its punishment.^ And the three heads together embrace simply what is comprehended in the foregoing shorter definition.* But — Rules of Evidence. — The learned judge adds : " 4. Every law that alters the legal rules of evidence, and receives less or differ- ent testimony than the law required at the time of the commission of the offence, in order to convict the offender." ^ The soundness of this fourth particular has been subsequently assumed by some, without examination.^ The subject should be examined before the doctrine is voiced in adjudication. It is contrary to analo- gous holdings under some other constitutional provisions, and it would seem not to be justified by the terms of this one. This provision protects parties from being dealt harder with than the law prescribed when the fact transpired ; but, it is submitted, has nothing to do with — has no relation to — the means by which the truth of an alleged fact may be made to appear. § 282. Not expressly declare Thing Criminal — (Penalty — Deprive of Right). — " It is not essential," says Cooley,'' " in order to ren- der a law invalid on these grounds, that it should expressly assume the action to which it relates to be criminal, or provide for its punishment on that ground. If it shall subject an individual to a pecuniary penalty for an act which, when done, involved no responsibility,^ or if it deprives a party of any valuable right 1 Stat. Crimea, § 180. Cummings v. Missouri, 4 Wal. 277, 325 ; 2 Cooley Const. Lim. 272. Story Const. § 1345 ; Cooley Const. Lim. ' Crim. Proced. I. § 77 et eeq. 265 et seq. ' * Ante, § 279. ' Cooley Const. Lim. 266. 5 Calder v. Bull, 3 Dall. 886, 390. 8 Falconer v. Campbell, 2 McLean, « Strong V. The State, 1 Blackf. 193 ; 195, 212. 159 § 284 ELEMENTS OF CEIMB. [BOOK lU. (like the right to follow a lawful calling) for acts which were innocent, or, at least, not punishable by law, when committed,^ the law will be ex post facto in the constitutional sense, notwith- standing it does not in terms declare the acts to which the penalty is attached criminal." § 283. Second Commiasion of Offence. — It follows, from what has been said, that a statute providing a heavier punishment for the second commission of an offence than for the first, is not ex post facto, even though the first took place before its passage ;2 yet, where both were before, the consequence is otherwise.^ § 284. Conclusion. — More might be said on the subject of this chapter ; but these views, in connection with the elucidations in " Statutory Crimes," will be sufficient guides to the practitioner. 1 Cummings v. Missouri, 4 Wal. 277 ; Commonwealth, 9 Grat. 738 ; Ex parte Ex parte Garland, i Wal. 333. Gutierrez, 45 Cal. 429. 2 Boss's Case, 2 Pick. 165; Band v. 3 Riley's Case, 2 Pick. 172; Boss's Case, supra. 160 CHAP. XVni.] GENEBAL VIEW OP INTENT. § 287 BOOK IV. THE DOCTRINE REQUIRING AN EVIL INTENT AS AN ELEMENT OP CRIME. CHAPTER XVIII. GBNEEAIi VIEW OF THE DOCTKINE OP THE INTENT. § 285. What for these Chapters. — We have seen,i in a general way, that, to constitute a crime, an evil intent must combine with an act. In the series of chapters comprising the present Book, we shall take a variety of views of the Intent, and thus bring under our survey some of the most important doctrines of the criminal law. § 286. Criminal La'w distingmshed from Civil as to Intent. — In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties, the quo animo with which a thing was done is sometimes important, not always ; ^ but crime proceeds only from a criminal mind. § 287. No Crime without Evil Intent. — The doctrine which re- quires an evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to bel tested. It is whether the mind is criminal. Criminal law relates ) only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow, that a man should be deemed guUty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offence is the wrongful intent, without which it cannot exist.^ ' Ante, § 204 et seq. Cooper, 15 Mass. 10 ; United States o. 2 Hart V. Tallmadge, 2 Day, 381 ; Thomasson, 4 Bis. 99 ; post, § 288, 301. Moran «. Rennard, 3 Brews. 601 ; Camp- » The William Gray, 1 Paine, 16; bell 1). Phelps, 17 Mass. 244 ; Congdon v. United States ..•. Pearce, 2 McLean, 14, VOL, I. 11 im § 290 THE EVIL INTENT EBQUIEED. [BOOK IV. § 288. Continued — (Maxims — Moral Science). — We find this doctrine laid down, not only in the adjudged cases, but in various ancient maxims ; such as, — Actus non facit reum nisi mens sit rea, " the act itself does not make a man guilty unless his inten- tion were so ; " -^ Actus me invito f actus non est meus actus, " an ' act done by me against my will is not my act ; " ^ and the like. In this particular, criminal jurisprudence differs, as just said, from civil.^ So, in moral science : " By reference to the inten- tion, we inculpate or exculpate others or ourselves, without any respect to the happiness or misery actually produced. Let the Iresult of an action be what it may, we hold a man guilty, simply /on the ground of intention ; or, on the same ground, we hold him I innocent." * § 289. Moral Science, continued. — The Calm judgment of man- kind keeps this doctrine among its jewels. In times of excite- ment, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice, that, where the mind is pure, he who differs in act from his neighbors does not offend. § 290. Further Confirmations. — The justness of the law's doc- trine of the intent appears from many things. One is, that no , man really deems another to merit punishment, unless he intended I evil, or was careless in what he did. Another is, that, whenever a person is made to suffer a punishment which the community does not consider he deserves, so far from its placing the mark of contempt on him, it elevates him to the seat of the martyr. 19 ; Weaver v. Ward, Hob. 134 ; Ex ges v. Maitland, Anthon, 153 ; Cummins parte Bodgers, Amb. 307 ; Rex v. Fell, 1 v. Spruance, 4 Harring. Del. 315 ; Eeg. v. Salk. 272 ; Hex a. Martin, Buss. & By. Phillips, 2 Moody, 252 ; The State o. 196; Lancaster's Case, 1 Leon. 206, 209; Garland, 3 Dev. 114; Case of Le Tlgre, The State v. Nicholas, 2 Strob. 278 ; 3 "Wash. C. C. 567, 572 ; The State v. Rex V. Holden, Russ. & Ry. 154, 2 Leach, Hawkins, 8 Port. 461 ; Rex u. Heath, 4th ed. 1019, 2 Taunt. 334 ; Rex v. Har- Buss. & By. 184 ; Commonwealth w. ris, 7 Car. & P. 428; Bex v. Dannelly, Sheriff, 1 Leg. Gaz. Bep. 340; The Buss. & Ry. 810; Beg. o. Aliday, 8 Car. State «. Gardner, 6 Nev. 377. And see & P. 136 ; Reg. v. Thurborn, 1 Den. C. C. Smith v. Kinne, 19 Vt. 564. 387 ; Rex v. Friar, 1 Chit. 702 ; Riley v. i Broom Leg. Max. 2d ed. 226, 232, The State, 16 Conn. 47 ; Rex v. Gas- 239, 275, 633, note ; Burrill Law Diet, coigne, 1 Leaoh, 4th ed. 280, 284 ; The " Bour. Law Diet. ; Burrill Law Diet. State V. Berkshire, 2 Ind. 207 ; The State s Rex v. Pell, 1 Salk. 272 ; Weaver w. V. Bartlett, 30 Maine, 132; Common- Ward, Hob. 134; James . Scott, 4 Ire. 409; United States u. Wiltberger, 3 Wash. C. C. 515 ; Shorter c. People, 2 Comst. 193; People v. Shorter, 4 Barb. 460; Oliver v. The State, 17 Ala. 587 ; Carroll V. The State, 23 Ala. 28 ; People v. Sul- livan, 3 Seld. 396 ; Monroe v. The State, 5 Ga. 85 ; People v. Anderson, 44 Cal. 65 ; Patterson v. People, 46 Barb. 625; Peo- ple V. Hurley, 8 Cal. 390; Yates v. Peo- ple, 32 N. Y. 509 ; Carieo v. Common- wealth, 7 Bush, 124; PMlips v. Com- monwealth, 2 Duvall, 328; Adams v. People, 47 111. 376 ; The State v. Potter, 13 Kan. 414 ; The State v. Bryson, Win- ston, No. 2, 86 ; Dawson v. The State, 33 Texas, 491; Williams u. The State, 3 Heisk. 376; The State u. Collins, 32 Iowa, 36; Stoneman u. Commonwealth, 25 Grat. 887; Berry if. Commonwealth, 10 Bush, 15 ; People v. Campbell, 30 Cal. 312; Lingo «. The State, 29 Ga. 470; Commonwe^th v. Carey, 2 Brews. 404 ; The State v. Sloan, 47 Misso. 604 ; Evans V. The State, 44 Missis. 762 ; People u. Scoggins, 37 Cal. 676. The expression in many of the cases is, that the errone- ous belief of facts must, to justify the act, proceed on reasonable grounds of belief. This statement of the doctrine is, in the facts of most cases, not in es- sence different from the manner of put- ting it given in my text ; namely, with- out fault or carelessness. But, as general doctrine, it is believed to be less accurate, and more likely to mislead the jury. See also Grainger v. The State, 5 Yerg. 459 The State v. Clements, 82 Maine, 279 The State v. Harris, 1 Jones, N. C. 190 2 East P. C. 273; People v. Austin, 1 Parker C. C. 154; Meredith v. Common- wealth, 18 B. Monr. 49; Teal v. The State, 22 ffa. 75 ; Keener u. The State, 18 Ga. 194 ; McPherson v. The State, 22 Ga. 478; Commonwealth v. Fox, 7 Gray, 685; Lingo v. The State, 29 Ga. 470; The State v. O'Connor, 31 Misso. 389; Gladden v. The State, 12 Fla. 562 ; The 172 State V. Kennedy, 20 Iowa, 569 ; People V. Williams, 32 Cal. 280. Parsons, C. J., in the Massachusetts court, once stated the doctrine thus : " If the party killing had reasonable grounds for believing that the person slain had a felonious de- sign against him, and under that suppo- sition kill him ; although it should after- wards appear that there was no such design, — it will not be murder; but it will be either manslaughter or excusable homicide, according to the degree of caution used, and the probable grounds of such belief." Charge to the Grand Jury in Selfridge's Case, Whart. Horn. 417, 418, Lloyd's Report of the case, p. 7. In this case, Parker, J., charging the petit jury, laid down the doctrine of our text, and enforced it by observations from which the following are extracted : " A, in the peaceable pursuit of his af- fairs, sees B rushing rapidly towards him, with an outstretched arm and a pis- tol in his hand, and using violent menaces against his life as he advances. Having approached near enough, in the same at- titude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged ; and of the wound B dies. It turns out that the pistol was loaded with powder only, and that the real design of B was only to ter- rifij A. Will any reasonable man say, that A is more criminal than he would have been if there had been a bullet in the pistol f Those who hold such doc- trine must require, that a man so at- tacked must, before he strike the assail- ant, stop and ascertain how the pistol is loaded, — a doctrine which would entirely take away the essential right of self-de- fence. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reason- able grounds of his apprehension, no dan- ger can be supposed to flow from this principle." Lloyd's Rep. p. 160. In a Pennsylvania case, Thompson, J., laid down the doctrine as follows : " I take CHAP. XIX.J IGNORANCE OP LAW AND FACT. §305 Reducing to Manslaughter. — All the consequences of this doc- trine go with it. Therefore, when the erroneous belief is of facts the rule to be settled, that the killing of one who is an assailant must be under a reasonable apprehension of loss of life or great bodily harm, and the danger must appear so imminent at the monientof the assault as to present no alternative of es- caping its consequences but by resist- ance. Then the killing may be excusa- ble, even if it turn out afterwards that there was no actual danger." Logue v. Commonwealth, 2 "Wright, Pa. 265, 268 ; s. p. People V. Cole, 4 Parker C. C. 35; Pond 0. People, 8 Mich. 150 ; Schnier v. People, 23 111. 17 ; Maher v. People, 24 m. 241 ; Hopkinson v. People, 18 111. 264. Peculiar Beliefs. — In 1874, an Indian was tried in Washington Territory for the murder of another Indian. The de- fence was, that he committed the homi- cide to save his wife from being killed through a pernicious power of the de- ceased. Evidence was introduced to show, that, in the language of Greene, J., in his charge to the jury, " the deceased Doctor Jackson was reputed to be a musatchee tomaawos man, a bad doctor man, a sorcerer, a man able at his will to bring unseen evil agencies to bear upon the bodies of the living ; that he thus possessed the power of life and death over persons even at a distance from him, and over defendant's wife in particular ; that, in defendant's presence, he threat- ened by use of this evil power to destroy the life of defendant's wife ; that, in the presence of defendant, he professed and claimed, that he by means of this power caused an actual sickness of defendant's wife, of which she lay dangerously ill at the time of his own death ; that, in de- fendant's presence, he threatened he would cause this illness to terminate in her death ; and that the only means of saving the life of defendant's wife was by killing this man, who claimed to wield over her such subtle and terrible power." It appeared in evidence that the defend- ant, and with him all his tribe, was born into the belief in viusatchee tomaawos, and this belief controlled him in the homi- cide. The learned judge charged the jury, that the law permitted one to kill another to save his wife's life, which the latter was in the act of taking away ; and, though they would not themselves credit the deceased with the power at- tributed to him, yet, if the defendant in good faith did, and this belief was a rea- sonable one in him, considering his edu- cation and surroundings, it would furnish him, under the circumstances proved, a good defence. And the jury acquitted him. Territory v. Fisk, Olympia Tran- script, April 11, 1874. If the learried judge committed any error in this case, it was in requiring that the mistakeii be- lief should be a reasonable one for the defendant to entertain. I do not say that this direction was wrong, for it is sup- ported by the language of many of the cases. Yet, to my mind, it would more certainly accord with just principle, and conform to other of the cases, to say, that, if without fault or carelessness, the defendant in good faith entertained the belief, then, &c. A like question has arisen before the English courts. A man and his wife were indicted for man- slaughter through neglect to procure medical aid for a sick child, by reason of which the child died. The defendants belonged to a sect calling themselves "Peculiar People"; one of whose be- liefs is, that, if a person of the household is sick, the elders should be called in, and they should anoint the sick person with consecrated oil, and pray over him ; but to send for a physician is deemed to show a want of faith in Providence, and to do no good. Willes, J., not believing in the doctrines of these people, still thought " this was a case where" affection- ate parents ha,d done what tliey thought the best for a child, and had given it the best of food;" and the jury acquitted them. Reg. w.Wagstaffe, 10 Cox C.C. 530, 534. Thereupon an act of parliament was passed, making it punishable by sum- mary conviction for a parent to " wil- fully neglect to provide adequate food, clothing, medical aid, or lodging for his child, &c., whereby the health of such child shall have been, or shall be likely to be, seriously injured." 31 & 32 173 § 307 THE EVIL INTENT REQTJLRBD. [BOOK IV. whicli, if true, would reduce to manslaughter what otherwise would be murder, the offence in law is but manslaughter.^ Again, — § 306. Capturing Merchant-vessel as Pirate. — Since the vessels of all nations may capture pirates on the high seas, if an innocent merchant-vessel conducts in a way to induce the commander of another vessel lo believe her piratical, this other vessel, capturing her, is not subject to forfeiture.^ So, — Apparently transporting Goods to Enemy. — In a time of war, a reasonable suspicion that one is transporting property to the enemy's country is a good defence, by a military officer, to an action for the false imprisonment of such person;^ but the authorities are not distinct as to how far ignorance of fact may thus be shown to defeat a civil suit.* § 807. Transporting Person Unknown. — Under a former statute making it penal for the captain of a steamboat to carry from one place to another " any black or colored person, unless " he pro- duces free papers, or, if a slave, a pass, — the offence was not committed by the captain whose boat received and carried off a slave without his knowledge or consent.® So, — Omitting Item by Accident — (Revenue Laws). — Under revenue laws, nonforfeiture is incurred if the master of a vessel, in making out the required papers, omits some of the cargo through accident.^ Vict. c. 122, § 37. Then, after one of ' ciow v. Wright, Brayt. 118. these Peculiar People lost a child through * Imlay v. Sands, 1 Caines, 566 ; Mur- what was looked upon as his neglect to ray v. Charming Betsy, 2 Cranch, 64 ; call in a. physician, he was indicted for Little v. Barreme, 2 Cranch, 170 ; Maley manslaughter ; and hoth the judge at the v. Shattuck, 3 Cranch, 458 ; Nicholson v. trial, and the Court of Criminal Appeal Hardwick, 5 Car. & P. 495 ; Sugg v. Pool, held, that, in consequence of this statute, 2 Stew. & P. 196 ; Keed v. Klce, 2 J. J. the indictment could be maintained. Marsh. 44 ; ante, § 801. The language of the judges implies, that, 5 Duncan v. The State, 7 Humph. 148 ; but for the statute, there would be»no Price v. Thornton, 10 Misso. 135 ; and offence. IJeg. v. Downes, Law. Rep. 1 the same principle in Commonwealth v. Q. B. D. 25, 13 Cox C. C. HI. Stout, 7 B. Monr. 247 ; Reg. v. Grasseley, 1 1 East P. C. 251, 273, 292, 315, 316, 2 Dy. 210, pl. 25 ; Sturges v. Maitland, 318 ; Rex v. Woolmer, 1 Moody, 334 ; Anthon, 153. But under some statutes Reg. V. Walters, Car. & M. 164; Stan- of this kind, and more especially with ley's Case, J. Kel. 86. reference to the civil action for damages, 2 The Marianna Flora, 11 Wheat. 1. the defendant is responsible, though act- Wlth regard to the principle in this and ing in honest misapprehension of the other similar cases, see, however. United facts. Western and Atlantic Railroad v. States f . The Malek Adhel, 2 How. U. S. Fulton, 4 Sneed, 589 ; The State v. Bal- 210 ; United States ». Nine Packages of timore Steam Company, 13 Md. 181 ; Linen, 1 Paine, 129 ; Phlle i;. Anna, 1 Mangham v. Cox, 29 Ala. 81. Ball. 197. « Fairclough v. Gatewood, 4 Call, 158. 174 CHAP. XIX.] IGNORANCE OP LAW AND FACT. § 309 In Champerty, &c. — And a like principle prevails concerning j the penalties provided in statutes against champerty and mainte- j nance ; there being no offence if the party acts under a misappre- 1 hension of the facts.^ § 308. In Libel — (Belief of Truth — Defendant's Meaning). — In the law of criminal libel, though the defendant's belief that his words are true is no justification for him, because their truth would not be, yet, if the circumstances cast on him the duty to speak, he is protected equally, as indeed he is in the civil action, whether what he says is true in fact, or erroneously believed to be true.^ For the like reason, the words of a criminal libel are to be interpreted as the defendant understood them, rather than as they are understood by others or by the court.^ § 309. Careless as to Facts. — If a man is careless as to facts, ' and does not employ the means at command to inform himself, he is, in general, neither in law nor in morals excused for what he ' does through a mistake.* Again, — Opinions contrary to Law. — .Though, in general, all forms of belief are tolerated by the law, one exception to this proposition is imperative. If a man deems that to be right which the law pronounces wrong, and accepts it as duty to do what the law holds to be a crime, this is a sort of mistake which does not free him from guUt.^ Perhaps it should be regarded as ignorance of law, not of fact. Resting on these doctrines is an English case of — Obscene Libel. — One, to do good, kept for sale, at cost, a pamphlet entitled : " The Confessional Unmasked ; showing the Depravity of the Romish Priesthood, the Iniquity of the Confes- sional, and the Questions put to Females in Confession!" The accepted fact was, that he did not think the pamphlet pernicious ; and he kept and sold it, " as a member of the Protestant Electoral Union, to promote the objects of that society, and to expose what 1 Etheridge v. Cromwell, 8 Wend. 629 And Bee Swett u.Poor, 11 Mass. 549, 553; Everenden v. Beaumont, 7 Mass. 76, 78 Wolcot V. Knight, 6 Mass. 418, 421 Brinley v. Whiting, 5 Pick. 348, 350 V. Coyle, 6 B. Monr. 301 ; Bodwell v. Os- good, 3 Pick. 379; Swan v. Tappan, 5 Cush. 104 ; 2 Stark. Slander, 257, 258. And see 50 Eng. Law Mag. 115. 3 Commonwealth u. Kneeland, 20 See, concerning the principles laid down Pick. 206, 216 ; UpdegrafE v. Common- in this section, Stat. Crimes, § 131, 132. wealth, 11 S. & R. 394, 405, 406. 2 The State v. Burnham, 9 N. H. 34 ; * Ante, § 303 ; post, § 313 et seq. Bradley u. Heath, 12 Pick. 163 ; Grimes « Post, § 344. 175 §310 THE EVIL INTENT EEQTJIEED. [book IV. he deems to he errors of the Church of Rome, and particularly the immorality of the confessional." But it was, in parts con- taining extracts from authors of authority in the church, grossly obscene. And the question was, whether an offence appeared, justifying its destruction under a statute. This question the Court of Queen's Bench answered in the affirmative.^ § 310. Innocent Agent. — The doctrines under discussion ex- plain how it is, that the books speak of crimes being committed through an " innocent agent." Such an agent is one who does the forbidden thing, moved by another person ; yet incurs no legal guilt, because either not endowed with mental capacity, or not knowing the inculpating facts.^ 1 Eeg. V. Hicklin, Law Rep. 3 Q. B. 360. As to which see also Steele v. Bran- nan, Law Rep. 7 C. P. 261. It was in Reg. 0. Hicklin held, according to the re- porter's note, "that the publication of such an obscene pamphlet was a misde- meanor, and was not justified or excused by the appellant's innocent motives or objectB ; he must be taken to hare in- tended the natural consequences of his act." It would consume unnecessary space to quote the views of the learned judges at large. The doctrine seems to have been, that the contents of the pam- phlet were of a sort to render their pub- lication in itself a violation of law ; there- fore the principle applies, that one is not legally justified in doing, from good mo- tives, and to promote a lawful end, what the law forbids. It seems to me that this case, in principle, stands thus : The man was not mistaken as to any fad. The difference between him and the mag- istrate who found the facts was, not as to the facts themselves, but as to their tendency. It was a question of opinion. And, looking at this question still more closely, we perceive it to be really one of law. By the law, it is punishable as a crime to circulate printed matter calcu- lated to excite the baser passions to the prejudice of the public morals. If a man thinks a certain publication is not obnoxious to this provision of law, but the court think otherwise, it is in him ig- norance of the law, which does not ex- 176 cuse. For further particulars, and a review of this case, see a pamphlet enti- tled " The Case of the Confessional Un- masked," by " a barrister." London : Printed by A. Gadsby, 10 Crane Court, Fleet Street, E.C. A copy was kindly sent me by some unknown person. I cannot but think that the reviewer is mistaken in supposing, that this case un- dermines fundamental principles in the criminal law. On the question whether, on the whole, the publication was unlaw- ful, considering its object, its argumenta- tion, the methods of its circulation, and the like, I can have no opinion, it not be- ing given in the reports. See Common- wealth V. Tarbox, 1 Cush. 66. In this case, I happen to know, it was contended, at the trial, that the obscene libel was published from good motives ; but the point was not much pressed in the upper court. ^ See, for various principles concern- ing an innocent agent, Reg. v. Clifford, 2 Car. & K. 202 ; Reg. v. Mazeau, 9 Car. & P. 676 ; Rex v. Giles, 1 Moody, 166, Car. Crim. Law, 3d ed. 191 ; Anonymous, J. Kel. 53 ; Reg. v. Bannen, 2 Moody, 309, 1 Car. & K. 295 ; Reg. v. Bleasdale, 2 Car. & K. 765 ; Reg. v. Tyler, 8 Car. & P. 616 ; Reg. V. James, 8 Car. & P. 292; Adams V. People, 1 Comst. 173 ; Commonwealth V. Hill, 11 Mass. 186 ; Wixson o. People, 5 Parker C. C. 119; Reg. v. Butcher, Bell C. C. 6, 8 Cox C. C. 77. CHAP. XIX.] IGNOBANCB OP LAW AND FACT. § 312 III. Ignorance loth of Law and Fact. § 311. Mixed Question. — In civil causes it seems, that, if law and fact are blended as a mixed question, or if one's ignorance of fact is produced by ignorance of law, the whole is treated as ignorance of fact, of which the party may take advantage.^ Perhaps this doctrine is analogous to one discussed under our first sub-title.^ If not, we must deem that it has not been much illustrated on the criminal side of our law. No reason appears why it may not, under some circumstances, have a force in crim- inal cases. § 812. Conclusion. — The subject of this chapter is one of the most important in the criminal law. The foregoing doctrines are the leading ones ; but, in other connections, some others will appear, more or less allied to them, or some of them will be exhibited in minuter detail. 1 See 1 Story Eq. Jurisp. c. 5 ; and the article in 23 Am. Jur. 147, 371. 2 Ante, § 297-300. VOL. I. 12 177 § 314 THE, EVIL INTENT EEQUIBED. [BOOK IV. CHAPTER XX. CARELESSNESS AND NEGLIGENCE. § 313. Carelessness Criminal — 'WTiy, — There is little distinction, except in degree, between a positive wiU to do wrong and an indif- ference whether wrong is done or not. Therefore carelessness lis criminal; and, within limits, supplies the place of the direct criminal intent.^ Thus, — § 314. Homicide from Carelessness — (^Omission of Duty). — Every act of gross carelessness, even in the performance of what is lawful, and, a fortiori, of what is not lawful, and every negli- gent omission of a legal duty, whereby death ensues, is indictable either as murder or manslaughter.^ " If a man," says Archbold,' " take upon himself an office or duty requiring skUl or care, — if, by his ignorance, carelessness, or negligence, he cause the deatht)f another, he wUl be guilty of manslaughter : as, — Furious Driving — Steamboat. — "If a person by careless or furious driving unintentionally run over another and kill him, it will be manslaughter ; * or, if a person in command of a steam- boat by negligence or carelessness unintentionally run down a boat, &c., and the person in it is thereby drowned, he is guilty of manslaughter.^ In like manner, — 1 Stnrges v. Maitland, Anthon, 153; Lerielle, 2 Hilton, 40; The State v. Commonwealth v. Eodes, 6 B. Monr. 171. O'Brien, 3 Vroom, 169 ; Eeg. v. Martin, 2 Bex V. Carr, 8 Car. & P. 163 ; Reg. 11 Cox C. C. 136. And see also the cases V. Haines, 2 Car. & K. 368 ; Rex v. Sulli- cited in the remaining notes to this sec- van, 7 Car. & P. 641 ; Errlngton's Case, tion. In accordance with the text is the 2 Lewin, 217 ; Beg. v. Edwards, 8 Car. & Scotch law. 1 Alison Crim. Law, 113. P. 611 ; Ann v. The State, 11 Humph. And see Vol. II. § 643, 6566, 659-662 a, 159 ; United States v. Freeman, 4 Mason, 664, 665, 668, 681, 690-693, 696. 606 ; Castell v. Bamhridge, 2 Stra. 854, » Archb. New Crim. Prooed. 9. 856 ; Bex v. Fray, 1 East P. C. 236 ; Beg. * Bex v. Walker, I Car. & P. 320 ; Bex V. Marriott, 8 Car. & P. 425 ; United v. Mastin, 6 Car. & P. ,396 ; Bex v. Grout, States V. Warner, 4 McLean, 463 ; Bex 6 Car. & P. 629; Bex v. Timmins, 7 Car. V. Smith, 2 Car. & P. 449 ; 1 East P. C. & P. 499; Beg. ». Swindall, 2 Car. & K. 264, 831 ; Hilton's Case, 2 Lewin, 214 ; 230. Beg. V. Barrett, 2 Car. & K. 343 ; The « Rex v. Green, 7 Car. & P. 166 ; Bex State V. Hoover, 4 Dev. & Bat. 366 ; Beg. v. Allen, 7 Car. & P. 163 ; Reg. v. Taylor, V. Ellis, 2 Car. & K. 470 ; Etchberry v. 9 Car. & P. 672. And see VoL II. § 662 o. 178 CHAP. XX.] CAEBLBSSNESS AND NBGLIGENCE. § 316 Medical Malpractice. — "If a person, whetlier a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and suflBcient attention ; and, if he cause the death of the other through a gross want of either, he will be guilty of manslaughter.^ ... Casting Missiles in Street. — " If a man, in building or repairing i a house, throw a stone from it into the street or way, and it hit a j person passing, and kill him, — if he did this in a street where j many persons were passing, and without properly warning the! persons below;, he is guilty of murder ; if, in a retired place, where no persons were likely to pass, he would not be liable to punish- ment.2 Hiding Dangerous Horse into Crowd. — "If a man, being on a horse which he knows to be used to kick, wilfully ride him amongst a crowd of persons, and the horse kick a man and kUl him, the rider is guilty of murder, although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him.^ But if a horse run away with his rider, so that he has no control over him, and the horse kill or injure a man, the rider is dis pun- ishable."* § 315. Doctrine pervades entire Criminal Law. — And this doctrine of the criminal nature of carelessness or negligence pervades the entire law of crime, — not applying to all offences, but to all of a sort to admit of its application. Thus, — § 316. Neglect of Legal Duty — (Scour River). — The bare neg- lect of a legal duty — as, of the owner of a river to scour it, whereby the neighboring lands are overflowed — may render one indictable for a nuisance.^ In like manner, — ' Eex V. Spiller, 5 Car. & P. 333 ; Eex grossly inattentive to their safety." v. Van Butohell, 8 Car. & P. 629 ; Eex v. Parke, J., in Eex v. Long, 4 Car. & P. WilUamson, 3 Car. & P. 635 ; Eex v. 398, 410. And see Vol. II. § 664, 685, Long, 4 Car. & P. 398, 423 ; Eex v. Webb, 691, 693. IMoody &R. 405, 2Lewin, 196; Reg. w. 2 3 Inst. 70 j Foster, 263. And see Spilling, 2 Moody & E. 107. The Scotch Vol. II. § 691. law is the same. 1 Alison Crim. Law, ' 1 Hawk. P. C. 7th ed. 0. 31, § 68. 116. There are some American cases And see Vol. II. § 656 i, 693. which seem to be a little more lenient to * Gibbon v. Pepper, 2 Salk. 637 ; s. c. ignorance than these. Commonwealth v. nom. Gibbons v. Pepper, 1 Ld. Eaym. 38. Thompson, 6 Mass. 134; Eice v. The This doctrine of negligence producing State, 8 Misso. 561. Said a learned Eng- death is discussed by Mr. Bennett in 1 lish judge : " I call it acting wickedly, Ben. & H. I^ead. Cas. 42 et seq. when a man is grossly ignorant, and yet * Eex v. Wharton, 12 Mod. 510 ; ante,, affects to cure people, or when he is § 216 ; post, § 433, 1075. 179 § 317 THE ETXL INTENT EEQUIEED. [BOOK IV. Negligent Escape. — An oiBcer of the law, who keeps a prisoner in custody so negligently that he escapes, must answer for this neglect as a crime.^ And — Master's Criminal Inability as to Servant. — There are circum- stances in which a master will be held liable criminally for his servant's act, or his own in respect to the servant ; for, said Bailey, J. : " If a person employ a servant to use alum, or any other ingredient the unrestrained use of which is noxious, and do not restrain him in, the use of it, such person is answerable if the servant use it to excess, because he did not apply the proper pre- caution against its misuse." ^ On the same principle, if a man's servant throws dirt into the street, the master may be indicted for the nuisance.^ And the directors of a gas company were rightly convicted of nuisance, where the act was by their superintendent and engineer, authorized to manage the works ; though them- selves ignorant of the plan, which, in fact, was a departure from the one originally contemplated, and which they had no reason to believe discontinued.* § 317. Continued. — In these cases, and some others of a like I sort brought to view in a previous connection,^ the law casts upon I the master a duty of care in the employment of his servants, and a constant supervision. The real thing punishable, therefore, is his own carelessness.^ But, where this element does not aid the (prosecution, the rule is clearly established that, in the criminal law, the principal is not answerable, as he is in civil jurispru- dence, for the act of his servant or agent.^ 1 4 Bl. Com. 130 ; 1 Hale P. C. 600; Verona Central Cheese Co. v. Murtaugh, 2 Hawk. P. C. Ciirw. ed. p. 198, § 28, 31 ; 50 N. Y. 314. ante, § 218 ; post, § 321 ; Vol. II. § 1095, 5 Ante, § 218-221. 1100. 6 See Reg. v. Lowe, 3 Car. & K. 123, 2 Rex V. Dixon, 3 M. & S. 11, 14. One 4 Cox C. C. 449, 7 Law Reporter, k. a. may be liable criminally for the acts of 376 and note, 1 Ben. & H. Lead. Cas. 49 ; his agent, if he participates in them. Commonwealth u. Morgan, 107 Mass. Commonwealth v. Gillespie, 7 S. & E. 469, 199 ; Mullins v. Collins, Law Rep. 9 Q. B. 477. 292. 8 Turberville v. Stampe, I Ld. Raym. 1 Miller v. Lockwood, 6 Harris, Pa. 264. 248 ; The State v. Dawson, 2 Bay, 360 ; * Rex V. Medley, 6 Car. & P. 292. Hern «. Nichols, Holt, 462 ; Rex v. Hug- Denman, C. J., obserred : " It seems to gins, 2 Stra. 882 ; United States v. Hol- me both common sense and law, that, if berstadt, Gilpin, 262, 270 ; Hipp •,. The persons for their own advantage employ State, 5 Blackf. 149 ; The State v. Pri- servants to conduct works, they must be vett, 4 Jones, N. C. 100; Keg. u. Willmett, answerable for what is done by those ser- 3 Cox C. C. 281, 283 ; Thompson v. The vants." p. 299. And see post, § 1075, 1076 ; State, 45 Ind. 495 ; Hanson v. The State, 180 CHAP. XX.J CARELESSNESS AKD NEaUGENCE. § 320 § 318. Vicious Beast at Large. — If one having an OX which he knows is wont to gore permits it to go at large, and it kills a man, he is indictable ; though Mr. East tells us there is doubt what his precise offence is. " However, as it is agreed by all, such person is at least guilty of a very great misdemeanor." ^ So — Selling Liquor, producing Disorderly Conduct. — One selling liquor, and permitting it to be drank in his store, has been held ciiminaUy for the disorderly conduct, about the store, of those to whom he made the sales.^ And, — Setting Fire. — If a person sets fire to an out-house, so near a dwelling-house as to endanger the latter, and it is burned, this act is deemed in law to be a burning of the dwelling-house.^ Again, — § 319. Rumor in Defence of Libel. — If a man publishes a libel, — a statute permitting him, when indicted for it, to show its truth in his defence, — he cannot take advantage of Hs own negli- gence, and introduce evidence that there was floating in the com- munity a rumor which he was so incautious as to believe and act upon.* § 320. Limits of the Doctrine : — Offences requiring Particular Intent. — There are offenceS which do not spring from general malevolence of mind ; but, to consti- tute them, a particular evil intent is required. Of course, an act done from mere carelessness or inexcusable neglect, where the spe- cific intent is wanting, cannot constitute such an offence. Thus, — Perjury. — The better opinion probably is, that perjury is not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false ; but the oath must be wilfully corrupt.^ So, — 43 Ind. 550 ; Anderson v. The State, Mitchell v. The State, 7 Eng. 50 ; Butler 39 Ind. 553 ; Anderson v. The State, v. McLellan, Ware, 219. 22 Ohio State, 305 ; Louisville, &e. ^ gee 1 Hawk. P. C. Curw. ed. p. 429, Railroad v. Blair, 1 Tenn. Ch. 351 ; §1,2; United States k. Shellmire, Bald. Commonvrealth v. Mason, 12 Allen, 185 ; 370, 378 : The State v. Cockran, 1 Bailey, Reg. V. Bennett, Bell C. C. 1 ; 1 East P. 60 ; United States v. Babcock, 4 McLean, C. 331. 113 ; Commonwealth v. Brady, 5 Gray, 1 1 East P. C. 265. 78 ; United States v. Atkins, 1 Sprague, '' The State v. Burchinal, 4 Harring. 558. Contra, Commonwealth v. Cornish, Del. 572. 6 Binn. 249. And see Jesse v. The State, ' Gage V. Shelton, 3 Rich. 242. 20 Ga. 156, 169. See Vol. II. § 1045- ' The State v. White, 7 Ire. 180. And 1048. The New York Penal Code Com- see Graves v. The State, 9 Ala. 447; missioners propose the following, — but 181 322 THE EVIL INTENT EEQUIKED. [book rv. Larceny. — It is clear that a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another's goods.^ § 321. Degree of Criminality. — Moreover, the law regards care- lessness as being, what it is in morals, less intensely criminal than an absolute intention to commit crime. Thus, — Voluntary and Negligent Escape. — In the WOrds of Blackstone, " of&cers who, after arrest, negligently permit a felon to escape, are punishable by fine ; but voluntary escapes, by consent and connivance with the officer, are a much more serious offence." ^ So,— Murder or Manslaughter. — In felonious homicide, the killing is sometimes either murder or manslaughter, according as it was intended or careless.^ § 322. Conclusion. — Other illustrations of the doctrine of this chapter will take their more appropriate places in connection with other discussions. it does not quite meet the point of the text: "An unqualified statement of that which one does not know to be true is equivalent to a statement of tliat which one believes to be false." And they add : " See, in support of the rule, People v. McKinney, 3 Parker C. C. 510; Bennett t. Judson, 21 N. Y. 238 ; Commonwealth V. Cornish, 6 Binn. 249; Steinman v. McWilliams, 6 Barr, 170; and opposed to it, United States v. Shellmire, Bald. 870." Draft of Penal Code, p. 51. 182 1 1 Hale P. C. 507. 2 4 Bl. Com. 130; 1 Hale P. C.600; 2 Hawk. P. C. Curw. ed. p. 196, 197, § 22, 30, 31. And see ante, § 315. s 4 Bl. Com. 192 ; Rex «. Hazel, 1 Leach, 4th ed. 368, 1 East P. C. 236. And see People v. Enoch, 13 Wend. 159, 174 ; Oliver v. The State, 17 Ala. 587 ; Commonwealth v. Keeper of the Prison, 2 Ashm. 227. CHAP. XXI.] PEODUCING AN TJNIKTENDED RESULT. § 325 CHAPTER XXL THE INTENT PBODTTCING AN UNINTENDED EESULT. § 323. Evil Result not meant. — The result of human actions is I often different from what the doer intended. When it is so, and is evil, the rule of morals excuses him if his motive was good. The rule of law is the same.^ But, — § 324. Neglect to learn — (liaw and Morals compared^. — If a man neglects obvious means to learn what will be the probable consequences of his act, and so proceeds rashly, the doctrine of carelessness already discussed ^ applies to the case, and he is not excused. Still, the law, regarding only the more palpable things, does not notice all the nice distinctions which moral science would draw, and an enlightened conscience recognize ; therefore a man may be legally excusable for the ill consequence of a well- intended act, while we should hold him to be, in some sense, morally guilty on account of his neglecting to learn. § 325. Good Result from Evil Motive. — On the Other hand, if a man means ill, but unintentionally his act results in go6d, we hold him to be morally guilty. But as, to constitute a crime, an act from which the public has suffered must be joined to the evil intent,^ it does not quite follow, that, in a case of this kind, the doer is under all circumstances answerable to the criminal law. Probably no rule on this subject could be laid down so absolutely accurate, and so clearly sustained by the authorities, that the courts would accept it as their unquestioned guide. The doc- trine is recognized, that an act may take its quality of good or evil from the intent which prompted it ; and many things indif- ferent of themselves are punished because proceeding from an evil mind. But if the thing done is, in its nature and consequences, 1 Ante, § 286 et seq. 2 Ante, § 313 et seq. And see Tardiff v. The State, 23 Texas, 169. ' Ante, § 204 et seq. 183 § 327 THE EVIL INTENT BEQITIEED. [BOOK IV. a positive good, it is difficult to see how it can be punished merely because the doer meant ill. § 326. The Practical View. — On principle, the true view doubt- less is, that the court must look at the circumstances of each case, and decide whether, under them all, the thing done and the intent producing it together make up such a wrong as should be judi- cially noticed. And, in deciding any particular case, recourse must be had to former decisions, and to the analogies of the law. True, indeed, this rule is vague ; but, in dealing with human affairs, a court must sometimes proceed on vague rules, not being able to explore the full original sources of right and motives of expediency which lie, the former in the bosom of God, and the latter scattered over the entire face of earthly things. But, to proceed to what is more completely within the adjudications, — § 327. BvU Intent producing Unintended Evil. — It is plain that, Lf a man means one wrong and does another, he is punishable. Not only is he so in morals ; but, on the clearest principles, he is so in the law also. Now, in such a case, is the legal guilt to be measured by the motive, as in morals, or by the act ? It must be by the one or the other. And the common-law rule measures it substantially by the latter, holding the person guilty of the thing done, where there is any kind of legal wrong in the intent, the same as though specifically intended ; not always, however, guilty of the crime in the same degree.^ Says Rutherforth : " There is 1 The State v. Euhl, 8 Iowa, 447. See puted or taken for the deed, in matters Eden Penal Law, 3d ed. 229 ; where the of felony"; the court adding, "though writer, admitting this doctrine to be law, it is not so now, yet it is an oflfenee and disapproves of it, and maintams that finable." Bacon's Case, 1 Lev. 146. Evi-, "every member of society hath a right dently the party entertaining the crimi- to do any act without the apprehension nal will cannot complain if he is punished of other inconveniences than those which for this mere intent. But society hsis no are the proper consequences of the act interest to interfere until injured by an itself ; for it is the right of every mem- act performed. And the injury to society ber of society to know, not only when he is the same, whether the thing done was is criminal, but in what degree he is so." intended or not. Therefore, when society 1 confess it seems to me, that no man can punishes him for what was done, he is set up a right to commit, on any terms, a not wronged unless his act was more evil ivrong ; as, to murder another on condi- than his intent. But, if more evil, the tion of submitting himself to be hung, case presents a difficully which the law When one has fully entertained a crimi- seems not fully to have provided against, nal purpose, he is to be treated as having See also People v. Enoch, 13 Wend. 159, done the thing meant, so far as concerns 174; Reg. v. Camplin, 1 Car. & K. 74(5; the moral aspect of the case. Indeed, as Commonwealth t'. Call, 21 Pick. 515; to the law, it was in one case judicially Rex !'. Williams, 1 Moody, 107 ; Reg. ". observed : " Anciently the will was re- Packard, Car. & M. 236 ; Gore's Case, 9 184 CHAP. XXI.] PKODTJCING AN UNINTENDED RESULT. § 328 SO little difference between a disposition to do great harm, and a great disposition to do harm, that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime ; the consequence is, that the guilt of a crime follows the same proportion ; it is greater or less, according as the crime, in its own nature, does greater or less harm." ' The doctrine may otherwise be stated thus : the thing done, having proceeded from a corrupt mind, is to be viewed the same, whether the corruption was of one particular form or another.^ On this principle, — § 328. Homicide ofWrong Person — Killing not intended. — IfonC, intending to murder a particular individual, shoots or strikes at him, and by accident the charge or blow takes effect on another, whom it deprives of life ; ^ or gives poison to a person whom he means to kill, but who innocently passes it to another, not 1 meant, yet who takes it and dies ; * or lays poison for another, ' Co. 81 a; United States v. Ross, 1 Gallis. 624. In The State v. Ruhl, cited above, we have the following illustration of the legal doctrine : Seduction — Mistake of Age. — A statute provided, that, "if any person take or entice away an unmarried female, under the age of fifteen years, from her father or mother, guardian, or otlier person having the legal charge of her person, without their consent, he shall, upon conviction," &c. And a de- fendant, on trial under this statute, where the enticement was for the purpose of defilement, offered to show in his de- fence, that, though the girl was truly under fifteen years of age, she repre- sented herself to him as being older, and he believed the representation, therefore he did not have the requisite crinjinal iritent. But the court rejected the evi- dence, and it was held that this rejection was right. Said Wright, C. J. : "If the defendant enticed the female away for the purpose of defilement or prostitution, there existed a criminal or wrongful in- tent, even though she was over the age of fifteen. The testimony offered was, therefore, irrelevant ; for the only effect of it would have been to show that he intended one wrong, and by mistake committed another. The wrongful in- tent to do one act is only transposed to the other. And, though the wrong in- tended is not indictable, the defendant would still be liable if the wrong done is so." p. 4-50, 451. And see, as to the doctrine of this case, Stat. Crimes, § 359, 632. 1 Ruth. Inst. c. 18, § 9. 2 And see Isham v. The State, 38 Ala. 213, 219. 8 Rex V. Plummer, 12 Mod. 627, 628 ; Rex V. Jarvis, 2 Moody & R. 40 ; GoUi- her V. Commonwealth, 2 Duvall, 163. And see Yong's Case, 4 Co. 40 a ; Rex v. Hunt, 1 Moody, 93 ; Angell v. Smith, 36 Texas, 542 ; Wareham v. The State, 25 Ohio State, 601. And see Barcus v. The State, 49 Missis. 17 ; Reg. u. Stopford, 11 Cox C. C. 643. So if, on a sudden quar- rel, a blow is aimed at one, which acci- dentally takes efi'ect on another, and kills him, this will be manslaughter, the same as if it liad fallen on the person intended. Rex V. Brown, 1 Leach, 4th ed. 148, 1 East P. C. 231, 245, 274. * Reg. V. Saunders, 2 Plow. 473. 185 / § 330 THE EVIL INTENT KEQITIBED. [BOOK IV. I and a third, finding it, takes it and dies ; ^ or, if one attempting I to steal poultry discharges a gun to shoot the poultry, and thereby accidentally kills a human being ; ^ or, if a jailer, with no design against life, confines a prisoner contrary to his will in an unwhole- some room, not allowing him necessaries for cleanliness, whereby the prisoner contracts a distemper of which he dies ; ^ or, if one, with the purpose of procuring an abortion, does an act which causes the child to be born so prematurely as to be less capable of living, and it dies from exposure to the external world,* — the party unintentionally causing the death is guilty, the same as if he had intended it, of murder. So, — § 329. Robbery where Rape meant. — If a man assaults a woman to commit rape upon her, not intending to rob her ; and she, hop- ing to redeem her chastity, offers him money which he puts in his pocket, though he did not demand it ; this is, in law, robbery.^ In like manner, — Arson of Wrong House — Burning not intended. — If one attempts to burn the house of a particular iijdividual, but accidentally burns another's ; ^ or shoots at poultry not his own to steal it, and unde- signedly sets a house on fire ; ^ or, to defraud the insurance ofBce, lights in his own dwelling the flame which communicates unmeant to his neighbor's ; ^ he is guilty of arson. And, " if A command B to burn the house of J. S., and he do so, and the fire burns also another house, the person so commanding is accessory to the burning of the latter house." ^ § 830. Intent and Act need not be Natural Accompaniments. — Looking closely into this doctrine, we see, that the evil of the intent and the evil of the act, added together, constitute what is punished as crime ; the same rule prevailing Jiere as throughout the entire criminal law. And the present peculiarity of this doc- trine is in its teaching, that the intent and the act, which consti- ^ 1 Gore's Case, 9 Co. 81a; Eex ». Jar- « 1 Hawk. P. C. Curw. ed. p. 140, vis, 2 Moody & R. 40; Eex v. Lewis, 6 § 18 ; Koscoe Grim. Ev. 272. Car. & P. 161 ; The State v. Fulkerson, ' Roscoe Crim. Ev. 272 ; 2 East P. C. Phillips, 233. 1019. 2 1 East P. C. 225 ; Eden Penal Law, s Rex v. Proberts, 2 East P. C. 1030, 8d ed. 227. ,1031 ; Rex v. Isaac, 2 East P. C. 1031 ; ' Rex V. Huggins, 2 Stra. 882, 2 Ld. Rex v. Scofield, Cald. 397 ; Eex v. Ped- Eaym. 1674. ley, Cald. 218, 2 East P. C. 102B. * Eeg. V. West, 2 Car. & K. 784. « 2 Plow. 476; 2 East P. C. 1019; s Rex V. Blackham, 2 East P. C. 711. Eoscoe Crim. Ev. 272. 186 CHAP. XXI.J PEODUCrNG AK UNINTENDED KESTJLT. § 332 tute the sum, need not be the natural or usual accompaniments of each other, provided they in fact accompany each other in the particular instance. The consequence of which is, that, — Intent need not be of Indictable Sort. — If the intent is sufficient in degree of turpitude, and a result of the indictable sort pro- ceeds from it casually, the crime is committed, even in cases where, had the exact thing been accomplished which was meant, no indictment would lie.^ For, in many mere civil cases, the intent is sufficient in evU to be indictable, while the act is insufficient in kind, as being directed against individual rights only, not against the public. Yet, as just said, if in these circumstances an unin- tended result comes to the public detriment, of sufficient magni- tude and altogether of the kind punishable as crime, this result subjects the accidental doer to indictment. § 331. Intent to be Malum in Se. — But in these cases of an unintended evil result, the intent whence the act accidentally sprang, must, it seems, be, if specific, to do a thing which is malum in se, and not merely malum prohihitum?' Thus Arch- bold says:^ "When a man, in the execution of one act, by mis- fortune or chance, and not designedly, does another act, for which, if he had wilfully committed it, he would be liable to be punished ; — in that case, if the act' he was doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance ; but, if malum in se, it is otherwise." * For illustration, — § 332. To violate Grame Lawa — (Homicide). — Since it is malum prohibitum, but not malum in se, for an unauthorized person to 1 See ante, § 327, note. in Se — Maintenance. — As to what is ' Keg. I). Plummer, 1 Car. & K. 600 ; malum in se, the Ohio Court, discoursing Reg. V. Packard, Car. & M. 236 ; Com- of maintenance and champerty, ob- monwealth v. Dana, 2 Met. 329 ; Com- served : " It is alleged that such con- monwealth o. Cone, 2 Mass. 132; Com- tracts were never considered as ma/o m.se. monwealth v. Judd, 2 Mass. 329 ; 1 East This will depend on determining whether P. C. 255, 257, 260 ; Eden Penal Law, 3d they be perfectly indiflEerent in them- ed. 227 ; ante, § 210, 286. This doctrine, selves, or whether they involve any de- like many others which it is necessary to gree of public mischief or private injury, lay down in the text, is the combined re- If the latter, they must belong to the suit of general principles and specific au- class of actions denominated mala in se, thorities, but it is in no case fully stated as this appears to be the distinction rec- in words. ognized by the best writers on criminal ' Archb. New Crim. Proced. 9. law." And so the judges considered that * 1 Hale P. C. 39 ; Foster, 259 ; Kos- maintenance is malum in se. Key v. Vat- coe Crim. Ev. 710. Meaning of Malum tier, 1 Ohio, 182. 187 § 334 THE EVIL INTENT EEQUDBED. [BOOK IV. kill game in England contrary to the statutes, if such an one, in unlawfully shooting at game, accidentally kills a man, the result is not criminal in him, any more than if he were authorized.^ But, — To kill another's Fowls — (Homicide). — If one shoots at an- other's fowls, wantonly or in sport (an act which, though only a mere civil trespass, is malum in se), and the death of a human being accidentally follows, this is manslaughter; if his intent were to commit larceny of the- fowls, we have seen ^ that it would be murder.^ § 333. Malum in Se, continued — (How intense in Evil the Intent}. — The formal distinction between malum in se and malum pro- hibitum is not quite apparent in principle, though something like it is. If any law, statutory or common, prohibits a thing, one can hardly be said to intend innocently the doing of it ; and, should the intent to do it exist, while casually the act terminates in a criminal result not intended, there seems in principle to be here the completed crime. Still, as in these cases the intent may be sufficient, though it is to inflict only a civil injury ; * so doubtless there may be circumstances in which it will be inade- quate, though it is to do what, if done, would be indictable. The evil of the intent may be too small in clegree,^ or it may be want- ing in other respects. And into the consideration of a case, in this aspect, the distinction of malum prohibitum and malum in se might well enter. § 334. Intensity of Evil in Intent, continued. — How intensely evil the intent must be to infuse the bane of criminality into the unintended act is not easily stated in a word. Evidently there may be cases wherein, as just intimated, it is too minute in evil for the law's notice, the same as where the act is the true echo of the intent, and as where the culpability consists in carelessness.^ So also, — Degree of Crime — (Homicide — Arson). — As the evil intended is the measure of a man's desert of punishment, and the wrong inflicted on society is the measure of its right to punish him, and there can be no punishment except where the two combine,' — it 1 1 East P. C. 260 ; Roscoe Crim. Ev. « Ante, § 330. 710. / 6 Ante, § 212 et seq. 2 Ante, § 328. . « Ante, § 216. 8 1 Iflast P, C. 255. ' Ante, § 210. 188 CHAP. XXI.J PKODUCnSTG AN TJNINTENDED RESULT. § 336 follows, that, if the offence is one in which there are degrees, like felonious homicide, which is divided into murder and manslaugh- ter, the guilt of the unintending doer must be assigned to the higher or lower degree, according as his intent was more or less intensely wrong.^ And it is reasonable that, where there is no low degree of a very aggravated offence, the law, leaning to mercy, should refuse to recognize, as within it, some cases which would be so regarded if there were a low degree. Thus, we have seen that to shoot imlawfuUy, but not feloniously, at the poultry of another, and thereby accidentally to kill a human being, is manslaughter ; to do the same thing with the felonious intent to steal the poultry is murder.^ On the other hand, if the chargel from the gun, instead of kUling the man, set his house on fire, the burning would be arson only when the intent was to steal ; while, if the intent was simply to execute a civil trespass, no offence would be committed,^ the law having no low degree of arson. But the distinction last mentioned is very technical ; and pos- sibly our American courts will not recognize it to its full extent. § 335. Offences requiring Special Intent. — The doctrine of the transfer of the intent to the unintended act, discussed in this chapter, is limited, like many others, in the scope of its applica- tion. There are offences of the peculiar nature, that, only when the doer intends some specific wrong, do they exist in law ; not being regarded as flowing merely from general malevolence.* Of course, our present doctrine has no application to these offences. Almost of the same sort are some acts which are neither criminal in themselves, nor criminal as proceeding from a corrupt mind, but only when the specific intent is joined to the specific act.® To these offences, also, the doctrine of this chapter does not apply. § 336. Concluding Observations. — In discussing the very delicate and intricate topic of this chapter, the author has been obliged to confine himself chiefly to general views, not descending much 1 Ante, § 321 ; The State v. Smith, 32 * See post, § 342. Maine, 369, ^ Fairlee v. People, 11 111. 1 ; Eex v. 2 Ante, § 328; Eden Penal Law, 3a Simmons, 1 Wils. 329; Rex v. Webb, 1 ed. 227. W. Bl. 19 ; Eex v. Summers, 3 Salk. 194 ; 3 Eoscoe Grim. Ev. 272 ; 2 East P. C. People v. Griffin, 2 Barb. 427; Eex u. 1019. . Scofield, Cald. 397, 403. 189 § 336 THE EVIL INTENT BEQUXBED. [BOOK IV. into their special applications. To make such descent would require more space than can be spared. But they will aid the practitioner in his particular cases nearly as much as an ampler discussion could do ; because the adjudications are not hitherto in the fuU complement necessary to a profitable entering upon detail, while they have furnished us with the means of ascertain- ing the leading principles. 190 CHAP. XXn.] MORE INTENTS THAN ONE. § 340 CHAPTER XXII. MORE DSTTENTS THAN ONE OPEKATING TOGETHEE. § 337. Numerous Motives to one Act. — In the affairs of life, it is seldom a man does any one thing prompted by one motiye alone, to accomplish one end. As, in the material world, all the laws of nature are constantly operating together ; so, in the world of human existence, all the motives about a man are continually exerting their power upon him. N6t in either of these worlds do the impulses come singly, and single results follow. § 338. The Law's Motives. — As a general truth, the criminal law does not take within its cognizance all the motives of men, but only particular ones within its jurisdiction, — just as it does not assume control over all their acts.^ And it is immaterial, in a criminal case, what motives may have operated on the mind of the accused person, or what may have been inoperative, provided the law's motives did or did not influence him. § 339. Surplus Intents. ^-Suppose, then, a man has several in- tents, and, in pursuance of them, together moving him, he does what the law forbids. The rule here is, that, if there are the intents necessary to constitute the offence, and intents not necessary, the latter do not vitiate the former, which in their consequences are the same as though they stood alone.^ Thus,— § 340. Demolishing House. — Under the English statutes against demolishing houses, if one object of a mob attacking a house is to injure a person in it ; yet, if another and even inferior object 1 Ante, § 10, 11. McPike, 3 Cash. 181 ; The State v. " Rex V. Cox, RusB. & Ry. 362 ; Reg. Cocker, 3 Harring. Del. 554 ; The State ». Hill, 2 Moody, 30 ; Rex v. Batt, 6 Car. v. Moore, 12 N. H. 42 ; Rex v. Davis, 1 & P. 329 ; Reg. v. Johnson, 11 Mod. 62 ; Car. & P. 306 ; People v. Carmichael, 5 Reg. V. Geach, 9 Car. & P. 499 ; Rex v. Mich. 10 ; People v. Adwards, 5 Mich. Hayward, 1 Ruse. Crimes, 3d Eng. ed. 22 ; Reg. t>. Hanip, 6 Cox C. C. 167. See 729, Russ. & Ry. 78; Commonwealth v. Reg. v. Doddridge, 8 Cox C. C. 335. 191 § 341 THE EVIL IKTENT EBQTJIRED. [BOOK IV. is to demolish the house, the offence is committed in consequence of this inferior intent.^ So, — "Wounding to do BodUy Harm. — If one with the principal pur- pose of robbing another, attacks him, and, to accomplish more easily the robbery, wounds him with intent to do him grievous bodily harm, the latter intent, though secondary to the former, is within the statute on the latter subject.^ The same rule applies where the chief aim of the prisoner is to prevent his own lawful apprehension. " If both intents existed, it was immaterial which was the principal, and which the secondary one." ^ Also, — Obstructing Officer. — It will not excuse one for obstructing an oificer in his public duties, that the motive was the officer's per- sonal chastisement.* . § 341. Intending TTltimate Good. — And when a man does the ' forbidden thing, moved by the intent prohibited, it is of no avail for him that he also intends an ultimate good. Thus, — Obstructing, yet benefiting' Way, &c. — Repay Forgery, &c. — On an indictment for obstructing a navigable river, the defendant cannot show, that in other respects, and on the whole, his act worked an advantage to its navigation ; ^ or, for obstructing a road, that he opened a better one ;® or, for the nuisance of erect- ing a wharf on public property, that the erection was beneiicial to the public ; ' or, for uttering a forged bill, that he intended to provide for its payment;^ or, for passing a counterfeit bank- note, that he promised to take it back if it proved not to be genuine.' Intent fairly deduoible. — In these cases, the forbidden intent must, of course, to establish the crime, be fairly deducible from the facts and proofs.^" 1 Rex V. Batt, 6 Car. & P. 329 ; Reg. 1037 ; Rex v. Watts, Moody & M. 281 ; V. Howell, 9 Car. & P. 437 ; Rex v. Price, Works o. Junction Railroad, 5 McLean, 5 Car. & P. 510. 425 ; Vol. II. § 1272. 2 Reg. w. Bowen, Car. &M. 149 ; Com- 6 Commonwealth b. Belding, 13 Met. monwealth v. Martin, 17 Mass. 359 ; Rex 10; Vol. II. § 1272. V. Shadbolt, 5 Car. & P. 504. 1 Respublica v. Caldwell, 1 Dall. 150. 8 Rex V. Gillow, 1 Moody, 85, 1 8 Reg. v. Hill, -2 Moody, 30. Lewin, 57. But see, as to the doctrine of » Perdue u. The State, 2 Humph. 494 ; the text, Rex o. Williams, 1 Leach, 4th Vol. II. § 598. ed. 529. 10 Reg. v. Price, 9 Car. & P. 729 ; Rex * United States v. Keen, 5 Mason, 453. v. Boyce, 1 Moody, 29 ; Rex v. Holt, 7 6 Rex V. Ward, 4 A. & E. 384, over- Car. &, P. 518 ; Rex v. Price, 5 Car. & P. ruling Rex o. Russell, 6 B. & C. 566. 510; Rex k. Jarvis, 2 Moody & R. 40; And see Reg. v. Betts, 16 Q. B. 1022, Rex «. Hayward, 1 Russ. Crimes, 3d Eng. 192 CHAP. XXn.] MORE INTENTS THAN ONE. § 344 § 342. Crimes requiring more Intents than one. — There are crimes which require, for their constitution, the concurrence of two or more separate intents ; as, an intent to do wrong in general, or to do a particular wrong, with an ulterior purpose beyond. Thus, — Larceny — Burglary — (Two Intents). — In larceny, there must be, first, an intent to trespass on another's personal property ; secondly, this not being alone suf&cient,^ the further intent to deprive the owner of his ownership therein must be added.^ So burglary consists of the intent, which must be executed, to break in the night-time into a dwelling-house ; and the further concur- rent intent, which may be executed or not, to commit therein some crime which in law is felony.^ In these and other like cases,* the particular or ulterior intent must be proved, in addi- tion to the more general one, in order to make out the offence ; and nothing will answer as a substitute. § 343. Crimes requiring only General Evil Intent. — But aside from what is thus special to exceptional offences, the rule is, that, if a man intends to do what he is conscious the law, which every one is conclusively presumed to know,^ forbids, there need be no other evil intent.^ As already stated,'^ it is of no avail to him that he means, at the same time, an ultimate good. § 344. Human Laws conflicting with Divine. — The highest ulti- mate good which st, man can have in view is obedience to the Divine law, and the blessings flowing therefrom. Yet even this, ed. 729, Russ. & Ey. 78 ; Rex v. Bailey, Russ. & Ry. 626 ; Reg. v. Morris, 9 Car. Rus9. & Ry. 1 ; Rex v. Williams, 1 East & P. 89. P. C. 424 ; Reg. v. Sulliyan, Car. & M. « Ante, § 294. 209. 6 Walls V. The State, 7 Blackf. 572 ; 1 Rex V. Crump, 1 Car. & P. 658 ; The State o. Presnell, 12 Ire. 103 ; For- Rex V. Dickinson, Russ. & Ry. 420 ; Mc- sythe v. The State, 6, Ohio, 19 ; The State Daniel v. The State, 8 Sm. & M. 401. v. Nixon, 18 Vt. 70 ; The State v. Hunter, 2 Reg. V. Godfrey, 8 Car. & P. 563; 8 Blackf. 212; Shover v. The State, 5 Rex V. Wilkinson, Russ. & Ry. 470 ; The Eng. 259 ; Brittin ... The State, 5 Eng. State V. Hawkins, 8 Port. 461. 299 ; Reg. v. Johnson, 11 Mod. 62 ; Rex ' Rex V. Dobbs, 2 East P. C. 513; 2 v. Jones, 2 B. & Ad. 611 ; Needham v. East P. C. 509, 514 ; J. Kel. 47 ; Anony- The State, 1 Texas, 139 ; Reg. v. Tivey, mous, Dalison, 22. 1 Car. & K. 704 ; Perdue v. The State, 2 * Rex V. Gnosil, 1 Car. & P. 304 ; Reg. Humph. 494 ; Reg. «. Price, 3 Per. & D. V. Ryan, 2 Moody & R. 213 ; The State 421, 11 A. & E. 727 ; Rex v. Fursey, 6 V. Absence, 4 Port. 397 ; Rex v. Kelly, 1 Car. & P. 81 ; Kelly v. Commonwealth, Crawf. & Dix C. C. 186 ; Morgan v. The 11 S. & R. .345 : Reg. v. Holroyd, 2 Moody State, 13 Sm. & M. 242 ; Rex v. Shaw, & R. 339 ; The State v. Hart, 4 Ire. 246. ' Ante, § 341. VOL. I. 13 193 § 345 THE EVIL INTEIfT KEQUTRBD. [BOOK IT. to the eye of the human law, does not justify one in disobeying the lower rule. Indeed, the tribunals, while they enforce the human law, cannot admit that it is counter to the divine ; for thus they would acknowledge it to be nuU.^ The stream cannot rise higher than the fountain — no law of man can be superior to the Source of all law, and the rule which emanates from his presence. Before his word of command all things bow. Stat- utes, the judicial decisions of men, the usages of ages, are but rushes in the heavenly gale. A decision, therefore, that a legis- lative act is contrary to the law of God, would be equivalent to holding it void. And a court, that felt itself bound by a statute, could not permit a defendant to show, that he deemed it in coi^- flict with God's law ; because this would be equivalent to receiv- ing from him a plea of ignorance of the law of the land, which, we have seen,^ is not permitted. Therefore a man cannot make the defence in court, that there is a higher law than the one there administered forbidding him to obey the law of the court,^ fur- ther than it may tend to shake the legal validity of the latter. Upon this point. Baron Hume observes, " the practice of all coun- tries is agreed." * The rule lies necessarily at the foundation of all jurisprudence ; yet, necessary though it is, it has shed the innocent blood of almost all the host of martyrs who have lai^ down their lives for conscience' sake. § 345. Evil Intent Indispensable. — This chapter does not teach, that there may be a crime without a criminal intent. WhUe the intent need not necessarily be to do the specific wrong, it must be in some way evil. Even, — statutory Offences. — In statutory offences, there must be an evil intent, though the statute is silent on the subject. It is to be so construed in connection with the common law, which re- quires such intent in every crime, as to add, in favor of a defend- ant,^ this provision.^ A good illustration of this common doctrine is the interpretation given the English statute 12 Geo. 3, c. 48, § 1, which made it felony to write any matter or thing liable to stamp duty upon paper on which had previously been written some 1 And see Bishop First Book, § 87 et < 1 Hume Crim. Law, 2d ed. 25. seq. 5 Stat. Crimes, § 239, 240. 2 Ante, § 294. e And see Crim. Proced. I. § 521-524, ' Speoht V, Commonwealth, 8 Barr, 623-630. 812 ; ante, § 169, note. 194 CHAP. XXII.] MOEB INTENTS THAN ONE. § 345 other matter so liable, before the paper had been again stamped, but made no mention whether the intent need be fraudulent or otherwise. Yet it was ruled by Abinger, C. B., that the offence is not committed unless the intent is fraudulent.^ 1 Reg. V. Allday, 8 Car. & P. 136. 483, 484 ; Beg. v. Philpotts, 1 Car. & K. And see Stat. Crimes, § 132, 240, 351- 112. 362; Sasser v. The State, 13 Ohio, 453, 195 § 347 THE EVIL INTENT BEQITIEED. [BOOK IV. CHAPTER XXIII. NECESSITY AND COMPULSION.^ § 346. Unavoidable Act not Indictable. — " No action," says Rutherforth, " can be criminal, if it is not possible for a man to do otherwise. An unavoidable crime is a contradiction ; what- ever is unavoidable is no crime ; and whatever is a crime is not unavoidable." ^ If, therefore, one seizes the hand of another in which is a weapon, and, in spite of resistance, kills a third person with it, the first only is guilty.^ And always an act done from I compulsion or necessity is not a crime.* To this proposition the I law knows no exception. § 347. Details of the Doctrine. — But while the doctrine thus stated is plain, and to establish its truth' requires no further illus- tration, something as to detail becomes important. The law of self-defence and the defence of one's property will be explained « further on ; ^ but — Save one's Life — Property — (Treason). — Whatever it is neces- j sary for a man to do, to save his life, is, in general, to be consid- ered as compelled.^ If one, therefore, joins with rebels from fear of present death, he is not a traitor while the constraint remains.' ' In connection with this chapter, who, heing in a part of the country that consult Crira. Proced. I. § 493 et seq. is commanded by rebels, yields them, 2 Ruth. Inst. c. 18, § 9 ; Reg. v. Dun- against his will, supply of money or arms nett, 1 Car. & K. 425 ; The Generous, 2 and provisions ; having no means of de- Dods. 322, 323. clining compliance, and being in the rea- * 1 East P. C. 226. sonable fear of military execution if he * 1 Plow. 19; Tate v. The State, 5 refused." 1 Hume Grim. Law, 2d ed. Blackf. 73 ; Reg. v. Bamber, 5 Q. B. 279, 50 ; 1 Alison Grim. Law, 027. "Nay," Dav. & M. 367. says the latter writer, " the same will 8 Post, § 836 et seq. hold without any treasonable insurrec- 8 1 Russ. Crimes, 8d Eng. ed. 600, 661 ; tion, if an ordinary mob, or any unlaw- Oliver V. The State, 17 Ala. 587. ful assembly of persons, compel any in- ' 1 East P. C. 70 ; Rex v. Gordon, 1 dividual, by threats and violence, to East P. C. 71 ; Respublica v. McGarty, 2 accompany them on any unlawful expe- Dall. 86. And see 1 Russ. Crimes, 3d dition, provided he did not yield too Eng. ed. 664, 665. So, in the Scotch easily to intimidation, but held out as law, " a person is not guilty of treason, long as in such circumstances can be ex- 196 CHAP. XXin.] NECESSITY AND COMPULSION. § 349 But an apprehension, however well grounded, of having property \ wasted or destroyed ; or of suffering any other mischief not ' endangering the person ; or even, it has been said, apprehension of personal injury less than will deprive of life ; is not a justifica- tion of a traitorous act.-' § 348.' EilUng Assailant — Innocent Person to save own Iiife. — One attacked by a ruffian may kill him, if he cannot otherwise I save his own life.^ Yet, " according to Lord Hale," says Russell,^ " a man cannot ever excuse the killing of another who is inno- cent, under a threat, however urgent, of losing his own life if he do not comply: so that, if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance.* But upon this it has been observed,^ that, if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity ; though, in case the party might have recourse to the law for his protection from the threats used against him, his fears will certainly furnish no excuse for commit- ting the murder." ^ Still, more recently, Lord Denman laid down ' the broad doctrine, " that no man from fear of consequences to himself has a right to make himself a party to committing mis- chief on mankind." '^ § 349. Taking Soods to save Life. — It is the doctrine generally accepted among our text-writers, that, if one under an emergency however extreme supplies the demand of nature for food or clothing from another's possessions, he commits larceny.* But surely if to save his own life he may join himself to traitors, or take the life of another, he may take another's goods.^ Yet, for a man to be justified, his case must extend beyond mere poverty pected from a man of ordinary resolu- nocent parties has no right to prefer his tion." 1 Alison Grim. Law, 673 ; 1 Hume own life to that of the other. United Crim. Law, 2d ed. 51. States v. Holmes, 1 Wal. Jr. 1. » Rex V. MoGrowther, 1 East P. C. 71 ; 5 i East P. C. 294. Eespublica v. McCarty, 2 Dall. 86. 6 i Russ. Crimes, 3d Eng. ed. 664. 2 4 Bl. Com. 183 ; People v. Doe, 1 ' Reg. v. Tyler, 8 Car. & P. 616. Mich. 451. 8 4 bi. Com. 31 ; 1 Hale P. C. 54, 5,65 ; ' 1 Russ. Crimes, 3d Eng. ed. 664. Dalt. Just. c. 151, § 5; 2 East P. C. 698, * 1 Hale P. C. 51, 434. And see 4 Bl. 699. Com. 30; 1 Broom Leg. Max. 2d ed. 8. ' And see Broom Leg. Max. 2d ed. 8; There are cases in which one of two in- Barrow v. Page, 5 Hayw. 97. 197 § 351 THE EVIL INTENT EEQTTIEED. [BOOK IV. however severe, and be such as could not often arise in this coun- try ; because the laws make provision for the support of the poor, even to the relief of an immediate want.^ § 350. Necessity varying with Circumstances — (The Test). — It is plain that what would justify the doing, of one thing as neces- sary might not that of another. The special facts of each case must be considered. The test would seem to be, whether, under the circumstances, the person was morally free in doing what he did, or whether the doing was produced by constraiut of his will. Thus, — § 351 . Vessel in Stress of Weather — (Breach of Embargo — Revenue Laws). — If, during an embargo, a vessel is by stress of weather compelled to put into a foreign port, and there sell her cargo, for the preservation of the lives and property on board, she will not be adjudged guilty of a breach of the Embargo Act.^ So where, in Virginia (anterior to the establishment of our national Consti- tution), a tempest forced a vessel from Hampton Roads to War- wick before an entry was made at the custom-house at Hampton, this was held to be no breach of the State revenue laws ; it fur- ther appearing, that immediately afterward the entry was made, the duties were secured, and a permit was obtained.^ And if a merchant ship from a foreign port is wrecked on our coast, the goods are not liable to forfeiture, though landed without a per- mit.* For, although revenue laws are in their nature rigid and 1 Grotius, who, with some other writ- necessity in some other manner ; as, by ers, holds that such taking is not theft, applying to the magistrate, or by trying puts the doctrine thus : " For, among whether we cannot obtain the use of theologians also, it is a received opinion, things from the owner by entreaty," and, that, in such a necessity, if any one take when all is over, if " it is possible, resti- what is necessary to his life from any tution should be made." Grotius de Jure other's property, he does not commit Belli et Pacis, II. 2, 7-9, Whewell's theft: of which rule the reason is, not Translation, ii. 238-240. Necessary that which some allege, that the owner Labor — Lord's Day. — As to the neces- of the property is bound to give so much sity which will justify laboring on the to him that needs it, out of charity, but Lord's day, to save a growing crop from this, that all things must be understood destruction and preserve life, see The to be assigned to owners with some such State v. GofE, 20 Ark. 289 ; Vol. II. benevolent exception of the right thus § 959. primitively assigned," — a reason, which, 2 The William Gray, 1 Paine, 16. And if we receive it as good, is still not in see United States v. Brig James Wells, conflict with the one stated in our text. 3 Day, 296, 7 Cranch, 22 ; Anderson v. He adds some " cautions " against car- The Solon, Crabbe, 17. rying " this liberty too far." Among s Stratton v. Hague, 4 Call, 564. other things he says, " that we must first * The Gertrude, 8 Story, 68. And see endeavor in every way to avoid this Eipley v. Gelston, 9 Johns. 201 : Peisch 198 CHAP. XXin.] NECESSITY AND COMPULSION. § 352 unelastic, they " must," in the graceful language of Lord Stowell, " yield to that to which every thing must bend, — to necessity." ^ Compelled to stop in Street. — And a city ordinance, forbidding any one to " suffer " a vehicle to " stop in any street " for more than twenty minutes, is not violated when the stopping is invol- untary .^ Again, — Money seized in a Rebellion. — If one has received public money, which he has undertaken to pay over to the government, yet if a rebellion arises and grows to be a public war, and, without his fault or negligence, the rebel authorities seize and appropriate \ to themselves this money, he is excused.* § 352. KTecessity urgent and -without Fault. — The necessity, tO excuse, must be real and urgent, and not created by the fault or carelessness * of him who pleads it.^ " Where the law," observes Story, J., " imposes a prohibition, it is not left to the discretion of the citizen to comply or not ; he is bound to do every thing in his power to avoid in infringement of it. The necessity which will excuse him for a breach must be instant and imminent, it must be^such as leaves him without hope by ordinary means to comply with the requisitions of the law. It must be such, atj least, as cannot allow a different course without the greatest j jeopardy of life and property. He is not permitted, as in cases of insurance, to seek a port to repair, merely because it is the most convenient, and the most for the interest of the parties con- cerned. He is, on the contrary, bound to seek the port of safety which first presents, if it be one where he may go without viola- tion of the law. In a word, there must be, if not a physical, at least a moral, necessity to authorize the deviation. Under such circumstances the party acts at his peril ; and, if there be any negligence or want of caution, any difficulty or danger which ordinary intrepidity might resist or overcome, or any innocent course which ordinary skill might adopt and pursue, the party cannot be held guiltless, who, under such circumstances, shelters himself behind the plea of necessity." ^ " I do not mean," said ». Ware, 4 Cranch, 347 ; Trueman v. ' United States v. Thomas, 15 Wal. Casks of Gunpowder, Thacher Grim. 337. Cas. 14. * Ante, § 216 et seq., 303, 313 et seq. 1 The Generous, 2 Dods. 322, 323. 5 i East P. C. 255, 277 ; Roscoe Grim. And see Baptiste u. De Volunbrun, 5 Ev. 570; The Joseph, 8 Cranch, 451; Har. & J. 86. Reg. v. Dunnett, 1 Car. & K. 425. ' Commonwealth u. Brooks, 99 Mass. « The Argo, 1 Gallis. 150, 157 ; 8. p. 434. The New York, 3 Wheat. 59. 199 § 355 THE EVIL INTENT BEQTJIEED. [BOOK IV. Lord Stowell, "all the endeavors which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion, and an ordinary knowledge of business." ^ Evidence Clear — Act not exceed Emergency. — The evidence of the necessity must be clear and conclusive.^ And the act must proceed no further than the emergency absolutely requires.^ § 353. Varying with Enormity of Crime. — Some of the foregoing illustrations of necessity are taken from cases quasi criminal or civil. Perhaps, in purely criminal cases of the more aggravated sort, the rule may not be entirely the same. And the proposition is reasonable, that the greater the crime the greater must be the necessity to excuse it.* § 354. Excuse for Delay of Trial — (Overriding Statute). — It was held in Pennsylvania, that, though the law authorized a prisoner to demand his trial at the second term after being in- dicted, one infected with small-pox could not avail himself of this right, because of the necessity of protecting people against a contagious and deadly disease. And, "joer curiam, there is no doubt that necessity, either moral or physical, may raise an avail- able exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was not intended to be required of it." ^ ' Qualifying Form of Allegation. — So necessity may qualify the form of the allegations in an indictment.^ § 355. Command — (Military Officer — Parent — Master — Prin- cipal). — The command of a superior to an inferior, as of a mili- tary officer to a subordinate,'^ or of a parent to a child,* will not justify a criminal act done in pursuance of it ; nor will the com- mand of a master to his servant, or of a principal to his agent ; ^ 1 The Generous, 2 Dods. 322, 324. 480. And see Harmony v. Mitchell, 1 2 Brig James Wells v. United States, Blatch. 549, 13 How. U. S. 115. 7 Craneh, 22; The Generous, 2 Dods. 8 Broom Leg. Max. 2d ed. 11; post, 322, 324 ; The Josefa Segunda, 5 Wheat. § 367 et seq. 338. 9 Hays v. The State, 13 Misso. 246; ! Broom Leg. Max. 2d ed. 9. The State v. Bryant, 14 Misso. 340; Com- * Ante, § 350. monwealth v. Drew, 3 Gush. 279 ; Klif- " Commonwealth v. Jailer, 7 Watts, field v. The State, 4 How. Missis. 304; 366. Schmidt v. The State, 14 Misso. 137 ; The 6 Grim. Proced I. § 498 et seq. State v. Bell,5 Port. 365 ; Tlie State a.Bug- ' United States v. Jones, 3 Wash. C. C. hee, 22 Vt. 32 ; Gurtis v. Knox, 2 Denio, 209,220; Gommonwealth w. Blodgett, 12 341; Brown v. Howard, 14 Johns. 119; Met. 56 ; United States v. Carr, 1 Woods, Commonwealth v. Hadley, 11 Met. 66. 200 CHAP. XXm.] NECESSITY AND COMPULSION. § 355 but in all these cases the person doing the wrongful thing is I guilty, the same as though he had proceeded self-moved. And if/ a servant executes a lawful direction in an unlawful manner, he is responsible.^ Married 'Women — Persons acting under Legal Process. — The partial exception, in favor of women under coverture obeying their husbands, will be treated of in the next chapter. And per- haps persons acting under authority of \egh\ process, and thereby protected, may be regarded as in some sense within the excep- tion.^ 1 Naish V. East India Co., 2 Comyns, 462, 469. 2 Broom Leg. Max. 2d ed. 69. 201 § 358 THE EVIL IKTBNT ESQUIRED. [BOOK IV. CHAPTER XXIV. THE HXrSBAOT)'S PKBSUMED OB ACTUAIi COBECION OP THE WIFE. § 356. Doctrine Artificial. — The doctrine of this chapter rests, in the main, upon mere artiiicial reasoning. Yet it is not quite destitute of other foundation. For, in fact, affection and fear in the wife sometimes operate as a real constraint on her will. § 357. Doctrine in General Terms. — A married woman, or feme covert, — under coverture of her husband, — has not lost by the marriage her general capacity for crime. Yet as the law has cast upon her a certain duty to him, of obedience, of affection, and of confidence,^ it has compensated her by the indulgence that, if through constraint from his will she carries her obedience to the excess of doing unlawful acts, she shall not suffer for them criminally. This consideration for the weaker sex is unknown in Scotland,^ and is probably peculiar to the common law, often re- proached, in other respects, for depriving wives of their rights. Limits of the Doctrine. — The precise limits of the doctrine are, at some points, a little uncertain ; but the following propositions are believed to be reasonably well supported by the authorities. § 358. First. Actual constraint, short of what is mentioned in the last chapter, imposed hy a husband on his wife, will relieve her from the legal guilt of any crime whatever, committed in his pres- ence :^ — Supposed Exceptions — (Treason — Murder — Robbery). — From this proposition the offences of treason and murder, and some add robbery, would appear from observations of judges and text- ' Commonwealth v. Lewis, 1 Met. 151. proved, or be presumable from the cir- ' 1 Alison Grim. Law, 668. cumstances ; the mere presence of the ' The State u. Parkerson, 1 Strob. husband will not excuse the wife. Freel 169 ; 1 Russ. Crimes, 3d Eng. ed. 18-25. v. The State, 21 Ark. 212 ; Edwards ». In Arkansas, this is so by statute. But, The State, 27 Ark. 498. under the statute, the coercion must be 202 CHAP, xxrv.] COEECIOK BY HUSBAND. §359 writers to 'be excepted.^ The reason usually assigned is the enormity of the offences. But this reason seems unsatisfactory in principle ; and^ looking for authority, Mr. Greaves has ob- served, that he finds " no decision which warrants the position." ^ Therefore the true view probably is to disregard this distinction ; and to accept, in place of it, the one, better sustained, to be stated in our section immediately after the next. § 359. Secondly. Whatever, of a criminal nature, the wife does in the presence of her husband, is presumed to he compelled hy him; ^ 1 1 Hawk. p. C. Curw. ed. p. 4, § 11 ; Commonwealth v. Neal, 10 Mass. 152; Kex u. Knight, 1 Car. & P. 116, note ; Kex V. Stapleton, Jehb, 93 ; and the ref- erences in the next note. 2 See the two notes of this able Eng- lish editor in 1 Russ. Crimes, 3d Eng. ed. p. 18, 25. In the second note he says : " Before Somervile's Case, 26 Eliz., and Somerset's Case, a.d. 1615, 1 find no ex- ception to the general rule, that the coer- cion of the husband excuses the act of the wife. See 27 Ass. 40 ; Stamf . P. C. 26, 27, 142 ; Pulton de Pace Regis, 130 ; Br. Abr. Coron. 108 ; Fitz. Abr. Coron. 130, 160, 199. But after those cases I find the following exceptions in the books : Bao. Max. 57, excepts treason only. Dal- ton, c. 147, treason and murder, citing for the latter Mar. Lect. 12 (which I cannot find, perhaps some reader of some Inn of Court). 1 Hale P. C. p. 45, 47, treason, murder, homicide ; and p. 434, treason, murder, and manslaughter. Kelyng, 31, an obiter dictum, murder only. Hawk. b. 1, i;. 1, § 11, treason, murder, and rob- bery. Bl. Com. Vol. I. p. 444, treason and murder ; Vol. IV. p. 29, treason, and mala in se, as murder and the like. Hale, therefore, alone excepts manslaughter, and Hawkins introduces robbery, with- out an authority for so doing; and, on the contrary, in Reg. v. Cruse, 8 Car. & P. 541, a case is cited, where Borough, J., held that the rule extended to robbery. [Por an intimation that it does not ex- tend to robbery, see Rex v. Buncombe, 1 Cox C. C. 183.] It seems long to have been considered that the mere presence of the husband was a coercion (see 4 Bl. Com. 28), and it was so contended in Reg. V. Cruse ; and Bac. Max. 56, ex- pressly states that a wife can neither be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will, and in the next page he says : ' If husband and wife join in committing treason, the necessity of obedience does not excuse the wife's offence, as it does in felony,' Now, if this means that it does not absolutely excuse, as he has stated in the previous page, it is warranted by Somervile's Case, which shows that a wife may be guilty of trea- son in company with her husband, and which would be an exception to the gen- eral rule as stated by Bacon. So also would the conviction of a wife with her husband for murder in any case be an ex- ception to the same rule. Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale ; and it seems by no means improbable that the excep- tions of treason and murder, which seem to have sprung from Somervile's, and Somerset's Case, and which were proba- bly exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or observing that the presence of the hus- band is no longer considered an absolute excuse, but only affords a prima facie presumption that the wife acted by his coercion." 8 Rex V. Price, 8 Car. & P. 19 ; Davis V. The State, 15 Ohio, 72 ; The State v. Nelson, 29 Maine, 329 ; Uhl v. Common- wealth, 6 Grat. 706; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, 53; Reg. v. Laugher, 2 Car. & K. 225; Common- wealth V. Trimmer, 1 Mass. 476 ; Com- monwealth V. Neal, 10 Mass. 152 ; Mar- tin V. Commonwealth, 1 Mass. 347 ; Com* 203 § 360 THE EVIL INTENT EBQUEEBD. [BOOK IV. I while not even a command from him will excuse her, unless she does the act in his presence ; ^ — What is the Presence. — For a married woman to be in the presence of her husband within this rule, ib is not necessary she should be in the same room with him ; but she must be within the range of his personal and present influence, — " near enough," it was said in one case, " to act under his immediate influence and control." ^ Not Entire ^ct in Presence — (Escape — Uttering Counterfeit). — And if an act is completed in the presence of the husband, though begun elsewhere, it is within the rule. Therefore, when " Eliza- beth Ryan, better known by the name of Paddy Brown's wife," had in England been convicted under 16 Geo. 2, c. 31, for con- veying an implement of escape to her husband in prison, she was deemed to have acted under his coercion, rendering her convic- tion wrong; having procured the instrument by his direction.^ Here she was absent until she delivered to him the instrament in, of course, his presence. And where a wife went from house to house uttering base coin ; and her husband accompanied her, but remained outside ; it was held, that her act must be presumed to have proceeded from his coercion.* In this case, however, she was all the while either actually or constructively in his pres- ence. § 360. How on the Authorities — In Principle. — The doctrine that the wife can rely on the husband's coercion only in respect of acts done in his presence has not always been in the minds of the judges, though perhaps never denied by them. But plainly it must be correct ; for surely a wife out of her husband's pres- ence is sufiiciently free from his influence to be answerable for monwealth v. Eagan, 103 Mass. 71 ; The Butler, 1 Allen, 4 ; Commonwealth v. State V. Williams, B5 N. C. 398; J. Kel. Feeney, 13 Allen, 560; The State w.Pot- 31. " Felons came to the house of Rich- ter, 42 Vt. 49f). And see Reg. v. Hill, 3 ard Day, and Margery his wife ; the wife New Sess. Cas. 348, 1 Den. C. C. 453, knew them to be felons, but the husband Temp. & M. 150, 13 Jur. 546; Reg. a. did not, and both of them received them Smith, Dears. & B. 653, 8 Cox C. C. 27 ; and entertained them, but the wife con- Reg. v. Cohen, 11 Cox C. C. 99. sented not to the felony. And it was ad- » Commonwealth ». Burk, 11 Gray, judged, that this made not the wife ac- 437; Commonwealth v. Welch, 97 Mass. cessory." 3 Inst. 108. See also Mc- 593. Keowen v. Johnson, 1 McCord, 578. ' Note to Eex v. Knight, 1 Car. & P. 1 Rex «. Morris, Euss. & Ry. 270; 116. Eex V. Hughes, 1 Russ. Crimes, 3d Eng. « Connolly's Case, 2 Lewin, 229. .ed. 21, 2 Lewin, 229 ; Commonwealth v. 204 CHAP. XXIV.J COERCION BY HUSBAND. § 362 whatever of crime she does, even supposing the general doctrine to be founded in just principle. § 361. Thirdly. The proposition that coercion is presumed from the mere presence of the husband does not apply to certain crimes hy reason of their peculiar nature : -^ What within this Exception — (Treason — Murder — Robbery — Bawdy House, &c.). — The offences within this exception are those which show so much malignity as to render it improbable a wife would be constrained by her husband, without the separate operation of her own will, into their commission ; ^ and those which, while of less magnitude, women are supposed peculiarly to participate in ; so that, in these cases, something more is re- quired than the mere presence to establish the coercion. Of the aggravated offences are treason, probably murder, possibly rob- bery, and it may be that the list should be even more extended.^ Of the offences peculiar to the female sex is the keeping of broth- els and other disorderly houses.^ § 362. Fourthly. The presumption that a wife acts, in her husband's presence, under his coercion, is only prima facie, — liable to be rebutted by evidence ; * — ■ Limits of this Doctrine. — If the testimony merely shows that I the two acted together in a crime, she, though the more busy ' ^ Ante, § 358. , legal science ; while the language of the ^ Reg. V. Cruse, 2 Moody, 53, 8 Car. & judges should be taken as qualified by P. 541 ; Rex V. Stapleton, Jebb, 93 ; J. the facts under discussion. Ijiquor Sell- Kel. 31 ; Rex v. Knight, 1 Car. & P. 116, ing. — In Commonwealth v. Murphy, 2 note ; Commonwealth v. Neal, 10 Mass. Gray, 510, it was held that the wife who 152; Reg. v. Manning, 2 Car. & K. 887, sells intoxicating liquor without license, 903. And see ante, § 358 and note. in her husband's absence, is not pre- ' Rex V. Dixon, 10 Mod. 335 ; Keg. v. sumed to act under his coercion. And "Williams, 10 Mod. 63, 1 Salk. 384 ; The see, as to this, Rex v. Crofts, 7 Mod. 397, State V. Bentz, 11 Misso. 27 ; 1 Hawk. 2 Stra. 1120. See also Commonwealth v. P. C. Curw. ed. p. 5, § 12, and the au- Neal, 10 Mass. 152 ; Martin v. Common- thorities there cited. How Decisions wealth, 1 Mass. 347 ; Commonwealth «. regarded. — It must be acknowledged Trimmer, 1 Mass. 476. that the cases cited to this section will " l.Russ. Crimes, 3d Eng. ed. 22; Rex appear to lawyers who look at decisions v. Price, 8 Car. & P. 19 ; Rex v. Staple- only according to the letter of the Ian- ton, 1 Crawf. & Dix C. C. 163 ; The State guage employed by the judges, as hardly v. Parkerson, 1 Strob. 169 ; Roscoe Crim. sustaining the text. But such is an im- Et. 955; Rex v. Hughes, 2 Lewin, 229; perfect way of looking at them. Each "Wagener v. Bill, 19 Barb. 321 ; Uhl v. case should be contemplated in the light Commonwealth, 6 Grat. 706 ; Reg. v. of the whole subject to which it relates, Torpey, 12 Cox C. C. 45, 2 Eng. Rep. of all analogous subjects, and of subse- 180 ; Commonwealth v. Eagan, 103 Mass. quent discoveries and improvements in 71 ; The State v. Williams, 65 N. C. 398. 205 § 364 THE EVIL INTENT EBQUIEBD. [BOOK IV. one, is to be acquitted.^ But if he was a cripple, confined to his bed, therefore incapable of coercing her ; ^ or, if in fact she was not only the active one, but acting from her own free and uncon- trolled will,^ — then, although he was present, she is to be con- victed. § 363. Fifthly. From the foregoing propositions it follows, that, whatever the offence may be, the wife, like any other person, may he proceeded against jointly with her husband, in the same in- dictment ; and she can rely on the coercion only when the proofs are adduced at the trial ; * — How the Indictment. — The indictment need not even in form negative the coercion.^ Of course, also, she may be indicted without her husband.^ Husband for Wife's Act. — Or, if the wife commits the criminal act by command of the husband, the latter may be indicted for it.7 Wife indicted as Single. — If the wife is indicted alone as a 1 single person, or if she and a man are jointly indicted as single, she can rely on coercion in defence, but she must satisfy the jury of her marriage.^ § 364. Sixthly. The legal relation between husband and wife makes it impossible for her to commit some offences : — ^^ Limits of Doctrine — ^Exercising Trade — Neglect of Apprentice). — For example, she cannot, in England, be convicted jointly with her husband for exercising a trade, not being quaU- 1 Kex V. Price, 8 Car. & P. 19; Bex v. Commonwealth v. Murphy, 2 Gray, 510 Knight, 1 Car. & P. 116 ; Commonwealth Eex v. Morris, 2 Leach, 4th ed. 1096 ». Trimmer, 1 Mass. 476 ; Anonymous, 2 The State v. Montgomery, Cheves, 120 East P. C. 559 ; Eex v. Tolfree, 1 Moody, The State v. Potter, 42 Vt. 495 ; Eeg. v. 243 ; Eeg. v. Matthews, 1 Den. C. C. 596, Boober,4 Cox C. C. 272 ; Commonwealth Temp. & M. 337 ; Eex o. Archer, 1 v. Tryon, .99 Mass. 442. Moody, 143. 5 The State v. Nelson, 29 Maine, 329. " Eeg. V. Pollard, 1 Euss. Crimes, 3d * Commonwealth v. Lewis, 1 Met. 151 ; Eng. ed. 22, cited in Reg. v. Cruse, 2 Eex v. Hanson, Say. 229 ; Eex v. Crofts, Moody, 53. 7 Mod. 397. 8 Uhl V. Commonwealth, 6 Grat. 706 ; ' Williamson v. The State, 16 Ala. Rex V. Dicks, 1 Buss. Crimes, 3d Eng. ed. 431, 436 ; Mulvey v. The State, 43 Ala. 19. See note to Rex v. Knight, 1 Car. & 816 ; Commonwealth v. Barry, 115 Mass. P. 116. 146.. 4 The State v. Nelson, 29 Maine, 329 j s Rex v. Hassall, 2 Car. & P. 434 ; Rex V. Stapleton, 1 Crawf. & Dix C. C. Eeg. v. McGinnes, 11 Cox C. C. 391 ; Eeg. 168 ; Eex v. Thomas, Cas. temp. Hardw. v. Woodward, 8 Car. & P. 661 ; Eeg. v. 278 ; Bex v. Chedwick, 1 Keble, 585, pi. Torpey, 12 Cox C. C. 45, 2 Eng. Eep. 50; The State v. Bentz, 11 Misso. 27; 180. 206 CHAP, XXrV.J COERCION BY HXJSBAOT). § 366 fied ; ^ because in law the exercise of it is his. If she is qualified, the qualification passes to him, and the exercise is still his.^ So if a wife, as well as husband, wilfully neglects to give the husband's apprentice sufficient food, resulting in death, he only can be con- victed of manslaughter ; because, as we have seen,^ there must be a legal duty in these cases to provide the food ; and this duty the law imposes on the husband only, not at aU on the wife.* Perhaps in some circumstances she will be liable on other princi- ples ; for example, if the husband should put into his wife's care food and a young person dependent on him for it, and she should cause this person's death by neglecting to administer it, she would undoubtedly be liable.® § 365. Accessory after Pact. — So, as a wife has no legal right to separate from her husband, she can never be made an acces- sory after the fact to his felony, through harboring him with knowledge of it.^ The same is the Scotch law,'^ where the doc- trine of marital coercion does not prevail.^ Likewise, — Forfeiture for Absence. — As the wife must follow and dwell with her husband, her estate is not subject to forfeiture under an absentee act.^ § 366. Proceedings necessarily against Both. — Also there may be eases in which, tl;iough the wife is liable, the husband must be proceeded against jointly with her. " The principle," a learned judge once observed, " is said to be general, that, for fines and forfeitures incurred by the act of the wife for which the husband is liable, either separately or conjointly with his wife, he must be made a party to the judgment, and equally subject to arrest and imprisonment to enforce the payment." i" Yet, — Wife alone — (Purely Criminal;^ — Liquor Selling). — A feme covert may be convicted alone, under a> penal statute, for selling gin ; because, though she cannot pay damages, she is "as capable of forbearing the crime as a man." And Lee, C. J., observed : " I 1 See Stat. Crimes, § 196 and note. 1 1 Alison Crim. Law, 669. ^ Eeg. V. Atkinson, 2 Ld. Raym. 1248. 8 Ante, § 357. " Ante, § 217; Vol. II. § 643, 659. ' Martin v. Couunonwealth, 1 Mass. * Rex V. Squire, 1 Russ. Crimes,' 3d 347. Eng. ed. 490. lo SafEold, J., in Rather v. The State, 5 See Rex v. Saunders, 7 Car. & P. 1 Port. 132, 137 ; 1 Hawk. P. C. Curw. 277. And see Vol. II. § 661. ed. p. 5, § 13. See, however. The State « 1 Russ. Crimes, 3d Eng. ed. 24 ; Reg. v. Montgomery, Cheres, 120. V. Manning, 2 Car. & K. 887, 903. 207 § 366 THE EVIL INTENT BEQUIRED. [BOOK IV. do not know of any ease where there is a prosecution against a feme covert, for a crime upon the breach of an act for which there is a pecuniary penalty inflicted, and for default of payment cor- poral punishment, that the husband is liable." ^ • Eex V. Crofts, 7 Mod. 397. See also Commonwealtli v. Murphy, 2 Gray, 510 ; ante, § 363. 208 CHAP. XXV.] INCAPACITY FEOM ESTPANCY. § 368 CHAPTER XXV. INFANCY AS INCAPACITATING FOB CRtMB. § 367. Infants, who. — All persons under the age of full legal | capacity, fixed by the common law at twenty-one years in both i males and females, are termed infants. Generally capable — Command of Parent. — Those who have attained what the law deems sufficient maturity in years and understanding, are capable of committing crimes. Nor can they plead in justification the constraint of a parent, as married women can that of the husband.^ § 368. At what Age capable — (Seven — Fourteen). — The period of life at which a capacity for crime commences is not susceptible of being established by an exact rule, which shall operate justly in every possible case. But, on the whole, justice seems best promoted by the existence of some rule. Therefore, at the com-j mon law, a child under seven years is conclusively presumedj incapable of committing any crime. ^ Between seven and four-j teen, the law also deems the child incapable ; but only primA facie so ; and evidence may be received to show a criminal ca-\ pacity.^ The question is, whether there was a guilty knowledge of wrong-doing.* Over fourteen, infants, like aE other persons, 1 Ante, § 355 ; People v. Richmond, Guild, 5 Halst. 163 ; Godfrey v. The 29 Cal. 414. See The State v. Learnard, State, 31 Ala. 323 ; The State v. Doherty, 41 Vt. 585. 2 Tenn. 80; Commonwealth v. Mead, 10 2 Broom Leg. Max. 2d ed. 232 ; 4 Bl. Allen, 398 ; The State, v. Learnard, 41 Com. 23; 1 Russ. Crimes, 3d Eng. ed. 1 ; Vt. 585 ; Reg. v. Vamplew, 3 Fost. & F. Marsh v. Loader, 14 C. B. n. s. 535. Such 620 ; People v. Davis, 1 Wheeler Crim. a child cannot commit a, nuisance even Gas. 230. And see Reg. v. Manley, 1 Cox on its own land. People t. Tawnsend, 3 C. C. 104. Contra, that the burden of Hill, N. Y. 479 ; nor be a vagrant, Rex v. proof is on the infant. The State v. Ar- Inhabitants of King's Langley, 1 Stra. nold, 13 Ire. 184. 631. 4 Rex V. Owen, 4 Car. & P. 236 ; 4 Bl. " The State v. Goin, 9 Humph. 175 ; Com. 23 ; Broom Leg. Max. 2d ed. 233 ; Rex I). Owen, 4 Car. & P. 236 ; Rex v. The State v. Learnard, supra. And see Groombridge, 7 Car. & P. 582 ; The State post, § 370. V. Pugh, 7 Jones, N. C. 61; The State v. VOL. I. 14 209 § 371 THE EVIL INTENT BEQUIKED. [BOOK IV. are prima fade capable ; and he who would set up their incapacity must prove it.^ § 369. Special Offences. — But, as we have seen in respect of married women,^ there may be offences which, by reason of the civil disqualifications of infancy, no minor can commit, whatever his general capacity for crime. The number of these is small. False Pretences — Treason. — A minor, for instance, may obtain goods by a criminal false pretence.^ So he may* be guilty of treason, and thereby forfeit his estate.* Obsolete Distinctions. — The old books have some other distinc- tions, probably not to be received at the present day.^ § 370. Between Seven and Fourteen, again — ^Confessions^. — As to proof of capacity, between seven and fourteen, it is said: " The evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction." ^ Also, observes Lord Hale, " the infant is not to be convict upon his confession." ' Yet evidently the presumption of incapacity de- creases with the increase of years. There is a vast difference between a child a day under fourteen, and one a day over seven. And children bordering on fourteen have been convicted, it is believed properly, on their confessions.^ § 371. Continued. — The cases are numerous, in the older boobs, in which children of very immature years have been convicte * " Thus," says Blackstone, " a girl of thirteen has been burnt for killing her mistress; and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged ; because it ap- peared upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a conscious- ness of guilt, and a discretion to discern between good and evil. And there was an instance in the last century where a boy of eight years old was tried at Abington for firing two barns ; and, 1 1 Russ. Crimes, 3d Bng. ed. 2 ; The « See 1 Eusb. Crimes, 3d Eng. ed. 1, State V. Handy, 4 Harring. Del. 666- ; Irby 2 ; 4 Bl. Com. 23. V. The State, 32 Ga^ 496. In Texas, the « 4 Bl. Com. 24. And see ante, § 368. respectiye ages are by statute fixed at '1 Hale P. C. 27. nine and thirteen. Wusnig w. The State, 8 Rex v. Wild, 1 Moody, 452 ; The 33 Texas, 651. State v. Aaron, 1 Southard, 281 ; The 2 Ante, § 364. State v. Guild, 5 Halst. 163 ; The State 8 People ii. Kendall, 25 Wend. 399. v. Bostiok, 4 Harring. Del. 563 ; s. p. 4 « Boyd V. Banta, Coxe, 266. Bl. Com. 24. 210 CHAP. XXV.] INCAPACITY PEOM IITFANCT. § 373 it appearing that he had malice, revenge, and cunning, he was found grtilty, condemned, and hanged accordingly. Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bed-fellow, there appearing in his whole behavior plain tokens of a mischievous discretion ; and, as the sparing of this boy merely on account of his tender years might be of dangerous consequence to the public by prop- agating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment." ^ So also a negro-slave boy, between ten and eleven years old, was, in Alabama, convicted of the murder of his master's child.^ § 372. Continued. — But the case of a very young child, capa- ble still in law of committing crime by reason of age, should receive a careful attention by the jury, before conviction. A mere appearance of shrewdness, or general intelligence may exist in a mind too immature to incur legal guilt. And, although we may well suppose there are instances in which a child under four- teen should be punished by the tribunals as crimina^, clearly the age of seven years, as the age of possible capacity, is quite too young for punishment to be given at the hand of the law ; though it should be given at the hand of the parent, and the latter, rather than the former, be made to suffer the consequences of its neglect.^ § 373. Crimes depending on Physical Capacity. — There are some things which depend on the physical capacity; and thus, in matri- monial law, a boy under fourteen, or a girl under twelve, cannot contract a perfectly valid marriage.* Even if puberty in fact commenced at an earlier period, the evidence of it wUl not be received.^ Therefore — Rape, &o. — A boy under fourteen cannot commit a rape, or the like offence of carnally abusing a girl under ten years of age, whatever be in fact his physical capabilities.^ In Ohio, this doo- 1 4 Bl. Com. 23, 24. Railroad ». Becker, 76 111. 25. See ante, 2 Godfrey v. The State, 31 Ala. 323. § 368, note. See, for a case in which a girl under four- * 1 Bishop Mar. & Div. § 143, 147. teen seems to have been wrongly ac- ^ i Bishop Mar. & Div. § 146. quitted. Grim. Proced. 11. § 637. « Eeg. v. Jordan, 9 Car. & P. 118 ; ' And see Louisville, &o., Canal u. Eeg. v. Brimilow, 9 Car. & P. 366, 2 Murphy, 9 Bush, 522 ; Chicago, &c., Moo^y, 122 ; Eeg. v. Philips, 8 Car. & P. 211 §373 THE EVIL rNTENT EEQUIEED. [book IV. trine is rejected ; the court permitting the presumption of inca- pacity, in cases of rape, to be overcome by evidence.^ And some of the New York judges have adopted the Ohio rule.^ 736 ; Rex «. Eldershaw, 3 Car. & P. 396; Bex o. Groombridge, 7 Car. & P. 582; Commonwealth v. Green, 2 Pick. 380. And see The State u. Handy, 4 Hairing. Del 566. 1 WilUams v. The State, 14 Ohio, 222. 212 And see O'Meara v. The State, 17 Ohio State, 515 ; Moore v. The State, 17 Ohio State, 521. " People V. Randolph, 2 Parker C. C. 174. And see Vol. II. § 1117. CHAP. XXTI.] "WANT OP MBNTAl CAPACITY. §375 CHAPTER XXVI. WANT OF MENTAL CAPACITY. § 374. Law, not evidence, for this chapter. — The subject of mental incapacity embraces both law and evidence. In these Tolumes we treat only of the law ; the evidence is considered in " Criminal Procedure." ^' § 375. Doctrine defined. — Since a criminal intent is an essen- tial element in every crime,^ a person destitute of the mental capacity to entertain this intent cannot incur legal guilt.^ Names and Classifications. — Names have been given to different forms of mental incapacity ; such as idiocy, lunacy, and the like. And the word insanity is not unfrequently employed in the large sense, as including the whole. But for the purpose of this chap- ter the distinctions they indicate are unimportant, however useful they may be in other inquiries into the infirmities of the mind.* 1 Grim. Proced. XI. § 664-687. 2 Ante, § 206, 287. ^ "la order to constitute a crime, a, person must hare intelligence and ca- pacity enougli to have a criminal intent and purpose. And if his reason and mental powers are so deficient that he has no will, no conscience or controlling mental power ; or if, through the over- whelming violence of mental disease, his intellectual power is for the time oblit- erated; he is not a responsible moral agent, and is not punishable for criminal acts." Shaw, C. J., in Commonwealth V. Rogers, 7 Met. 500, 501. And see Thomas v. The State, 40 Texas, 60, 63; People V. Kleim, Edm. Sel. Cas. 13. * Lord Coke says : " There are four manners of non compos mentis: 1. Idiot, or fool natural ; 2. He who was of good and sound memory, and by the visitation of God has lost it ; 3. Lunaticus, qui gau- det lucidis intervaUis, and sometimes is of good and sound memory, and sometimes non compos mentis ; 4. By his own act, as a, drunkard." These divisions are to some extent recognized at the present day ; but they are embarrassing, for they consfantly call the attention away from the one great question which must nec- essarily control every case — namely, whether the person was mentally capable of entertaining the criminal intent — to special theories of medical science. Clas- sification is not in all things helpful ; and we may doubt whether any classification of mental incapacity, however just and accurate in itself, will aid legal practi- tioners and juries regarding this defence. Lord Coke, in the case from which the above words are quoted, says, that a per- son non compos mentis cannot commit ■petit treason, murder, or felony, because " no felony or murder can be committed without a felonious intent and purpose." "But," he adds, " in some^cases, non com- pos mentis may commit high treason ; as, if he kills or offers to kill the kfng, it is 213 §376 THE EVIL INTENT EEQUTEED. [book IV. § 376. Subject both Simple and Complicated. — The doctrine of insanity as above stated — namely, that it is a lack of the mental capacity to entertain a criminal intent — is plain and axiomatic, neither requiring nor admitting argument. But there are great diificulAies and perplexities in its application to particular cases. The consequence is, that, in our books of the law, discussions as to the application of the doctrine have swollen to enormous pro- portions, while the doctrine itself is often lost out of sight. Degree of Incapacity. — There are degrees both of incapacity and of capacity. And, as the law does not regard small things,^ the mind may be weak, ill formed, or diseased — in other words, insane — in a degree not relieving from criminal responsibility.^ On the other hand, in a mind irresponsible because of insanity, reason and other normal phenomena may appear, inadequate in degree, or otherwise too imperfect, to subject the unfortunate being to the heavy pains provided for wilful wrong-doing.^ high treason, for the king est caput et salus reipublicce, et a capite bona valetudo transit in omnes ; and, for this reason, their persons are so sacred that none can offer them any violence." Beverley's Case, 4 Co. 1236, 124 6. At the present day, no exception like this to the general doctrine is known. It prevails in all criminal causes. 1 Ante, § 212 et seq. 2 Commonwealth v. Mosler, 4 Barr, 264 ; The State r. Stark, 1 Stroh. 479 ; Lord Ferrer's Case, 19 Howell St. Tr. 886, 947 ; Hadfield's Case, 27 Howell St. Tr. 1281, 1286, 1287, 1312, 1323 ; United States V. McGlue, 1 Curt. C. C. 1 ; Hopps V. People, 31 111. 385 ; The State v. Ship- pey, 10 Minn. 223 ; The State v. Jones, 50 N. H. 369 ; People v. Grifeen, Edm. Sel. Cas. 126; People v. Montgomery, 13 Abb. Pr. n. s. 207; The State v. Richards, 39 Conn. 591; The State a. Lawrence, 57 Maine, 574 ; United States V. Holmes, 1 Cliff 98 ; People v. Best, 39 Cal. 690 ; 1 Russ. Crimes, 3d Eng. ed. 9, 18. It will interest the reader to consult, on this question, the trial, for forgery, of Charles B. Huntington, edited by Rob- erts & Warburton, New York, 1857. The principal defence was insanity. The medical witnesses seemed to understand, that, if any particle of insane delusion, 214 however slight, was found in the mental operations of the accused, he ought, therefore, to be acquitted as insane. The judges, on the other hand, erred on some other points quite as much. In the case of Commonwealth v. Mosler, cited above, I Gibson, C. J., speaking of general insan-' ity, observed : " It must be so great as entirely to destroy his perception of right and wrong ; and it is not until that per- ception is thus destroyed that he ceases to be responsible. It must amount to delusion or hallucination, controlling his will, and making the commission of the act, in his apprehension, a duty of over- ruling necessity. The most apt illustra- tion of the latter is the perverted sense of religious obligation which has caused men sometimes to sacriiice their wives and children." p. 266. Again : " The law is, that, whether the insanity be gen- eral or partial, the degree of it must have been so great as to have controlled the will of its subject, and to have taken from him the freedom of moral action." p. 267. ' " A man may be mad on all sub- jects ; and then, though he may have glimmerings of reason, he is not a re- sponsible agent." Gibson, C. J., in Com- monwealth V. Mosler, supra. CHAP. XXVI.] WANT OF MENTAL CAPACITY. § 376 Insane compared -with Immature Mind. — To relieA'^e this diffi- culty, Lord Hale suggests : " The best measure that I can think of is this, — such a person as, la^boring under melancholy distem- pers, hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony."'^ But if we admit, to the full extent, the abstract accuracy of this test, we still derive from it little aid ; because of the radically different workings of an insane mature mind, and a sane immature one.^ At the same time, there are circumstances in which this test may be very profitably applied.^ 1 1 Hale p. C. 30. " Ray Med. Jurisp. Insan. 3d ed. § 8. 3 1, FTceman's Case, and what it suggests. — I cannot but think, that, if the court and jury by whom William Freeman was, in 1846, convicted of the murder of John G. Van Nest, had ap- plied to the ease this old test, they, while professing reverence for the old tests, and holding in disfavor the new, might have seen their way to an acquittal, in- stead of a conviction, of one of the most clearly insane persons ever put on trial for his life. And as this is perhaps the most important case of a modern date relating to this subject, and as sufficient time has now elapsed since the insanity of the prisoner was established by a post- mortem examination to render probable the hope that the temporary passions are subsided, I propose to make a state- ment of it, with some comments. 2. The prisoner was of mixed negro and Indian blood, the former predomi- nating. In early life he had been practi- cally uncared for, and, growing up neglected in education, had been sent by the courts to the State prison and had served out his sentence of five years for stealing a horse, of which offence he was wholly innocent. He left the prison with a deep conviction — termed by his coun- sel an insane delusion, and by the prose- cuting officer an error of judgment to which discharged convicts are subject — that he was entitled to get, from some- body, pay for his time spent in prison under the wrongful sentence. 3. In pursuance of this delusion, or this error of judgment, he applied to magistrates for warrants against those, not naming or knowing them, who had put him into prison ; he called upon the owner of the horse alleged to have been stolen by him, and indistinctly intimated something about pay, and with much feeling mentioned the subject of pay to some other persons. Not getting, of course, any pay, he came to another de- lusion, or error of judgment, namely, that there was no law for him. 4. This led to a third delusion, or er- ror, which was, that by kitting about, as he expressed it, he might, after a while, get pay ; or, at least, he thought this to be a work which he had to do. So he procured a club and a knife, and started out one evening to do his work. He met a man on the road, hesitated whether to attack him, but concluded not to begin then ; went to one or two houses, but made up his mind not to attack there ; came at last to the house of Mr. Van Nest, killed him, his wife, wife's mother, and an infant of two years, wounded a hired man, received a disabling wound in his own hand, went to the stable and took out a horse and fled, — all in an in- credibly short time. His idea in fleeing seems to have been to protect himself from molestation while his wounded hand should heal, so that he might re- sume the work. The horse was an old one, and soon broke down ; so he stabbed the horse, and took another one. 5. Continuing his flight, and attempt- ing to sell this other horse, he was ar- rested; but he denied the homicide, until, being confronted with the dead bodies and the living witnesses, he ac- knowledged all. From this time until he died, he was open and truthful ; stat- 215 §37T THE EVIL INTENT- KEQUTBED. [book rv. § 377. Nature of the Adjudged Cases — How viewed. — In this department of the law, as in every other, we arrive at the legal doo- ing the facts, as far as he was able, to everybody who talked with him. And there was no pretence, that he undertook to feign insanity. The arrest was made in less than twenty-four hours after the homicide was committed 6. On one point, the testimony con- curred ; namely, that the intellect of this prisoner was rery weak. Though the medical witnesses were in conflict on the main question, the most hostile agreed with his own that his intellect was but little above that of the brute ; and one of these hostile witnesses, a leading and most determined one, answered to the prisoner's counsel, on cross-examination, as follows : — " Q. You say he is ignorant ; what is the degree of his intelligence 1 " A. He appears to have but little. " Q. What is the degree of his intel- lect? "A. It is dificult to tell by any ex- aminations that were made there in the jail. He was there to be tried for hfe ; oppressed with the weight of his crimes ; ignorant and deaf, to be sure, but with every motive to conceal and deceive. His intellect is of a low grade, but how much he has, precisely, cannot well be determined under the disadvantages of his situation. " Q. From what you discover, can you compare his intellect to that of any other being? " A. I should not think he has as much intellect as an ordinary child of fourteen years of age. In some respects, he would hardly compare with children of two or three years. " Q. With a child of what age would you compare him in respect to knowl- edge? " A. With a child two or three years old." Hall's Trial of Freeman, p. 343. To illustrate this great imbecility and ignorance, it may be mentioned, that, thougli the prisoner knew and could call by name the letters of the alphabet ; and though, notwithstanding this, he could not read a word ; yet he really believed he could read, would take a book in his 216 hand and say over words and sounds which were not words, just like an infant two years old. He could with diflBiculty count to between twenty and thirty ; but, when he reached the end of his knowl- edge, he would count right on wrongly, not imagining he was not right. He thought he once saw Jesus Christ in the Sabbath school. And this dead flat of ignorance and stupidity was enlivened by no green mound of intelligence and wisdom. He seldom or never asked a question, related nothing without prompt- ing, and seemed entirely indifferent to his fate, even not to know the nature of the peril in which he stood ; though, when the keeper, one night, forgot to bring him the bed which should separate him from the cold stone floor of his cell, whereto he was chained, he could call for it ; and he could ask, whenever he needed, his visitors for tobacco. 7. I cannot speak for his personal ap- pearance, for I never saw him ; but all the witnesses for the defence spoke of a constant idiotic smile upon his face, and of a peculiar way in which he stood and, held his head, as circumstances nearly, if not quite, conclusive. The witnesses for the prosecution did not read these signs in this way, neither did the judges and the jury. 8. The question of his insanity was referred to two successive juries, first, a jury to try whether he had mind enough to be tried ; secondly, a jury to try the main issue. Both found against the plea of insanity ; and the bench of judges concurred, and passed sentence of death. 9. Before this sentence was executed; a writ of error, founded on some rulings in point of law, was obtained from the Supreme Court, and in this latter tribu- nal the verdict was set aside and a new trial ordered. Thereupon the judge of the higher court, who was to preside at the new trial, visited the prisoner in jail ; and, in consequence of what there ap- peared of his mental condition, refused to proceed with the trial. In a few months, this miserable being died ; and no man, I presume, except one dissent- CHAP. XXVI.] WANT OF MENTAL CAPACITY. 377 trine by the twofold process of comparing together the cases ad- judged on the specific questions, and of searching through other ing doctor, who could not let go his grasp upon the judgment he had pro- nounced at the trial, will now dispute, that the post-mortem examination of the brain, taken in connection with the testi- mony at the trial, establishes this as a marked case of clear and indubitable insanity. 10. Indeed, at the trial, those particu- lar medical witnesses who had such ex- perience in insanity as to render their testimony of special value were clear in the opinion, that the prisoner was insane. Hence, Experts in Insanity. — We may conclude, that medical men are unsafe experts in questions of insanity, except frhere, in addition to their medical read- ing, they have had considerable practical experience with the insane. 11. Prejudiced Public. — Another fact to be noted is, that, in this case, an unreasoning outside pressure of excite- ment was bearing hard against the legal tribunal, and demanding the blood of the prisoner. Hence, Continuauce. — We may conclude, that, in all such cases, the judges should yield to such applications for continuance as will enable judge and jury alike to proceed in their duties with- out embarrassment from such pressure. 12. Duty of Lawyers. — Moreover, there is derivable from this case a lesson of duty and of interest, which it may be well for practising lawyers to consider. This poor, demented, accused person was defended by the gentleman — that / is, as leading counsel — who [at the time this note was written] holds the office of Secretary of State of the United States. He was subjected to no little abuse be- cause he undertook the defence of this penniless colored man. In his own mind he was clear that the man was insane j and he dared to do his duty. Soon after- ward, the providence of God, taking away the client, vindicated the advocate. And although I do not deem that the holding of office-, even the highest, where office is sought and won by means too often resorted to in this country, should be looked upon as an honor ; yet, as the public sentiment now is, it is so regarded ; and we may here see how the discharge of a duty did not interfere with the ob- taining of a coveted honor. In a notice in the prefatory part of the second vol- ume of this work, as it appeared in the second edition, I spoke of the obloquy voluntarily incurred by the late Mr. Choate, in bringing forward this defence of insanity in behalf of a prisoner whom, for aught I know, he deemed in his heart to have been a responsible being. The lawyers defending Freeman put their justification on the ground of a, clear conviction of the truth of the plea of in- sanity. If Mr. Choate was himself not clearly convinced of the truth of the plea interposed by him in the case to which I have thus alluded, but was convinced that there was such semblance of truth in it as to render its presentation proper, his justification stands on higher ground. Every accused person has the right to have all proper defences made for him ; and the lawyer who refuses through fear of public obloquy violates honor and a high behest of duty. And see Crim. Proced. I. § 309, 310. 13. Public Insanity. — Finally, let me observe, that, to a species of public insanity, yet not of a kind which excuses for crime, known sometimes by the term negrophobia, should probably this strange conviction of Freeman, in the blaze of the light of the nineteenth century, be more than to any thing else attributed. The reader of the trial will perceive, that, throughout the testimony, there seems to run in the minds of the wit- nesses an idea of the existence of an in- definable something which should hold negroes responsible when acting under a less amount of mind than would consti- tute the standard of responsibility in white men. And, on the other hand, there were gentlemen summoned upon the jury who were challenged to the favor by the prosecuting officer, though they were not set aside, on the ground that they belonged to a class of persons who were supposed to hold opinions which would lead them to show special favor to black men because of their color. 217 ^' 'l^'wi'l^^ § 378 THE EVIL INTENT EEQUTEBD. [BOOK IV. titles for principles to control this one. In looking through other titles of the crimiaal law, we have learned, that, in every crime, there must be the element of a criminal intent ; and, coming to this title, we have discovered the doctrine of insanity to be, that there is no crime where the mind is incapable of entertaining the criminal intent.^ But, on the question of fact, which in each case of alleged insanity is to be decided, whether or not the accused person was mentally capable of entertaining the criminal intent,^ the judges have endeavored to assist the juries ; in doing which, they have often blended their sound law with erroneous views of the phenomena of insanity. For in former times, and even in comparatively modern, the diseases and imperfections of the mind were little understood by the medical faculty, still less by the community at large,^ as indeed there yet remains much to be learned. And the minds of the judges necessarily shared the misapprehensions existing in minds not judicial. Thus, — § 378. Infant, Brute, Wild Beast. — In 1742, On a criminal trial for malicious shooting, Tracy, J., after laying down to the jury the law of insanity substantially in accordance with modern doctrines, proceeded to mingle with it views of fact which would be universally deemed erroneous now. "It must," he said, "be a man that is totally deprived of his understanding and memory, and did not know what he was doing, more than an in- fant, a brute, or a wild beast ; such a one was never the object , of punishment ; therefore he left to the jury the consideration, whether the condition the prisoner was proved to be in showed that he knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did ; and, as it was admitted on the part of the prisoner that he was The delusion of the prosecuting officer, among what I hope will prove to be near who supposed there was such a class in the closing scenes of a great civil war, the community, is one of the marks of wMch could never have been conjured this species of insanity, which, at the up — or, if it had been, would have been time of the trial, existed everywhere speedily closed — but for this universal throughout our country. This negropho- negrophobia insanity, prevailing over our Ina insanity, like the insanity known whole country. South and North alike, heretofore in New England as the Salem In these public delusions, we may learn Witchcraft, — an insanity in wMch the something concerning the delusions delusion is even more in the accuser which affect individual minds, than in the accused, — is one of the ' Ante, § 375, 376. blood-tracks to which all Time will here- s The State v. Jones, 50 N. H. 869. after point with horror. We are now s Ray Med. Jurisp. Insan. 8d ed. § 1. [when this note was originally written] 218 CHAP. XXVI.] "WANT OF MENTAL CAPACITY. § 379 not an idiot, and, as a lunatic, he might have lucid intervals, the jury was to consider what he was at the day when he committed the fact in question. There were many circumstances about buy- ing the powder and the shot, his going backward and forward ; and, if they believed he had the use of his reason and under- stood what he did, then he was not within the exemption of the Jaw, but was as subject to punishment as any other person." i It is now believed, that a man may act without the concurrence of a responsible will, though he is not raving, though he knows what he is about, and lays and executes plans with great shrewdness and sagacity. § 379. Varieties of Forms of Insanity. — It should also be remem- bered, that the phases and manifestations of insanity are in number little less than infinite.^ No reason indeed appears why they may not be even more numerous, certainly more difficult to be understood, than the qualities and phenomena of sound minds ; and our assurance may well be humbled when we reflect, that what is called the learned world, much more the mass of human- kind, still gropes darkly on the borders of intellectual and moral science. Hence, — Language of the Judges. — In examining the cases, not only must we take into the account any misapprehensions of the judges as 1 Arnold's Case, 16 Howell St. Tr. 695, 764, 765. I have copied the above obser- vations from Shelford on Lunacy, 459, 460, where the words of the judge are slightly abridged. 2 A glance at the following classification of insanity, adopted by Dr. Eay, with the reflection that the several subdivisions necessarily run into one another, and also divide themselves indefinitely, will serve to impress us with its vast variety and extent : — 1. Besulting from congenital defect. 2. Besulting from an obstacle to the development of the faculties, super- vening in infancy. Insaniit Defective de- velopment of the fac- ulties. Idiocy Lesion of the faculties subsequent to their de- velopment. Imbecility . Mania. Dementia 1. Resulting from congenital defect. 2. Besulting from an obstacle to the development of the faculties, super- vening in infancy. Intellectual . AfEective i^ General. Partial. •i 1. General. 2. Partial. \ of 1 I 2 . Consecutive to mania, or injuries the brain. 2. Senile, peculiar to old age. 219, § 381 THE EVIL INTENT EEQUIEED. [BOOK IV. to phenomena of insanity, but we must interpret their words in the light of the particular facts in evidence, with reference to which, and not as enunciations of general doctrine, they were spoken. Considerations like these, we have seen,i axe important in the examination of all judicial decisions ; and they are pecu- liarly pertinent to those on this subject. Especially in looking at what is said to a jury should we remember, that judges do not lay down abstract doctrines to juries, but directions applicable to the evidence in review. § 380. Monomania. — There are those who, reasoning from the proposition that the mind is a unit, or that every part receives support from every other, and all the parts constitute together one harmonious whole, have inferred, perhaps truly, that, when one faculty is deficient, or is impaired by disease, or impelled by it into unnatural action, the whole mind suffers.^ But, admitting this to be so, still the general derangement may not in aU cases be sufficient to fall within the cognizance of the law, which does not notice small things.^ Therefore judicial decisions have pro- ceeded on the idea, that monomania is a reality in science ; ia other words, that a person may be insane and irresponsible as to one subject, while sane and responsible on another.* Intermittent Insanity. — The judgments of the courts have pro- ceeded also on the opinion, that general insanity may be inter- mittent, rendering the sufferer responsible for his acts at one time, but irresponsible at another.^ § 381. How Insanity defined. — It follows from the foregoing views, that, in the criminal law, insanity is any defect, weak- ness, or disease of the mind rendering it incapable of entertaining the criminal intent which constitutes one of the elements in every crime. Beyond this, — 1 Ante, § 361, note ; 1 Bishop Mar. & C. J., in Commonwealth v. Hosier, 4 Div. § 63 ; post, § 384, note, par. 4. Barr, 264.- The law is tlie same in Scot- 2 See Ray Med. Jurisp. Insan. 3d ed. land. 1 Alison Grim. Law, 647. Such § 242, 244, 245, 247. also is practically the doctrine of medi- ' Ante, § 212 et seq. cal men. Ray Med. Jurisp. Insan. 8d ed, ' Freeman v. People, 4 Denio, 9 ; § 106, 135, 227. Martin's Case, Shelford Lun. 465 ; Had- 6 Rgg. ^. Renshaw, 11 Jur. 615, 616 field's Case, 27 Howell St. Tr. 1281, 1314. Lord Ferrer's Case, 19 Howell St. Tr. "A man whose mind squints, unless im- 886, 946, 947 ; Hadfield's Case, 27 How peUed to crime by this very mental oh- ell St. Tr. 1281, 1310 ; 1 Beck Med, liqnity, is as much amenable to punish- Jurisp. 10th ed. 756-762. ment as one whose eye squints." Gibson, « 220 CHAP. XXVI.J WANT OP MENTAL CAPACITY. § 383 Test of Insanity. — Many attempts have been made to 'discover, what has been assumed to exist, a form of words termed a test of insanity, which, put into the hands of jurors, can be used by them as a sort of legal yardstick, to measure the evidence and determine whether or not the prisoner had a sufficient length of mental alienation to escape responsibility for his act. But the test has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist. At the same time, the courts, in instructing juries upon the facts of particular cases, have uttered many helpful words, which, though just in law when illumined by the special facts, have been taken up by men not lawyers, set to facts of a different sort, and shown to be, in the new light, abundantly absurd. § 382. How, in Reason, as to Test. — It is undoubtedly too vague, in general, for a judge simply to say to a jury unac- quainted with the law, that they are to acquit the prisoner if they find him incapable of entertaining a criminal intent; be- cause, at least, the nature of the particular evil intent required is to be taken into the account, and this they are entitled to have explained to them. In reason, therefore, the charge of the judge to the jury should show the intent required in the particular in- stance, and the bearing of the testimony upon it. And what will be proper in one ofPence and with reference to one set of proofs may be quite erroneous when, with reference to another offence, or even to the same, the proofs are of a different sort. Conse- quently, — § 383. Question of Fact. — In some late cases, it has been laid down, that whether, in a particular instance, the act alleged to be a crime proceeded from a sane or insane mind,, is a pure question of fact for the jury, not of law for the court ; as, for example, it is a question of fact for the jury, and not of law for the court, whether there is such a disease as dipsomania, and whether the act in question was the product of this disease or of a sound mind.^ It is not in this form that the majority of our courts instruct juries ; yet, in principle, the law is and must be so, while stiU in practice the directions to the jurors should ex- tend to various explanations differing with the particular cases. * 1 The State v. Pike, 49 N. H. 399; v. Johnson, 40 Conn. 136. And see 4 Bradley v. The State, 31 Ind. 492 ; The Law Rev. 236 ; Stevens v. The State, 81 State !>. Jones, 50 N. H. 369; The State Ind. 485. 221 §384 THE EVIL INTENT KEQUIEBD. [book IV. § 384. ' Common Form of the Doctrine. — It is not in all the cases entirely clear what, of the language addressed to the jury, is meant for pure law, and what of it is introduced as mere practi- cal suggestion. But, either as the one or the other, the jury, in the greater number of cases, are in substance directed to consider, whether, when the prisoner committed the act, ^he was in a state to comprehend his relations to other persons, the nature of the act, and its criminal character as against the law (which he is presumed to know) of the land ; i or, what is substantially the same, the direction is to consider whether he was of capacity to be conscious of doing wrong.^ 1 " The law of the land " seems to ex- press the precise legal idea, according to the English judges. Opinion on Insane Criminals, 8 Scott N. R. 595. Yet, as a, practical consideration, they add : " If the question were to be put as to the knowl- edge of the accused, solely and exclu- sively with reference to the law of the land, it. might tend to confound the jury, by inducing them to beliere that an act- ual knowledge of the law of the land was essential in order to lead to a conviction ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the ac- cused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable ; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think la correct, accompanied with such observations and explanations as the cir- cumstances of each particular case may require." lb. p. 602. Lord Lyndhurst in one case employed the words, "of- fence against the laws of God and na- ture." Rex V. Offord, 5 Car. & P. 168 ; s. p. Mansfield, C. J., in Bellingham'a Case, 1 CoUinson Lun. 636 ; Shelford Lun. 462 ; also McAllister v. The State, 17 Ala. 434. The opinion of the English judges, above referred to, was given in answer to questions proposed to them by the House of Lords, growing out of a dis- 222 cussion relative to the acquittal of Me- Naghten. It embraces several interest- ing points on the law of insanity. Besides the report in Scott N. R., as above, it may be found in a note to Reg. V. Higginson, 1 Car. & K. 129, 130, also McNaghten's Case, 10 CI. & P. 200. ^ The reader may consult, besides the last note, the following cases : The State V. Spencer, 1 Zab. 196 ; Roberts v. The State, 3 Kelly, 310; Reg. v. Oxford, 9 Car. & P. 525 ; Commonwealth v. Rogers, 7 Met. 500 ; McNaghten's Case, 10 CI. & P. 200; Rex v. Ofiord, 5 Car. & P. 168» Freeman v. People, 4 Denio, 9 ; People v. Pine, 2 Barb. 566, 572 ; Commonwealth V. Mosler, 4 Barr, 264 ; Reg. v. Renshaw, 11 Jur. 615, 616; Reg. o. Higginson, 1 Car. & K. 129 ; Parker's Case, 1 CoUin- son Lun. 477, Shelford Lun. 460 ; Bow- ler's Case, 1 GoUinson Lun. 673, note, Shelford Lun. 461 ; Martin's Case, Shel- ford Lun. 465 ; McAllister v. The State, 17 Ala. 434 ; The State v. Huting, 21 Misso. 464 ; United States v. Shults, 6 McLean, 121 ; People v. Sprague, 2 Par- ker C. C. 43 ; United States v. McGlue, 1 Curt. C. C. 1 ; Loeffner v. The State, 10 Ohio State, 598; Fisher v. People, 28 111,283; People v. Hurley, 8 Gal. 390; Bovard v. The State, 30 Missis. 600; People V. Coffman, 24 Cal. 230; Willis v. People, 32 N. Y. 715 ; The State v. Wind- sor, 6 Harring. Del. 512 ; People v. Mc- Donell, 47 Cal. 134 ; Dove w. The State, 3 Heisk. 348; People v. Grifien, Edm. Sel. Cas. 126; People v. Kleim, Edm. Sel. Cas. 13 ; People v. Coffman, 24 Cal. 230; The State v. Haywood, Phillips, Q TTAP . XXVI.j WANT OF MENTAL CAPACITY. § 386 § 385. Continued. — The inquiry is directed to the particular thing done, and not to any other ; because, as we have seen,i a man may be responsible for some things, while not for others.^ Of course, also, it relates to the time of the transaction, not to any other time.^ These questions are to be distinguished from those which concern the proof ; for, — The Evidence. — To ascertain the state of the mind at a particular period, we may inquire into its condition both before and after,* — in relation to a particular subject, its condition as to other subjects. § 386. Observations on the Right-and-wrong Test. — There can be no doubt, that every prisoner found insane by the test men- tioned in the section before the last should be acquitted. But a medical, writer, who seems well to comprehend his subject, has said : " It may be asserted, as the result of observation and expe- rience, that, in all lunatics, even in the most degraded idiots, whenever manifestations of any mental action' can be educed, the feeliag of right and wrong may be proved to exist." ^ And all 376; The State v. Brandon, 8 Jones, N. C. 463 ; Reg. v. Davies, 1 Tost. & F. 69 ; Flanagan v. People, 52 N. Y. 467 ; People V. Montgomery, 13 Abb. Pr. n. s. 207 ; Maofarland's Case, 8 Abb. Pr. n. s. 57, 89; Cole's Case, 7 Abb. Pr. n. s. 321; Wagner v. People, 4 Abb. Ap. Dec. 509, 611 ; Willis v. People, 5 Parker C. C. 621 ; ileg. d. Townley, 3 Post. & F. 839 ; Reg. V. Burton, 3 Fost. & F. 772 ; The State v. Lawrence, 57 Maine, 574 ; Humphreys V. The State, 45 Ga. 190 ; Spann v. The State, 47 Ga. 553 ; People v. Best, 39 Cal. 690 ; Loyd o. The State, 45 Ga. 57 ; Reg. i>. Vaughan, 1 Cox C. C. 80. In the Il- linois case of Hopps v. People, 31 111. 385, 391, 392, Brefise, J., observed : " A safe and reasonable test in all cases would be, that, whenever it should ap- pear jfrom the evidence that at the time of doing the act the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act ; and that he would not have done the act but for that affection, he ought to be acquitted. . . . But this un- soundness of mind, or affection of insan- ity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them." 1 Ante, § 380, 382. 2 Roberts v. The State, 3 Kelly, 310 ; Freeman v. People, 4 Denio, 9 ; Kinne v. Klnne, 9 Conn. 102, 105. = Jones V. The State, 13 Ala. 153 ; Hadfield's Case, 27 Howell St. Tr. 1281, 1353 ; Hales u. Petit, 1 Plow. 253, 260 ; People a. Pine, 2 Barb. 566 ; The State V. Stark, 1 Strob. 479 ; Reg. v. Renshaw, 11 Jur. 615, 616 ; Commonwealth v. Rog- ers, 7 Met. 500, 502; The State v. Spen- cer, 1 Zab. 196 ; The State v. Huting, 21 Misso. 464; Shultz a. The State, 13 Texas, 401 ; Crim. Proced. II. § 667. * Freeman v. People, 4 Denio, 9; Jones V. The State, 13 Ala. 153; Dickin- son V. Barber, 9 Mass. 225 ; Grant «. Thompson, 4 Conn. 203 ; Kinne v. Kinne, 9 Conn. 102 ; McLean v. The State, 16 Ala. 672; People v. March, 6 Cal. 543; McAllister i'. The State, 17 Ala, 434; Crim. Proced. II. § 674. ^ Bucknill on Criminal Lunacy, 59. 223 § 387 THE EVIL INTENT EEQIHCRED. [BOOK TV. agree, that, since the intellect is only a part of the mind of man which impels to action, the disease called insanity need not nec- essarily abide solely in the understanding.^ § 387. Continued. — Yet, in a case in which, beyond controversy, the mental disease or imperfection extends only to the intellectual powers, and the party has full control over his actions, the form, now under consideration, of putting the question of insanity to the jury, is correct in legal theory and practically not misleading. How numerous, in fact, the cases of this .class are, it is not pjop- erly for legal science, but for medical, to inquire. But — Irresistible Impulse — Moral Insanity. — The medical writers, it is understood, are in substantial accord on the further proposition, that the mental and physical machine may slip the control of its owner ; and so a man may be conscious of what he is doing, and of its criminal character and consequences, while yet he is im- pelled onward by a power irresistible.^ Now, the question whether or not this opinion is correct, cannot, in its nature, be one of law ; it must be, and it is, a pure question of fact.^ Yet there are cases which either in terms deny this proposition, or hold, that the law takes no cognizance of insanity of this sort, but, if it exists, it furnishes no excuse for an act otherwise criminal. The doctrine of these cases appears to be, that, if a man is conscious he is doing what is wrong, he is responsible to the law, whether he has power over his conduct or not.* But, we have seen,^ it is a principle in nature, and is fundamental in our jurisprudence and in every other, that, in the language of Rutherforth, " what- ever is unavoidable is no crime." These cases, therefore, must be accepted as the mere distinct opinions of the judges, that every man who sees a thing to be wrong has the power to avoid doing it. And justly if one allows his passions to be excited to a frenzy,^ or voluntarily puts his mind out of temporary balance by intoxicating drinks,'' he is answerable to the criminal law for 1 See, on this point, the article before The State, 45 Ga. 57 ; Spann ». The referred to, 4 Law ReV. 236. State, 47 Ga. 653 ; Eeg. v. Burton, 3 Post. 2 1 Beck Med. Jurisp. 10th ed. 723, & F. 772 ; Reg. v. Haynes, 1 Fost. & F. 724 ; Ray Med. Jurisp. Insan. 3d ed. § 17, 666 ; Reg. v. Barton, 3 Cox C. C. 275. 18, 22. 6 Ante, § 346 et seq. 'Ante, §383 and the cases there « Willis ti. People, 5 Parker C. C. 621 ; cited. The State v. Graviotte, 22 La. An. 587 ; * Flanagan v. People, 52 N. Y. 467 j Cole's Case, 7 Abb, Pr. n. s. 321. In re Forman, 54 Barb. 274 ; The State ' Post, § 400 et seq. ; Bradley v. The V. Brandon, 8 Jones, N. C. 463 ; Loyd v. State, 31 Ind. 492 ; The State v. Hundley, 224 CHAP. XXVI.] WAST OF MENTAL CAPACITY. §388 what he does in this condition. But if he is free from moral hlame ; and, in the language of Lord Denman, " if some control- ling disease was in truth the acting power within him, which he could not resist, then he will not be responsible." ^ And the question for the jury, under such a state of the proofs, when the court permits, as it ought, the proofs to be introduced, should be so framed as to comprehend this view.^ § 388. Irresistible Impulse, continued. — According to medical views, which have found some legal recognition, this irresistible impvlse is not always general, but sometimes has reference to a particular class of actions, as, for example, in — " Homicidal Insanity." — " There is," says Gibson, C. J., " a moral or homicidal insanity, consisting of an irresistible inclination to kill, or to commit some other particular offence. There may be an unseen ligament pressing on the mind, drawing it to conse- quences which it sees, but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapa- ble of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, 46 Mieso. 414; People v. Bell, 49 Cal. 485. And see Reg. v. Leigh, 4 Post. & F. 916; The State D.Hart, 29 Iowa, 268; The State v. Johnson, 40 Conn. 136; Roberts v. People, 19 Mich. 401. 1 Reg. V. Oxford, 9 Car. & P. 525, 546. ^ Commonwealth v. Rogers, 7 Met. 600, 602; Roberts ». The State, 3 Kelly, 310; Stevens w. The State, 31 Ind. 485; Bradley v. The State, 31 Ind. 492, 509. In a Kentucky case, it was justly deemed, as it has been in others, that this defence of moral insanity is liable to abuse, therefore that the court should use great caution in presenting to the jury the legal principles by which it is regulated. And the judge added, that, " before this species of insanity can be admitted to excuse crime, it must be shown to exist in such violence as to render it impossi- ble for the party to do otherwise than yield to its promptings." But the court below having, in , matter of law, in- structed the jury "not to acquit upon such moral insanity unless it had mani- fested itself in former acts of similar VOL. I. 16 character, or like nature, of the offence charged," this was held to be wrong ; and for this error a new trial was granted the defendant. Scott v. Commonwealth, 4 Met. Ky . 227, 228, 230. See also Smith ^. Commonwealth, 1 Duvall, 224. And see some sensible views, and a collection of cases, in Taylor Med. Jurisp. The late Prof. Mittermaier, a German jurist of the highest eminence, says, in respect to insanity generally : " The true principle is to look to the personal character of the individual, to the grade of his mental powers, to the notions by which he is governed, to his views of things, and, finally, to the course of his whole life, and the nature of the act with which he is charged. A person who commits a criminal act may be perfectly well ac- quainted with the laws and their prohibi- tions, and yet labor under alienation of mind. He may know that homicide is punished with death, and yet have no freedom of will." Translation 22 Am. Jur. 311, 817, 1 Beck Med. Jurisp. 10th ed. 765, note. 225 § 390 THE EVIL INTENT EEQTJIRED. [BOOK IV. or at least to have evinced itself in more than a single in- stance." 1 § 389. Difficulties of the Subject. — This subject of insanity is, in its practical, legal aspects, attended with great difficulties. Men of sane mind know themselves but imperfectly, and they comprehend others less than themselves ; nor is there language to convey, in exact form, even the little knowledge we possess of the sane mind; When, therefore, we undertake to investigate the phenomena of insanity, to discuss them, and to deduce from the principles of the law the legal rules to govern them, we are embarrassed with difficulties which should make us cautious, and restrain us from any extensive laying down of doctrines for un- seen future causes.^ Therefore, — . § 390. Proceed cautiously. — Judges, counsel, and juries can- not proceed too carefully in their investigation 6f cases of alleged insanity. They may well restrict their theories to the particular facts in issue ; and, though they accept the aid of experts, they should remember that, in questions of this delicate nature, even experts sometimes err. The memorials of our jurisprudence are written all over with cases in which those who are now under- stood to have been insane have been executed as criminals. We think ourselves wiser upon this subject than were our fathers ; undoubtedly we are ; but there is wisdom yet to be acquired. In the days of darkness, it was perhaps better that insane men should suffer death than be permitted to go at large. And until we learn truly to distinguish between sanity and insanity, men must, oh the one hand, suffer as criminals when they ought rather to be under treatment for disease ; and, on the other hand, ' Commonwealth v. Mosler, 4 Barr, tendency developed in previous cases, 264, 267, in which the same learned judge becoming in itself a second nature." See further observed of homicidal insanity : also, as to homicidal mania, Sanchez v. " The frequency of this constitutional People, 4 Parker C. C. 535. And see the malady is fortunately small, and it is notes to the last section, better to confine it within the strictest ^ j),., jj^y has well observed : " No limits. If juries were to allow it as a cases subject to legal inquiry are more general motive, operating in cases of this calculated to puzzle the understandings character, its recognition would destroy of courts and juries, to mock the wisdom social order as well as personal safety, of the learned, and baffle the acuteness To establish it as a justification in any of the shrewd, than those connected with particular case, it is necessary to show, questions of imbecility ; " and, he might by clear proofs, either its contemporane- have added, insanity generally. See ous existence evinced by present circura- Ray Med. Jurisp. Insan. 8d ed. § 104. stances, or the existence of an habitual 226 CHAP. XXVI.] WANT OP MEKTAL CAPACITY. § 392 those truly guilty must sometimes escape punishment under the plea of insanity. § 391. Suggestions to aid Inquiry after the Fact. — Perhaps the following suggestions will aid inquirers : All men are erring. Mere error, therefore, does not relieve from punishment. All men have vicious propensities. Therefore a mere propensity to do evil does not excuse the doer. All men are only in a limited degree deterred from wrong-doing by fear of its consequences. The mere fact, therefore, that one was not fearful of punishment, when doing an act, does not show him to have been insane. All men are more or less regardless of the demands of conscience. So the mere fact that a prisoner showed a hardened heart does not prove him insane,.^ But all sane men act with a uniformity of plan, varied and winding indeed sometimes, yet uniform in the manifestations of mind ; all are under some restraint concerning every question before them ; all derive their knowledge of visible things from what is tangible to their outward senses ; all love the friends who sincerely do them good ; all manifest affection, under ordinary circumstances, for their offspring ; all control them- selves under the pressure of motives sufficient ; all obey, in short, certain laws which we recognize as belonging to the mind of a sane man. "When, therefore, a person is found acting, either at times or habitually, contrary to these known laws, we say that he is more or less insane. Whether his insanity has proceeded far enough ^ to exempt him from criminal responsibility, in a particular instance, is a practical question on which a general statement of views would furnish but little help. § 392. Insane Delusion. — Delusion is, with many, a favorite test of insanity. It was established as a test in the famous case of Hadfield.^ There are even judges who will not admit that there is any other test.* It excuses on the ground of a mistake of fact, already discussed.^ If, then, a man under an aberration of mind even in one particular only, believes a thing to exist, — as, that another in his presence has designs upon his life, and is about to make tlie attack, — and he acts as he would be justified in doing if what he believes were real, in this instance kills the 'LoydB.The State, 45 Ga. 57. In re Torman, 54 Barb. 274; Reg. v. 2 Ante, § 376, 380. Townley, S Fost. & F. 839. And see ' Hadfield's Case, 27 Howell St. Tr. Keg. v. Da vies, 1 Fost. & F. 69; Reg. v. 1281. Law, 2 Fost. & F. 836. * WUlis V. People, 5 Parker C. C. 621 ; 5 Ante; § 301 et seq. 227 § 394 THE EVUi INTENT EEQUIRED. [BOOK IV. man to save his own life, he commits no crime.^ Evidently the doctrine thus laid down is safe in almost any state of the proofs. § 393. Continued. — But, should the mental alienation be ad- mitted to extend only to the particular delusion in evidence, while the mind in all its other faculties and functions was unim- paired, then the 'rule would be, that, if the defendant insanely believed something which, if true, would not legally justify his act, — as, in the language of the English judges, " if his delusion was, that the deceased had inflicted a serious injury to his char- acter and fortune, and he killed him in revenge for such supposed injury, — he would be liable to punishment." ^ But this branch of the doctrine should evidently be applied with great care ; be- cause, in some, if not most, of the cases in ,which it might seem to be applicable, the delusion does in fact extend beyond the precise point we have supposed, whether perceptibly to the casual eye or not. § 394. Continued. — In the case" of Hadfield, — acquitted, as insane, of the high treason of shooting at the king, — though there was evidence of something like general insanity, his prin- cipal delusion was, "that," in the language of his counsel, Mr. Erskine, " he had constant intercourse with the Almighty Author of all things ; that the world was coming to a conclusion ; and that, like our blessed Saviour, he was to sacrifice himself for its salvation." And so he became impressed with the insane delu- sion, " that he must be destroyed, but eught not to destroy him- self;" to bring about which result, he committed the act, in- tending to be arrested and. executed. It seems not to have been a subject of inquiry in this case, whether, if the facts had been as delusively believed, they would have legally justified the act ; but, in the able speech of Mr. Erskine, often commended for its just views,^ the question is presented as turning, both in this 1 McNaghten's Case, 10 CI. & F. 200 ; superior power, which supersedes all Opinion on Insane Criminals, 8 Scott human laws, and the laws of nature." N. R. 595; Commonwealth v. Rogers, 7 Shaw, C. J. Met. 600. In Commonwealth v. Rogers, 2 Opinion on Insane Criminals, 8 the court add the following illustration Scott N. R. 595, 603 ; McNaghten's Case, to the one given in the text: "A com- 10 CI. & F. 200; Bovard v. The State, 30 mon instance is where he fully believes, Missis. 600. that the act he is doing is done by the ' " The great speech of Mr. Erskine in immediate command of God ; and he acts defence of Hadfield has shed new light under the delusive but sincere belief, that upon the law of insanity. So conclusive what he is doing is by the command of a was that celebrated argument, that it is 228 CHAP. XXVI.] WANT OP MENTAL CAPACITY. § 396 case and in others whicli he brings forward by way of illustration, upon delusion simply, without reference to the nature of the ideal facts, as being sufficient or not, if true, to justify the otherwise criminal deed.^ If the insane delusion has reference to some- thing wholly unconnected with the crime, it does not excuse.^ §395. Progressive Developments. — It is impossible to antici- pate all future queries. The diseases of the flesh are ever chang- ing, while remaining in some prominent respects the same ; so will be the diseases of the mind, — those shadows which appear in the advancing light. Deaf and Dumb. — It has been a question, whether one deaf and dumb is therefore irresponsible as being insane. And it is set- tled, that the want of hearing and speech may exist in connec- tion with responsibility for crime,^ — a proposition which no one now would think of denying, being too plain for doubt. § 396. Criminal Responsibility distinguished from Civil. — The reader should not blend the insanity of the criminal law with that of the civil department. These things are different in their natures, depending in some respects on diverse considerations.* Capacity for Crime, and to be tried, distinguished. -; — So neither is the question discussed in this chapter the same which some- times arises preliminarily to the trial ; namely, whether the pris- oner is mentally capable of making his defence. If he is not, the court cannot go on with the case ; ^ or, if he becomes insane after the trial commences, he can neither be sentenced, nor, if sentenced, punished, while his insanity continues.^ now looked upon by the profession as Hadfield's Case, 27 Howell St. Tr. 1281, authority. In the records of forensic 1290, 1311, 1314. See Tlie State v. Gar- eloquence, ancient and modern, nothing diner, Wright, 392, 399 ; Kay Med. is to be found surpassing Erskine's de- Jurisp. Insan. 3d ed. § 8. fence of Hadfield, for condensation, per- ' Freeman v. People, 4 Denio, 9 ; Reg. spicuity, and strength of reasoning, as u. Goode, 7 A. & E. 536 ; Rex v. Pritch- well as for beauty of illustration, and ard, 7 Car. & P. 303 ; Rex v. Dyson, 1 purity of style." Nisbet, J., in Roberts Lewin, 64 ; Jones v. The State, 13 Ala. w. The State, 3 Kelly, 310, 330. 153; People v. Ah Ying, 42 Cal. 18; ' Hadfield's Case, 27 Howell St. Tr. Crim. Proced. n. § 666-668. 1281. And see, on this subject, Martin's * Ereeman v. People, 4 Denio, 9 ; Case, Shelford Lun. 465. Jones v. The State, 13 Ala. 153 ; Shel- 2 The State v. Gut, 13 Minn. 341, 358. ford Lun. 467 ; Bonds v. The State, Mart. ' Commonwealth v. Hill, 14 Mass. & Yerg. 143 ; The State v. Brinyea, 5 207; Reg. «. Whitfield, 3 Car. & K. 121. Ala. 211 ; People v. Lake, 2 Parker G. C. * Reg. V. Oxford, 9 Car. & P. 525; 215; Spann v. The State, 47 Ga. 549. 229 § 399 THE EVIL INTENT EBQUIKED. [BOOK IV. CHAPTER XXVII. DRUNKENNESS AS EXCUSING THE CRIMINAL ACT. § 397,398. Introduction. 399-403. General Doctrine. 404-416. Limitations of the Doetrine. § 397. The Doctrine stated. — We have seen, that, if a man in- tending one wrong accidentally accomplishes another, he is pun- ishable for what is done, though not intended ; except in cases where a specific intent, in distinction from mere general malev- olence or carelessness, is an essential element in the particular crime. That doctrine, explained in a previous chapter,^ is the doctrine of this chapter also. The law deems it wrong for a man to cloud his mind, or excite it to evil action, by the use of intoxicating drinks ; and one who does this, then, moved by the liquor while too drunk to know what he is about, performs what is ordinarily criminal, subjects himself to punishment ; for the • wrongful intent to drink coalesces with the wrongful act done while drunk, and makes the offence complete. This is the prin- ciple ; the previous chapter, therefore, may profitably be con- sulted in connection with this one. Yet the judges, in deciding the cases, have not always had the principle in their minds ; con- sequently the decisions show some zigzag lines of doctrine, and it is necessary we should trace them in detail. § 398. How the Chapter divided. — We shall consider, I. The General Doctrine ; II. Limitations of the Doctrine. I. Tile Creneral Doctrine. § 399. Mere Private Drunkenness not Indictable. — Mere private intoxication, with no act beyond, is not indictable at the com- mon law.^ There are various old English statutes, early enough 1 Ante, § 323 et seq. O'Hanlon v. Myers, 10 Rich. 128. See 2 The State v. Deberry, 5 Ire. 871 ; Smith v. The State, 1 Humph. 896 ; The State v. Waller, 8 Murph. 229 ; Hutchison v. The State, 5 Humph. 142. 230 CHAP. XXVn.J DKTJNKENNBSS EXCUSING ACT. §400 in date to be common law with us, making drunkenness punish- able or finable,^ yet they seem not to haye been regarded as of common-law force in this country. Still, — Supplies Criminal Intent. — The common law has always re- garded drunkenness as being, in a certain sense, criminal. Since, therefore, a man who intends one wrong and does another of the indictable sort is punishable,^ even where the wrong intended would not be so if actually done,^ voluntary drunkenness supplies in ordinary cases the criminal intent. Thus, — § 400. Continued — No Excuse for Crime. — When a man volun- tarily becomes drunk, there is the wrongful intent ; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is liable criminally. It is, therefore, a legal doctrine, applicable in ordinary cases, that vol- imtary intoxication furnishes no excuse for crime committed under its influence.* It is so even when the intoxication is so extreme as to make the person unconscious of what he is doing," or to create a temporary insanity.^ For example, — 1 For example, see Stats. 4 Jac. 1, c. 5 ; 21 Jao. 1, c. 7. For discussions of the offences of drunkenness, being a common drunkard, and tiie like, under American statutes, see Stat. Crimes, § 967-981. 2 Ante, § 327. s Ante, § 330. 4 Kenny v. People, 31 N. Y. 330 ; Peo- ple V. Pine, 2 Barb. 566, 570 ; The State V. Bullock, 13 Ala. 413; The State v. John, 8 Ire. 330; The State v. Stark, 1 Strob. 479 ; The State v. Turner, Wright, 20, 30; United States v. Cornell, 2 Mason, 91, 111 ; Eex v. Ayes, Russ. & Ry. 166 ; Burrow's C^ase, 1 Lewin, 75 ; Rennie's Case, 1 Lewin, 76 ; Pearson's Case, 2 Lewin, 144; United States v. Forbes, Crabbe, 658; Schaller v. The State, 14 Misso. 502; Pennsylvania v. McFall, Addison, 255, 257; Respublica V. Weidle, 2 Dall. 88 ; United States v. Drew, 5 Mason, 28; Whitney o. The State, 8 Misso. 165 ; Pirtle v. The State, 8 Humph. 663 ; Haile v. The State, 11 Humph. 154; Coruwell v. The State, Mart. & Yerg. 147 ; Swan v. The State, 4 Humph. 136 ; Tyra v. Commonwealth, 2 Met. Ky. 1 j Golden v. The State, 25 Ga. 527, 533 ; Golliher v. Commonwealth, 2 Duvall, 163 ; Reg. v. Gamlen, 1 Fost. & F. 90 ; Outlaw v. The State, 35 Texas, 481. And see Hamilton v. Grainger, 5 H. & N. 40 ; Reed v. Harper, 25 Iowa, 87 ; Broom Leg. Max. 2d ed. 18. Lord Coke says : " Although he who is drunk is for the time non compos mentis, yet this drunk- enness does not extenuate his act or of- fence, nor turn to his avail ; but it is a great offence in itself, and therefore ag- gravates his offence, and doth not dero- gate from the act which he did during that time, and that as well in cases touching his life, his lands, his goods, as any other thing that concerns him." Beverley's Case, 4 Co. 123 b, 125 a. And see Commonwealth v. Hart, 2 Brews. 546. It is not, however, strictly true that drunkenness aggravates a crime ; it sim- ply furnishes no excuse. Mclntyre v. People, 38 HI. 514. 5 People V. Garbutt, 17 Mich. 9. And see Henslie v. The State, 3 Heisk. 202. « People V. Lewis, 36 Cal. 531. And see Real v. People,' 42 N. Y. 270; post, §406. 231 § 403 THE EVIL INTENT EBQUIRED. [BOOK IV. § 401. SuppUes Malice in Homicide. — The common law divides indictable homicides into murder and manslaughter; but the specific intent to kill is not necessary in either. A man may be - guilty of murder without intending to take life, or of man- slaughter without so intending, or he may purposely take life without committing any crime. And the doctrine is, that the intention to drink may fully supply the place of malice afore- thought ; so that, if one voluntarily becomes so drunk as not to I know what he is about, and then with a deadly weapon kills another, he commits murder, the same as if he were sober. In other words, the mere fact of drunkenness will not reduce to manslaughter a homicide which would otherwise be murder, much less extract from it altogether its indictable quality.^ Again, — § 402. Cruelty to Animals. — Evidence of intoxication will not avail a defendant charged with cruelty to his horse.^ § 403. Views of European Jurists — Question in Principle. — Many European jurists view drunkenness more leniently, as to crimes committed under its influence, than the common law, thus ex- plained, regards it.^ So likewise does Paley, in his " Moral and Political Philosophy."* In legal principle, the question turns on another; namely, whether drunkenness is to be esteenied 1 Reniger v, Fogossa, 1 Plow. 1, 19 ; in special circumstances drunkenness Beverley's Case, 4 Co. 123 ; United may reduce a killing, which else would States V, Cornell, 2 Mason, 91, 111; be murder, to manslaughter. Consult Mo- Haile v. The State, 11 Humph. 164 ; Pir- Intyre v. People, 38 111. 514 ; Shannahan tie «. The State, 9 Humph. 663 ; Penn- v. Commonwealth, 8 Bush, 463 (overrul- sylvania o. McFall, Addison, 255, 257 ; ing Smith v. Commonwealth, 1 Duvall, Kex V. Carroll, 7 Car. & P. 145 ; Rex v. 224, and Blimm v. Commonwealth, 7 Ayes, Russ. & Ry. 166 ; The State v. Bush, 820) ; Kriel v. Commonwealth, 5 Bullock, 13 Ala. 418 ; The State v. John, Bush, 362 ; Curry v. Commonwealth, 2 8 Ire. 330 ; Rex v. Meakin, 7 Car. & P. Bush, 67. It is believed, however, that 297 ; Mercer v. The State, 17 Ga. 146 ; the doctrine of th^ text is not unsound in People V. Fuller, 2 Parker C. C. 16 ; Peo- legal principle, while it is sustained by pie V. Robinson, 1 Parker C. C. 649; the mass of the authorities. But, in con- Carter V. The State, 12 Texas, 500 ; Com- nection with it, the reader should bear in monwealth v, Hawkins, 8 Gray, 463 ; mind what is laid down, post, § 409, 410, People V. Robinson, 2 Parker C. C. 286; 414, 415. People V. Hammill, 2 Parker C. C. 223 ; 2 The State v. Avery, 44 N. H. 392. The State ii. Harlow, 21 Misso. 446 ; The 3 gee an able article by Mittermaier, State V. Mullen, 14 La. An. 570 ; Mclti- translated from the German, and pub- tyre V. People, 38 111. 614 ; Friery v. Peo- lished at Edinburgh, as No. 10 of the pie, 54 Barb. 319, 2 Keyes, 424 ; The Cabinet Library of Scarce and Cele- State V. Johnson, 41 Conn. 584. There brated Law Tracts, and in the American are, in the books, a few cases which Jurist,'Vol. xxiii. p. 290. seem to lend countenance to the idea that * Paley Phil. b. 4, c. 2. 232 CHAP. XXVn.] DETJNKEITNESS EXCTTSnTG ACT. § 406 malum in se, or only an innocent mistake. Our jurisprudence deems it the former, hence its conclusion.^ II. Limitations of the Doctrine. § 404. 'Whence derivable — How the Decisions. — From a con- sideration of the reasons whence the general doctrine proceeds, as shown under our last sub-title, its limitations will appear. And they are in exact accord with the better modern adjudica- tions ; but there are decisions, particularly of the earlier dates, pronounced by judges who did not have the true limitations in their minds. Let us, therefore, trace out adjudication and prin- ciple a little further. § 405. Drunkenness not Voluntary. — It follows from what has already been said, that, " if a party be made drunk by stratagem, or the fraud of another," or the unskilfulness of his physician, " he is not responsible." ^ Since the drunkenness is without his fault, it cannot supply the criminal intent. § 406. Insanity from Drunkenness. — Again, the law holds men re- sponsible for the immediate consequences of their acts, but not or- dinarily for those more remote. If, therefore, one drinks so deeply, or is so affected by the liquor, that, for the occasion, he is oblivious or insane, he is still punishable for what of evil he does under the influence of the voluntary drunkenness.^ But, if the habit of drinking has created a fixed frenzy or insanity, i „ whether permanent or intermittent, — as, for instance, delirium tremens,* — it is the same as if produced by any other cause,! excusing the act.^ For whenever a man loses his understanding, 1 Ante, § 330-332. * 1 Bishop Mar. & Div. § 131 ; United 2 Parke, J., in Pearson's Case, 2 States u. McGlue, 1 Curt. C. C. 1 ; Ma- Lewin, 144 ; 1 Euss. Crimes, 3d Eng. ed. connehey «. The State, 5 Ohio State, 2 ; 1 Hale P. C. 32 ; People v. Robinson, 77. 2 Parker C. C. 235 ; Choice ». The State, ' United States v. Drew, 5 Mason, 28 ; 31 Ga. 424. Burrow's Case, 1 Lewin, 75 ; Rennie'a 3 Ante, § 399, 400 ; People u. Pine, 2 Case, 1 Lewin, 76 ; Commonwealth v. Barb. 566, 570 ; United States v. Drew, Green, 1 Ashm. 289, 302 ; United States 6 Mason, 28; United States v. Clarke, 2 v. Forbes, Crabbe, 558; Cornwell v. The Cranch C. C. 158 ; United States t. Mc- State, Mart. & Yerg. 147 ; The State v. Glue, 1 Curt. C. C. 1; Bennett ». The Dillahunt, 3 Harring. Del. 551; The State, Mart. & Yerg. 133; Cornwell v. State w. McGonigal, 5 Harring. Del. 510 ; The State, Mart. & Yerg. 147 ; Carter v. Bailey v. The State, 26 Ind. 422 ; Roberts The State, 12 Texas, 500 ; People v. Bell, v. People, 19 Mich 401 ; The State v. 49 Cal. 485 ; The State v. Hundley, 46 Hundley, supra ; Cluck v. The State, 40 Misso. 414. Ind. 263 ; Bradley v. The State, 31 Ind. 233 § 409 THE EVIL INTENT EBQUIBED. [BOOK IV. as a settled condition, he is entitled to legal protection, equally whether the loss is occasioned by his own misconduct or by the dispensation of Providence.^ § 407. Dipsomania. — Writers on medical jurisprudence inform us, that drunkenness, and indeed other causes, sometimes beget a disease called dipsomania, which overmasters the will of its victim, and irresistibly impels him to drink to intoxication.^ Such a case stands, in principle, on a like ground with one of moral in- sanity, considered in a previous chapter.^ We may presume that there 'are courts which will not permit that defence to be introduced; but other courts have allowed it, and have held, that the questions whether there is such a disease, and whether the act was committed under its influence, are not questions of law, but of fact for the jury.* Still, looking at such an inquiry as a mere search after facts, it is obvious that, to distinguish g, case of this sort from one of mere inordinate appetite may be difScult, requiring of judges and jurors great caution. § 408. Oases requiring Specific Intent : — Not supplied b^r Drunkenness. — It is plain, that, when the law requires, as it does in some offences, a specific intent in distinc- tion from mere general malevolence to render a person guilty,^ the intent to drink, and drunkenness following, cannot supply the place of this specific intent.^ Thus, — § 409. Murder of first Degree. — Drunkenness, we have seen,' does not incapacitate one to commit either murder or man- slaughter at the common law ; because, to constitute either, the • specific intent to take life need not exist, but general malevo- lence is sufficient. But where murder is divided by statute into two degrees, and to constitute it in the first degree there must be the specific intent to take life,^ this specific intent does not in fact exist, and the murder is not in this degree, where one, not Imeaning to commit a homicide, becomes so drunk as to be ineapa- jble of intending to do it ; and then, in this condition, kills a man. 492; Boswell ». Commonwealth, 20 Grat. < Ante, § 383; The State v. Pike, 49 860. N. H. 399; The State v. Johnson, 40 1 Bliss V. Connecticut and Pass. Rail- Conn. 186. roatl, 24 Vt. 424 ; Bailey o. The State, ^ Ante, § 297, 298, 820, 335, 342. 26 Ind. 422 ; Choice v. The State, 31 Ga. « Eeg. v. Monkhouse, 4 Cox C. C. 55 ; 424 ; Lanergan v. People, 50 Barb. 266. Eoberts v. People, 19 Mich. 401. See ^ Ray Med. JurLsp. Insan. 3d ed. post, § 412. § 441-447. ' Ante, § 401. 8 Ante, § 387. « Vol. U. § 728. 234 CHAP. XXVn.] DBUNKENNBSS EXCUSING ACT. § 412 In such a case, the courts hold that the offence of murder is only in the second degree.^ § 410. Continued. — This doctrine does not render it impossi- ble for one to commit murder in the first degree while drunk. If he resolves to kill another, then drinks to intoxication, and then kills him, the murder is in the first degree ; because, in this case, he did specifically intend to take life.^ And a man, though drunk, may not be so drunk as to exclude the particular intent.^ Drunkenness short of the extr6me poiiit, therefore, will not re- duce the murder to the second degree.* § 411. Larceny. — Analogous to murder in the first degree is larceny. A mere intentional trespass on another's goods does not constitute it ; but, to this, the specific intent to steal must be added.^ And, though drunkenness does not necessarily dis- qualify a man to commit this offence ; yet, if, without the intent to steal, he becomes so djunk as to be incapable of entertaining it, then, in this condition, he takes another's goods, and relin- quishes them before the intent could come upon him, or returns them the instant his restored mind has cognizance of the posses- sion of them, there is no larceny.^. § 412. Passing Counterfeit Money. — In like manner, a man 1 passing counterfeit money is not liable criminally, if too drunk ' 1 Pirtle V. The State, 9 Humph. 663; » Kenny v. People, 31 N. T. 330. Haile V. The State, 11 Humph. 154; * Keenauu.Commonwealth, 8 Wright, Gwatkin v. Commonwealtli, 9 Leigh, 678 ; Pa. 55. Swan V. The State, 4 Humph. 136; The ^ Ante, § 320, 342; Vol. 11. § 840. State V. Bullock, 13 Ala. 413 ; Pigman v. * I have thus stated the doctrine with The State, 14 Ohio, 555 ; Cornwell ti. The care, as it rests in legal principle, and State, Mart. & Yerg. 147 ; People K. Ham- substantially in the authorities. But mill, 2 Parker 0. C. 223 ; People v. some of the cases, on this question, are Eobinson, 2 Parker C. C. 235; Kelly indistinct and unsatisfactory, and per- V. The State, 3 Sm. & M. 518; People haps some are adverse. The following V. Belencia, 21 Gal. 544 ; Keenan v. are the cases before me, whether for or Commonwealth, 8 Wright, Pa. 55, 57 ; against what I have set down in the text. People a. Williams, 43 Gal. 344; Kelly The State v. Sehingen, 20 Wis. 74; The V. Commonwealth, 1 Grant, Pa. 484 ; State v. Bell, 29 Iowa, 316 ; Henslie v. People o. Batting, 49 How. Pr. 392 ; The State, 3 Heisk. 202 ; Rogers v. The Commonwealth v. Hart, 2 Brews. 546; State, 33 Ind. 543 ; Eex «. Pitman, 2 Car. People V. King, 27 Gal. 507 ; The State & P. 423 ; Commonwealth v. Prench, V. Johnson, 41 Conn. 584; Eafferty v. Thaoher Crim. Cas. 163; O'Herrin ». People, 66 111. 118 ; Jones v. Common- The State, 14 Ind. 420 ; Dawson v. The wealth, 25 Smith, Pa. 403. See O'Brien State, 16 Ind. 428, 429 ; Commonwealth V. People, 48 Barb. 274. v. Finn, 108 Mass. 466 ; The State v. 2 Smith V. Commonw^ealth, 1 Duvall, Hart, 29 Iowa, 268. And see, as illustra- 224. And see The State v. Gut, 13 Minn, tive. People v. Harris, 29 Gal. 678. 341. 235 §414 THE EVIL INTENT KBQUIEED. [book rv. to know it is counterfeit, or, consequently, to entertain the intent to defraud.^ On what Principle. — In the Tennessee court, Reese, J., well ex- pressed the principle, thus : " When the nature and essence of a crime are made, by law, to depend upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact affecting such state and condition of the mind, is a proper subject for consider- ation and inquiry by the jury. The question in such case is, What is the mental status ? " ^ § 413. Attempt. — An indictable attempt is committed only when the intent is specific ; namely, to do the particular thing which constitutes the substantive crime.^ If, therefore, one is too drunk to entertain such specific intent, he cannot become guilty of the offence of attempt, however culpable, in a general way, he may be for his drunkenness.* § 414. Cases not requiring a Specific Intent, wherein still the 1 Pigman v. The State, 14 Ohio, 555 ; United States v. Roudenbush, 1 Bald. 614. 2 Swan V. The State, 4 Humph. 136, 141 ; s. p. Kelly v. The State, 3 Sm. & M. 618 ; Keg. v. Cruse, 8 Car. & P. 541, 546 ; Haile v. The State, 11 Humph. 154 ; Pir- tle V. The State, 9 Humph. 663 ; Keg. v. Moore, 3 Car. & K. 319. In United States V. Koudenbush, supra (at p. 617), Bald- win, J., observed to the jury : " Intoxicar tion is no excuse for crime when the ofEence consists merely in doing a crimi- nal act, without regarding intention. But when the act done is innocent in it- self, and criminal only when done with a corrupt or malicious motive, a jury may, from intoxication, presume that there was a want of criminal intention ; that the reasoning faculty, the power of dis- crimination between right and wrong, was lost in the excitement of the occa- sion. But if the mind still acts, if its reasoning and discriminating faculty re- mains, a state of partial intoxication af- fords no ground of a favorable presump- tion in favor of an honest or innocent intention, in eases where a dishonest and criminal intention would be fairly in- ferred from the commission of the same acts when sober. The simple i^uestion 236 is. Did he know what he was about ? The law depends on the answer to this question. ... If you shall believe, that, when he received these notes at Shive's he was in such a state of intoxication as not to know what he was giving, or what he was receiving in exchange, then you may say that he did not receive them as known counterfeits ; and, before you can find him guilty, will require, besides proof of his passing them as true, proof of his knowledge that they were false." And see ante, § 408. 8 Post, § 728-730. * Reg. V. Doody, 6 Cox C. C. 463 j Reg. V. Stopford, 11 Cox C. C. 643; Mooney v. The State, 33 Ala. 419 ; The State V. Garvey, 11 Minn. 154. And see The State v. Bullock, 13 Ala. 413 ; Reg. V. Cruse, 8 Car. & P. 541, 546. Some courts, indeed, have held, contrary to the general and better doctrine, that, for in- stance, there may be an indictable as- sault with intent to commit murder, where the intent to kill does not in fact exist, but the act would have been mur- der had death ensued. Under this view of the law of attempt, drunkenness can- not, as under the other, be made ground of acquittal. See also Nichols o. The State, 8 Ohio State, 435. CHAP. XXVn.j DRUNKENNESS EXCXJSING ACT. §414 precise state of the Prisoner's Mind is under special circumstances important : — Drunkenness in these Cases. — The doctrines, under the present head, are those which have already been discussed in this chap- ter. It is proposed simply to bring to view some applications of them. Reducing to Manslaughter. — Not conflicting with what is laid down in a previous section,^ it is pretty well settled that there are circumstances in which evidence of intoxication may properly be received to reduce a homicide to manslaughter. Some judges seem not willingly to yield this point ; ^ but the better opinion is, that if, for instance, the question is, whether the killing arose from a provocation which was given at the time, or from previ- ous malice, evidence of the prisoner's having been too drunk to carry malice in his heart may be admitted. And the considera- tion is not to be withheld from the jury, that his di-unkenness may render more weighty the presumption of his having yielded to the provocation, rather than to the previous malice ; because of the fact, that the passions of a drunken man are more easily aroused than those of a sober one. This doctrine differs from the untenable one, that drunkenness excuses or palliates passion or malice.^ So intoxication is relevant to the question, whether J Ante, § 401. * See Commonwealth ». Hawkins, 3 Gray, 463 ; and other cases cited ante, §401. * The State v. McCants, 1 Speers, 884; Rex i;. Thomas, 7 Car. & P. 817; Eex V. Meakin, 7 Car. & P. 297 ; Haile w. The State, 11 Humph. 154 ; Kelly v. The State, 3 Sm. & M. 518; Pearson's Case, 2 Lewin, 144 ; Smith v. Commonwealth, 1 Duvall, 224; Golliher v. Common- wealth, 2 DuTall, 163 ; 3 Greenl. Ev. § 6. But see Eex v. Carroll, 7 Car. & P. 145, overruling Rex u. Grindley, 1 Euss. Crimes, 3d Eng. ed. 8. And see The State V. John, 8 Ire. 330 ; Pirtle v. The State, 9 Humph. 663 ; People v. Robin- son, 2 Parker C. C. 235 ; People v. Ham- mill, 2 Parker C. C. 223. In Haile a. The State, supra, the doctrine was stated as follows : " When the question is, can drunkenness be taken into consideration in determining whether a party be guilty of murder in the second degree, the an- swer must be, that it cannot ; but, when the question is, what was the actual men- tal state of the perpetrator at the time the act was done 1 — was it one of delib- eration and premeditation ? — then it is competent to show any degree of intoxi- cation that may exist, in order that the jury may judge, in view of such intoxi- cation, in connection with all the other facts and circumstances, whether the act was premeditatedly and deliberately done. The law implies malice from the manner in which the killing was done, or the weapon with which the blow was stricken. In such case, it is murder, though the perpetrator was drunk. And no degree of drunkenness will excuse in such case, unless by means of drunken- ness an habitual or fixed madness is caused. The law, in such cases, does not seek to ascertain the actual state of the perpetrator's mind ; for, the fact from which malice is implied having been proved, the law presumes its existence, 237 §416 THE EVIL INTBNT EEQUTRED. [BOOK IV. expressions used by a prisoner sprang from a deliberate, evil pur- pose, or were the mere idle words of a drunken man.i* This evi- dence, moreover, assists in determining whether a defendant acted under the belief that his property or person was about to be attacked.^ § 415. Continued. — In New York, intoxication is deemed per- tinent to the question, whether and how far an act was done in the heat of passion, and in general explanation of the defendant's conduct ; but it will not reduce a killing, which in a sober per- son would be murder, to manslaughter.^ § 416. Conclusion. — This question of drunkenness will neces- sarily present itself in new forms and under new complications as the light and facts of our jurisprudence travel on. And the safe course for counsel and judges is to adhere, in these cases, to those principles which govern the intent, as well when the party is not drunk as when he is. Thus the law will be kept harmonious, and the most exact justice of which it is capable will be adminis- tered in these special cases where intoxication intervenes. and proof in opposition to this presump- • Rex v. Thomas, 7 Car. & P. 817; tion is irrelerant and inadmissible. People v. Eastwood, 4 Kernan, 562. Hence a party cannot show that he was ^ Marshall's Case, 1 Lewin, 76; Keg. so drunk as not to be capable of enter- a. Gamlen, 1 Post. & P. 90. And see taining a malicious feeling. The conclu- Eastwood «. People, 3 Parker C. C. 2Sf sion of law is against him." Opinion by 56. Green, J. See also an article in 16 Law " People v. Eogers, 18 N. Y. 9. And Reporter, 552. And see Rogers v. Peo- see People v. Eastwood, 4 Kernan, 562, pie, 3 Parker C. C. 632; Jones v. The 564; Golden v. State, 25 Ga. 527; The State, 29 Ga. 694. State v. Cross, 27 Misso. 382. 238 CHAP. XKVni.] CAPACITY OF COEPORATIONS. § 419 CHAPTER XXVIII. THE CAPACITY OF COEPOEATIONS FOB CEIMB. § 417. Corporation, what. — A corporation, viewed in reference to the present inquiry,- is a collection of persons, or a single indi- vidual, endowed by law with a separate existence as an artificial being ; differing legally from a man unincorporate in this, that it covers only a part of his circle of action and responsibility.^ To determine what part and how much it covers, we look at its partic- ular nature and objects, and the terms of the act of incorporation. Entertaining Criminal Intent. — Can this artificial being entertain a criminal intent ? It is said, in an old case, that a corporation j is not indictable, but its individual members are.^ And this is correct as to some things. As to others, corporations have al- ways been held to be indictable. § 418. Continued. — Even in civil affairs, the powers of these arti- ficial beings are limited ; but, since the capacity to act is given them by law, no good reason appears why they may not intend to 'act in a criminal manner. And mere intentional wrong acting, we have seen,^ is all that is necessary in a class of criminal cases. Thus,— § 419. Ways — (Towns — Railroad and Turnpike Companies). — Towns and parishes, being corporations of a particular kind, are indictable for nuisance in not repairing the highways and bridges which their duty requires them to repair.* So also are railroad ^ and turnpike ® companies. And, generally, — ^ "A corporation is a body created * Grant on Corp. 283; The State v. by law, composed of individuals united Barksdale, 5 Humph. 154; The State w. under a common name, the members of Murfreesboro', 11 Humph. 217 ; Rex v. which succeed each other, so that the Hendon, 4 B. & Ad. 628. See Sraoot o. body continues the same, notwithstand- Wetumpka, 24 Ala. 112; Vol. II. § 1281. ing the change of the individuals who * Keg. v. Birmingham and Gloucester compose it, and is, for certain purposes, Hallway, 2 Gale & D. 236, 9 Car. & P. considered as a natural person." Angell 469, 6 Jur. 804, 3 Q. B. 228. & Ames Corp. § 1. 6 Waterford and Whitehall Turnpike " Anonymous, 12 Mod. 559. o. People, 9 Barb. 161. 8 Ante, § 343-345. 239 § 420 THE EVIL INTENT EBQTJIKED. [BOOK IV. Neglects. — When the law casts upon any corporation an obH- gation of such a nature that the neglect of it would be indictable in an individual, the corporation neglecting it may be indicted.^ §420. Misfeasance — (Obstruction of Way, &c.). — But while the courts everywhere hold corporations to be thus indictable for non-feasance, it is by some denied that they are for misfeas- ance.^ Accordingly, in Maine, an indictment was adjudged not to lie against a corporation for the nuisance of erecting a dam across a river ; ^ and, in Virginia, for obstructing a highway.* But the contrary is established in England ; and there, if an in- corporated railway company obstructs a highway, — as, for ex- ample, by laying a track over it on a line not conformable to the act of incorporation, — criminal proceedings are maintainable for the nuisance. " Many occurrences may be easily conceived," said Denman, C. J., " full of annoyance and danger to the public, and involving blame in some individual or corporation, of which the most acute person could not clearly define the cause ; or ascribe them with more correctness to mere negligence in pre- venting safeguards, or to an act rendered improper by nothing but the want of safeguards."* This English doctrine prevails also in New Jersey,^ Massachusetts," "Vermont,^ and Tennessee,^ and evidently it is the better doctrine in principle.^" , 1 See the previous notes, also Grant In England it is even held, that a cor- on Corporations, 283 ; People o. Albany, poration may be made a defendant in H Wend. 539 ; Lyme Regis v. Henley, 3 the civil action for assault and battery. B. & Ad. 77, 92, 93 ; Angell & Ames Eastern Counties Railway v. Broom, 6 Corp. § 394. And see Reg. v. Birming- Exch. 314, 15 Jur. 297, 20 Law J. N. ». ham and Gloucester Railway, 1 Gale & Exch. 196. D. 457, 5 Jur. 40. « The State v. Morris and Essex Rail- 2 The State v. Great Works Milling road, 3 Zab. 360. and Man. Co., 20 Maine, 41 ; Common- ' Commonwealth u. New Bedford wealth V. Swift Run Gap Turnpike, 2 Bridge, 2 Gray, 339. Va. Cas. 362 ; The State v. Ohio and 8 The State v. Vermont Central Rail- Mississippi Railroad, 23 Ind. 362. See road, 27 Vt. 103, 80 Vt. 108. The State v. Burlington, 3B Vt. 521. » Louisville and Nashville Railroad ». 8 The State a. Great Works Milling The State, 3 Head, 523. and Man. Co., supra. In such a case, an ^ See also, as lending support to this indictment would lie, the court said, doctrine, Wartman v. Philadelphia, 9 against the individual members commit- Casey, 202 ; Whitfield o. Southeastern ting the act. Railroad, 1 Ellis, B. & E. 115 ; Benson v. * Commonwealth v. Swift Run Gap Manufacturing Co., 9 Met. 562. And Turnpike, supra. see Commonwealth v. Ohio and Pennsyl- 6 Reg. V. Great North of England vania Railroad, 1 Grant, Pa. 329; The Railway, 9 Q. B. 315, 10 Jur. 755, 16 Law State v. Cincinnati fertilizer Co., 24 J. N. 8. M. C. 16 ; Rex v. Medley, 6 Car. Ohio State, 611 ; Two Sicilies v. Wilcox, & P. 292 ; Angell & Ames Corp. § 395. 1 Sim. n. s. 332. 240 CHAP. XXVni.] CAPACITY OF COEPOEATIONS. '§ 423 8 421. Limit to Indictability for Non-feasance. — To render a corporation indictable for a non-feasance, it must have the power of acting ; the same rule applying here as to an individual. Thus,— Railway controlled by Receiver. — If the affairs of a railway cor- poration are under the sole management of a receiver appointed by the Court of Chancery, over whose acts the corporation has no control, it is not liable to a criminal prosecution for the nuisance of obstructing a highway by stopping thereon its trains ; because, said Bennett, J., " no man or corporation should be made crimi- nally responsible for acts which he has no power to prevent." ^ § 422. Iiimit to Indictability for Misfeasance. — Not every act of misfeasance is indictable in a corporation which would be in an individual. It must come within the scope of corporate duty.^ Therefore, — Treason — Felony — Perjury — Assault — Riot, &c. — In a case cited a little way back,^ Denman, C. J., said : " Some dicta occur in the old cases, ' A corporation cannot be guilty of treason or of felony.' It might be added, ' of perjury, or offences against the person.'* The Court of Common Pleas lately held, that cor- porations might be sued in trespass ; but nobody has sought to fix them with acts of immorality. These plainly derive their character from the corrupted mind of the persoia committing them, and are violations of the social duties that belong to men and subjects. A corporation which, as such, has no such duties, cannot be guilty in these cases ; but it may be guilty, as a body corporate, of commanding acts to be done to the nuisance of the community at large." So it is said, that a corporation cannot be guilty of an assault, or riot, or other crime involving personal violence, or any felony.^ § 423. How these Limits in Principle. — But, in principle, the ' The State v. Vermont Central Bail- immortal, and rests only in intendment road, 30 Vt. 108. and consideration of the law. . . . They ^ See ante, § 417. cannot commit treason, nor be outlawed, " Reg. V. Great North of England nor excommunicate, for they have no Eailviray, 9 Q. B. 315, 326. souls, neither can they appear in person, * But see ante, § 420, note. but by attorney." Case of Sutton's Hos- ^ Reg. V. Birmingham and Gloucester pital, 10 Co. 23, 32 6. See, however, a Railway, 2 Gale & D. 236, 9 Car. & P. note to the last section, in which it ap- 469, 6 Jur. 804, 3 Q. B. 223 ; Orr v. Bank pears that a corporation may commit of United States, 1 Ohio, 86. " A cor- assault and battery. poration aggregate of many is invisible, VOL. I. 16 . 241 §424 THE EVIL INTENT EBQITIBED. [book IV. limits of the liability to indictment depend chiefly on the nature and duties of the particular corporation, and the extent of its powers in the special matter. And, though a corporation cannot be hung, there is no reason why it may not be fined, or suffer the loss of its franchise, for the same act which would subject an in- dividual to the gallows. § 424. Individual Members Indictable. — Though a corporation is indictable for a particular wrong, still the individual members and officers who participate in it may be also for the same aet.^ But they are not so liable in all cases in which the corporation is.^ This question is governed by principles sufficiently explained elsewhere in the present volume. 1 Eeg. V. Great North of England Rail- way, 9 Q. B. 315, 327 ; Kane v. People, 3 Wend. 363 ; Edge v. Commonwealth, 7 Barr, 275 ; Kimbrough v. The State, 10 Humph. 97; Rex v. Gaul, Holt, 363; The State v. Conlee, 25 Iowa, 237. See 242 also Sloan i;. The State, 8 Blackf. 361 ; Kane v. People, 8 Wend. 203; Rex v. Kingston, 8 East, 41. ^ The State v. Barksdale, 5 Humph. 154. And see Vol. II. § 1270, 1282. CHAP. XXrS.] "WOKDS TO INDICATE INTENT. § 427 ^ CHAPTER XXIX. BT "WHAT ■WORDS THE INTENT IS IN LEGAI; LANGUAGE IN- DICATED. § 425. Inadequacy of Language. — Human language originated in the wants of men at a period when they had not learned to think, but their ideas were indefinite. And it has been perfected (if that is the right word) by constant use in the conveyance of more vague thoughts than exact ones. Certain scientific terms have been made precise in meaning when scientifically employed ; and this is so, to some extent, in legal science.^ But though the language of the common law is in a high sense cultivated, and many of its words have acquired fixed meanings, there are not separate ones to designate every differing form of the criminal intent. Thus, — § 426. Intent in Larceny. — To constitute larceny, there must be the specific intent to deprive the owner of his ownership in the thing taken ; but to express this intent, the language has no single word. So it employs a circumlocution. And the form which usage has established as adequate, is, to say that the de- fendant " feloniously did steal, take, and carry away " the thing.^ | By force of constant use and adjudication this circumlocution, in the paucity of our language, has been made to answer the pur- pose, and he would be a bold pleader who should dare now to attempt the substitution of another. Other Forms of Intent. — But there are some other forms of the criminal intent which can be more shortly and aptly expressed. The principal single words are the following. § 427. Felonious. — This word, standing singly, rather desig- nates the grade of the crime — that it is "felony " in distinction from misdemeanor — than any particular form of the felonious mtent. Yet, in a sort of general sense, it points to the intent which enters into a felony .^ 1 Stat. CrimeB, § 269. » Crim. Proced. I. § 522, 53a-537. * Crim. Proced. II. § 697. 243 § 429 THE EVIL ESTTENT EBQIHRED. [BOOK IV. "WiHul — Malicious. — The appropriate place for these words is in criminal pleading, where they are established too firmly to be uprooted.^ They are too vague in meaning to be often employed in discussions of the law itself, except by one who has no dis- tinct ideas to convey, and who wishes to appear learned when he is not. Naturally, therefore, they are not unfrequently found in statutes. § 428. 'Wilful. — " Wilfully " sometimes means little more than plain intentionally, or designedly.^ Yet it' is more frequently understood to extend a little further, and approximate the idea of the milder kind of legal malice ; that is, as signifying an evil intent without justifiable excuse.^ And Shaw, C. J., once re- marked in a Massachusetts ease, that, " in the ordinary sense in which it is used in statutes, it means not merely ' voluntarily,' but with a bad purpose ; " * in other words, it means corruptly.^ § 429. Malice — Malice Aforethought. — " Malice," " malicious," " maliciously," are words more purely technical in their legal use than " wilfully." ^ " Malice aforethought " is a technical phrase employed in indictments ; and, with the word " murder," distin- guishes the felonious killing called murder from what is called manslaughter.'' In opinions of courts and other law writings we frequently meet with language from which it might be inferred that the word " malice " alone signifies the same thing as " malice aforethought ; " * but the better use makes a distinction, and assigns to the former a meaning somewhat less intense in respect of wickedness than to the latter.^ Malice, in legal phrase, is 1 Bout. Law Diet., Malice, Wilfully ; Cas. 143 ; Smith v. Wilcox, 47 Vt. 537 ; Rex V. Richards, 7 D. & R. 665 ; Rex v. The State v. Townsell, 3 Heisk. 6. Stevens, 6 B. & C. 246. e Ante, § 427. 2 Bouv. Law Diet., Wilfully ; Reg. v. ' 1 Chitty Crim. Law, 243 ; Bout. Holroyd, 2 Moody & R. 339; Common- Law Diet., Malice Aforethought; Rex ». •wealth V. Bradford, 9 Met. 268 ; Harrison Kieholson, 1 East P. C. 346. But see, as V. The State, 87 Ala. 154. to Arkansas, Anderson v. The State, 5 3 The State ». Abram, 10 Ala, 928 ; Pike, 444. And see Crim. Proced. II. Carpenter v. Mason, 4 Per. & D. 439, 12 § 497-502, 544-549. A. & E. 629 ; McCoy v. The State, 3 s 4 bi. Com. 198, 199 ; 3 Greenl. Ev. Eng. 451; Chapman v. Commonwealth, §144; Beauohamp k. The State, 6 Blackf . 6 Whart. 427, 429. 299 ; Commonwealth u. Green, 1 Ashm. * Commonwealth a. Kneeland, 20 289, 296. Pick. 206, 220. 9 Reg. v. Griffiths. 8 Car. & P. 248 ; ' The State v. Gardner, 2 Misso. 23 ; Anonymous, s. c. 2 Moody, 40. And see Reg. a. Ellis, Car. & M. 564' ; United Wright v. The State, 9 Yerg. 342. As to States V. Railroad Cars, 1 Abb. U. S. the meaning of the words " malice afore- 196 ; The State v. Preston, 34 Wis. 675. thought," see Reg. v. Tyler, 8 Car. & P. See Trimble v. Commonwealth, 2 Va. 616, 620; United States v. Cornell, 2 244 CHAP. XXlX.] "WORDS TO INDICATE INTENT. §429 never understood to denote general malevolence, or unkindness of heart, or enmity toward a particular individual ; but it signi- fies rather the intent from which flows any unlawful and inju- rious act, committed without legal justification.^ A Massachusetts case decides that the word " maliciously," in the statute against malicious mischief, is not sufficiently defined as "the wilfully doing of any act prohibited by law, and for which the defendant has no lawful excuse ; " but it means more.^ And the words " wilful and malicious " cover together a broader meaning than the word "wilful " alone.^ Sometimes malice is a mere inference of law from facts proved.* Hence the distinction between ex- pressed and implied malice.^ Mason, 60, 91 ; Th'fe State v. Will, 1 Dev. & Bat. 121, 163; Beauchamp v. The State, 6 Blackf. 299 ; The State v. Sim- mons, 3 Ala. 497 ; Vol. II. § 672 et seq. ' Commonwealth v. Snelling, 15 Pick. 837; The State ». Crawford, 2 Dev. 425, 428, 429; Commonwealth v. Green, 1 Ashm. 289, 296 ; Bromage u. Prosser, 4 B. & C. 247, 265; Dexter v. Spear, 4 Mason, 115; Commonwealth v. Bonner, 9 Met. 410 ; The State v. Doig, 2 Rich. 179; Eeg. v. Tivey, 1 Den. C. C. 63; Eex V. Salmon, Russ. & Ry. 26 ; Respub- lica V. Teischer, 1 Dall. 335 ; Rex v. Rey- nolds, Euss. & Ry. 465 ; Rex v. Hunt, 1 Moody, 93 ; Griffln v. Chiibb, 7 Texas, 603, 615; 2 Greenl. Et. § 453. And see Taylor w. The State, 4 Ga. 14; McGurn V. Brackett, 33 Maine, 331 ; The State o. Pierce, 7 Ala. 728 ; Dozier v. The State, 26 Ga. 156 ; United States v. Taylor, 2 Sumner, 584. ^ Commonwealth v. Walden, 3 Cush. 558. And see Stat. Crimes, § 434, 435, 437 ; Eeg. v. Pembliton, Law Rep. 2 C. C. 119, 12 Cox C. C. 607; Reg. v. Upton, 5 Cox C. C. 298. * The State v. Alexander, 14 Rich. 247. * Worley ». The State, 11 Humph. 172 ; Commonwealth a. Green, 1 Ashm. 289, 296; Beauchamp «. The State, 6 Blackf. 299 ; The State v. Town, Wright, 75 ; 1 East P. C. 371. 6 Anthony v. The State, 13 Sm. & M. 263 ; Bromage v. Prosser, 4 B. & C. 247, 256, 266 ; Vol. II. § 675. 245 § 432 THE ACT EEQUIEED. [BOOK V. BOOK V. THE ACT WHICH MUST COMBINE WITH THE EVIL INTENT TO CONSTITUTE CRIME. CHAPTER XXX. THE GENERAL NATTJEB OF THE EEQUIEED ACT. § 430. Act and Intent Combining. — In a previous chapter ^ was considered the doctrine that only by a combination of act and intent is crime constituted. No amount of intent alone is suffi- cient ; neither is any amount of act alone : the two must combine.^ § 431. The Sort of Act. — Also, in the foregoing discussions, some further preliminary views relating to the act have appeared. There must be an act, else the public, which prosecutes, has not suffered, and has no occasion to complain,^ — it must be of « nature injuring the public, in distinction from an individual, or such a private injury as the public protects the individual against, for public reasons, * — and, finally, it must be sufficient in amount of evil to demand judicial notice.^ Wbat for this Chapter. — It is proposed, in this chapter, to pre- sent some further general views of the act required in crime. We shall look at it more in detail in chapters further on. § 432. Conspiring as an Act. — If two or more ^ persons conspire to do a wrong, this conspiring is an act rendering the transaction a crime, without any step taken in pursuance of the conspiracy.^ ^ 1 Ante, § 204 et seq. « Ante, § 212-214, 223-229. 2 And see Chatfield v. Wilson, 28 Vt. ^ Commonwealth v. Manson, 2 Aahm. 49; Morgan d. Bliss, 2 Mass. Ill; Tay- 31; The State v. Tom, 2 Dev. 569. lor V. Alexander, 6 Ohio, 144 ; Bancroft ' Commonwealth v. Judd, 2 Mass. 329, t. Blizzard, 13 Ohio, 30. These are civil 337 ; Commonwealth v. Tibbetta, 2 Mass. cases ; yet, viewed together, they ad- 636, 538 ; Commonwealth «. Warren, 6 mirably illustrate the doctrine of the Mass. 74 ; People v. Mather, 4 Wend, text. 229 ; The State v. Cawood, 2 Stew. 360; 8 Ante, § 204, 406. The State v. Buchanan, 5 Har. & J. 317 j * Ante, § 230-264. CoUms v. Commonwealth, 3 S. & E. 220; 246 CHAP. XXX.] GENERAL NATTJKB OP THE ACT. § 435 Statutes have modified this rule in some of the States ; as, in New York, where under the Revised Statutes the result is stated to be, that, " in all cases, except agreements to commit felony upon the person of another, or to commit arson or burglary, the indictment must contain a charge of one or more overt acts, one or more of which must be proved upon the trial to have been done to effect the object of the conspiracy." ^ § 433. Neglect viewed as Act. — There are cases in which men are indictable for what the law calls neglect.^ A neglect is in the legal sense an act. It is a departure from the order of things established by law, — a checking of action. It is like a man's standing still while the company to which he is attached moves along, when we say, he leaves the company. On this principle, — Continuing Nuisance. — One under legal obligation to remove a nuisance is indictable when he suffers it to continue.^ § 434. Injurious Nature of Act. — An act may be in itself evil, or evil in consequence only of its tendency. And though the state does not punish a mere intent to do wrong, not developed into any thing done to the public injury, it often holds indictable an act which is indifferent in its nature, but of evil tendency, and prompted by an evil motive.* If a man were to go upon his own land, and, as a trial of skill, discharge loaded fire-arms at a mark, this would be in no sense harmful ; but if, with the intention to take the life of a human being, he aimed his gun at a man, and . the charge accidentally hit the mark instead of the man, a ' grave offence would be committed ; though the thing accom- pHshed was in both the supposed instances the same. § 435. Attempt — Therefore, if a man intends to commit a \ particular crime, and does an act toward it, but is interrupted, or some accident intervenes, so that he fails to accomplish what he meant, he is still punishable. This is called a criminal attempt.^ Morgan v. BUsb, 2 Mass. Ill, 112 ; Mather, 4 Wend. 229, 259 ; The State u. O'Connell v. Reg., 11 CI. & F. 155, 9 Jur. Norton, 3 Zab. 3.3. 25 ; Commonwealth v. Eastman, 1 Gush. 2 See ante, § 313 et seq. 189; Commonwealth v. MoKisson, 8 S. & ^ Indianapolis v. Blythe, 2 Ind. 75. R. 420 ; SydserfE v. Eeg., 11 Q. B. 246 ; « " The intent may make an act, in- People e. Richards, 1 Mich. 216 ; The nocent in itself, criminal." Rex u. Sco- State V. Ripley, 31 Maine, 386; Eeg. u. field, Cald. 397, 400, by Lord Mansfield Turyy, Holt, 364; The State w. Noyes, and by BuUer, J. And see the eases 25 Vt. 415; Vol. II. § 192. cited ante, §^4, 206 ; also the chaptet 1 People V. Chase, 16 Barb. 495, 498 ; beginning at § 323. Vol. U. § 192. And see People v. ^ Post, § 723 et seq. 247 § 435 THE ACT EBQUIKED. [BOOK V. And by this name " attempt " every act of this sort, which the courts hold to be indictable, is, with us, known.^ But, — Endeavor short of Attempt (Procuring Dies for Counterfeiting). — In England, an indictable endeavor, not proximate to the sub- stantive crime intended, appears not to be termed attempt. Thus the English judges sustained an indictment at the common law for simply procuring dies to make counterfeit half-dollars of the currency of Peru. The statute would have been violated only on the making of the coin ; and they considered, that the mere procuring of the dies was not an act suiEciently proximate to this offence to constitute an attempt. Still they held it to be a sufficient wrong to be indictable. Said Jervis, C. J. : " This is not an indictment for an attempt to commit the statutable offence, as was the case in Eegina v. Williams.^ No doubt, if that were the case, this conviction must have failed, for here there has been no direct attempt to coin ; but this is an indict- m^ent founded on the criminal intent, coupled with an act. I will not attempt to lay down any rule as to what is such an act done in furtherance of a criminal intent as will warrant an indict- ment for a misdemeanor, for I do not see the line precisely my- self; but it is not difficult to say, that the act done in this case is one which falls within it. If a man intends to commit murder^ the walking to the place where he purposes to commit it would not be a sufficient act to evidence the intent, to make it an in- dictable offence ; but in this case no one can doubt, that the pro- curing of the dies and machinery was necessarily connected with the offence, and was for the express purpose of the offence, and could be used for no other purpose." And Parke, B., observed : ." Had the prisoner, with the intent to coin, merely gone to Bir- mingham with the object of procuring the dies for coining, and had not procured them, the act, I agree, would have been too re- mote from the criminal purpose to have been the foundation of a criminal charge. An attempt to commit a felony is not the only misdemeanor connected with it. It is a misdemeanor to do any act sufficiently proximate to the offence, with the intent of com- mitting it. Now, I do not see for what lawful purpose the dies and apparatus could have been made. The case of statutory attempts to commit felonies is very different ; there, to support » Post, § 724. 2 Eeg. v. Williams, 1 Den. C. C. 39. 248 CHAP. XXX.] GENERAL NATUEE OF THE ACT. § 437 the conviction, proof must be given of an attempt to do the very criminal act." ^ 8 436. Magnitude of Act — Proximity to Iiijury Intended. — Here we come to one of the illustrations of the doctrine, that our law, in the criminal department the same as in the civil, does not take cognizance of things trifling and small.^ Two questions concern- ing the act are always to be considered together, — first, whether it is of the sort which the criminal law takes cognizance of ; secondly, whether, being such, it has proceeded far enough for the law's notice. And it must proceed more or less far — be nearer or less near to the end meant — according as it is more or less intensely criminal in its nature. § 437. Substantive Offences in Nature of Attempt. — There are some things which in law are technically substantive offences, while truly they are, in whole or in part, attempts only ; and they fall within the principle of attempts. For example, — Uttering Forgery — (No Fraud accomplished). — If a statute for- bids the putting off of a forged bank-note, with intent to defraud the bank ; and one with this intent puts off the note to an agent of the bank employed, unknown to him, to detect offenders, and so not imposed upon, — he commits the offence ; because the law leaves it unimportant whether or not a fraud is effected, provided it is attempted, and the putting off is complete.^ And, — Burglary. — If a man in the night-time breaks into a dwelling- house, intending to commit therein some act which in law is felony, he is guilty of burglary, whether he succeeds in doing what he meant or not.* Likewise, — Perjury. — Perjury appears to be regarded as an attempt (to ■ subvert justice in a judicial proceeding) ; for a man commits this offence who testifies to what he believes to be false, or what he knows nothing about,^ though it turns out to be true.® So — ' Eeg. V. Roberts, 33 Eng. L. & Eq. * The State v. Wilson, Coxe, 439 ; 653, Dears. 539, 25 Law J. n. s. M. C. 17. Commonwealth v. Newell, 7 Mass. 245; The language of the judges, quoted in Rex v. Hughes, 1 Leach, 4th ed. 406, 2 the text, is copied from the English Law East P. C. 491 ; Rex v. Knight, 2 East & Equity report, differing yerbally from P. C. 610 ; Anonymous, Dalison, 22 ; Vol. the report of Dearsly. II. § 90, 109-113. 2 Ante, § 212-214, 228-229. 6 People v. McKinney, 3 Parker C. C. ' Rex 1). Holden, 2 Taunt. 334, Euss. 510. & Ey. 154, 2 Leach, 4th ed. 1019 ; Vol. » Rex v. Edwards, 2 Russ. Crimes, 3d II. § 605. And see, as illustrative, Cas- Eng. ed. 597, and the other authorities eels ». The State, 4 Yerg. 149 ; Wright u. there cited; 1 Hawk. P. Q. Curw. ed. The State, 5 Yerg. 154. p. 433, § 6 ; Vol. II. § 1043, 1044. § 439 THE ACT EEQUIRED. [BOOK V. Treason. — It is not essential, in treason, that the treasonable purpose be successful ; therefore, if letters to an enemy are inter- cepted, they may still constitute a sufficient overt act.i § 438. Injurious Nature of Act, continued. — But, Unless the act is within some exceptional principle, as in the cases just stated, it must be in its own nature criminal, or tending to mischief, or prohibited by law ; and no offence is committed when one, sup- posing himself to be executing some evil design, yet mistaking facts, accomplishes neither the wrong meant nor any thing else of a publicly injurious nature.^ Thus, — Robbery — (Fear, or not). — To constitute a robbery, if there is no violence, actual or constructive,^ the party beset must yield through fear ; and, when his fears are not excited, but his secret motive for parting with his money is to prosecute the offender, ..this crime is not committed.* But if there is an assault which would furnish a reasonable ground for fear, the robbery is com- plete, though the person assaulted relinquishes his money for the purpose of bringing to punishment the wrong-doer.* In like manner, — False Pretences — (Collecting Debt — Pretence without Eifect). — Under the statutes against false pretences, it is not indictable to induce one by the pretence to pay what he justly owes ; because he is not thereby legally injured.^ And nothing is a false pre- tence which has no tendency to, and does not, induce a man to part with his goods ; since it neither harms nor tends to harm.' § 439. What the Aim of this Discussion. — The purpose of these illustrations is to help us to some general views, not to furnish that complement of doctrine which alone can be the safe guide for the practitioner : as, when we would examine a city, to be- come famUiar with its streets, its buildings, and its people, we first look upon it from some eminence, and there gain a general ' Rex V. Jackson, 1 Crawf. & Dix C. Eng. ed. 892, 1 East P. C. Adden-da xxi. ; C. 149. And see Rex a. Gordon, 2 Doug. Vol. II. § 1174, 1176. 590; 1 East P. C. 85. 5 Norden's Case, Foster, 129, 1 Russ. 2 And see ante, § 204, 330. Crimes, Sd Eng. ed. 880, 891, 892. 8 2 Russ. Crimes, 3d Eng. ed. 875, 879, « People v. Thomas, 8 Hill, N. Y. 169 ; 891, 892. Rex v. Williams, 7 Car. & P. 354 ; Vol. * Rex V. Fuller, Russ. & Ry. 408 ; II. § 466. Ee.ane's Case, 2 East P. C. 734, 2 Leach, ^ Commonwealth v. Davidson, 1 Cush. 4th ed. 616, 1 Russ. Crimes, 3d Eng. ed. 83 ; Rex v. Dale, 7 Car. & P. 352 ; The 890; Rex v. Jackson, 1 Russ. Crimes, 3d State v. Little, 1 N. H. 257, 258; Vol. II. 260 § 438-436, 461-464. CHAP. XXX.] GENERAL NATTJKE OF THE ACT. § 441 idea of its situation, magnitude, and larger aspect ; then, descend- ing, take our more exact observations, relying, for positive knowledge, mostly on the latter. One or two more illustrations of the doctrine of the last section may be helpful to this end. § 440. Treason — (Mistaking Friends for Enemy). — Even in treason, which, we have seen, ^ is an offence in the nature of an attempt, if a man intending to go over to the enemy mistakes some troops of his own country for the enemy's, and goes to them, he does not become thereby a traitor.^ So, — Stealing Letters not Subject of Larceny. — Under the English statutes against larceny of letters from the post-office, — con- strued to apply only to those deposited in the ordinary way, — if •a letter is dropped in for the purpose of detecting a suspected carrier, and this carrier steals it, supposing it to have come in the usual course, he is not guilty.^ Also, — Resisting OfScer without Warrant. — It appears, that, where one is justified in resisting an officer by reason of his having no war- rant or an imperfect one, the justification is effectual equally whether the person resisting knew the fact or not.* Likewise, — Perjury when Proceedings Invalid. — Perjury cannot be com- mitted when the proceedings in court, in connection with which the false oath is taken; have no legal validity, but^ are simply void.^ § 441. Shooting in Ignorance of Justifying Pact. — In England, a constable was indicted under a statute for shooting at a man with intent to do him grievous bodily h^rm. The man was committing what would be a misdemeanor if a first offence, or a felony if a second: in the former alternative, the shooting would be un- lawful ; in the latter, lawful. In fact, this was a second offence, but the constable did not know it, therefore the judges held him to be guilty of the statutory crime.^ This decision cannot be reconciled with the principle, believed to be sound, and sustained by various cases already cited in this chapter, that a defendant 1 Ante, § 437. * See Foster, 311 et seq. ; 1 East P. C. ^ Eespublica v. Malin, 1 Dall. 83. 325 et seq. . ' Eeg. V. Kathbone, 2 Moody, 242, « Rex v. Cohen, 1 Stark. 511. Car. & M. 220; Reg. v. Gardner, 1 Car. « Reg. v. Dadson, 2 Den. C. C. 85, & K. 628. As to the statutes of the Temp. & M. 385, 14 Jur. 1051, 1 Eng. L. United States on this subject, see United & Eq. 566. States V. Foye, 1 Curt. C. C. 864. And Bee Vol. II. § 904, note, par. 5. 251 § 442 THE ACT EEQTJIRED, [BOOK V. may rely on any fact which justifies him in law, though he was ignorant of it when the transaction occurred. If one should go out and take the life of a wild monster, believed by him to be human, but a scientific examination should disclose that it was not, — would he be guilty of murder ? No lawyer probably would so hold.i § 442. Conclusion. — If these general views concerning the nature of the act seem, at some places, to be indefinite, they are as exact as the adjudications at present existing will enable a writer to make them, and perhaps as exact as in the nature of things they can ever be made. The complications of human affairs are vast, and it is not possible that, in a brief chapter, the products of all their changeful forms — as well those which are to arise as those which have already transpired — should be, in perfect outline, presented. 1 And see, for further illustrative and by accident does not kill an English- matter, Eex V. Ady, 7 Car. & P. 140 ; man, but an enemy, the moral guilt is Reg. V. James, 2 Den. C. C. 1, 12, note ; the same, but the legal effect is different. Eex V. Lovel, 2 Moody & R. 39. Also, The accident has turned up in his favor; TheAbby, 5 Bob. Adm. 251, 254, where the criminal act intended has not been Lord Stowell observed : " If a man fires committed, and the man is innocent of a gun at sea, intending to kill an Eng- the legal offence." lishman, which would be legal murder, 252 • CHAP. XXXI.] HOW SUBJECT OF ACT DIVIDED. § 446 CHAPTER • XXXI. HOW THE SUBJECT OF THE CBIMINAL ACT MAT BE DTVXDED. § 443. Scope of this Chapter. — The object of this chapter is simply to look at the act which, in connection \vith the intent, constitutes crime, and inquire into what divisions this criminal thing may be separated, for the purposes of the minuter investi- gations which are to teach us what is, and what is not, indictable at the common law. § 444. Blackstone's Division of Crime. — Various divisions have been proposed or adopted ; Blackstone's is as popular as any, thus : 1. Offences against God and religion ; 2. Offences agairist the law of nations ; 3. Offences against the king and govern- ment ; 4. Offences against the commonwealth ; as, against public justice, public peace, public trade, public health, public economy ; 5. Offences against individuals ; namely, against their persons, their habitations, and their property. § 445. Purposes of Division. — Whatever division of crime we make, it is arbitrary, — a mere device of an author to bring the subject aptly to the comprehension of his readers. The law itself is a seamless garment on the body politic. Perhaps,; in the hands of Blackstone, his division was, for his book, the best. In the hands of the present author, and for this work, another will be better. In theory, there is no choice in divisions ; the ques- tion is a mere practical one, and that is the best by which the particular author can convey the clearest and most exact idea to his readers. § 446. Division in Present Work. — In this work, we shall con- sider, in successive chapters : 1. The protection of the criminal law to the government, in its existence, authority, and functions ; 2". Its protection to the relations of the government with othea; governments ; 3. Its protection to the public revenue ; 4. Its protection to the public health ; 5. Its protection to the public morals, religion, and education ; 6. Its protection to the public 253 § 449 THE ACT EEQUXRED. [BOOK V. wealth and to population ; 7. Its protection to the public con- Tenience and safety ; 8. Its protection to the public order and tranquillity ; 9. Its protection to individuals ; 10. Its protection to the lower animals. § 447. Oservations on this Division. — If the purpose of division were to make the chapters of equal length, this one would be unfortunate. But it wiU enable us to traverse the whole field, and keep constantly within the subjects indicated by the titles to the several chapters. Thus it wUl accomplish all that any divisions can do. § 448. Uses of these Chapters on the Act. — The question first presenting itself to a practitioner asked for advice in a criminal cause, on whichever side, is, whether or not the thing assumed to have been done is a crime. To enable him to answer this ques- tion is the purpose of this series of chapters. Their usefulness, in localities where there are common-law crimes, as there are in most of our States, is obvious. But they are almost as important in those States in which all crimes are statutory. This arises from thesfact, that the statutes are to be construed by the rules of the common law, and so are never truly understood by one ignorant of it.i § 449. What accomplished in these Chapters. — No book can be SO written as to enable persons unacquainted with the subject to decide, at a glance in it, on the indictability of a transaction in question. So many considerations enter into every inquiry of this sort, — it depends so much on technical reasoning, so much on specific precedent, so much on principles of law which no author can crowd into his index in a way to enable a reader to find them, so much on combinations of thought possible only to a trained mind, — that, unless one has studied, not merely law in general, but criminal law in particular, it is useless for him to consult a book in an emergency, however well it may be written. He must first study the book ; and, if he will not do this, honesty demands that he withhold advice on a question of this nature. But, if he will first carefully read the whole of these ele- mentary discussions, he can then investigate, in the usual methods, a particular topic with effect. 1 Stat. Crimes, § 6, 7, 76, 82, 88, 114, and many other places. 254 CHAP. XXXn.j PKOTECTION TO GOVEENMENT. § 452 CHAPTER XXXII. PROTECTION TO THE GOVERNMENT IN ITS EXISTENCE, AU- THOEITY, AND FITNCTIONS. § 450. People and Government inseparable. — ^It was a cardinal doctrine with our English ancestors, that the king was for the people, and ' their interests and his were inseparable. Much more, in our country, where, in a higher sense, the government is of the people, a part of whom it is, are they and the govern- ment one in interest. Indeed, neither can exist without the other. Hence — § 451. Protection to Government. — There is nothing SO directly and certainly injurious to the whole people as an act against | the existence of the government, or its authority, or impeding any of its functions. Nothing, therefore, is more clearly indictablejthan such an act, even a minute one, if not too trivial ^ for the law's notice. Yet plain and undisputed as this proposition is, there are, apparently within it, acts which occupy disputable ground, others which were once indictable but are not now, and still others which are indictable now, yet formerly they were not. For the conditions of society, the views of mankind, and the positive enactments change in some degree from age to age, though in the main they are in all ages the same. § 452. Popular Interests and Governmental blending. — In an old book,^ written for the people, and obnoxious to kings because conceding too little to them, the author, in praise of Edward-IH., says: "He had a rule upon his private expenses, a good j gloss upon the public, and a platform for the augmenting of the treasure of the kingdom, as well for the benefit of the people as of j the 1 Ante, § 212 et seq. vindication of the ancient way of Parlia- " "An Historical and Political Dis- ments in England. Collected from some course of the Laws and Government of manuscript notes of John Selden, Esq., England, from the first times to the end by Nathaniel Bacon, of Gray's Inn, Esq., of the Eeign of Queen Elizabeth ; with a 6th ed. &c., London, 1760." 256 § 464 Ti£B ACT EEQUIEED. [BOOK V. Crown." Although he " was a king of many taxes, above all hia predecessors, yet cannot this be interpreted as a blot to the honor of the law or liberty of the people ; for the king was not so unwise as either to desire it without evident cause, or to spend it in secret, or upon his own private interests ; nor so weak and irresolved as not to employ himself and his soldiers to the utmost to bring to pass his pretensions ; nor so unhappy as to fail of the desirable issue of what he took in hand. So as, though the people parted with much money, yet the kingdom gained much honor and re- nown ; and, becoming a terror to their neighbors, enjoyed what they had in fuller security, and so were no losers by the bargain in the conclusion." § 453. Compelling to Work — Fixing 'Wagea. — And this good king, not only taxed the people, but compelled men to work, and fixed by law the wages. " A sick and very crazy time question- less it was, when the clergy were stately, and the poor idle. The priests' wages for this cause are now settled; and they that would get much must get many littles, and do much. But the greater sore was amongst the poorer sort ; either they would not serve, or at such wages as could not consist with the price of the clothes, and the subsistence of the clothier. Laws, therefore, are made to compel them to work, and to settle their wages ; so as now it is as beneficial to them to serve the meaner sort of clothiers as the richer sort : for the master must give no more, nor the servant take more ; and thus became labor current in aU places." ^ § 454. Work and Wages, continued. — In just principle, there is nothing which a government has more clearly the right to do than to compel the lazy to work, and nothing is more absolutely beyond its jurisdiction than to fix the price of labor. In the time of Edward III. it might have been in a sense pardonable to do the latter, while highly commendable to do the former. Even the former would not be tolerated by the sentiment of the present age,,iexcept as to paupers and criminals. Yet it ought to be, if necessary. And the reason is, that men are dependent on one another, and people and government are mutually dependent; while, at the basis of all prosperity, and even life itself, lies active industry. He who lazes his life away, or spends it in use- 1 Discourse, ut sup. Part 2, p. 38-41. 256 CHAP. XXXn.] PEOTECTION TO GOVEKNMBNT. § 456 less sports, lives, directly or indirectly, at the public expense, and pays no equivalent for what he eats, drinks, or wears. He does what is as intrinsically dishonest as to pilfer from door to door. If he has inherited money or lands, this inheritance has come to him through the laws of the country, and as such is the gift of the country ; and, so far from its justifying him in pursu- ing a life of idleness or dissipation, it places him under a still greater obligation to work. § 455. Idleness as a Crime. — The English statutes thus re- ferred to have probably all been repealed ; but, if they had not, we should know, as a result of the altered opinions upon labor pervading the United States, that they are not to be deemed a part of the common law which our forefathers brought to this country from England. Yet we see also, that, in just principle, wilful idleness in any person, male or female, rich or poor, is criminal ; and, if two things existed together which do not, — first, if just views on the subject of labor prevailed, and, sec- ondly, if the punishment of idleness as crime were practically expedient, — then idleness should be indictable with us now, Hence, — As to what is Common-law Crime. — If we would determine whether or not a particular thing is punishable by our unwritten law, we are not only to inquire whether it is competent for the government to punish it, but whether its punishment is expedi- ent, and accords with the current understanding of the enlight- ened mind, of the country, particularly as expressed in judicial decision.! If decision has pronounced neither one way nor the other in this country, we are to inquire what was the law of Eng- land when this country was settled, and whether any sufficient reason appears why such law should not be deemed to have traversed the ocean with our forefathers and become established here. § 456. Treason. — The heaviest offence known to the law is treason ; because, with governments, as with individuals, self- preservation is the first duty, taking precedence of all others. In this country, treason is either against the United States or a particular State.^ In England, the crime is of wide range ; ^ but 1 And see ante, § 42. 8 gee Vol. II. § 1205-1207. ^ Ante, § 177. VOL. 1. 17 257 §457 THE ACT KEQtriEED. [book V. in this country it has heen greatly limited, treason against the United States consisting " only in levying war against them, or in adhering to their enemies, giving them aid and comfort."^ And, in most of the States, the offence against the State has been restricted within nearly or quite as narrow limits.^ § 457.' Obstructions of Government less than Treason. — But it is not the whole duty of a subject to abstain from the overthrow of the government. He should avoid what tends to its overthrow ; nor should he weaken it, or bring it into contempt, or obstruct its functions in any of its departments. And he should render to it his active aid whenever occasion demands. Therefore every act or neglect, in violation of what is thus pointed out as duty, is, when sufficient in magnitude,^ criminal. Thus, — Sedition. -^ In England, there are various misdemeanors, which, not amounting to treason, are of like nature with it, known under the general name of sedition ; such as libels upon the govern- ment, oral slanders of it, riots to its disturbance, and the like.* 1 Const. TJ. S. art. 3, § 3, cl. 1. And see Vol. II. § 1214-1222 ; Charge on Law of Treason, 1 Story, 614 ; United States V. Hpxie, 1 Paine, 265 ; Ex parte Boll- man,' 4 Cranch, 75 ; Respublica v. Mc- Carty, 2 Dall. 86 ; Respublica v. Malin, 1 Dall. 33 ; Respublica v. Carlisle, 1 Dall. 35 ; United States v. Vigol, 2 Dall. 346 ; United States v. Burr, 4 Cranch, 469 ; United States v. Han way, 2 Wal. Jr. 139; United States v. Mitchell, 2 Dall. 348. 2 As to New York, see People v. Lynch, 11 Johns. 549. See also, as to several of the States, 3 Greenl. Ev. § 237. 8 Ante, § 212 et seq. * 1 Hale P. C. 77 ; 1 East P. C. 48, 49 ; Stroud's Case, 3 Howell St. Tr. 285 ; Rex V. Erost, 22 Howell St. Tr. 471 ; In re Crowe, 3 Cox C. C. 123. In Archbold it is said : " A man may lawfully discuss and criticise the measures adopted by the queen and her ministers for the govern- ment of the country, provided he do it fairly, temperately, with decency and respect, and without imputing to them any corrupt or improper motive. See Kex V. Lambert, 2 Camp. 398. ... If a man curse the queen, wish her ill, give out scandalous stories concerning her (see Reg. v. Harvey, 2 B. & C. 257, 3 D. 258 & R. 464), or do any thing that may lessen her in the esteem of her subjects, may weaken her government, or may raise jealousies between her and her peo- ple, ... all these are sedition. In Rex V. Tutchin, 5 Harg. St. Tr. 627, 632, Holt, 424, Lord Holt said, that, if men shall not be called to account for possessing the people with an ill opinion of the gov- ernment, no government can subsist ; nothing can be worse to any government than to endeavor to procure animosities as to the management of it ; this has al- ways been looked upon as a crime, and no government can be safe unless it be punished.' And Lord EUenborough, in Eex V. Cobbett, Holt on Libel, 114, Stark. on Libel, 522, said, that, it a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient resorted to be ridicule or obloquy, the writer, publisher, &c., are punishable. And whether the defendant really in- tended, by his publication, to alienate the affections of the people from the gov- ernment, or not, is not material ; if the publication be calculated to have that effect, it is a seditious libel. Rex v. Bur- dett, 4 B. & Aid. 95; Eex v. Harvey, CHAP. XXXn.] PROTECTION TO GOVERNMENT. § 459 Offences of this sort against the United States could be punished only under a statute,^ and there has been little occasion for pur- , suing like offences against the States. Moreover, with us, popular / sentiment tolerates great latitude in the discussion of govern- mental affairs. We have, therefore, no cases informing us to what ' extent sedition is an offence at common law in our States. § 458. Refusal to accept Office. — The government can be car- ried on only by officers. Therefore, as already observed,^ a refu- sal, without lawful excuse,^ to accept a public office to which one has been elected, is indictable.* Happily there is in this country, widely diffused, a commendable willingness to do this duty; therefore indictments for the breach of it are rare. But though this doctrine is of little practical applicability with us, it plainly is a part of our common law. For a like reason, — § 459. Breaches of Official Duty — (Ministerial distinguished from Judicial) . — Any act or omission, in disobedience of official duty, by one who has accepted public office, is, when of public concern,^ in general, punishable as a crime. ^ This is particularly so where the thing required is of a ministerial or other like nature, and there is reposed in the officer no discretion.^ But this doctrine has its exceptions and qualifications ; thus, — Bupra." Archb. Grim. PI. & Ev. 13th 940; Rex w. Howard, 7 Mod. 307; Hex v. Lond. ed. 631, 632. For sedition under Angell, Gas. temp. Hardw. 124 ; Anony- the Scotch law, see Sinclair's Case, 23 mous, 6 Mod. 96 ; Crouther's Case, Cro. Howell St. Tr. 778 ; McLaren's Case, 33 Eliz. 654 ; Smith v. Langham, Skin. 60, Howell St. Tr. 1. 61 ; W.'s Case, Lofft, 44 ; Adams>. Ter- 1 Ante, § 199. tenants, Holt, 179 ; The State v. Leigh, 2 Ante, § 246 ; Reg. v. Vincent, 9 Car. 3 Der. & Bat. 127 ; Rex v. Coramings, 5 &P. 91; Rex I). Burder, 4 T. R. 778. Mod. 179; Rex v. Heramings, 3 Salk. 8 Attorney-General v. Read, 2 Mod. 187 ; Smith's Case, Syme, 185 ,1 Wilkes 299; Rex v. Grosvenor, 1 Wlls. 18, 2 v. Dinsman, 7 How. U. S. 89; Rex v. Stra. 1198 ; Rex v. Denison, 2 Keny. 259 ; Harrison, 1 East P. C. 382 ; Reg. v. Buck, Rex <;. Prigg, Aleyn, 78 ; The State v. 6 Mod. 306 ; Mann v. Owen, 9 B. & C. McEntyre, 3 Ire. 171. 695, 4 Man. & R. 449 ; Rex v. Bootie, 2 * As to the form of the procedure, see Bur. 864 ; s. c. nom. Rex a. Booty, 2 Grim. Proced. II. § 820-822. Keny. 575; Rex v. Fell, 1 Salk. 272, I 5 Ante, § 282, 235, 243-246. A pri- Ld. Raym. 424; Reg. v. Tracy, 6 Mod. ■vate person injured may have his action 30 ; The State v. Buxton, 2 Swan, Tenn. against the officer for damages. Jenner 57. V. Joliffe, 9 Johns. 381. See ante, § 237 ' Rex v. Osborn, 1 Comyns, 240 ; Gom- and note, 264. monwealth i. Genther, 17 S. & R. 135; 15 The State v. McEntyre, 3 Ire. 171, People u. Norton, 7 Barb. 477 ; Anony-^ 174; Reg. v. Neale, 9 Car. & P. 481; mous, Lofft, 185 ; Rex w. Seymour, 7 Mod. Respublica v. Montgomery, 1 Yeates, 382 ; The State v. Maberry, 3 Strob. 144 ; 419; Reg. K. James, 1 Eng. L. & Eq. 552, Taylor v. Doremus, 1 Harrison, 473; 2 Den. G. C. 1, Temp. & M. 800, 14 Jur. Stone v. Graves, 8 Misso. 148 ; The State 259 §461 THE ACT EEQtrrEED. [book v. § 460. Judicial — Ministerial, with Discretion. — One serving in a judicial or other capacity in which he is required to exercise a judgment of his own, is not punishable for a mere error therein, or for a mistake of the law.^ His act, to be cognizable crimi- i nally, or even civilly, must be wilful and corrupt.^ And if it is strictly judicial, and he is, for instance, a justice of the peace, and has jurisdiction, he will not be liable to the suit of the party, however the law may be as to a criminal prosecution,^ though corruption is alleged.* To allow such an action would be impoli- tic ; and, since other remedies are open, needless. § 461. Legislator — (Contempt — Impeachment — " Civil Officer "). — The king, according to English law, can do no wrong ; that is, he is not punishable, in any form, for what he does.^ In this country, there is no king, and no official person is so completely exempt as he.^ But nearest to him, in this respect, is the legisla- tor, acting officially .'' If a legislator misbehaves himself, the leg- V. Stalcup, 2 Ire. 50. And see Arnold v. Commonwealth, 8 B. Monr. 109 ; Stod- dard V. Tarbell, 20 Vt. 821. 1 Ante, § 299. 2 The State u. Porter, 2 Tread. 694 ; People V. Coon, 15 Wend. 277 j In re , 14 Eng. L. & Eq. 151, 16 Jm-. 995 ; The State v. Odell, 8 Blackf. 396 ; Reg. V. Badger, 6 Jur. 994 ; Commonwealth v. Eodes, 6 B. Monr. 171 ; Lining v. Ben- tham, 2 Bay, 1 ; The State v. Johnson, 2 Bay, 385; The State v. Gardner, 2 Misso. 23 ; The State v. Glasgow, Con- ference, 38 ; Cooper v, Adams, 2 Blackf. 294 ; People v. Norton, 7 Barb. 477 ; Rex V. Phelps, 2 Keny. 670 ; Rex v. Okey, 8 Mod. 45; Rex v. AUington, 1 Stra. 678; Garnett v. Ferrand, 6 B. & C. 611, 9 D. & E, 657 ; Rex v. Webb, 1 W. Bl. 19 ; Rex V. Half ord, 7 Mod. 193 ; Eex v. Seaford, Justices, 1 W. Bl. 432; Rex v. Lediard, Say. 242 ; Cope v. Ramsey, 2 Heisk. 197; Downing v. Herrick, 47 Maine, 462. 8 See post, § 462. 4 Pratt V. Gardner, 2 Cush. 63 ; Ployd V. Barker, 12 Co. 23, 25 ; Cunningham v. Bucklin, 8 Cow. 178 ; Garnett v. Ferrand, 6 B. & C. 611, 9 D. & E. 657 ; Tyler v. Alford, 88 Maine, 530 ; Broom Leg. Max. 2d ed. 61 ; Furr v. Moss, 7 Jones, N. C. 525; Kelley v. Dresser, 11 Allen, 31; Weaver v. Devendorf, 3 Denio, 117 ; 260 Steele u. Dunham, 26 Wis. 393. See Cooper V. Adams, 2 Blackf. 294 ; Linford V. Fitzroy, 18 Q. B. 240, 3 New Sess. Cas. 438 ; Muse v. Vidal, 6 Munf. 27 ; Cole- man V. Frazier, 4 Eich. 146 ; Sthreshley V. Fisher, Hardin, 257 ; Alexander v. Card, 3 E. I. 145 ; Bessell v. Wilson, 1 Ellis & B. 489, 22 Law J. s. a. M. C. 94, 17 Jur. 664, 18 Eng. L. & Eq. 294 ; Hill V. Sellick, 21 Barb. 207. But see Gar- field ;;. Douglass, 22 111. 100. Ho Juris- diction. — If the magistrate has no juris- diction, he is not protected. Sullivan v. Jones, 2 Gray, 570 ; Piper v. Pearson, 2 Gray, 120 ; Clarke v. May, 2 Gray, 410 ; Tracy v. Williams, 4 Conn. 107 ; Grumon V. Eaymond, 1 Conn. 40; Bradley v. Fisher, 13 Wal. 335, 350 ; Lange v. Bene- dict, 48 How. Pr. 465. And so also of the members of a court-martial. Wise o. Withers, 3 Cranch, 331. And see Macon V. Cook, 2 Nott & McC. 379 ; Shoemaker V. Nesbit, 2 Eawle, 201. Naval Com- mander. — As to a naval commander, see Wilkes v. Dinsraan, 7 How. U. S. 89. 6 Broom Leg. Max. 2d ed. 40. « 1 Kent Com. 289. 7 Story Const. § 795 ; 1 Kent Com. 235, note ; Lord Brougham in Ferguson V. KinnouU, 9 CI. & F. 251, 289,290 ; Mr. Justice Coleridge, in Howard v. Gosset, May Pari. Law, 2d ed. 151. CHAP. XXXII.J PROTECTION TO GOVEENMENT. §462 islative body can deal with him for the contempt.^ Yet it is the better doctrine, that he is not a "civil officer," subject to im- peachment, within the meaning of the Constitution of the United States ; ^ and opinions of great weight have been expressed against his being impeachable on general principles.^ § 462. Indictable or not — (Legislators — Judges — Jurors — High Governmental Officers — Justices of Peace). — It is sufficiently set- tled, that legislators,* the judges of our highest courts and of all courts of record acting judicially,^ jurors,^ and probably such of the high officers of each of the governments as are intrusted with responsible discretionary duties,'^ are not liable to an ordinary criminal process, like an indictment, for official doings however corrupt. There is some apparent authority for including with them justices of the peace, in respect of things judicial, and I within their jurisdiction ; ^ but the plain weight of authority, ' probably of reason also, excludes them ; holding them liable to the ordinary criminal processes, though not to the civil as we 1 have seen,^ in cases of corruption, not of mere mistake or error .^"Z 1 May Pari. Law, 2d ed. 60, 70, 73, 102 ; 1 Kent Com. 235, 236 ; Anderson v. Dunn, 6 Wheat. 204. A Massachusetts case decides, that the House of Repre- sentatives of the Commonwealth has power to expel a member; and the courts can inquire neither why it ex- pelled him, nor whether it gave him due opportunity for defence ; hut, when he claims a privilege as member before a judicial tribunal, the fact of his expul- sion is conclusive against him. Hiss v. Bartlett, 3 Gray, 468. And see Vol. II. §247. 2 Story Const. § 793, 794. 8 Story Const. § 795 ; 1 Kent Com. 235, note. Lord Coke says, that, "if any lord of Parliament, spiritual or tem- poral, have committed anj' oppression, bribery, extortion, or the like," he may be impeached. 4 Inst. 24. * Ante, § 461, and authorities cited in the notes. 6 1 Hawk. P. C. Curw. ed. p. 447, § 6; Yates V. Lansing, 5 Johns. 282, 9 Johns. 395; Cunningham v. Bucklin, 8 Cow. 178 ; Hammond v. Howell, 2 Mod. 218 ; Floyd w. Barker, 12 Co. 23, 25. Judge, as to Civil Suit. — Neither is the judge liable to a civil suit. Ante, § 460 ; Ham- ilton t. Williams, 26 Ala. 527 ; Yates v. Lansing, 5 Johns. 282 ; Taylor v. Dore- mus, 1 Harrison, 473 ; Stone v. Graves, 8 Misso. 148; Lenox v. Grant, 8 Misso. 254 ; TJpshaw v. Oliver, Dudley, Ga. 241 ; Morrison v. McDonald, 21 Maine, 550. Otherwise, if he knows he acts without jurisdiction. Lange v. Benedict, 48 How. Pr. 465 ; Bradley u. Fisher, 13 Wal. 335. 6 1 Hawk. P. C. Curw. ed. p. 447, § 5 ; Yates V. Lansing, 6 Johns. 282, 293 ; yet see Rex v. Bynon, 2 Show. 304. See Wyld V. Cookman, Cro. Eliz. 492. ~ 4 Bl. Com. 121 ; 2 Woodd. Lect. 355. 8 The State v. Campbell, 2 Tyler, 177 ; Yates V. Lansing, supra ; Floyd v. Barker, 12 Co. 23, 25. 8 Ante, § 460. 1" Wallace v. Commonwealth, 2 Va. Cas. 130 ; Commonwealth v. Alexander, 4 Hen. & Munf. 522 ; Rex v. Borron, 3 B. & Aid. 432 ; People v. Norton, 7 Barb. 477, 480; Rex v. Harrison, 1 East P. C. 382 ; Rex v. Seaford Justices, 1 W. Bl. 432 ; Rex v. Smith, 7 T. R. 80 ; Rex o. Fielding, 2 Bur. 719; Rex ir. AUington, 1 Stra. 678 ; Lord Brougham, in Fergu- son V. KinnouU, 9 CI. & F. 251, 290; Rex 261 § 463 THE ACT BEQTJIEBD. [BOOK V. Impeachable or not. — Judges, not jurors, and the high officers mentioned other than legislative, are answerable in another form, im_£eachment. § 463. Effect of Impeachment — (^Indictment after-ward). — Ac- cording to the English practice, the officer impeached may suffer, not only the forfeiture of his office, but also any other penalties known to the law, even the deprivation of life.-'- But the Consti- tution of the United States provides, as to the national officers, that " judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." ^ As the United States courts have no common-law jurisdiction,^ doubtless they cannot take up a case after judgment is rendered on the impeachment, and proceed to conviction, without the aid ,of a statute. But some of the State constitutions have similar provisions ; and it would be an interesting question, whether, after a judgment by impeachment and removal from office, or before, a court of ordinary criminal jurisdiction could, without help from a statute, inflict for the crime the additional penalty which in England the House of Lords, on conviction under the impeachment, would impose.* V. Okey, 8 Mod. 45 ; Rex v. Phelps, 2 win, 39 Texas, 75 ; The State v. Baldwin, Keny. 570 ; Kex t>. Davis, LofEt, 62 ; In 39 Texas, 155. re Fentiman, 4 Nev. & M. 126, 2 A. & B. i May Pari. Law, 2d ed. 474-476; 2 127; Rex w. Brooke, 2 T.R. 190; Rex «. Woodd. Leot. 864,365; Story Const. Jones, 1 Wils. 7 ; Rex v. Cozens, 2 Doug. 784. 426; Jacobs ». Commonwealth, 2 Leigh, ^ Const. U. S. art. 1, § 3 ; Story Const. 709; Rex v. Angell, Cas. temp. Hardw. § 759, 760, 781. 124 ; The State v. Gardner, 2 Misso. 23 ; 8 Ante, § 189 et seq. Lining v. Benthara, 2 Bay, 1 ; The State * See, as helping at some of the steps V. Johnson, 2 Bay, 385 ; In re , 14 in this inquiry, ante, § 14, note, 193 ; 1 Eng. L. & Eq. 151 ; People v. Coon, 15 Bishop Mar. & Div. § 680-682 ; 2 lb. Wend. 277 ; The State v. Porter, 2 Tread. § 291, 292 ; Stat. Crimes, § 171. Relat- 694 ; Rex r. Bye Justices, Say. 25 ; Rex ing to the subjects of this and accompa- w. Baylis, 3 Bur. 1318; Rex w. Jackson, nying sections, the following are some — Lofft, 147; Rex v. Wykes, Andr. 238; 1. Further Vie-wa — (Executive Of- Bex V. Harries, 18 East, 270; Rex o. ficer). — In our system of government. Bishop, 5 B. & Aid. 612; Reg. v. Jones, where the executive, legislative, and ju- 9 Car. & P. 401 ; The State v. Porter, 3 dicial functions are distinct, — see the Brev. 175 ; and other cases cited ante, discussion in the chapter concerning mili- § 459, 460. In some States it is so by tary and martial law, ante, § 43 et seq., statute. Wickersham.w. People, 1 Scam. — there seems to be no good reason why 128. As to Texas, see The State v. Bald- an executive officer should be required 262 CHAP. XXXn.] PROTECTION TO GOVERNMENT. §464 § 464. Officer de Facto — De Jure. — In the actual afPairs of gov- ernment, a man sometimes holds an office to which he has not been duly appointed. But if he does the duties of it, under color of title, he is called an officer de facto ; and his official acts are binding on third persons,^ though they are said not to be valid in to answer, In the judicial tribunals, for a departure from duty, on any other prin- ciples than would prevail if he were a judicial officer, sued or indicted in respect of alleged error or corruption in that office. 2. It cannot be, that, under any cir- cumstances, those who administer our government in one of its departments should he justly entitled to overrule what those of another department decide, or to inflict punishment on them when acting honestly and within the general scope of their official duties. If it were proper to extend this discussion, I should show, that the attempt to do this would be a palpable infraction of the Constitution ; which, by dividing the governmental functions into separate departments, left each one free from the control of any other. And for a judge to punish, or amerce in damages, an executive officer, because differing from him in opinion as to his official duty, would be as palpable a usurpation of the office as it would be for the executive officer to undertake the same thing against the judge. But I cannot pause to trace the line of argu- ment fully here. There are several pop- ular errors on this subject, — popular as prevailing in the legal profession as well as out of it. 3. A digest of a few cases will be con- venient, — to be consulted in connection with those cited to the last few sections. Justice of Peace. — If a justice of the peace, in the discharge of a ministerial or judicial duty, acts corruptly to the injury of a party, this is a breach of his official bond. The State v. Flinn, 3 Blackf. 72. And see The State v. Jen- nings, 4 Ohio State, 418. Not Trespass in Party. — If a judicial officer, of either general or special jurisdiction, acts erro- neously or oppressively, he in whose suit this occurs is not therefore a trespasser. Taylor v. Moffatt, 2 Blackf. 305. See Poulk V. Slocum, 3 Blackf. 421. What is Judicial. — All that a justice of the peace is required to perform, from the commencement to the close of a suit, ap- pears to be deemed judicial rather than ministerial, on a question of responsibili- ty for his acts. Where a justice issued an execution, but by mistake made it re- turnable in sixty days, instead of ninety, as required by law, whereby the plaintiff lost his debt, he was held not liable for the loss. Wertheimer «. Howard, 30 Misso. 420. And see The State v. Dun- nington, 12 Md. 340. Officer's Fraud. — An action lies against a public officer for a fraudulent representation in rela- tion to property, made at a sale of it, in his official capacity. Culver v. Avery, 7 Wend. 380. Inadequate Allegation. — Where a magistrate issued a warrant, upon which one was arrested and fined, for a violation of the Sunday law, he was held not liable in an action of trespass, though the facts alleged may not have been an offence within the statute. Nor is the constable, executing such warrant, liable in trespass. The magistrate had jurisdiction over the subject-matter, and he is not responsible for consequences flowing from an error of judgment. Stewart v. Hawley, 21 Wend. 652. Con- tradicting Keoord. — In an action against a magistrate, he cannot defend himself by contradicting his record. Kendall u. Powers, 4 Met. 553. Juris- diction. — A justice of the peace is liablevl for exercising authority where he hasU none. Ely o. Thompson, 3 A. K. Mar. ' 70. 1 Thompson v. The State, 21 Ala. 48 ; People V. Gilbert, Anthon, 191 ; McBee V. Hoke, 2 Speers, 138; The State o. Hill, 2 Speers, 150 ; Doty v. Gorham, 5 Pick. 487 ; Bucknam v. Euggles, 15 Mass. 180; Nason v. Dillingham, 15 Mass. 170; Plymouth r. Painter, 17 Conn. 585 ; Hoag- land V. Culvert, Spencer, 387 ; Farmers and Merchants Bank v. Chester, 6 Humph. 458 ; Powler i>. Bebee, 9 Mass. 263 §464 THE ACT BEQDTEBD. [book V. his own favor.^ One duly appointed and commissioned, serving in the office, is called an officer de Jure, Now, clearly, — 231 ; Commonwealth v. Fowler, 10 Mass. 290 ; People v. Cook, 4 Seld. 67 ; The State V. Berkins, 4 Zab. 409 ; The State V. AUing, 12 Ohio, 16 ; Molnstry v. Tan- ner, 9 Johns. 135 ; Blackman v. The State, 12 Ind. 556 ; People v. Collins, 7 Johns. 549 ; Burke v. Elliott, 4 Ire. 355 ; Gilliam v. Beddick, 4 Ire. 368 ; Stokes v. Kirkpatrick, 1 Met. Ky. 138 ; Gilraore v. Holt, 4 Pick. 258 ; Pool v. Perdue, 44 Ga. 454; The State v. Carroll, 38 Conn. 449; Kelley v. Story, 6 Heisk. 202 ; Douglas V. Neil, 7 Heisk. 437; Diggs v. The State, 49 Ala. 311 ; Waller v. Perkins, 52 Ga. 283; McCahon v. Leavenworth, 8 Kan. 437 ; The State v. Lewis, 22 La. An. 33 ; Wayne v. Benoit, 20 Mich. 176 ; Scho- harie V. Pindar, 3 Lans. 8 ; The State v, Tolan, 4 Vroom, 195 ; MeCormick v. Fitch, 14 Minn. 252; Durrah v. The State, 44 Missis. 789 ; Laver v. MoGlach- lin, 28 Wis. 364; Moore v. Graves, 3 N. H. 408; Ex parte Strang, 21 Ohio State, 610, 618 ; Commonwealth v. Mc- Comhs, 6 Smith, Pa. 436 ; The State «. Beloit, 21 Wis. 280. As to who is an of- ficer de facto, Howard, J., in the Supreme Court of Maine, said : " A mere claim to be a public officer, and exercising the of- fice, will not constitute one an officer de facto ; there must be, at least, a fair color of right ; or an acquiescence by the pub- lic in his official acts so long that he may be presumed to act as an officer by right of appointment or election." Brown v. Lunt, 37 Maine, 423, 429; Wilcox v. Smith, 5 Wend. 231 ; Cummings v, Clark, 15 Vt. 653 ; Burke v. Elliott, supra ; Cor- nish V. Young, 1 Ashm. 153. The Maine court held, that a deed of real estate sold for non-payment of taxes is void if is- sued by an acting collector of taxes who has not taken the oath of his office. Shepley, C. J., observed : " When eon- stables or sheriffs perform acts by virtue of judicial precepts, it is usually suffi- cient to show that .they were officers de facto, without producing proof that tliey were legally qualified to do so. A per- son injured by such acts has a remedy by action against the officer, and his rights are secured by a final resort to the '• 264 official bond. But one injured by the misconduct of a collector of taxes cannot be protected by a resort to his official bond for redress, that having been made for the security of the town alone." Payson v. Hall, 30 Maine, 319, 325. See Cavis V. Robertson, 9 N. H. 524. In In- diana, a town charter provided that the marshal should give bond in ten days after his election. And it was held that his failure to do this did not necessarily vacate the office. The State v. Porter, 7 Ind. 204. If a Governor holds his office after his term has expired, believing him- self re-elected, and having received a cer- tificate of election, he is Governor de facto, and his approval of a legislative act is valid. The State v. Williams, 6 Wis. 308. As to officers de facto in a State in rebellion, see Hawver v. Sel- denridge, 2 W. Va. 274 ; Brown v. Wylie, 2 W. Va. 502; Cooke v. Cooke, Phillips, 583. One disqualified to hold office as having participated in the rebellion, may still be an officer de facto. Lockhart v. Troy, 48 Ala. 579. 1 Rhodes v. McDonald, 24 Missis. 418 ; Neale u. The Overseers, 5 Watts, 538; Pearce v. Hawkins, 2 Swan, Tenn. 87. See Eldred v. Sexton, 5 Ohio, 215. Dis- tinctions. — The acts of officers de facto are valid when they concern the public, or the rights of third persons who have an interest in what is done. Act for Officer's Benefit. — But a different rule prevails where the act is for the benefit of the officer, because he is not permitted to take advantage of his own wrong. Venable v. Curd, 2 Head, 582 ; Patterson V. Miller, 2 Met. Ky. 493; Gourley „. Hankins, 2 Iowa, 75 And see People v. Treman, 30 Barb. 198 ■; People i: Al- bany, &c.. Railroad, 55 Barb. 344. Evi- deuoe. — That one acts as an officer is prima facie evidence of authority to act. Rex V. Verelst, 3 Camp. 432 ; Eldred v. Sexton, 5 Ohio, 215 ; Commonwealth v. Tobin, 108 Mass. 426 ; Crim. Prooed. II. § 885, 886. See United States v. Phelps, 4 Day, 469 ; Commonwealth v. McCue, 16 Gray, 228. CHAP. XXXn.] PROTECTION TO GOVERNMENT. § 465 OfBcer de Facto estopped — (Malfeasance — Non-feasance). — If an officer de facto is indicted for malfeasance in office, he cannot object that he is not an officer de jure ; because his acting in the office estops him to deny his right to it.^ Yet doubtless he can rely on this excuse when charged with a mere refusal to act ; because he may well cease to do that for which he finds himself without authority .2 Resisting or Assaulting OfBcer de Facto. — The difficult question is, whether third persons are indictable for resisting, or for the aggravated offence of assaulting, a mere officer de facto. And, though the decisions on it are not harmonious,^ the better opinion is, that they are ; the law not permitting them to test in this way the claim to an office of one who exercises it under an apparent right. Other methods of testing the right are open.* § 465. Obstructing Official Functions generally. — It being essen- tial to the public good that officers perform well their official functions, third persons who cast obstructions in their way, in a matter of public concern and of sufficient magnitude,^ are pun- ishable. Thus, — Resisting Process, or Arrest. — The resisting of judicial process " is at all times an offence of a very high and presumptuous nature ; but more particularly so when it is an obstruction of ah arrest upon a criminal process. And it hath been holden, that 1 Rex V. Borrett, 6 Car. & P. 124 ; right perfect." The State v. McEntyre, Neale v. The Overseers, 5 Watts, 538 ; 3 Ire. 171, 174. And there may be oir- TKe State v. Maberry, 3 Stt-ob. 144. But cumstancea in which this doctrine will see Commonwealth v. Rupp, 9 Watts, be just. 114. See Rex v. Clay, 2 East P. C. 580; » gee People v. Hopson, 1 Denio, 574; Williams v. Lunenburg, 21 Pick. 75. Commonwealth v. Dugan, 12 Met. 233; '^ See Commonwealth v. Rupp, 9 Rex v. Gordon, 1 Leach, 4th ed. 515, 1 Watts, 114. This seems to be the true East P. C. 312 ; United States v. Wood, doctrine ; though Ruffin, C. J., in a North 2 Gallis. 361 ; Bell v. Tooley, 11 Ire. 605 ; Carolina case, after admitting that such Muir v. The State, 8 Blackf, 154 ; Reg. an officer cannot be indicted for not ac- u. Newton, 1 Car. & K. 469 ; The State cepting the office, adds: "A person who v. Boies, 34 Maine, 235; People w. Cook, undertakes an office and is in office, 4 Seld. 67 ; 1 Hawk. P. C. Curw. ed. p. though he might not have been duly ap- 432. See, as to the Scotch Law, Gunu pointed, and therefore may have a de- v. Procurator-Fiscal, 2 Broun, 554 ; Crim. feasible title, or not have been compel- Proced. II. § 885, 886, 895. lable to serve therein, is yet, from the * See McKim v. Somers, 1 Pa. 297 ; possession of its authorities, and the en- Aulanier v. The Governor, 1 Texas, 653 ; joyment of its emoluments, bound to per- In re Boyle, 9 Wis. 264 ; Morse v. CaUey, form all the duties, and liable for their 5 N. H. 222. omission, in the same manner as if the ^ Ante, § 212 et seq. appointment were strictly legal, and his 265 § 467 THE ACT EEQTJIRED. [BOOK V. the party opposing such arrest becomes thevehj partioeps criminis ; that is, an accessory in felony and a principal in high treason." ^ The better doctrine, however, is, that he need not be regarded technically as an accessory, but is also a principal and original offender.^ §466. Prison Breach, Rescue, Escape — (Forging Discharge}. — One is indictable at the common law who rescues another from an officer,^ or from prison.* And if a prisoner himself breaks away from an officer having him in custody,^ or from prison ^ whether before or after conviction, or gets released by forging his discharge,^ he is punishable. §467. Obstructing Private Suit — (Rescuing Goods — Resisting Civil Process). — Private justice administered in the courts is deemed to be of public concern ; therefore it is a crime, at least under some circumstances, to obstruct civil proceedings.^ Yet the South Carolina court held it not indictable to rescue goods in execution from a constable on whom no assault is made.^ And in Alabama, there being a statute which probably did not alter the case, a warrant reciting that A opposed B, a constable, in the execution of civil process, by concealing property of C, was adjudged not to charge a crime.-^" In these cases, however, the real objection seems to be, not alone that the proceedings are 1 4 Bl. Com. 129 ; 1 Gab. Crim. Law, Eex v. Martin, Eues. & Ey. 196 ; Eeg. v. 281; 2 Hawk. P. C. Curw. ed. p. 445, Allan, Car. & M. 295 ; Anonymous, 1 Dy. § 26; The State v. Buchanan, 17 Vt. 573;' 99, pi. 60 ; People v. Tompkins, 9 Johns. The State v. Caldwell, 2 Tyler, 212 ; The 70. State V. Hailey, 2 Stroh. 73 ; The State 5 Commonwealth v. Parrell, 5 Allen, V. Downer, 8 Vt. 424, 429 ; Common- 130 ; Eeg. u. Nugent, 11 Cox C. C. 64. wealth V. Sheriff, 3 Brews. 343 ; Eeg. v. ^ Eex v. Haswell, Euss. & Ey. 458 ; Marsden, Law Eep. 1 C. C. 131, 11 Cox People v. Duell, 3 Johns. 449 ; Common- C. C. 90; United States v. Tinklepaugh, wealth v. Miller, 2 Ashm. 61; The State 3 Blatch. 425. v. Doud, 7 Conn. 384. 2 Commonwealth w. Miller, 2 Ashm. l Eex v. Pawcett, 2 East P. C. 862 ; 61. And see Eex u. Shaw, Euss. & Ry. Vol. II. § 149. 526; Eeg. v. Allan, Car. & M. 295; Rex 8 Rgg. „. Allan, Car. & M. 295; The V. Fell, 1 Ld. Eaym. 424 ; The State v. State v. Buchanan, 17 Vt. 573 ; United Murray, 15 Maine, 100; Eex v. Stokes, 5 States v. Lowry, 2 Wash. C. C. 169 ; The Car. & P. 148 ; The State v. Buchanan, State v. Caldwell, 2 Tyler, 212 ; The 17 Vt. 578. Contra, The State v. Cuth- State v. Hailey, 2 Strob. 73 ; The State bert, T. U. P. Charl. 18. v. Lovett, 3 Vt. 110; Eex v. Fawcett, 2 'a Hawk. P. C. Curw. ed. p. 445, § 27 ; East P. C. 862. See Comfort v. Com- 4 Bl, Cora, 131 ; Jenk. Cent. 171 ; Eex v. monwealth, 6 Whart. 437. Stokes, 5 Citr. & P. 148 ; The State v. » The State v. Sotherlen, Harper, 414. Cuthbert, T. U. P. Charl. 13. See ante, § 465; Vol. II. § 1012, 1013. * The State v. Murray, 15 Maine, 100; m Crumpton v. Newman, 12 Ala. 199. 266 CHAP. XXXn.] PROTECTION TO GOVERNMENT. § 468 civil, but that the act of obstruction is not sufficiently near and direct. § 468. other Obstructions of Justice. — In the developments of wickedness hitherto disclosed to the tribunals, various other methods of obstructing public justice have appeared, and been held to be indictable at the common law. Some of them are — Preventing Attendance on Court — Bribery — Perjury — Less than Perjury — Tampering with Witness — With Judge or Juror — Pre- venting Coroner's Inquest — Burying Body — Personating Officer — Acting as Officer — Forging Records, &c. — Preventing, or attempt- ing to prevent, a witness, juror, or officer of the court from attending upon it ; ^ bribery, actual or attempted, of a judicial or other like officer ; ^ persuading a witness to take, in a judicial pro- ceeding, a false oath, which he does, called in law subornation of perjury ; ^ attempting to induce him to take such oath ; * even tampering with him, short of this direct act,^ as by undertaking to intimidate him ; ^ endeavoring, by indirect means, to influence the judge or jury concerning the merits of a cause on trial or on the eve of trial,'' as by circulating papers respecting its merits ; * committing perjury ; ^ making or publishing false affidavits, prej- udicial to justice, or to the workings of the government, in cases not amounting technically to perjury ; i" preventing a coroner from holding an inquest, as by burying the body or otherwise, in a case where an inquest is required by law ; ^^ personating an officer, or 1 The State v. Carpenter, 20 Vt. 9 ; Vol. II. § 1167. And see Ashley's Case, The State v. Keyes, 8 Vt. 57 ; The State 12 Co. 90. V. Early, 3 Harring. Del. 562; Rex v. * Rex u. Johnson, 2 Show. 1 ; Reg. w. Chaundler, 2 Ld. Baym. 1368 ; s. c. nom. Darby, 7 Mod. 100. Rex V. Chandler, 1 Stra. 612, 8 Mod. 336, 6 Reg. v. Loughran, 1 Crawf . & Dix which last see ; Roberts's Case, 3 Inst. C. C. 79. 139 ; Commonwealth v. Feely, 2 Va. Cas. 1 4 Bl. Com. 140. 1 ; Commonwealth v. Reynolds, 14 Gray, ' Rex v. Burdett, 1 Ld. Raym. 148 ; 87, 89 ; Martin v. The State, 28 Ala. 71 ; Rex v. Jolliffe, 4 T, R. 285; Anonymous, Crim. Proced. I. § 556; II. § 897; The Lofft, 462; Rex v. Lee, 5 Esp. 123; Rex State V. Ames, 64 Maine, 386 ; Reg. v. v. Fisher, 2 Camp. 563. Hamp, 6 Cox C. C. 167. As to the Penn- » 2 Russ. Crimes, 3d Eng. ed. 596 ; sylvania statute against absconding wit- Rex v. Aylett, 1 T. R. 63; Vol. II. nesses, see Commonwealth v. Phillips, 3 § 1015. Pittsb. 426; post, § 695. i" Omealy v. Newell, 8 East, 364; Rex 2 Barefield v. The State, 14 Ala. 608 ; v. De Beauvoir, 7 Car. & P. 17 ; Rex v. The State v. Carpenter, 20 Vt. 9 ; 4 Bl. O'Brian, 2 Stra. 1144, 7 Mod. 378 ; Vol. Com. 139. II. § 1014, 1029. 8 Vol. II. § 1197. 11 Rex v. Soleguard, Andr. 231 ; Anon- * 2 Russ. Crimes, 3d Eng. ed. 596 ; ymous, 7 Mod. 10 ; Rex u. Proby, 1 Keny. 250. 267 §470 THE ACT EEQUIRED. [book v. falsely pretending to be an officer, or a juryman,i or one having authority to discharge soldiers,^ and acting as such ; counterfeit- ing the processes, or altering the records, of a court ; ^ — these and other like obstructions of public justice are indictable at the common law. § 469. Refusing to assist Officer. — In circumstances wherein ; private persons are lawfully called upon by an officer to assist him in official duties, it results from principles abeady laid down,* ' that, if without lawful excuse they refuse ; or, having under- taken, refuse to proceed in good faith, — they must answer for the refusal as a crime. Aid to Constable, &c. — Of this nature is a declining to aid a constable or sheriff in arresting a person, or in otherwise serving process, civil or criminal, or in preventing an escape.^ So, says Mr. East, " the mere act of refusing personal assistance to the king, either against rebels or an invading army, ... is a high misdemeanor." ® § 470. Oral Slander of Officer. — And slanderous words, spoken of official persons, especially spoken to them, may be indictable when they would not be so if uttered of or to a private individ- ual.'^ Also — 1 Scarlet's Case, 12 Co. 98; Anony- mous, March, 81, pi. 132. Usurping Of- fice. — By the Constitution of Kentucky, " no person shall be eligible to the office of commonwealth's or county attorney, unless he shall have been a licensed prac- tising attorney for two years." And a statute makes it punishable, " if any per- son shall usurp any office established by the constitution or laws of this common- wealth." Consequently, if one who has not been a licensed practising attorney for two years accepts the office on being elected, and receives its emoluments, he commits the statutory offence. Com- monwealth V. Adams, 3 Met. Ky. 6. In Ohio, an officer who, after serving his time, in good faith holds over tUl his suc- cessor is qualiiied, believing this to be his duty, is not punishable under tlie statute for usurping office. Kreidler v. The State, 24 Ohio State, 22. And see Daniel v. The State, 8 Heisk. 257 ; Lan- sing V. People, 57 111. 241 ; Common- wealth ». Connolly, 97 Mass. 591, 268 2 "Serlested's Case, Latch, 202. In this case, money was taken from the soldier for discharging him ; so it would perhaps be more accurate to regard the ofEence as a cheat. 8 2 East P. C. 865, 866. * Ante, § 457. 6 Coyles V. Hurtin, 10 Johns. 85 ; The State V. Deniston, 6 Blackf . 277, decided, however, upon a statute ; Reg. v. Brown, Car. & M. 314 ; The State v. Hailey, 2 Strob. 73 ; Comfort v. Commonwealth, 5 Whart. 437. 6 1 East P. C. 80. And see 4 Bl. Com. 122. ' Vol. II. § 946; Eex v. Pooock, 2 Stra. 1157 ; Eex v. Darby, 3 Mod. 139, Comb. 65 ; Ex parte Chapman, 4 A. & E. 773; Reg. ti. Nun, 10 Mod. 186, 187; Reg. V. Langley, 3 Salk. 190, 6 Mod. 124; Eex V. Spiller, 2 Show. 207, 209 ; Anony- mous, Comb. 40, 65, 66 ; Rex v. Staples, Andr. 228 ; Reg. v. Wrightson, 11 Mod. 166 ; Eex v. Leafe, Andr. 226. Query, whether verbal slander of a justice of CHAP. XXXn.] PROTECTION TO GOVEENMENT. §476 Assault on Officer. — Assaults and other like offences are aggra- vated by being committed against persons in ofiBcial station, espe- cially when in the actual discharge of official duties.^ § 471. Offences against Elections ^ — (Preventing Election — Brib- ery — Double Voting — Buying Office). — It is essential to the exist- ence and functions of the government that persons be designated to conduct its several departments, and important that the choice be free and wise. Therefore any act tending to defeat these objects — as forcibly or unlawfully preventing an election from being held,^ bribing or corruptly influencing an elector,* receiving as an elector a bribe,^ casting more than one vote,^ " the taking or giving of a reward for offices of a public nature," ^ and the like — -'is punishable under the criminal common law. § 472-476. Spreading False News, — One of the old common- law offences, confirmed by statutes early enough in date to be common law in this country, is termed the spreading of false news. It relates primarily, if not exclusively, to public affairs, ' — " to make discord," as Blackstone expresses it, " between the king and nobility, or concerning any great man of the realm." " the peace is indictable, unless the words are spoken to him in his presence. Rex V. Weltje, 2 Camp. 142 ; 2 Stark. Slan- der, 194-197. But several of the aboYe- cited cases are opposed to this distinction. 1 Vol. II. § 42, 45, 49-51 ; Oldfleld's Case, 12 Co. 71. 2 Discussed Stat. Crimes, § 802-843. 8 Reg. u. Soley, 11 Mod. 115. 4 Rex V. Cripland, 11 Mod. 387; Rex V. Plympton, 2 Ld. Raym. 1377 ; Rex a. Pitt, 3 Bur. 1335, 1338 ; Rex v. JoUiffe, 1 East, 154, note ; Commonwealth v. Cal- laghan, 2 Va. Cas. 460. And see 1 Gab. Crim. Law, 164, note 165 ; 1 Russ. Crimes, 3d Eng. ed. 154; Vol. II. Brib- EKY. 5 Commonwealth v. Callaghan, 2 Va. Cas. 460. ' Commonwealth v. Silsbee, 9 Mass. 417 ; The State v. Bailey, 21 Maine, 62 ; The State v. Williams, 25 Maine, 561. See also Walker «. Winn, 8 Mass. 248 ; Clark V. Binney, 2 Pick. 113. Personat- ing Voter at Municipal election. — It has been held in England ( Rex v. Bent, 1 Den. C. C. 157), and in Canada (Reg. v. Hogg, 25 U. C. Q. B. 66), that falsely to personate a voter at a municipal election is not indictable at the common law. The Canada case does not explain why, but the decision is placed on the English authoiity. In the English case, the elec- tion was for councillors ; and, before the Municipal Corporations Act was passed, no such election could be had. But that Act made provision for the exact of- fence ; therefore, as it could not exist at common law before, it could not now, the statute having occupied the place of the common law. Voting at Municipal Election. — In The State u. Listen, 9 Humph. 603, the Tennessee court, not re- ferring to any authorities, held, that for a person to vote at a municipal election, without being qualified, is not indict- able at the common law. We may doubt whether, as general doctrine, this decision should be elsewhere followed. See ante, § 246. ' 1 Hawk. P. C. 6th ed. c. 67, § 3; Rex V. Taggart, 1 Car. & P. 201. 8 4 Bl. Com. 149. In the fifth edition of the present work, § 472-476, as above, this subject is explained at length. In § 473, Stat. Westm. 1 (3 Edw. 1) c. 34, 269 § 478 THE ACT EEQUIKBD. [BOOK V. § 477. Continued. — What were the precise limits of the doc- trine in England, when our ancestors brought the common law to this country, we may not be able to state ; and this branch of the inquiry is left here, with a simple reference to some sources of authority.^ How in United States. — This old provision of English law may be classed with those which, if received in our country, are by the courts shaped to our institutions and times. But whether, under any modifications, it shall be deemed law with us is a ques- tion upon which judges may differ, not because they should doubt that it is adapted to our situation, but because it has lain so long unused. Under the doctrine that there can be no common-law offences against our national government,^ it can have effect only in the States, and as to offences against the State govetrnments. § 478. Continued — Political Slanders, &c. — On principle, and as matter addressing itself to the legislative discretion, if not to the judicial, the political falsehoods, as they are called, whereby official persons and candidates for office, and those who seek to influence voters, are made to speak, do, and intend what they never dreamed of, and their real views and purposes are per- verted, — falsehoods with respect to the views and purposes and declarations of men regarding public affairs, — are among the is given ; in § 474, 475, are Lord Coke's ing such false news ; which said printed comments upon it, from 2 Inst, 226, paper is of the tenor following; ' In pur- 227 ; and, in § 467, is given the statute of sxiance of His Majesty's order in counsel 2 Rich. 2, Stat. 1, c. 6. I do not think it to me directed, these are to give public necessary to encumber the present edi- notice, that war with France will be pro- tion with this matter in full. There are claimed on Friday next, the 24th instant, also Stats. 1 & 2 Phil. & M. c. 3, and 1 at the palace royal, St. James's, at one Eliz. c. 6 ; but they concern merely the of the clock, of which all heralds and Crown, and do not appear to me to be pursuivants at arms are to take notice, important in this connection. and give their attendance accordingly. 1 See the marginal notes and refer- Given under my hand this 22d day of enees in RufEhead and the other printed April, 1778. Efflngliara, D. M.' " The editions of the above-mentioned statutes ; \ defendant was a bill-sticker by profes- 2 Inst. 225 et seq. ; 8 Inst. 198; 4 Bl. sion ; and, it appearing on the trial that Com. 149. Mistake of Fact — Form he had been imposed upon, and induced of Indictment. — In 1778, Alexander Scott was indicted at the Old Bailey "for that he, on the 28d of April last, unlawfully, wickedly, and maUoiously to stick up the bill containing the false matter believing it to be true, whereas the bill itself was a forgery, he was ac- quitted. There does not seem to have did publish false news, whereby discord, been any doubt that the act with which or occasion of discord, might grow be- he was charged was indictable. Scott's tween our lord the king and his people, Case, 5 New Newgate Calendar, 284. or the great men of the realm, by pub- ^ Ante, § 189 et seij. lishing a certain printed paper, contain- 270 CHAP. XXXn.J PKOTECTIOK TO GOVERNMENT. § 480 highest crimes, next to treason itself, of which any persons can be guilty. § 479. Counterfeiting Coin. — Counterfeiting the coin ^ appears to be regarded, in England, as an offence against the king, or government. It used there to be treason,^ though now it is only felony.^ Perhaps this was hardly the just view of it in England ; for East aptly observes, that it " is in truth a species of the crimen falsi, or forgery." * It touches at several points the forbidden ground ; but is analogous to forgery, which is a peculiar species of attempt, successful or otherwise, to defraud individuals.^ It is indictable at the common law.® §480. Classification — Other Obstructions. — In the foregoing illustrations of the doctrine of our present chapter, no mention is made of some acts wliich really tend to the obstruction of the government and its justice, on which ground they are therefore indictable ; while also they are public offences on still other grounds. There is no crime which is not an obstruction, in some sense, of the government and its justice. But in our classifica- tion of offences, we include each act, rather in the particular cir- cle to which its attractions are strongest, than in all the several circles to which it is at all attracted. 1 Discussed Vol. 11. § 274 et seq. * 1 East P. C. 158. 2 4 Bl. Cora. 97; 1 Hawk. P. 0. 6th 6 Post, § 572. ed. c. 17, § 64 ; 1 East P. C. 158. ^ Yet see, as to this covmtry, Vol. 11. 8 1 Russ. Crimes, 3d Eng. ed. 54 et § 281, 283-287. seq. 271 § 483 THE ACT BEQTJIEED. [BOOK V. CHAPTER XXXIII. PROTECTION TO THE RELATIONS OF THE GOVERNMENT "WITH. OTHER GOVERNMENTS. § 481. Scope of this Chapter. — The principal doctrines on the subject of this chapter will be stated in it ; but they will be less expanded, because less important, than if it were not understood that our national tribunals have no jurisdiction of offences under the common law of nations.^ Leading Doctrine. — The leading doctrine is, that nations should conduct uprightly in their intercourse with one another ; and each should abstain from acts justly offensive to other nations, or injurious to them, or to their subjects, according to the common understanding of mankind as expressed in the law of nations. And the subject who violates this duty, due from his government to another nation, is by his government punishable. § 482. Neutrality. — One of the most important duties of a nation, recognized in modern times, is to forbear taking sides against a friendly power, in its quarrel with another power. Hence our neutrality laws.^ But as these are of infrequent application, it will be sufficient simply to refer to some cases under them and the like English statute.^ Enactinents of this sort are not in af&rmance of an unwritten law ; but are aids to the government in preserving the' peace with friendly govern- ments, and dealing with them in harmony with the modern law of nations. §483. Law of Nations. — Governments are no more capable than individuals * of existing together without law to regulate 1 Ante, § 199-202. Lumsden, 1 Bond, 5 j Attorney-General 2 R. S. of U. S. § 5281-5201. v. Sillim, 3 Fost. & P. 646; s. c. nora. s The Estrella, 4 Wheat. 298 ; The Attorney-General v. SiUem, 2 H. & C. 431 ; Gran Para, 7 Wheat. 471 ; United States Reg. v. Jones, 4 Fost. & F. 25 ; Reg. ». V. Reyburn, 6 Pet. 352 ; United States v. Rumble, 4 Fost & F. 175 ; Reg. v. Cor- Quiney, 6 Pet. 445 ; Ex parte Needham, bett, 4 Fost. & F. 555. Pet. C. 0. 487 J United States v. Kazin- * Ante, § 5, 14 ; Bishop First Book, ski, 2 Sprague, 7; United States v. §43-45. 272 CHAP, xxxrn.] relations with other governments. § 485 their mutual relations. This law is called the law of nations. It is in truth common law ; ^ or, rather, the common law has appropriated the law of nations, making it a part of itself. § 484. What punishable under Law of Nations. — Any conduct, therefore, -in one of our citizens, or in a foreigner within our bor- ders, tending to involve our government in difficulty with a for- eign power, is an offence for which, on general principles and according to English doctrine, an indictment can be maintained. Thus, — Excite to Revolt — Libel on Foreign Prince. — Endeavors to create a revolt against a government in amity with ours,^ libelling a for- eign prince ^ or other person in official station abroad,* and the like, are offences against the law of nations. Passports — Pood for Prisoners of War. — The same, in a time of war between our government and another, are the violation of safe conducts or passports given under authority of ours to an enemy ; ^ and the deceitfully, maliciously, and wilfully supplying of prisoners of war with unwholesome food, not fit to be eaten by man.^ § 485. Conclusion. — Such is the general scope of the law of nations as to crime. This law has provided rules to determine the jurisdiction, on the high seas and elsewhere, of the several governments ; and the classes of persons who are subject to, and exempt from, the municipal regulations of each ; but these ques- tions were treated of in the early chapters of this volume. 1 4 Bl. Com. 67. * Rex v. Gordon, 1 Russ. Crimes, 3d 2 Phillim. International Law, 416, Eng. ed. 246; Rex v. Vint, 1 Russ. 417 ; 124 Hansard Pari. Deb. 1046. Crimes, 3d Eng. ed. 246. 3 Phillim. International Law, 417 ; » 4 BU Com. 68. i Vint's Case, 27 Howell St. Tr. 627 ; Pel- « Treeve's Case, 2 East P. C. 821. tier's Case, 28 Howell St. Tr. 529. VOL. I. 18 273 § 488 THE ACT EEQUniED. [BOOK V. CHAPTER XXXIV. PKOTBCTIOSr TO THE PtJBLIC EEVENTJE. § 486. In General of the Revenue. — As governments cannot be conducted without revenue, protection to it becomes of prime importance. And separate revenues are required by the United States and the States. But the State governments are not per- mitted to levy duties on imports ; therefore their revenues come exclusively from internal taxation and other sources of this kind. The United States government has both sources of revenue ; though, till of late, it has come mainly from the sale of public lands, and from duties laid on imports. § 487. Continued. — But the emergencies of a civil war and the debt following have compelled the United States to add to her other sources of revenue what comes from an extensive and com- plicated system of internal taxation. This system forms, of itself, a sufficient subject for a law-book ; the question of duties, another ; and State taxation and revenue, another. § 488. Common Law of Revenue. — There do not appear to be any offences, known to the common law, founded distinctly and separately on the duty of the subject to protect the revenues of the government. But — statutes. — The statutes on this subject are numerous. In general, they are not classed as criminal laws.^ Their primary object is the collection of duties ^ and other taxes. Still, by these laws, some crimes have been constituted.^ Yet a particular dis- cussion of them is not called for in this connection. 1 United States v. Hodson, 10 Wal. 895. 266. Other Cases on United States 2 Stat. Crimes, § 196. Internal Bevenue. — United States a. ' As to Smuggling, see United States Jacoby, 12 Blatch. 491 ; United States v. V. Nolton, 5 Blatch. 427 ; United States Page, 2 Sawyer, 353 ; United States v. V. Bettilini, 1 Woods, 654 ; United States One Case, 6 Ben. 493 ; United States i>. V. Cases of Books, 2 Bond, 271 ; United Foster, 2 Bis. 468. Kentucky Tax States!). Tliomas, 4 Ben. 370; 2 Abb. U.S. Laws. — Olds v. Commonwealth, 3 A. K. 114; The Missouri, 4 Ben. 410, lUlcit Mar. 465; Taylor v. Commonwealth, 15 Distilling. — United States w. Chaffee, 2 B. Monr. 11. South Carolina. — The Bond, 110; United States v. Spirits, 4 State v. Chapeau, 4 S. C. 378. lUinois. Ben. 471 ; United States v. Fox, 1 Lowell, — Faulds v. People, 66 111. 210. 199; United States v. Boyden, 1 Lowell, 274 CHAP. XXXV.J PROTECTION TO PUBLIC HEALTH. § 490 CHAPTER XXXV. PEOTECTION TO THE PUBLIC HEALTH. § 489. Indictable to endanger Public Health. — The public health is an interest of supreme regard. Therefore every thing of suffi- cient magnitude,^ calculated to impair it, is indictable at the com- mon law. Thus, — § 490. Exposing to Contagious Disease. — It is no crime for a man to be sick of a contagious disease in his own house, even in a populous locality, or for his friends to decline removing him ; ^ yet, if he goes into a public way carrying the infection to the danger of the public, or if one so takes out an infected child,^ or a horse having a disease communicable by infection to man,* an offence indictable at the common law is committed. And, — Filthy Houses — Unhealthful Manufactories — (Private Abatement of Nuisance). — As observed in a New York case : " It is a com- mon nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in time of sickness and infection of the plague.^ So manufact- ures, lawful in themselves, may become nuisances, if erected in parts of towns where they cannot but greatly incommode the inhabitants, and destroy their health." Therefore, when cholera was supposed to be contagious, — a consideration, however, which does not directly appear to have influenced the decision, — a dwelling-house, divided into small apartments, thickly inhabited, and kept in a filthy condition, during the cholera time, was adjudged to be a nuisance, even abatable by persons residing near.^ Again, — 1 Ante, § 212 et seq. ^ Meeker v. Van Rensselaer, 15 Wend. 2 Boom V. Utica, 2 Barb. 104. 39t. See The State v. Purse, i McCord, 8 Rex V. Vantandillo, 4 M. & S. 73 ; 472 ; People i^. Townsend, 3 Hill, N. Y. Rex V. Burnett, 4 M. & S. 272 ; 1 East 479 ; and as to the abatement of the nui- P. C. 226. sance, Welch v. Stowell, 2 Doug. Mich. * Reg. V. Henson, Dears. 24, 18 Eng. 332, and MofEett u. Brewer, 1 Greene, L. & Eq. 107. Iowa, 348 ; Barclay v. Commonwealth, 1 6 Referring to 2 Eol. Abr. 139. Casey, 503, 275 §491 THE ACT KEQTJIEBD. [book T. § 491. Unwholesome Pood and Drink. — It is indictable at the common law to corrupt a fountain of water which is to be drank,^ or to render unwholesome any food which is to be consumed in the community ,2 or to sell or cause to be used for food ^ what is inju- rious to the health. Indeed the mere exposure for sale, as food, of unwholesome provisions, in an open market, or the sending of them there for the purpose, constitutes the complete ofPence at common law.* ' And even the common carrier who brings them to market, with knowledge, is indictable.^ But the act is not indictable if the unwholesome provisions are not intended to be used for food.^ And the mere private administering, to a, single individual, of what is unwholesome is not an indictable public nuisance, however it may be viewed as an assault or battery.'^ Old statutes — Modern. — If this Were not SO under the ancient common law, still there are English statutes to this effect, so old as to be common law with us.^ And there are modern 1 The State v. Buckman, 8 N. H. 203. And see Commonwealth v. Lyons, 1 Pa. Law Jour, Rep. 497 ; Stein v. The State, 37 Ala. 123. 2 Rex V. Dixon, 3 M. & S. 11, 4 Camp. 12 ; Rex v. Haynes, 4 M. & S. 214. 8 The State v. Smith, 8 Hawks, 378 ; The State v. Norton, 2 Ire. 40 ; Rex v. Treeve, 2 East P. C. 821 ; The State v. Buckman, 8 N. H. 203 ; Hunter v. The State, 1 Head, 160 ; People v. Parker, 38 N. Y. 85 ; Goodrich v. People, 3 Parker C. C. 622, 19 N. Y. 574. * Reg. ... Stevenson, 3 Fost. & F. 106. 5 Reg. V, Jarvis, 3 Post. & F. 108. 8 Reg. V. Crawley, 3 Fost. & F. 109. ^ Administering as Assault. — In the jury case of Reg. v. Hanson, 2 Car. & K. 912, 4 Cox C. C. 138; it was held, by two judges, not to be even an assault. But the correctness of this decision is, in principle, more than doubtful. And in Massachusetts such an act is held to be assault and battery. Common- wealth I). Stratton, 114 Mass. 303. The noxious thing was ii force put in motion by the party administering it, and it inflicted an intended physical in- jury, — why, then, was not the act an assault 1 And see Vol. II. § 32 and note. Afterward the defect, if such there was, in the law, was in England cured by leg- islation. Stat. 23 Vict. o. 8, § 2, re- 276 enacted in 24 & 25 Vict. c. lOO, § 24, pro- vides (I copy from the latter) that " whosoever shall unlawfully and mali- ciously administer to, or cause to be ad- ministered to or taken by, any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanor, and," &c. And it has been held, that the administering jof cantharides to a woman, in order to excite her sexual passions, and thus ob- ■tain a criminal connection with her, is an offence within the statute. Reg. v, Wil- kins, Leigh & C. 89, 9 Cox C. C. 20. The same was held in Michigan, at an earlier date, on a similar statute. People v. Carmichael, 5 Mich. 10. Where the ulterior object is to obtain, by stealth, the property of the person injured, it is the same. People v. Adwards, 5 Mich. 22. The principle is, that, since the de- fendant meant to inflict the injury which the statute pointed out, this intent, with the act, filled the statutory terms ; and, though he had also another intent, and it was the principal one, still a surplusage of intent could not take away what, without it, was fully within the statute. And see ante, § 339. 8 Burnby v. Eollitt, 11 Jur. 827; 4 Bl. Com. 162, where this learned commenta- tor says : " A second offence against pub- CHAP. XXXV.] PROTECTION TO PUBLIC HBAXiTH. §494 statutes, English and American, in affirmance of the ancient law.^ Noxious Trade. — Injury to the public health is one ground on which the carrying on of noxious trades in thickly settled neigh- borhoods is held to be a crime.^ § 492. Quarantine, &o. — Considerations of public health enter into the regulations of quarantine ^ and others of a like nature.* § 493. Selling Liquors — Lotteries — Gaming, &c. — Considera- tions of public health lie, in part, at the foundation of statutory regulations and prohibitions, existing in most of the States, con- cerning the sale of intoxicating liquor, concerning lotteries, gaming, and various other like things. They are discussed in " Statutory Crimes." The wisdom of this sort of legislation is for the legislature ; the constitutional right to adopt it is generally conceded by the courts.^ § 494. Conclusion. — There are offences besides these, into which a regard for the public health enters as one of the consid- erations ; but they are reserved for other connections. lie health is the selling of unwholesome proTisions. To prevent which the stat- ute 51 Hen. 3, stat. 6, and the ordinance for bakers, c. 7, prohibit the sale of cor- rupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew ; under pain of amercement for the first offence, pillory for the second, fine and imprisonment for the third, and abjura- tion of the town for the fourth. And by the statute 12 Car. 2, c. 25, § 11, any brewing or adulteration of wine is pun- ished with the forfeiture of ilOO if done by the wholesale merchant; and £40 if done by the vintner or retail trader." 1 Pope V. Tearle, Law Kep. 9 C. P. 499; Roberts v. Egerton, Law Rep. 9 Q. B. 494 ; Fitzpatrick v. Kelly, Law Rep. 8 Q. B. 337 ; Commonwealth ». Raymond, 97 Mass. 567 ; The State v. Taylor, 29 Ind. 517 ; Vason v. Augusta, 38 Ga. 542. 2 Rex V. Davey, 5 Esp. 217 ; Rex v. Neil, 2 Car. & P. 485. 3 See Rex v. Harris, 4 T. R. 202, 2 Leach, 4th ed. 549 ; The State v. Patter- son, 14 La. An. 46. * See Commonwealth v. Pahey, 5 Cush. 408 ; Harrison v. Baltimore, 1 Gill, 264. As to Importing Infected Cattle. — Teazel v. Alexander, 58 111. 254 ; Soni- erville v. Marks, 58 111. 371. Noxious Trades in Cities. — Taunton v. Taylor, 116 Mass. 254 ; Watertown v. Mayo, 109 Mass. 315. Other Nuisances in Cities. — Underwood v. Green, 3 Rob. N. Y. 86 ; Eeed v. People, 1 Parker C. C. 481. Sell- ing Adulterated MUk. — Stat. Crimes, § 358, 385, 561. • And see, in illustration, The State v. Fisher, 52 Misso. 174. Cattle Guards. — So the Vermont court has held, that the railroads may be compelled by legis- lative act to maintain cattle guards at the crossings. Thorpe v. Rutland and Burlington Railroad, 27 Vt. 140. 277 § 496 THE ACT BEQTJIEED. [BOOK V. CHAPTER XXXVI. PEOTEOTION TO EELIGION, PUBLIC MOKALS, AND EDUCATION. § 495. Introduction. 496-499. Religion. 500-606. Public Morals. 507, 508. Public Education. § 495. General Doctrine. — Upon religion, morals, and education society and the state itseK rest. Therefore, within .practical lim- its, yet not to the full extent which mere theory might indicate, the law protects them, and holds to be indictable acts wrongfully committed to their detriment. How the Chapter divided. — But the protection given to one of these interests is not necessarily the measure of that awarded to another. Therefore we shall consider them separately, as re- spects, I. Religion ; II. Public Morals ; III. Public Education. I. Religion. § 496. Religion as distinguished from its Forms. — The mind of man consists of many faculties and propensities, on the harmo- nious action of which his happiness depends. And among these, is the faculty which takes cognizance of a Higher Power, and the propensity to look to that Power, in conscious feebleness, for help. Such is what we witness of man, in all ages, in all countries, and in all grades of civilization and of barbarism. If there are indi- vidual instances in wliich this seems not to be so, it is because the religious part is apparently hidden by an unnatural and deformed growth of some other ; and it may be equally observed of parts not religious. But in most men, of whatever class, age of the world, or country, a religious part distinctly appears. And this is a thing quite separate from the multitudinous forms of religion in which it manifests itself. 278 CHAP. XXXVI.] EELIGION, MOBAiS, AND EDUCATION. § 498 Form established by Law. — When this country was settled, there was in England, as now, a form of religion established by law. But it was not brought hither, in a way to become a part of our common law ; for the early emigrants deemed, that relig- ion, in its essence and spirit, flourishes best when left to its own forms. Simony — Non-conformity, &o. — In England, therefore, growing out of its church establishment, there are statutory and common- law offences unknown in the United States. Such are simony, being a corrupt presentation to an ecclesiastical benefice ; ^ non- conformity to the worship of the church ; ^ beating a clerk in orders, as an offence higher than an ordinary battery ; ^ and some others. § 497. Christianity a part of our Common Law. — Yet, in a more general sense, while religion, as above explained, is a part of universal law, Christianity is a part of our common law.* But — Apostasy, &c. — Imposture — Pretended Prophecies. — Whether it follows from this, that apostasy, which is a total renunciation, of Christianity by those who have embraced it ; ^ those darker heresies which tend to overturn Christianity itself, and not merely some form of it ; ^ religious imposture,' false and pretended prophecies,* and the like, — were ever subjects of indictment here, as they were in England when our forefathers came to this coun- try, we have probably no adjudications. Practically they have dropped silently out of the catalogue of crimes even on the other side of the Atlantic. And the good sense of the presentjage has taught, that opinions should not be restrained by law, unless developed in some injurious act. This, indeed, we have seen to be fundamental in the common law itself.® § 498. Profaneness and Blasphemy. — Public profane swearing and blasphemy are in this country indictable at the common law ; yet less, according to some views, as tending to sap the founda- 1 4 Bl. Com. 62 ; 1 Bast P. C. 35. See Cincinnati Board of Education v. 2 4 Bl. Com. 51. Minor, 23 Ohio State, 211. 8 4 Bl. Com. 217. * 4 Bl. Com. 48. * Updegraph v. Commonwealth, US. « 4 Bl. Com. 44. And see Reg. w. & R. 394; People v. Buggies, 8 Johns. Gathercole, 2 Lewin, 237. 290; Shover v. The State, 5 Eng. 259: ^ 4B1. Com. 62. 1 Bancroft Hist. U. S. 243 ; Vol. II. § 74. 8 4 Bl. Com. 149. « Ante, § 204, 206, 430, 431. 279 § 500 THE ACT EBQUIEED. [BOOK T. tions of Christianity, than as disturbing the peace and corrupting the morals of the community.^ § 499. Lord's Day. — The observance of the Lord's day is, both here and in England, so fully enforced by statutes that it is of little consequence to inquire what the law would be without them.2 One of our State courts ^ has deemed that its violation is not a common-law offence in this countrj''. Yet if we reflect, that its observance contributes to the public repose, health, morals, and convenience, as well as religion ; that our ancestors were a Sabbath-keeping people ; and that the law in both countries rests on exactly the same reasons, — we shall see room for at least the doubt, whether this part of the English system did not come to us with the great body of English law. If it should be found to have originated in ancient acts of Parliament, rather than in im- memorial usage, the result would not therefore be different.* II. Public Morals. § 500. How protected by Law. — But however uncertain may be the extent to which the common law protects Christianity, plainly it cherishes fully the public morals. And every act which it deems sufficiently evil and direct,® tending to impair them, it punishes as crime. Thus, — Bawdy-house — Open Obscenity, &o. — The keeping of bawdy- houses ; ^ the public exhibiting or publishing of obscene pictures ' People B. Ruggles, 8 Johns. 290 ; day, peculiar to sect ; yet the setting The State v. Jones, 9 Ire. 38 ; The State apart, by the whole community, of one V. Chandler, 2 Barring. Del. 553 ; Upde- day in seven, wherein the thoughts of graph V. Commonwealth, 11 S. & R. 394. men and their physical activities shall be And see The State v. Kirby, 1 Murph. turned into another than their accus- 254; Commonwealth v. Kneeland, 20 tomed channel, is a thing as much per- Pick. 206; The State v. EUar, 1 Dev. taining to the law of nature as is the 267 ; Vol. II. § 74. alternation of night with day, and the 2 1 East P. C. 5 ; The State v, Broolts- rest and restoring influence of sleep, bank, 6 Ire. 73 ; Nabors v. The State, 6 Those who, out of dislike to sect or Ala. 200 ; The State v. Schnierle, 5 Rich, party in religion, seek to abolish the Sab- 299. And see The State v, Williams, 4 bath, are as unwise as he who, to destroy Ire. 400. a bird of prey, should aim his gun where ' The State v. Brooksbank, 6 Ire. 73. the ball would take effect on his nearest * It is a mistake to suppose, that Sab- friend, bath-keeping is a thing only of religious ^ Ante, § 212 et seq. observance, or a mere tenet of a sect. " 4 Bl. Com. 168; Reg. v. Williams, There are, indeed, views as to the man- 10 Mod. 68, 1 Salk. 384 ; Smith v. The ner of the observance, or the particular State, 6 Gill, 425 ; The State v. Evans, 280 CHAP. XXXVI.] EELIGION, MORAiS, AKD EDUCATION. § 501 and writings ; ^ tlie public utterance of obscene words ;2 the inde- cent and public exposure of one's person, or the person of an- other ; ^ and, generally, all acts of gross and open lewdness ; * are indictable at the common law. But, — §501. Adultery — Fornication — Private Exposure of Person — Solicitations. — For reasons already considered,^ the same things, — as advdtery and fornication,^ though committed with many persons,^ solicitations to permit these offences,^ exposure of a man's person to one female only,^ — done in a more private man- ner, are not punishable criminally, except indeed under statutes, which exist in many of the States. Open Adultery. — In South Carolina, an open living in adultery has been held not to be indictable at the common law, though charged as an offence against public decency.^" The courts of some of our other States recognize the better doctrine in princi- ple, that adultery and fornication may be so notorious and gross as to be common-law crimes. The line may not easily be drawn, yet, in a just view, some things of this general class should be deemed punishable, others not.i^ 6 Ire. 603 ; Smith v. Commonwealth, 6 B. Monr. 21 ; Ross v. Commonwealth, 2 B. Monr. 417; People v. Erwin, 4 Denio, 129; Commonwealth v. Harrington, 3 Pick. 26; Reg. u. Pierson, 1 Salk. 382; Jennings v. Commonwealth, 17 Pick. 80 ; Warren v. People, 3 Parker C. C. 544. And see The State v. Bailey, 1 Post. N. H. 343. \ Commonwealth v. Holmes, 17 Mass. 336 ; Commonwealth v. Sharpless, 2 S. & R. 91 ; Willis v. Warren, 1 Hilton, 590; Reg. V. Grey, 4 Post. & F. 73 ; Common- wealth K. Landis, 8 Philad. 453. 2 Bell V. The State, 1 Swan, Tenn. 42. 8 Britain v. The State, 3 Humph. 203 ; The State v. Roper, 1 Dev. & Bat. 208 ; Reg. V. Webb, 1 Den. C. C. 338, 2 Car. & K. 933, Temp. & M. 23, 13 Jur. 42 ; Mil- ler V. People, 5 Barb. 203 ; The State v. Rose, 32 Misso. 560 ; People v. Bixby, 4 Hun, 636; Reg. v. Reed, 12 Cox C. C. 1, 2 Eng. Rep. 157; Reg. v. Saunders, 1 Q. B. D. 15, 19, 13 Cox C. C. 116. * 4 Bl. Com. 64; Brooks v. The State, 2 Yerg. 482. 6 Ante, § 235, 236, 243-246. » Reg. 0. Pierson, 1 Salk. 382 ; Gali- zard V. Rigault, 2 Salk. 552 ; s. c. nom Gallisand v. Rigaud, 2 Ld. Raym. 809 : The State f. Brunson, 2 Bailey, 149: Anderson v. Commonwealth, 5 Rand 627 ; Commonwealth v. Isaacs, 5 Rand, 634 ; Commonwealth u. Jones, 2 Grat, 655 ; The State v. Cooper, 16 Vt. 551 ; The State v. Poster, 31 Texas, 578 ; The State V. Rahl, 33 Texas, 76 ; The State V. Smith, 32 Texas, 167 ; ante, § 38. 1 The State v. Evans, 5 Ire. 603; Reg. V. Pierson, 1 Salk. 382; The State v. Moore, 1 Swan, Tenn. 136. 8 Reg. u. Pierson, 1 Salk. 382. SoUci- tation an Attempt. — Where a statute makes adultery an indictable felony, the solicitation is punishable as an attempt. The State v. Avery, 7 Conn. 266. See Shannon v. Commonwealth, 2 Harris, Pa. 226 ; post, § 767. 9 Rex V. Webb, 1 Den. C. C. 338, 2 Car. & K. 933 ; Reg. v. Watson, 2 Cox C. C. 376, 20 Eng. L. & Eq. 599 ; Reg. v. Holmes, 20 Eng. L. & Eq. 597; ante, §244. 1° The State v. Brunson, 2 Bailey, 149. 11 The State v. Moore, 1 Swan, Tenn. 136 ; Anderson d. Commonwealth, 5 281 502 THE ACT EEQTJIEBD. [book V. Night-walking. — Common night-walking may be classed among the offences against morality. There are, in many of our States, statutes against it, and it is also indictable at the common law. Night-walkers are persons who make themselves a common nui- sance by going about nights, committing bawdry, or other petty offences, or annoyances.-' § 502. PubUc selling and buying Wife. — The public selling and buying of a wife has been held, in England, to be a common-law crime.^ Incest. — Incest is punished by statutes in a large number of the States ; ^ but it seems not to be otherwise an indictable offence.* Polygamy. — Polygamy — that is, simple polygamy, as distin- guished from open and notorious cohabitation — was not an of- fence in the temporal courts until 1 Jac. 1, o. 11, made it such when committed "within his majesty's dominions of England and Wales " ; ^ consequently in this country its criminality rests only on our own statutes.^ Rand. 627 ; Commonwealth v. Isaacs, 5 Rand, 634; Commonwealth v. Jones, 2 Grat. 555. And see Rex v. Johnson, Comb. 377 ; Rex v. Talbot, 11 Mod. 415; Claxton's Case, 12 Mod. 566 ; The State V. Cagle, 2 Humph. 414; Stat. Crimes, §654. 1 In The State v. Dowers, 45 N. H. 543, it was said to be indictable as well at the common law as under the statute to be a common night-walker. And Bel- lows, J., gave the following exposition of the offence : " In Watson v. Carr, 1 Lewin, 6, Bayley, J., laid it down, that by night-walkers were meant such per- sons as are in the habit of being out at night for some wicked purpose. See Ros- coe Crim. Er. 745, where this case is cited. In 1 Burn's Justice, 765, night-walkers are said to be those who eave-drop men's houses, cast men's gates, carts, and the like, into ponds, or commit other out- rages or misdemeanors in the night, or shall be suspected to be pilfering or otherwise like to disturb the peace, or that be persons of ill-behavior or of eyil fame or report generally, or that shall keep company with any such, or with other suspicious persons in the night. 282 In other places night-walkers are said to be those who are abroad during the night and sleep by day, and of suspicious appearance and demeanor. [Referring to Bout. Law Diet. tit. Night-walkers, and Haunters of Bawdy-houses ; 2 Hawk. P. C. c. 8, § 38 ; c. 10, § 34 and 35 ; § 12, § 20.] Prom these authorities, it is obvious, we think, that, to consti- tute this offence, the habit should exist of being abroad at night for the purpose of committing some crime, of disturbing the peace, or doing some wrongful or wicked act. If some crime is actually committed, that is the subject of a sep- arate indictment ; but the power to ar- rest and punish for the offence of night- walking is conferred for the preservation of the peace, and to prevent the commis- sion of crime." p. 544, 546. 2 Rex V. Delaval, 3 Bur. 1484, 1438 ; 4 Bl. Com. 64, note ; Commonwealth >>, Sharpless, 2 S. & R. 91, 102. ' See Commonwealth v. Goodhue, 2 Met. 193 ; United States v. Hiler, Morris, 330 ; Stat. Crimes, § 727-736. * 4 Bl. Com. 64. ^ 1 Bishop Mar. & Div. § 297. 6 Stat. Crimes, § 577-613. CHAP. XXXVI.j RELIGION, MORALS, AND EDTJCATION. § 504 § 503. Sodomy. — For other reasons, as well as to protect the public morals, sodomy — called sometimes buggery, sometimes the offence against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copulation by human beings with each other against nature, or with a beast — is, though committed in secret, highly criminal. Hawkins says, it " was felony by the ancient common law " ; ^ yet Blackstone remarks, that, in the times of popery, it was subject only to eccle- siastical censures.^ Stat. 25, Hen. 8, c. 6, sufficiently early in date to be common law in this country, made it felony ; ^ and either by the adoption of early English enactments, or the earlier English common law, we have received it into the catalogue of our common-law crimes.* Attempt at Sodomy — (Divorce). — An attempt to commit sod- omy, much more the offence itself, is, in that body of the English , unwritten law which was formerly administered in the ecclesiasti- cal courts, a ground of divorce.^ § 504. Immoral Public Shows. — But chastity is not the only form of morality protected by the common law. It has been laid down that the erection of a mountebank's stage is indictable ; * and more broadly, that so is " every public show and exhibition which outrages decency, shocks humanity, or is contrary to good morals." '' Gaming and other Disorderly Houses — And the keeping, of a common gaming-house,^ or of a disorderly ale-house or inn,^ or of any other disorderly house,^" is a common-law offence, on account, 1 1 Hawk. P. C. 6th ed. c. 4, p. 9, " The common law, which sanctions pru- Curw. ed. p. 357. dent theatrical performances, denounces 2 4 Bl. Com. 216. And see Rex v. as unlawful such as are demoralizing, Mulreaty, 1 Russ. Crimes, 3d Eng. ed. licentious, or obscene." Robertson, J., 698. in Pike v. Commonwealth, 2 Duvall, 89. 3 Hawk. P. C. ut sup. Russ. Crimes, ' 1 Russ. Crimes, 3d Eng. ed. 323 ; Sd Eng. ed. 698; 1 Hale P. C. 669; 1 Rex ». Dixon, 10 Mod. 335; People v. East P. C. 480. Jackson, 3 Denio, 101 ; United States v. * Commonwealth v. Thomas, 1 Va. Dixon, 4 Cranch C. C. 107 ; The State v. Cas. 307 ; Davis v. The State, 3 Har. & Haines, 30 Maine, 65 ; Vanderworker v. J. 154. The State, 8 Eng. 700 ; Rex v. Medlor, 2 6 1 Bishop Mar. & Div. § 739 ; 2 lb. Show. 36 ; The State v. Savannah, T. U. 640. P. Charl. 235 ; The State v. Doon, R. M. 6 Rex V. Bradford, Comb. 304. And Charl. 1 ; Commonwealth u. Tilton, 8 see Hall's Case, 1 Mod. 76. Met. 232, 235. 7 Knowles v. The State, 3 Day, 103. 9 Stephens v. Watson, 1 Salk. 45 ; See Jacko v. The State, 22 Ala. 73 ; Reg. Hall v. The State, 4 Barring. Del. 132, V. Grey, 4 Fost. & F. 73; Reg. v. Saun- 145. ders, 1 Q. B. D. 15, 19, 13 Cox C. C. 116. i" The State u. Bailey, 1 Fost. N. H. 283 § 507 THE ACT REQUTRBD. [BOOK V. among other reasons, of its evil influence on the public morals. But, — Gaming — Cock-fighting. — In the absence of statutes, gaming alone is not cognizable criminally ; ^ though perhaps some kinds of games are, from their peculiar nature, such as the cruel game of cock-fighting.^ And, — § 505. Ale-house. — At the common law, an ale-house, if not disorderly, was lawful ; no license being required to keep it.^ Biit early English legislation regulated considerably this subject,* and the example of our ancestors has been widely followed by us during all periods of our history.^ § 506. Offences against Sepulture. — As corrupting to the public morals, and disturbing to the sensibilities, are such acts as casting a human dead body into a river without the rites of sepulture ; ® the stealing of a corpse ; ^ the digging of it up, when buried, or conveying of it from the burial-ground for sale ^ or dissection ; * and the selling, for dissection, of the dead body of one executed when the death sentence did not so direct.^" These acts are sev- erally indictable at the common law.^^ III. Public Education, § 507. Ecclesiastical Cognizance in England. — When our country was fettled from England, the public education was there a thing 343; Commonwealth r. Stewart, 1 S. & ^ Commonwealth v. Tllton, 8 Met. R. 342 ; Hunter v. Commonwealth, 2 S. 232, 234 ; Squires v. Whisken, 3 Camp. & R. 289 ; The State v. Mathews, 2 Dev. 140. As to wages, see Ball v. Gilbert, 12 & Bat. 424; The State v. Bertheol, 6 Met. 397; McElroy v. Carmichael, 6 Blackf. 474 ; Wilson v. Commonwealth, Texas, 454. 12 B. Monr. 2 ; Smith v. Commonwealth, » Rex v. IVyes, 2 Show. 468. 6 B. Monr. 21 ; Bloomhuff v. The State, « Stephens v. Watson, 1 Salk. 45. 8 Blackf. 205 ; The State v. MuUikin, 8 And See Rex !>. Holland, 1 T. R. 692. Blackf. 260. See Rex v. McDonald, 3 ^ The unlicensed selling of intoxicat- Bur. 1645; post, §1083-1097, 1106-1121, ing drinks is discussed, Stat. Crimes, 1135-1137. § 982-1070. 1 West V. Commonwealth, 8 J. J. Mar. ^ Kanavan's Case,-1 Greenl. 226. 641 ; The State v. Cotton, 6 Texas, 425 ; '2 East P. C. 652. People V. Sergeant, 8 Cow, 139; Reg. v. 8 Rgx v. Gilles, Russ, & Ry. 867, note. Ashton, 16 Eng. L. & Eq. 346, 1 Ellis & » Rex v. Lynn, 2 T. R. 733, 1 Leach, B. 286. And see The State v. Pember- 4th ed. 497 ; Commonwealth v. Cooley, ton, 2 Dev. 281 ; People a. Jackson, 3 10 Pick. 37 ; Kanavan's Case, 1 Greenl. D.enio, 101 ; Dunman v. Strother, 1 226. Texas, 89, 92. For a discussion of the i' Rex v. Cundick, D. & R. N. P. 13. statutory ofEence, see Stat. Crimes, u See Vol. IL Sepulture. § 844-930. 284 CHAP. XXXVI.] EELIGION, MOKALS, ANB EDUCATIOK. § 508 of ecclesiastical cognizance. There were some acts of Parlia- ment upon the subject, as on others within the ecclesiastical jurisdiction.! And, — License to Schoolmaster. — To teach a school, one must have had a license from the authorities of the church.^ But disobe- dience of this requiremeijt was punished only ecclesiastically, it was not indictable.^ This ecclesiastical offence, therefore, was never recognized by our unwritten law.* And, — In General. — Though the common law seems, in various ways, to recognize the benefits of education, considered as a public good, separate from morality and religion, no common-law crimes, resting solely on this basis, have, it is believed, come to us from the mother-country. Statutes. — Nor have we many statutes resting solely on this foundation. But they are not quite unknown.^ § 508. • In Part as to Public Education. — There were, in England, some common-law offences founded in part on the interest of the government in the public education. As to the principal ones of these, an American judge has said: — Regulations of Trade — Wages — Apprenticeships. — " All those laws of the parent country, whether rules of the common law or early English statutes, which were made for the purpose of regu- lating the wages of laborers,® the settlement of paupers, and making it penal for any one to use a trade or handicraft to which he had not served a full apprenticeship ^ — not being adapted to the circumstances of our colonial condition — were not [by us] adopted, used, or approved." ^ 1 Burn Ee. Law, Schools. ' Commonwealth v. Sheffield, 11 Cuah. 2 lb. ; Rex v. York, 6 T. R. 490; Kex 178. u. Litchfield, 2 Stra. 1023. 6 Ante, § 453-455. ' Matthews v. Burdett, 8 Salk. 318; ' Anonymous, 2 Show. 155; Rex v. Rex V. Douse, 1 Ld. Raym. 672. Fox, 12 Mod. 251 ; Stat. Crimes, § 196. * And see ante, § 38. * Shaw, C. J., in Commonwealth v. Hunt, 4 Met. Ill, 122. 285 § 510 THE ACT KBQtnBED. [BOOK V. CHAPTER XXXVII. PROTECTION TO THE PtTBLIC "WEALTH AND TO POPULATION. § 509. In General. — By the public wealth, is meant the per- sonal wealth of the individuals constituting the public at large. The revenue of the government depends on it, and the govern- ment on population. To promote this wealth, our civil laws secure to every man the enjoyment of his own acquisitions, and to promote population, they provide such rules as that the husband may hold the lands of his deceased wife during his life, if, while the connection continued, a living child was born, but not. other- wise, thus in effect offering a reward for issue.^ The criminal laws protect both wealth and population by various means, only the more direct of which will be specified in this chapter. Thus, — Abortion. — Though matrimony is not compelled, because this would infringe private rights, the criminal law punishes abor- tion.2 § 5f 0. Homicide. — The destruction of a human being born into the world is a still graver offence against population. While it is a crime also against the individual whose life is taken,^ it is such against all who compose the state ; since it deprives each of a support on which he is entitled to rest. For it is neither pos- sible ,nor desirable that men should be independent of one an- other.* Therefore, — Taking Life of one requesting — Persuading to Suicide. — If a man voluntarily deprives of life another, who even requests it ; or stands by persuading him to take his own life, which is done, — he thereby commits murder.^ 1 1 Bishop Mar. Women, § 473 et seq. cerned the king, whose peace was ih- 2 See 1 Russ. Crimes, 3d Eng. ed. 671 ; fringed, and partly, as Bracton expresses Stat. Crimes, § 740-762, where this of- it, the person who was Isilled." 2 Beeves fence is discussed. Hist. Eng. Law, 3d ed. 9. 8 Post, § 547. 6 1 East P. C. 228, 229 ; Eex v. * " The crime of homicide partly con- Hughes, 5 Car. & P. 126 ; Keg. v. Alison, 286 CHAP. XXXVU.] WEALTH AOT) POPULATIOK. § 512 § 511. Suicide So, by the English common law, suicide is felony ; ^ but our law does not, like the English, allow, in felony, those forfeitures ^ which alone can be inflicted on one whose life is ended ; therefore self-murder is not practically an offence with us. Yet we recognize it as criminal when the opportunity arises indirectly.^ There are writers who have maintained, that men are naturally entitled to end their own lives at pleasure ; * but this view accords neither with our instincts nor with our better reason, as certainly it^^does not with our law. § 512. Leaving Country. — Leaving the country, to take up a residence abroad, is not regarded by the law as equivalent to suicide. In most civilized countries, it is deemed to be the right of the government, if it will, to prevent emigration to foreign countries. In practice, this right is not generally exercised, except in emergencies ; and then it is. And in England it is laid down, even in a very old case, that a man may lawfully depart from the realm " solely with the intent that he might live there free from the laws of this realm here, and not for any cause of traffic," when no " express prohibition or restraint by proclama-*. tion or writ " stands in his way.^ In our country, there are no restraints on expatriation, which is free to all. Yet it is believed that a special emergency may justify a temporary restraint here, the same as in England ; and, on this idea, our government) in some instances acted during the late civil war. - Changing Allegiance — Calling Home Citizens. — On the question whether a man may cast off allegiance to one government and take another, there has been some judicial discussion and a great deal of diplomatic, and of late the subject has become in a measure regulated by treaties. It would seem, that, according to the American doctrine, anterior to the treaties, though a citizen cannot lawfully leave his country when it needs his services and makes demand for them, yet, if, not forbidden, he goes to another country and there contracts a new allegiance, the new discharges 8 Car. & P. 418; Eex v. Dyson, Russ. & i 1 East P. C. 219; Kex v. Russell, 1 Ry. 523; ante, § 269; Vol. II. § 1187. Moody, 356; Reg. v. Clerk, 7 Mod. 16; There is some diversity of judicial opin- Hales v. Petit, 1 Plow. 253, 260, 261 ; ion as to the legal liability of a party at Rex v. Ward, 1 Lev. 8 ; Vol. II. § 1187. whpse persuasion another, in his absence, 2 Post, § 615, 616, 970. kills himself. See Vaux's Case, 4 Co. » Vol. II. § 1178. 44 ; Rex it. Russell, 1 Moody, 356 ; Reg. * Dawes on Crimes, 72. V. Leddington, 9 Car. & P. 79 ; Common- * Anonymous, 3 Dy. 296, pi. 19. wealth V. Bowen, 13 Mass. 356. 287 § 515 THE ACT EEQTJIEBD. [BOOK Y. him from the old. Doubtless, according to both American and English doctrine, if, while no intent to cast off the old allegiance has been manifested, a citizen is abroad, and his country demands his services, he may be called home, — though this is a question not much discussed among us. But, according to what has hitherto been generally understood to be the English and perhaps the prevailing European law in the absence of a treaty, contrary to what the American publicists maintain, no native-born subject can ever so change his allegiance, by going abroad and taking upon himself the obligations of a new one, as to free him from the claims of the government under which he was born, provided it chooses to exercise its right.^ § 513. Injuring or Neglecting Self. — For the same reason that a man may not deprive the community of what he might do for it by taking his own life, he may not deprive it of the equivalent of his life in another form. And the reason would seem to carry us still further ; namely, that he may not be idle, or waste his goods, or neglect opportunities for self-improvement. Practically, how- ever, to conduct the doctrine to this extent would be unwise, and it would trench on personal rights. Let us see, in a few examples, how far it is carried. Thus, — Mayhem. — We have already seen, that a man is answerable to the criminal law who inflicts on himself a mayhem.^ But — § 514. Injuries to One's own Property. — The law gives men full control over their own property ,8 to do what they will with it, only not to the injury of their neighbors. They may, for instance, burn it. This rule promotes public wealth, by stimulating pri- vate industry. Also — § 615. Vagrancy, Idleness, &o. — Men may ordinarily dispose of theirjtime as they will. And it is not clear that the ancient com- mon law of England took notice of mere idleness and vagrancy as criminal ; indeed, one case lays it down that a vagrant, as such, is not indictable.* But we find, from early times, statutes authoriz- 1 I have stated the doctrine in a gen- ' See ante, § 260 ; United States a. eral way, but I trust with reasonable ao- Johns, 1 Wash. C. C. 363. curacy, for the benefit merely of the * Beg. v. Branworth, 6 Mod. 240 ; it student. It would be out of place here being added : " But, if he be an idle and to collect the multitudes of authorities loose person, you may take hitn up as a relating to the question. vagrant, and bind hlra to hie good beha- '' Ante, § 259. See Vol. II. § 1001 et vior, by the common law." See Rex v. seq. King's Langley, 1 Stra. 631; Keg. o. 288 CHAP. XXXVn.] WEALTH AND POPTJLATION, § 518 ing summary proceedings against idlers, vagabonds, and rogues ; to be regarded perhaps by us as regulations concerning paupers, not therefore belonging to our common law.^ Generally, in our States, vagrancy has been legislated upon to such an extent as to leave it unimportant what is the anterior, or common law, on the subject.^ § 516. ■Wanaering Mariners, &c. — Gypsies. — There are old Eng- lish enactments against wandering mariners and soldiers,^ and against gypsies,* probably never accepted as common law in any of the States. Game Laws. — The same may be said of the game laws of Eng- land,^ though some of the older States have statutory regulations of their own for the preservation of game.® And we have stat- utes for the protection of domestic animals and fish. § 517. Owling. — Owling is an old offence, both at the common law and under statutes ; consisting, says Blackstone, of " trans- porting wool or sheep out of this kingdom, to the detriment of its staple manufacture." It ceased by 5 Geo. 4, c. 47, § 2, to be in- dictable in England ; '' and probably no one considers that it was ever a crime in this country.^ § 518. Forestalling, Regrating, and Engrossing .• ^ — In General. — These are kindred offences, indictable both under Egan, 1 Crawf . & Dix C. C. 338 ; Anony- N. C. 339 ; Boulo v. The State, 49 Ala. mous, 11 Mod. 3 ; Rex v. Miller, 2 Stra. 22 ; Allen v. The State, 51 Ga. 264 ; 'Wal- 1103 ; Rex v. Talbot, 11 Mod. 415 ; Clax- ters v. The State, 52 Ga. 574. ton's Case, 12 Mod. 566 ; Rex v. Brown, ' 4 Bl. Com. 165. 8 T. R. 26 ; Rex v. Patohett, 5 East, 339 ; * 4 Bl. Com. 165. Soldier's Case, 1 Wils. 331; Rex v. 5 2 Bl. Com. 419, note ; 4 lb. 143, 173. Rhodes, 4 T. R. 220; Rex v. Hall, 3 Bur. See Reg. v. Nickless, 8 Car. & P. 757; 1636 ; 4 Bl. Com. 169 ; Dawes on Crimes, Rex «. Passey, 7 Car. & P. 282 ; Rex v. 81. Lockett, 7 Car. & P. 300; Rex v. Cara- ' For a comparison of the English dice, Russ. & Ry. 205 ; Reg. v. Uezzell, 2 and Irish statutes, see 1 Gab. Crim. Law, Den. C. C. 274, 4 Eng. L. & Eq. 568 ; Rex 9{i8. And see ante, § 508. v. Southern, Russ. & Ry. 444 ; Rex v. 2 In The State v. Maxcy, 1 McMul- Smith, Russ. & Ry. 368 ; Reg. v. Hale, 2 Ian, 501, the court held the South Caro- Car. & K. 326. Una statute of 1836, concerning vagrants, ^ Deer-MUing. — A statute of Ver- to be constitutional. Likewise the New mont, forbidding, for ten years, the kill- York statutes are constitutional. People ing of deer found running at large, has V. Forbes, 4 Parker C. C. 611. For sev- been adjudged constitutional. The eral points under the statutes, see this State v. Norton, 45 Vt. 258. case ; also, People v. Gray, 4 Parker C. C. '4 Bl. Com. 154 and note. 616 ; Commonwealth v. Holloway, 5 ' See ante, § 452 et seq. Binn. 516 ; Commonwealth v. Murray, ^ j-qj. tj^e procedure connected with 14 Gray? 397 ; Commonwealth v. Carter, these offences, see Crim. Proced. II. 108 Mass. 17 ; The State v. Custer, 65 § 348-350, 396, 397. VOL. I. 19 289 § 521 THE ACT EEQUIEED. [BOOK V. the ancient common law and by early English statutes, yet sel- dom made the subject of a criminal prosecution in modern times. And in England they were abolished, in 1844, by 7 & 8 Vict. c. 24, both as common-law offences and statutory. § 519. How defined. — To define these offences, as recognized by the old common law, would be difficult ; because, in England, the early statutes practically took the place of the unwritten rule. Blackstone gives us the definitions furnished by 5 & 6 Edw. 6, 0. 14, as follows : — Forestalling — is " the buying or contracting for any merchan- dise or victual coming in the way to market ; or dissuading per- sons from bringing their goods or provisions there ; or persuading them to enhance the price, when there." Regrating — is " the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place." Engrossing — is " the getting into one's possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again." He adds : " And so the total engrossing of any other commodity, with an intent to sell it at an unreasonable price, is an offence indictable and finable at the common law." ^ But in a late English case it is said that the common-law offences of engrossing and regrating extend only to the necessaries of life.^ § 520. Under our Common Law. — It is reasonably plain that the common law of our States has not adopted these offences in terms as thus defined. Yet, under modifications, they are, in legal principle, criminal misdemeanors with us. Thus, — § 521. Hoarding to defraud. — If men, to enrich themselves by losses or sufferings which they contemplate bringing upon others, knowing that an article of commerce, especially one pertaining to the necessaries of life, is in sufficient supply, buy in large quanti- ties and hoard the article for a higher price, — stimulating, there- fore, production unduly, and compelling consumers to pay, while the stimulant is on, too much for it, — they do a wrong alike to producer, to consumer, and to the honest retail trader who is obliged to keep it in stock for his customers. The hoarder, 1 4 Bl. Com. 158. And see Rex v. v. Rusby, Peate Add. Cas. 189, and post, DavieSi 1 Rol. 11 ; Rex v. Waddington, § 528, note. 1 East, 143 ; Rex v. Webb, 14 East, 406 ; '^ Pettamberdasa ». Thaokoorseydaas, Pratt V. Hutchinson, 15 East, 511 ; Rex 7 .Moore P. C. 239, 262. 290 CHAP. XXXVn.] WEALTH AND POPULATIOK. § 523 in this instance, would, in the end, be heavily punished, though not so heavily as he deserves, by the pecuniary loss suffered when the crash came, if he did not, foreseeing its coming, succeed in working off his goods in season to save himself by casting the ruin on others. Now, he who uses the power which money or credit gives him to play a prank like this upon the community is an enemy to the race, and as deserving of punishment as the thief or the robber. § 622. Under our Common Law, continued. — What is thus said is suggestive of the form which these offences must be deemed to assume in this country, if accepted as pertaining to our common law. And, modified to our circumstances, they would seem, in reason, to have been as well adapted to our country, when it was settled, as to England. Our own Mr. Dane observes : " The common law against these offences of forestalling, engrossing, regrating, and monopolies, has borne the test of ages, and has been wise and useful. The fault has not been in this law in the United States, but in the non-execution of it. Its notorious vio- lations have often been complained of, but scarcely in any instance prosecuted ; partly owing to the difficulty there has ever been in defining and proving these offences, and therefore the possible failure of prosecutions when commenced ; but not wholly to this cause, for this difficulty is nearly the same in every country ; yet in many countries in Europe, and in which there is a tolerable share of freedom, this kind of law has usually been tolerably well executed. But the principal cause to which the inexecution of this portion of the common law is owing, in the United States, is the easy and indulgent temper and character of the people gener- ally, who have ever been disposed to suffer themselves to be cheated and imposed upon in these ways, by these kinds of offenders, in hundreds of instances, complaining generally, but never prosecuting." ^ Let us now see more exactly what, under the English common and statutory law, these several offences were, in England, when our country was settled. § 623. Forestalling, ^ &c. — In Russell on Crimes,^ we have the following : " Every practice or device by art, conspiracy, words, or news, to enhance the price of victuals or other merchandise, 1 7 Dane Abr. 39, and see to the end 2 See Crim. Proced. H. § 396. of the chapter. See also Louisvijle v. ^ 1 Euss. Crimes, 3d Eng. ed. 168. Roupe, 6 B. Monr. 591. 291 § 524 THE ACT EEQTJIEED. [BOOK V. has been held to be unlawful ; as being prejudicial to trade and commerce, and injurious to the public in general.^ Practices of this kind come under the notion of forestalling ; ■which anciently comprehended, in its signification, regrating and engrossing, and all other offences of the like nature.^ Spreading false rumors, buying things in the market before the accustomed hour, or buy- ing and selling again the same thing in the same market, are offences of this kind.^ Also if a person within the realm buy any merchandise in gross, and sell the same again in gross, it has been considered to be an offence of this nature, on the ground that the price must be thereby enhanced, as each person through whose hands it passed would endeavor to make his profit of it.* So the bare engrossing of a whole commodity, with an intent to sell it at an unreasonable price, is an offence indictable at the. common law ; for, if such practices were allowed, a rich man might engross into his hands a whole commodity, and then sell it at what price he should think fit.^ And so jealous is the common law of all practices of this kind, that it has been held contrary to law to sell corn in the sheaf ; upon the supposition, that, by such means, the market might be in effect forestalled." ^ § 524. Continued. — The author then proceeds to say, that, " the offences of forestalling, regrating, and engrossing were for a considerable period prohibited by statutes ; and chiefly by the 3 & 4 Edw. 6, c. 21, and 5 & 6 Edw. 6, c. 14 ; altered by 5 Eliz. c. 5, § 13, 5 Eliz. c. 12, and 13 Eliz. c. 25, § 13. But the bene- ficial tendency of such statutes was doubted ; and, at length, by the 12 Geo. 3, c. 71, they were repealed,^ as being detrimental to the supply of the laboring and manufacturing po'or of the king- dom." ^ This repealing statute of 12 Geo. 3, c. 74, a.d. 1772, is too recent to have any force in our States. But those of Edw. 6 and Eliz. are of dates to render them common law with us. So is 1 3 Inst. 196 ; Bac. Abr. tit. Forestall- « 3 Inst. 197 ; Bac. Abr. tit. Forestall- ing, A. ing, A. 2 lb. ' The acts repealed are 3 & 4 Edw. 6, 3 1 Hawk. P. C. c. 80, § 1. c. 21 ; 5 & 6 Edw. 6, c. 14 ; 3 Phil. & M. * 3 Inst. 196 ; Bae. Abr. tit. Forestall- c. 3 ; 6 Eliz. c. 5 ; 15 Car. 2, c. 8 ; and so ing, A ; 1 Hawk. P. C. c. 80, § 3. But it much of 5 Anne, c. 34, as relates to was held, that any merchant, whether butchers selling cattle alive or dead in subject or foreigner, bringing victuals or London or Westminster, or within ten other merchandise into the realm, may miles thereof; and all the acts made for sell it in gross. 3 Inst. 196. the better enforcement of the same. 5 1 Hawk. P. C. c. 80, § 3; 3 Inst. 196. 8 i Rugg, Crimes, 8d Eng. ed. 168. 292 CHAP. XXXVn.] WEALTH AJSD POPULATION. § 526 3 & 4 Edw. 6, 0. 21, but it relates merely to the sale of butter and cheese. The statutes of Eliz. are unimportant, except per- haps a single section. The only old statute, therefore, which much concerns us, is 5 & 6 Edw. 6, c. 14, which must be deemed common law with us, as far as it was found applicable.^ § 525. Continued. — Russell proceeds : " It has been sometimes- contended, that forestalling, regrating, and engrossing were pun- ishable only by the provisions of these statutes ; ^ but that doc- trine has not been admitted, and they still continue offences at common law ; ^ though their precise extent and definition at the present day may perhaps admit of some doubt." * Where, in this country, 5 & 6 Edw. 6, c. 14, has not been repealed, we have not the same doubt whether these are common-law ofPences ; but we have the doubt as to their precise extent and nature. § 526. Forestalling, what, in Principle. — In reason, forestalling, considered distinct from engrossing and regrating, seems to be committed whenever a man, by false news, or by any kind of deception, gets into his hands a controlling amount of any one article of merchandise, and holds it for an undue profit, thereby creating a perturbation in what pertains to the public interests. If he circulates the false news, or uses the other deception, to enable others to operate in this way, or to operate himself, but fails, still he has committed, if not the full offence, at least the criminal attempt.^ 1 In the fifth edition, the first nine not sound in forestalling ; 2. That of his sections of this act were copied here ; endeavor or attempt by words no evil but I do not deem it, essential to repeat was put in ure, that is, no price was en- them. hanced, et non allocatur, and thereupon he 2 Rex V. Maynard, Cro. Car. 231 ; Rex pleaded not guilty. Whereby it appear- V. Waddington, 1 East, 143. eth, that the attempt by words to enhance ° 1 Hawk. P. C. C.-80, § 15. the price of merchandise was punishable * 1 Kuss. Crimes, 3d Eng. ed. 168, by law, and did sound in forestallment ; 169 ; see ante, § 518. and it appeareth by the book, that the * See both the foregoing and the sub- punishment was by fine and ransom, sequent sections, and the authorities And in that case Knivet reported, that there cited. Also 2 Chit. Crim. Law, certain people (and named their names) 627 et seq. ; Gordon on Patents, 16 et came to Cateswold in Herefordshire, and seq. Lord Coke says, that, on one occa- said, in deceit of the people, that there sion, the judge had in consideration a, were such wars beyond the seas as no case, which he seems to approve, " where wool could pass or be carried beyond it was presented that a Lombard did pro- sea, whereby the price of wools was ceed to promote and enhance the price abated ; and, upon presentment hereof of merchandise, and showed how. The made, they appeared, and upon their Lombard demanded judgment of the pre- confession they were put to fine and ran- sentment for two causes. 1. That it did som." 3 Inst. 196. 293 528 THE ACT EEQTJIEED. [book V. § 527. Engrossing.^ — Engrossing, with us, must doubtless be deemed of kin to forestalling, as it was in the English common law. And whenever a man, to put things, as it were, out of joint, and obtain an undue profit, purchases large quantities of an article of merchandise, holding it, not for a fair rise, but to com- pel buyers to pay what he knows to be much more than can be regularly sustained in the market, he may, on principle, be deemed, with us, to be guilty of the common-law offence of engrossing.^ § 528. Regrating. — It is not easy to see how regrating, simply, as defined by Blaekstone,^ and distinguished from forestalling and engrossing, can be a common-law offence in this country. We may expand the definition, and thus make it such ; but the terms forestalling and engrossing would seem to cover all practical forms of the offence, as properly understood in this country.* 1 See Grim. Proced. II. § 348-350. 2 1. In 1801, two cases against the same defendant — Eex v. Waddington, 1 East, 143 ; Rex v. Waddington, 1 East, 167 — came before the Court of King's Bench, wherein the substance of the charge seems to have been engrossing, tliough there was no effort to give name to tlie crime. They grew out of a villan- ous speculation in hops, and the defend- ant was held to be rightly convicted. These cases will repay an attentive ex- amination. And see 1 Russ. Crimes, 3d Eng. ed. 168-174 ; Rex v. Gilbert, 1 East, 583. 2. The doctrine of the text, the reader perceives, tones down the ancient com- mon law greatly in favor of trade and speculation. For Lord Coke says : " It was upon conference and mature delib- eration resolved by all the justices, that any merchant, subject, or stranger, bring- ing victuals or merchandise into this realm, may sell them in gross ; but that vendor cannot sell them again in gross, for then he is an engrosser according to the nature of the word, for that he buy in gross and sell in gross, and may be in- dicted thereof at the common law, as for an offence that is malum in se. 2. That no merchant or any other may buy with- in the realm any victual or other mer- 294 chandise in gross, and sell the same in gross again, for then he is an engrosser, and punishable ut supra: for by this means the prices of victuals and other merchandise shall be enhanced to the grievance of the subject ; for, the more hands they pass through, the dearer they grow, for every one thirsteth after gain." 3 Inst. 196. a Ante, § 519. * 1. The last English case of regrat- ing at the common law, of which I have knowledge, is Rex u. Rusby, Peake Add. Cas. 189, A.D. 1800, I have also before me a pamphlet report of the trial, some- what more full. Lord Kenyon presided, Mr. Erskine was the leading counsel for the prosecution, Mr. Law for the defence. The learned judge observed to the jury (I quote from the pamphlet), that, "al- though all the acts of Parliament which had been on the statute-book a hundred and fifty years had in an evil hour been done away, notwithstanding the ravages made by the Conqueror and some other princes of the Norman line it had been discovered, in some Saxon laws which had been found since, that this was an offence at common law, and there could be no doubt but by the law of the land these offences are provided against." After some discussion concerning the CHAP. XXXVn.] WEALTH AND POPULATION. §529 § 529. Conspiracies to Forestall, &c. — A conspiracy to commit any of tlie acts formerly punishable in England under the name evidence, the case was submitted to the jury, and they returned a verdict of guilty. Whereupon his lordship said : " Gentlemen, you have conferred as great benefit on your country as, I be- lieve, almost any jury did confer." I am not able to draw from this case the precise limit which Lord Kenyon would have given to the offence. " The de- fendant," says the pamphlet report, " stood indicted for having, on the 8tli of November last, at the Corn Exchange, purchased thirty quarters of oats, which he had exposed to sale and sold again on the same day." Nothing is thus said about any enhancement of the price ; but the title-page of the pamphlet describes the trial as having been " for regrating in buying corn at Mark Lane, and after- wards selling it on the same day at an advanced price." Mr. Erskiue said : " The crime of regrating was that of buying any commodity in a market, and selling it again in the same market on the same day." Lord Kenyon gave, in his address to the jury, his views of the rea- son of the law as follows : " When pro- visions arrive at a high price, they be- come a mighty injury and oppression to the poor. All must have the necessa- ries of life ; and, when they become en- hanced, the consequences are dreadful in the extreme. In speculations it has been said that nobody can be hurt. I deny it : that great writer aftd learned man, Dr. Smith, had said that monopoly is no more to be dreaded than witchcraft. If that great writer was here now, he would tell me that it does exist. In a county which I know, all the butter, cheese, fresh pro- visions, &c., were bought up by the large consumer, and resold to the poor and in- digent at a profit of near fifty per cent. I would as-k Dr. Smith if this is not more to be dreaded than witchcraft." 2. According to a note in Peake, this is the same case which Chitty mentions under the name of Rex u. Eushby, 2 Chit. Grim. Law, 536 ; where the form of the indictment appears. The first count, from which the others vary but slightly, charges that the defendant, on a day mentioned, "at London aforesaid, that is to say, at the parish of AUhallows Bark- ing, in the ward of Tower in London aforesaid, in a certain market, there called the Corn Exchange, unlawfully did buy, obtain, and get into his hands and possession, of and from J. S., J. G., and J. H., a large quantity of oats, of the growth and produce of this kingdom of Great Britain, to wit, ninety quarters of oats, of the growth and produce of the kingdom of Great Britain, at and for the price or 'sura of forty-one shillings for each and every of the said ninety quar- ters of oats, part of the said oats, by way of sample of the said ninety quarters of oats, then being brought to the said mar- ket by the said J. S., J. G., and J. H., for the sale of the said ninety quarters of oats in the same market ; and afterwards, to wit, on the same, &c., he the said Rushby, at, &c., in tlie same market there called the Corn Exchange, unlaw- fully did regrate a large quantity, to wit, thirty quarters of the said oats, and sell the said thirty quarters of the said oats again to one W. H. at and tor the price or sum of forty-three shillings for each and every of the said thirty quarters of the said oats, in contempt, &c., to the evil example, &c., and against the peace, &c." And Mr. Chitty adds, that, after conviction, " and after an ineflfectual ap- plication for a new trial, Mr. Law (the late Lord EUenborough), Mr. Sergeant Best (the now chief justice of the Com- mon Pleas), and Mr. Marryatt, moved in arrest of judgment," &c., on the ground, that, since the repeal of the statutes, the acts alleged against the defendants were not punishable. " Upon this suggestion, the court granted a rule to show cause why judgment should not be arrested; and, after argument, the court were di- vided in opinion, and no judgment was passed upon the defendant." 2 Chit. Crim. Law, 537 and note. And see 4 Bl. Com. Chit. ed. 158, note ; Godson on Patents, 33. Lord Campbell, who was not an admirer of Kenyon, comments, in his Lives of the Chief Justices (iv. 84 et seq. of Am. ed.), very disparagingly 295 §529 THE ACT EEQUrBED. [book V. of forestalling, engrossing, or regrating, is, of course, indictable ■with us if the acts themselves are. But it may be so, even though we should hold that these are not common-law offences in our States.^ upon this case and Rex v. Waddington, cited to the last section. But he admits that the doctrines " were at the time highly popular," and contributed to en- hance Kenyon's " reputation as a great judge." His pages are very racy where he states what the judges held; and, if they really laid down exactly what he Bays they did, we may doubt whether 296 their expositions were true to any law ever prevailing in any country. And still we should be at liberty to agree or not with the biographer as to the cause which he assigns; namely, Kenyon's lack of an early classical and general education in the schools. Campbell cites no authorities against these cases. 1 See Vol. II. Conspiracy. CHAP. XXXVm.] PUBLIC CONVENIENCE AND SAPETY. § 531 CHAPTER XXXVIII. PROTECTION TO THE PUBLIC CONVENIENCE AND SAFETY. § 530. In General. — All unjustifiable disturbances of the pub- lic convenience and safety, sufficient in degree/ are indictable at the common law. Therefore — § 531. ITuisances — (Waya — Other Public Places — Trades — Noises — Gunpowder, &c.). — Obstructions of highways,^ public squares,^ harbors,* navigable rivers,® and the like ; ^ injuries done to such ways and places;" neglect or refusal, by those whose duty it is, to keep them in repair ; ^ the carrying on, in populous localities or near a highway, of trades which render the air either unwholesome or disagreeable to the senses ; ® making great noises, 1 Ante, § 212 et seq. 2 Commonwealth v. Milliman, 13 S. & E. 403 ; Reg. v. Scott, 2 Gale & D. 729 ; Rex V. Cross, 3 Camp. 224 ; Rex v. Jones, 3 Camp. 230; Rex v. Morris, 1 B. & Ad. 441; People v. Cunningham, 1 Denio, 524 ; Reg. v. Scott, 3 Q. B. 543 ; Rex v. Russell, 6 East, 427 ; The State u. Dun- can, 1 McCord, 404 ; The State v. Spain- hour, 2 Dev. & Bat. 547 ; Rex v. Moore, 3 B. & Ad. 184 ; Reg. v. Watts, 1 Salk. 357; Justice o. Commonwealth, 2 Va. Cas. 171 ; Commonwealth v. Willtinson, 16 Pick. 175 ; The State v. PoUok, 4 Ire. 803; The State v. Hunter, 5 Ire. 369; Commonwealth v. Gowen, 7 Mass. 378 ; Rex V. Carlile, 6 Car. & P. 636 ; Rex v. West Riding of Yorkshire, 2 East, 342 ; Commonwealth v. King, 13 Met. 115 ; Reading v. Commonwealth, 1 Jones, Pa. 196 ; Rex v. Sarmon, 1 Bur. 516 ; Rex v. Wehb, 1 Ld. Raym. 737 ; Rex v. Dob- bins, 11 Mod. 317; Reg. v. Derbyshire, 2 Q. B- 745 ; The State v. Knapp, 6 Conn. 415; Reg. v. Sheffield Gas Co., 22 Eng. L. & Eq. 200 ; Vol. II. § 1272 et seq. ' The State v. Commissioners, Riley, 146; Rung v. Shoneberger, 2 Watts, 23; The State v. Commissioners, 3 Hill, S. C. 149 ; Commonwealth v. Rush, 2 Harris, Pa. 186. * Rex V. Tindall, 1 Nev. & P. 719, 6 A. & B. 143. And see Commonwealth v. Alger, 7 Cush. 53. 5 Commonwealth v. Church, 1 Barr, 105; The State v. Thompson, 2 Strob. 12 ; Rex v. TrafiEord, 1 B. & Ad. 874, 887 ; Rex V. Watts, 2 Esp. 675 ; Renwick v. Morris, 7 Hill, N. Y. 675 ; Rex v. Russell, 6 B. & C. 566 ; Cummins v. Spruauce, 4 Harring. Del. 315. 6 See Vol. II. § 1266-1271. ^ Rex V. Edgerly, March, 131 ; Reg. V. Leach, 6 Mod. 145 ; Rex v. Stanton, 2 Show. 30 ; Commonwealth v. Eckert, 2 Browne, Pa. 249. 8 Rex V. Hendon, 4 B. & Ad. 628; Rex V. Stoughton, 2 Saund. 157 ; Reg. v. Wilts, Holt, 339 ; Rex v. Dixon, 12 Mod. 198 ; Waterford and Whitehall Turnpike V. People, 9 Barb. 161 ; Payne v. Par- tridge, 1 Show. 256 ; The State v. Mur- freesboro', 11 Humph. 217; Vol. II. § 1280-1283. 9 Rex V. White, 1 Bur. 333 ; Common- wealth V. Brown, 13 Met. S65; Bex v. 297 §532 THE ACT EEQTJERED. [book V. to the disquiet of the neighborhood ; ^ keeping large quantities of gunpowder in populous places, to the danger of the public safety ; ^ and other acts of a similar tendency ; ^ — being, with some which were mentioned under previous heads,* termed in legal language nuisances, are severally common-law offences. Statutes have more or less confirmed or enlarged them, or added to their number. Thus, — Railways. — Though the obstruction of a railway track is in- dictable at the common law,® there are statutes making it spe- cially so, and more particularly if endangering life.^ And, — Railway causing Death. — Where through negligent management a railway causes the death of a passenger, there are statutes under which the corporation is indictable therefor, and the fine imposed in punishment is payable to the representatives of the deceased person.^ In these cases, the rules applicable to civU actions, which in essence they are, prevail in a good measure.^ § 532. Inns — Refusing Travellers. — Since inns ^ are for the public convenience, and the keepers have certain privileges given in return for the public good they do, — " an indictment," says Watts, Moody & M. 281, 2 Car. & P. 486 ; Eex V. Neville, Peake, 91 ; Ray v. Lynes, 10 Ala. 63 ; The State v. Hart, 34 Maine, 36; post, § 1138-1144. 1 Eex V. Smith, 1 Stra. 704; The State V. Haines, 30 Maine, 65. And see Commonwealth v. Smith, 6 Cush. 80. 2 Anonymous, 12 Mod. 342 ; Cheat- ham 1/. Shearon, 1 Swan, Tenn. 213; Eex V. Taylor, 2 Stra. 1167 ; Bradley v. People, 56 Barb. 72 ; People v. Sands, 1 Johns. 78 ; post, § 1097-1100. And see Williams v. Augusta, 4 Ga. 509. Duty of Licensed Seller. — One licensed to sell gunpowder, if he sells it to one whom he knows to he incapable of taking proper care of it, is civilly liable for the consequences. Carter v. Towne, 98 Mass. 567. 8 Rex V. Wharton, 12 Mod. 510 ; Reg. V. Wigg, 2 Salk. 460, 2 Ld. Raym. 1163; Commonwealth v. Webb, 6 Band. 726 ; Commonwealth v. Chapin, 5 Pick. 199. * Ante, § 490, 500, 502, 504 ; post, § 1071 et seg. s Vol. XI. § 1266, 1270. 6 Reg. V. Upton, 5 Cox C. C. 298 ; Reg. V. Monaghan, 11 Cox C. C. 608; Reg. V. Hadfleld, Law Rep. 1 C. C. 253, 298 11 Cox C. C. 574 ; Reg. v. Hardy, Law Rep. 1 C. C. 278, 11 Cox C. C. 656; Reg. V. Bradford, Bell C. C. 268, 8 Cox C. C. 309; Reg. v. Sanderson, 1 Tost. & F. 37; Roberts v. Preston, 9 C. B. n. s. 208; Eeg. V. Court, 6 Cox C. C. 202 ; Reg. v. Bowray, 10 Jur. 211 ; McCarty v. The State, 37 Missis. 411; Allison ». The State, 42 Ind. 354; Commonwealth v. Killian, 109 Mass. 345. ■J The State v. Grand Trunk Railway, 59 Maine, 1^9; The State ii Grand Trunk Railway, 60 Maine, 145; The State V. Grand Trunk Railway, 61 Maine, 114 ; The State v. Maine Central Rail- road, 60 Maine, 490 ; Commonwealth v. Sanford, 12 Gray, 174; The State v. Manchester and Lawrence Eailroad, 52 N. H. 528 ; Commonwealth a. Metropoli- tan Railroad, 107 Mass. 236 ; Common- wealth V. Vermont and Massachusetts Eailroad, 108 Mass. 7. 8 The State v. Grand Trunk Railway, 58 Maine, 176 ; post, § 1074^1076. » See Hall v. The State, 4 Harring. Del. 132, 141. As to what is an "Inn," "Tavern," "Hotel," &c., see Stat. Crimea, § 297. CHAP. XXXVm.] PUBLIC CONVENIENCE AND SAFETY. § 532 Coleridge, J., " lies against an innkeeper who refuses to receive a guest, he having at the time room in his house, and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that tender ; " ^ though, from a later case, it would appear that the tender is always necessary.^ So if, having received the guest, he refuses to find for the guest food and lodging, he is indictable.^ But, to produce these consequences, the person applying as guest must be a traveller.* Such is the clear English doctrine ; and it is affirmed in a dictum of the North Carolina court.* Coleridge, J., seemed to put the liability on the ground that " innkeepers are a sort of public servants ; " ^ and in this view perhaps we should have discussed the topic under a previous title.'' Another view is, that the innkeeper who allures a traveller to his house by holding himself out as ready to entertain him, and then refuses, assumes toward the traveller an unfair ground ; in which aspect the question pertains to our chapter after the next.^ But, unless we call in the aid of principles like these, we do not readily find a foundation for the indictment, where the refusal is not general ; because the traveller is merely an individual, and the public sus- tains no separate injury.^ Perhaps, however, the wrong may be likened to an obstruction in a public way. At all events, the law on this subject is probably as above stated ; because no suflS- cient reason appears for discarding the old doctrine. Yet it has little practical effect at this time, being rather a relic of the past than a living thing of the present. 1 Rex u. lyena, 7 Car. & P. 213, 218. fer frequent disorders in his house, or See NSwton v. Trigg, 1 Show. 268, 269. take exorbitant prices, or set up a new " Fell V. Knight, 8 M. & W. 269, 5 Jur. inn in a place where there is no manner 554. of need of one, to the hindrance of other 8 1 Hawk. P. C. Curw. ed. p. 714, § 2. ancient and well-governed inns, or keep * Bex V. Luellin, 12 Mod. 445. it in a place in respect of its situation 5, The State v. Mathews, 2 Der. & Bat. wholly unfit for such a purpose. And it 424. seems also to be clear, that, if one who 5 In Eex o. Ivens, 7 Car. & P. 213, keeps a common inn refuse either to re- 219. ceive a traveller as a guest into his house, ' Ante, § 458 et seq. or to find him victuals, or lodging, upon ' And see ante, § 232. his tendering him a reasonable price for ' Offences by Innkeepers enumer- the same, he is not only liable to render ated. — Hawkins says: "It seems to be damages for the injury in an action on agreed, that the keeper of an inn may, the case at the suit of the party grieved, by the common law, be indicted and but may also be indicted and fined at the fined, as being guilty of a public nui- suit of the king." 1 Hawk. P. C. Curw. sance, if he usually harbor thieves, or ed. p. 714, § 1, 2. persons of scandalous reputation, or suf- 299 § 534 THE ACT EEQUIBED. [BOOK V. CHAPTER XXXIX. PROTECTION TO TECE PUBLIC ORDBE AND TEANQUILLITy. § 533. In General. — Whatever, of sufficient magnitude for the law's notice,^ one wilfully (Joes to the disturbance of the public order or tranquillity, is indictable at the common law. Thus, — § 534. Riot — Rout — Unlawful Assembly. — Riots, routs, and unlawful assemblies, three allied disturbances of the public tran- quillity, are thus punishable. They severally require, says Black- stone,^ " three persons, at least, to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren, or the game therein ; and part without doing it, or mak- ing any motion towards it.^ A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly break- ing down fences upon a right claimed of common or of way ; and make some advances towards it.* A riot is where three or more actually do an unlawful act of violence, either with or without common cause or quarrel : as, if they beat a man ; or hunt and kill game in another's park, chase, warren, or liberty ; or do any other unlawful act with force and violence ; or even do a lawful act, as removing a nuisance, in a violent or tumultuous manner." ^ 1 Ante, § 212 et seq. Williams v. The State, 9 Misso. 270 ; 2 4 Bl. Com. 146. Scott v. United States, Morris, 142 ; Tlie 8 And see Tiie State v. Staloup, 1 Ire. State v. Brooks, 1 Hill, S. 0. 361 ; Tur- 30; Keg. v. Vincent, 9 Car. & P. 91 ; pin w. The State, 4 Blackf. 72 ; The State Eeg. V. Neale, 9 Car. & P. 431 ; Eex v. v. Calder, 2 McCord, 462 ; The State v. Hunt, 1 Euss. Crimes, 3d Eng. ed. 273 ; Jackson, 1 Speers, 13 ; The State v. Cole, Eex V. Blisset, 1 Mod. 13 ; Rex v. Birt, 5 2 McCord, 117 j Pennsylvania v. Cribs, Car. & P. 154. Por other definitions, see Addison, 277 ; Pennsylvania v. Morrison, Vol. II. § 1256 and note. Addison, 274 ; Rex v. Scott, 8 Bur. 1262, 4 And see The State v. Sumner, 2 1 W. Bl. 360 ; Reg. v. Vincent, 9 Car. Speers, 599. Por other definitions, see & P. 91 ; Rex v. Sudbury, 12 Mod. Vol. II. § 1188 and note. 262 ; Rex v. Hunt, 1 Keny. 108 ; Com- 5 And see The State v. Connolly, 8 monwealth v. Runnels, 10 Mass. 618 ; Rich. 337 ; The State v. Snow, 18 Maine, Pennsylvania v. Craig, Addison, 190 ; 346 ; The State v. Straw, 83 Maine, 554 ; Anonymous, 6 Mod. 43 ; Reg. v. Soley, 2 300 CHAP. XXXIX.] PUBLIC OEDEE AKD TRANQUILLITY. §535 There are some English statutes, ancient as well as comparatively modern, making the riotous assembling of twelve or more persons, under certain circumstances and for certain specific purposes, a heavier offence ; ^ but we have no reported instances of attempts to give them a common-law force in this country. § 535. Affray. — Of a similar nature to riot and the like is affray ; being the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the ter- ror of the people. It is indictable at the common law.^ Salk. 594, 595 ; Keg. v. Ellis, Holt, 636 ; The State v. Russell, 45 N. H. 83. Tor other definitions, see Vol. II. § 1143 and note. 1 4 Bl. Com. 142. The following is what Blaokstone says in the place thus referred to : " The riotous assembling of twelve persons, or more, and not dispers- ing upon proclamation. This was first made high treason by Statute 3 & 4 Edw. 6, c. 5, when the king was a minor, and a change in religion to be efiected : but that statute was repealed by Statute 1 Mary, c. 1, among the other treasons created since the 25 Edw. 3 ; though the prohibition was in substance re-enacted, with an inferior degree of punishment, by Statute 1 Mar. stat. 2, c. 12, which made the same offence a single felony. These statutes specified and particular- ized the nature of the riots they were meant to suppress, as, for example, such as were set on foot with intention to offer violence to the Privy Council, or to change the laws of the kingdom, or for certain other specific purposes : in which cases, if the persons were commanded by proclamation to disperse ; and they did not, it was by the statute of Mary made felony, but within the benefit of clergy ; and also the fact indemnified the peace officers and their assistants, if they killed any of the mob in endeavoring to sup- press such riot. This was thought a nec- essary security in that sanguinary reign, when popery was intended to be re-estab- lished, which was hke to produce great discontents : but at first it was made only for a year, and was afterwards continued for that queen's life. And, by Statute 1 Eliz. c. 16, when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the ac- cession of James the Eirst to the death of Queen Anne, it was never once thought expedient to revive it : but, in the first year of George the First, it was judged necessary, in order to support the execu- tion of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and speci- fied what should be accounted a riot, the Statute 1 Geo. 1, c. 5, enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. And farther, if the reading of the proclama- tion be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hin- derers are felons without benefit of clergy : and all persons to whom such proclamation ought to have been made, and knowing of such hindrance, and not dis- persing, are felons without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfor- tunately killed in the endeavor to dis- perse them ; being copied from the act of Queen Mary. And, by a subsequent clause of the new act, if any persons, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons with- out benefit of clergy," 2 Vol. II. § 1 ; 4 Bl. Com. 145 ; The State V. Sumner, 5 Strob. 58 ; Simpson v. 301 § 536 THE ACT EEQX7IEED. [BOOK V. Private Fighting together. — Fighting in a private place is either no offence ^ or an assault and battery, according to the circum- stances. PubUc — (Prize-fight). — Of course, a public prize-fight is in- dictable.^ § 536. Breaches of Peace. — These offences are also known as breaches of the peace, — a term of indefinite yet larger meaning, sometimes greatly expanded, but commonly it signifies in the law a criminal act of the sort which disturbs the public repose. There are still other forms of indictable breaches of the peace.^ Thus, — Forcible Detainer — (Defence of Self and Property). — While all reasonable and necessary force may lawfully be used by one to defend his real or personal estate, of which he is in the actual possession, against another who comes to dispossess him without right ; ^ yet, if a man undertakes to retain what he knows ^ to be a wrongful possession, by a force or by numbers reasonably excit- ing terror, he is indictable. This offence is called in law a forci- ble detainer.^ So — Forcible Entry — Forcible Trespass. — A man is indictable for a forcible entry or trespass, who, by strong hand, awakening fear, wrests from another's peaceable possession either personal^ or The State, 5 Yerg. 356 ; Curlin v. The Daniel v. The State, 8 Sm. & M. 401 ; State, 4 Yerg. 143 ; O'Neill v. The State, The State v. Zellers, 2 Halst. 220 ; The 16 Ala. 65 ; Cash v. The State, 2 Tenn. State v. Smith, 3 Dev. & Bat. 117 ; Moore 198 ; Klum v. The State, 1 Blackf . 377 ; v. Hussey, Hob. 93, 96 ; Semayne's Case, The State i>. Heflin, 8 Humph. 84 ; The 5 Co 91 o; Hollowaye's Case, Palmer, State V. Allen, 4 Hawks, 356 ; Common- 545 ; s. o. nom. Halloway's Case. Cro. wealth V. Perdue, 2 Va. Cas. 227 ; Dun- Car. 131 ; Commonwealth v. Drew, 4 can V. Commonwealth, 6 Dana, 295 ; Mass. 891 ; Rex v. Longden, Russ. & Ry. Hawkins v. The State, 13 Ga. 322. 228 ; United States v. Wiltberger, 3 1 Ante, § 260 and note ; Vol. II. Wash. C. C. 515 ; The State v. Briggs, 3 § 35. Ire. 357; The State v. Clements, 32 2 Reg. 1^.. Brown, Car. & M. 314; ante, Maine, 279 ; The State ». Lazarus, 1 Mill, § 260, note ; Vol. II. § 35. 33 ; 1 East P. C. 402. And see, for a full ' And see The State v. Hanley, 47 Vt. discussion of the right to defend one's 290 ; The State v. Matthews, 42 Vt. 542 ; self or property, post, § 836-877. The State v. Warner, 34 Conn. 276 ; The 5 Ante, § 303. State V. Lunn, 49 Misso. 90 ; post, § 548. « Vol. II. § 489 et seq. ; The State v. * Weaver v. Bush, 8 T. R. 78; Har- Godsey, 13 Ire. 348; Commonwealth v. rington v. People, 6 Barb. 607 ; Common- Rogers, 1 S. & R. 124 ; Commonwealth wealth V. Kennard, 8 Pick. 133 ; The v. Lakeman, 4 Cush. 597 ; Milner v. Mao- State V. Godsey, 13 Ire. 348 ; The State lean, 2 Car. & P. 17. V. Johnson, 12 Ala. 840 ; The State u. ' Vol. II. § 517 ; The State i>. Arm- Morgan, 3 Ire. 186 ; Monroe v. The State, field, 5 Ire. 207 ; The State v. McDowell, 5 Ga. 86 ; Rex <;. Ford, J. Kel. 51 ; Mc- 1 Hawks, 449 ; The State v. Watkins, 4 302 CHAP. XXXIX.] PUBLIC OEDEE AND TEANQUILLITY. § 538 real ^ property, even though he is proceeding under a just claim.^ But this doctrine does not apply where one, having lawful right, immediately recaptures what has been wrongfully taken from him.^ When the property is personal, the demonstration must be in the presence of the possessor, from whom it is taken away.* § 537. Riotous Injuries and Enforcements of Eights. — In like manner, the riotous entry into a house by the landlord, on the termination of a lease, or for the enforcement of a forfeiture ; ^ the riotous pulling down of enclosures, even under a claim of right ; '^ the breaking, with wood and stones, of the windows of a dwelling-house in the night, to the terror of the occupants ; "! the unlawful throwing down of the roof and chimney of a dwelling- house in the peaceable possession and actual occupancy of an- other, who is put in fear ; » the riotous breaking into another's dwelling-house, and making a great noise,, whereby a woman in it miscarries,^ — are severally indictable at the common law, as either forcible entries, or other breaches of the peace. § 538. Limits of Doctrine. — In these cases, the trespass is not alone indictable, for, the thing done must go further ; i° while the Humph. 256; The State v. Bennett, 4 Dev. & Bat. 43 ; The State v. Mills, 2 Dev. 420; The State k. Eay, 10 Ire. .39; The State v. Phipps, 10 Ire. 17; The State V. Mowers, 1 Car. Law Eepos. 97. 1 Vol. II. § 489; Commonwealth i-. Shattuck, 4 Cush. 141 ; Burt v. The State, 3 Brev. '413; The State v. Speirin, 1 Brev. 119 ; The State v. PoUok, 4 Ire. 305; The State ^. Pridgen, 8 Ire. 84; Eeg. V. Newlands, 4 Jur. 322 ; Eex v. NichoUs, 2 Keny. 512 ; The State v. Tol- ever, 5 Ire. 452 ; Eex v. Smyth, 5 Car. & P. 201; Harding's Case, 1 Greenl. 22; The State v. Morris, 3 Misso. 127. 2 The State v. Bennett, 4 Dev. & Bat. 43; Eex v. Marrow, Cas. temp. Hardw. 174 ; The State v. Pearson, 2 N. H. 550 ; People V. Leonard, 11 Johns. 504 ; Beau- champ V. Morris, 4 Bibb, 312 ; Eex a. Storr, 3 Bur. 1698, 1699. 8 The State v. Elliot, 11 N. H. 540. * Vol. II. § 517; The State v. Mc- Dowell, 1 Hawks, 499; The State v. Watkins, 4 Humph. 256 ; The State v. Mills, 2 Der. 420 ; The State v. Tarns- worth, 10 Yerg. 261 ; Eeg. v. Harris, 11 Mod. 113. And see Eex v. Gardiner, 1 Euss. Crimes, 3d Eng. ed. 63 ; The State V. Flowers, 1 Car. Law Eepos. 97. See, as to real estate, The State v. Fort, 4 Dev. & Bat. 192. 5 Eex V. Stroude, 2 Show. 149. 6 Eex V. Wyvill, 7 Mod. 286. And see The State v. Tolever, 5 Ire. 452 ; Eeg. V. Harris, 11 Mod. 113. ' The State ^. Batchelder, 5 N. H. 549. 8 The State v. "Wilson, 3 Misso. 125 ; . The State v. Morris, 3 Misso. 127. ^ Commonwealth o. Taylor, 5 Binn. 277. 1" The State v. Phipps, 10 Ire. 17 ; Henderson v. Commonwealth, 8 Grat. 708 ; Commonwealth v. Keeper of Prison, 1 Ashm. 140 ; Bex «. Bake, 3 Bur. 1731 ; Eex V. Smyth, 5 Car. & P. 201, 1 Moody & E. 155 ; The State v. PoUok, 4 Ire. 305 ; The State v. Eay, 10 Ire. 39 ; The State V. Mills, 2 Dev. 420 ; The State v. Wat- kins, 4 Humph. 256 ; The State v. Arm- field, 5 Ire. 207 ; Eex v. Gardiner, 1 Euss. Crimes, 8d Eng. ed. 53 ; 6 Mod. 175, note ; 2 Mod. 306, note ; Kilpatrick v. People, 5 Denio, 277; Eex v. Storr, 3 Bur. 1698; Eex V. Atkyns, 8 Bur. 1706 ; Eex v. GU- 308 § 540 THE ACT BEQTJTRED. [BOOK V. terror may be excited as well by numbers ^ as by otber means. Therefore, for example, — Excessive Distress — Abusing Family. — A landlord does not commit crime by taking an excessiye distress ; ^ nor does any one by merely going often to the house of another, and in words so abusing his family as to make their lives uncomfortable: the injury being only of a civil nature.^ § 539. Peace actually broken — Tending to Breach. — To lay the foundation for a criminal prosecution the peace need not be actually broken. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Thus, — § 540. Challenge to Duel — Going dangerously armed. — Libel — Words to stir Quarrels — Eavesdropping — Common Scold. — Send- ing a challenge, verbal or written, to fight a duel ; * going about armed, with unusual and dangerous weapons, to the terror of the people ; ^ riotously driving in a carriage through the streets of a populous city, to the hazard of the safety of the inhabitants ; ^ publishing libels,'^ even in some extreme cages uttering words ^ calculated to stir up resentments and quarrels ; eavesdropping ; ^ being a common scold ; ^^ and the like ; are cognizable criminally by the common law. For — The Reason. — The criminal law is as well preventive as vindic- let, 3 Bur. 1707 ; The State v. Flowers, 1 monwealth v. Worcester, 3 Pick. 462 Car. Law Eepos. 97. Stat. Crimes, § 20. 1 The State v. Simpson, 1 Dev. 504 ; ' Commonwealth v. Clap, 4 Mass. 163, Milner v. Maclean, 2 Car. & P. 17 ; Com- 168, 169 ; Commonwealth v. Chapman, monwealth v. Shattuck, 4 Cush. 141 ; 13 Met. 68 ; Rex v. Topham, 4 T. R, 126 Rex V. Jopson, cited 3 Bur. 1702. And Reg. v. Collins, 9 Car. & P. 466 ; Rex b. see The State v. Wilson, 3 Misso. 125. Kinnersley, 1 W. Bl. 294 ; Eeg.». Lorett, 2 Rex 0. Lesingham, T. Raym. 205 ; 9 Car. & P. 462 ; Rex v. Pain, Comb. 358 8. c. nora. Rex v. Leginham, 1 Mod. 71. The State v. Burnham, 9 N. H. 34. ' Commonwealth u. Edwards, 1 Ashm. 8 Rgg, „, Taylor, 2 Ld. Raym. 879 46. See The State ». Caldwell, 2 Jones, Ex parte Marlborough, 1 New Sess. Cas N. C. 468 ; The State v. Bordeaux, 2 195, 13 Law J. n. s. M. C. 105, 8 Jur. 664 Jones, N. C. 241. ante, § 470. * 4 Bl. Com. 150 ; Rex o. Newdigate, » The State v. Williams, 2 Tenn. 108 Comb. 10 ; Reg. «. Langley, 2 Ld. Raym. 4 Bl. Com. 168 ; Commonwealth v. Lot- 1029, 1031, 6 Mod. 124; Smith u. The ett, 4 Pa. Law Jour. Rep. 5; post, § 1122 State, 1 Stew. 506. et seq. 6 The State v. Huntly, 3 Ire. 418 ; Sir i" 4 Bl. Cora. 168 ; Reg. w. Foxby, 6 John Knight's Case, 3 Mod. 117, Comb. Mod. 11 ; James v. Commonwealth, 12 38. S. & E. 220 ; United States v. Royall, 3 6 United States v. Hart, Pet. C. C. Cranch C. C. 620 ; Commonwealth ». 390. Fast DrivinB. — As to fast driving Mohn, 2 Smith, Pa. 248; post, § 948, contrary to a city ordinance, see Com- 1101 et seq. 304 CHAP. XXXIX.] PUBLIC OEDBE AND TEANQUILLITY. § 542 tive.^ And a threatened danger demands correction the same as an actual one. Moreover, the community is disturbed when it is alarmed. Attempts are indictable,^ and the before-mentioned acts are in the nature of attempt! § 541. Barratry — Maintenance — Champerty. — We have a tri- angle of analogous offences known as barratry,^ maintenance, and champerty ; * which are rather actual than attempted disturbances of the repose of the community. The gist of them severally is, that they embroil men in lawsuits and other like quarrels. Blackstone defines barratry to be the " frequently exciting and stirring up of suits and quarrels between his majesty's subjects, either at law or otherwise ; " ^ maintenance, " an officious inter- meddling in a suit that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it ; " ^ champerty, " a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law, whereupon the champertor is to carry on the par- ty's suit at his own expense." ^ Selling Land in Adverse Possession. — The sale of real estate, of which another holds an adverse seisin, is usually a species of champerty.^ § 542. Disturbing Meetings. — When people assemble for wor- ship,^ or in their town meetings,^'' or in others of the like sort,^^ or probably always when they come together in an orderly way for 1 Ante, § 210. Thompson, 1 Seld. 320 ; Van Dyck v. 2 Ante, § 434, 435 ; post, § 723 et seq. Van Beuren, 1 Johns. 345, 363 ; White- 3 Discussed Vol. II. § 63 et seq. sides v. Martin, 7 Yerg. 384 ; Williams v. 4 Discussed Vol. II. § 121 et seq. Hogan, Meigs, 187 ; Wellman v. Hickson, 6 4 Bl. Com. 134 ; Case of Barretry, 8 1 Ind. 581 ; Michael v. Nutting, 1 Ind. Co. 366, 376; Rex v. , 3 Mod. 97 ; 481 ; Truax «. Thorn, 2 Barb. 156 ; Tut- The State v. Chitty, 1 Bailey, 379 ; Com- tie v. Hills, 6 Wend. 213, 224 ; Anderson monwealth v. McCuUoch, 15 Mass. 227. v. Anderson, 4 Wend. 474. Whether 6 4 Bl. Com. 134; Brown v. Beau- Stat. 32 Hen. 8, i;. 9, is common law in champ, 5 T. B. Monr. 413. this country, see Brinley «. Whiting, 5 7 4 Bl. Com. 135 ; Thurston ^. Perci- Pick. 348, 353 ; Hall v. Ashby, 9 Ohio, val, 1 Pick. 415; Rust w. Larue, 4 Litt. 96; People u. Sergeant, 8 Cow. 139 ; Ses- 411, 417; Douglass o. Wood, 1 Swan, sions w. Reynolds, 7 Sm. & M. 130; Vol. Tenn. 393 ; Knight v. Sawin, 6 Greenl. II. § 137, 138. 361 ; Byrd v. Odem, 9 Ala. 755 ; Key v. » Bell v. Graham, 1 Nott & McC. 278, Vattier, 1 Ohio, 132 ; McMuUen v. Guest, 280 ; The State v. Jasper, 4 Dev. 323. 6 Texas, 275 ; Lathrop v. Amherst Bank, i" Commonwealth v. Hoxey, 16 Mass. 9 Met. 489 ; Holloway v. Lowe, 7 Port. 385. 488. 11 Campbell v. Commonwealth, 9 8 Vol. II. § 136-140 ; Cockell v. Tay- Smith, Pa. 266. lor, 16 Eng. L. & Eq. 101; Hoyt v. VOL. I. 20 305 § 543 THE ACT EEQTJIRED. [BOOK V. a purpose not unlawful, the common law holds any disturbance of the meeting to be a crime. In England, statutes were passed to protect dissenters in their worship,^ said to be necessary, because their assembling was unlawful. In this country, where all forms of worship are favored,^ it is admitted that such statutes are not required.^ And opposed to this view, even of the English law, is a strong dictum by Lord Mansfield, who said : " I would have it understood in general, that Methodists have a right to the protection of this court, if interrupted in their decent and quiet devotions ; and so have dissenters from the established church likewise, if so disturbed." * What amounts to disturbance varies with the nature and objects of the meeting.^ § 543. Conclusion. — There are statutory offences within the scope of this chapter, but they are sufficiently explained in " Statutory Crimes." And those which are mentioned here are discussed more fully in other connections in the present work ; the nuisances, in the closing chapters of this vohime, and the others in the second volume. 1 Eex V. Hube, Peake, 132, 5 T. R. Crimes, 3d Eng. ed. 299. As to the rights 642. And see Bex v. Richardson, 6 Car. of an audience at a theatre, Rex v. & P. 335 ; Rex v. Warren, Cowp. 371. Forbes, 1 Crawf. & Dix C. C. 157 ; Vol. 2 Ante, § 496. II. § 308, note. And see the subject of ' The State v. Jasper, 4 Dev. 323. this section further discussed, Vol. II. * Kex ». Wroughton, 3 Bur. 1683. § 301-310. ^ As to religious meetings, see 1 Buss. 306 CHAP. XL.j PROTECTION TO INDrVTDXTALS. § 546 CHAPTER XL. PROTECTION TO INDIVXDXJALS. § 544-546. Introduction. 547-564. Offences against Personal Preservation and Comfort. 565-590. Against acquiring and retaining Property: 591. Against Personal Reputation. 592, 593. Combinations to commit Private Injuries. § 544. Scope of this Chapter. — We have already seen some- thing of the principles on which the criminal law casts its protec- tion over the individual, and of the extent of such protection.^ The purpose of this chapter is to lead that topic into minuter detail, in connection with a general survey of the part of the criminal field to which it relates. § 545. Fair Ground. — The main proposition, already explained, is, that, while one occupies what the law deems fair ground, assumes no unequal position, toward another in any controversy or fraud, he is not indictable, however deep the wrong he may inflict. And, on the other hand, he is indictable if he as- sumes unfair ground, and thus does an injury to the individual. Now, when we descend to the minuter discussion, we must call to our aid a distinction of another sort ; namely, — § 546. Two Kinds of Force — (Mental — Physical). — There are two kinds of force known among men, — mental and physical. The physical force has its just uses, but it should never be wielded aggressively by one private person against another. If one, therefore, does wield it thus to another's injury, he disturbs the order of the community ; and, violating its repose, assumes toward his victim an unfair ground. But it is otherwise with mental force. Though, .through it, a wrong is often done to an individual, its employment is, within certain limits, deemed on the whole a public benefit. Still there is an unfair ground, which 1 Ante, § 231-233, 250-253. 307 § 548 THE ACT EBQUIEED. [BOOK V. one may occupy, in the employment even of this force ; and when, from such ground, lie injures an individual by it, he is indictable. In other words, the use of physical force, to the injury of a private person, is of itself an assumption of unfair ground toward him ; but the use of mental force is not such of itself, yet it may become such from the manner of its use, or from special circumstances attending the particular instance. Carry- ing these distinctions in our minds, — How the Chapter divided. — We shall consider, I. Offences against the Right of Personal Preservation and Comfort ; II. Offences against the Right of Acquiring and Retaining Property ; III. Offences against Personal Reputation ; IV. Combinations to commit Private Injuries. I. Offences against the Right of Personal Preservation and Com- fort. § 547. Homicide. — The heaviest offence against the individual is the unjustifiable taking away of his life, called felonious homi- cide. The common law divides it into murder and manslaughter ; thd.t is, what in this country is termed the common law does, though the division proceeded from an early English statute.^ And there are in many of the States other divisions also, intro- duced by statutes.^ We have seen,^ that it is likewise a crime against the public. Mayhem. — Another like offence, but less grave, is mayhem.* It is an injury to a man by which he is rendered less able, in fighting, to defend himself or annoy his adversary.^ § 548. Assault and Battery. — Two offences against the person and personal security, usually existing in the facts of cases together, and practically regarded by the law as one, are assault^ land battery.'' A battery is any unlawful beating, or other wrong- ' ful physical violence or constraint,^ inflicted on a human being without his consent ; ^ an assault is less than a battery, where the 1 Vol. II. § 623-628; Crlm. Proced. ^ Vol. II. § 70 et seq. II. § 498 et seq. " Long u. Rogers, 17 Ala. 540 ; Reg. 2 Ante, § 409 ; Vol. II. § 723-781. v. Cotesworth, 6 Mod. 172 ; Edsall o.Rus- 3 Ante, § 510. sell, 6 Jur. 996 ; Pike v. Hanson, 9 N. H. •> Ante, § 257, 259, 513. 491. « Vol. II. § 1001. 9 Ante, § 258-260. 6 Vol. II. § 22 et seq. 308 CHAP. XL.J PROTECTION TO nSTDIVIDUALS. § 551 violence is cut short before actually falling; being committed •whenever a reasonable apprehension of immediate physical injury, from a force already partly or fully put in motion, is created.^ An assault is included in every battery.^ § 549. Noise to injure Sick Person. — In like manner, if one knows that another is sick, and that the discharge of a gun near him will make him worse, yet discharges the gun producing the effect, this is indictable at the common law.^ § 550. Reason why — (Assault and Battery). — These offenceS are generally spoken of in the books as breaches of the peace,* which in a qualified sense they are. But they are more. For the common law deems, that one assumes toward another unfair ground, and gives occasion for public interposition, when wrong- fully undertaking to injure him by any kind of physical force.^ There are, indeed, passages in the books in efPect denying this, by maintaining that, in these cases, the liability to indictment rests solely on the disturbance to the public repose. But that such is not the doctrine of the law is plain ; because, in consider- ing these offences, it never inquires whether the act was com- mitted under circumstances to create a public tumult. If the accused person inflicted unjustifiable blows, however privately, even on an infant ^ a day old, having no power to create a tumult or to revenge them, and no knowledge of the wrong, it holds him to be guilty of the offence.'' § 551. Further of Reasons — Erroneous Old Dicta, &o. — Nothing SO embarrasses the progress of true legal learning as the tenacity with which judges and text-writers adhere to such ancient forms of expression as, falling inadvertently from the lips of some old 1 Vol. II. §23; Stephens w. Myers, 4 318, 4 Cox C. C. 220; Anonymous, 1 Car. & P. 349 ; The State v. Davis, 1 Ire. East P. C. 305 ; Reg. v. Button, 8 Car. & 125; The State v. Crow, 1 Ire. 375; The P. 660; Forde v. Skinner, 4 Car. & P. State V. Morgan, 3 Ire. 186 ; The State v. 239 ; Rex v. Nichol, Russ. & Ry. 130 ; Cherry, 11 Ire. 475 ; Commonwealth v. Evans v. The State, 1 Humph. 394 ; The Eyre, 1 S. & R. 347 ; The State v. Sims, State t. Freels, 3 Humph. 228 ; Rex v. 8 Strob. 137 ; United States v. Hand, 2 Ridley, 1 Russ. Crimes, 3d Eng. ed. 752, Wash. C. C. 435 ; The State v. Black- 2 Camp. 650, 653 ; Reg. v. Miles, 6 Jiir. well, 9 Ala. 79 ; Reg. v. St. George, 9 243 ; Rex v. Rosinski, 1 Moody, 19 ; Car. & P. 483 ; Blake v. Barnard, 9 Car. Keay's Case, ,1 Swinton, 543 & P. 626 ; The State v. Smith, 2 Humph. ' Commonwealth v. Wing, 9 Pick. 1. 457. ■* Ante, § 536. 2 1 Hawk. P. C. 6th ed. c. 62, § 1. » Ante, § 252, 545, 546. And see, on this, and as additional to the " Commonwealth v. Stoddard, 9 Allen, above notes, Reg. v. Case, 1 Den. C. C. 280. 580, 1 Eng. L. & Eq. 544, Temp. & M. ' See ante, § 232, 253, 274. 309 § 553 THE ACT EBQUrBBD. [BOOK V. judge, or erroneously reported to have done so, have come to us i3onveying no correct legal meaning. The language in which a judicial opinion is clothed constitutes no part of the law of the ease ; and, though mere words transmitted to us from the bench are, if words of wisdom, properly regarded with respect, yet when they are inconsiderate and inaccurate, they should not be permitted to disfigure the pages of books in after times. § 552. Continued. — These observations are applicable, not only to the foregoing offences, but also to most of the others mentioned in this chapter. And it is not easy to see how lawyers, from gen- eration to generation, could be so deluded by a form of inaccurate and careless words as to hold these various offences to be indicta- ble solely as wrongs to the community. § 553. other Physical 'Wrongs. — There are other physical wrongs, indictable on the same ground with those already men- tioned. To some of these, as well as to those, the law has given specific names ; as — Kidnapping — False Imprisonment. — Kidnapping ^ and false im- prisonment,^ two offences against the individual, of which the lat- ter is included in the former,^ are punishable by the common law. Robbery. — Robbery, another common-law offence, is a vio- lent larceny from the person (or from the immediate presence, which is termed in law the person *) of one usually,^ not always,® assaulted. Or, in more apt legal phrase, it is larceny committed by violence from the person of one put in fear.'' 1 4 Bl. Com. 219 ; 1 East P. C. 429 ; Simons, 2 East P. C. 731 ; 2 East P. C. The State v. RolUns, 8 N. H. 550 ; Bex 707 ; Rex v. Moore, 1 Leach, 4th ed. 336; V. Baily, Comb. 10. Eex v. Knewland, 2 Leach, 4th ed. 721. 2 4 Bl. Com. 218 ; Floyd v. The State, s Rex v. Donnally, 1 Leach, 4th ed. 7 Eng. 43. And see Breck w. Blanchard, 193 ; 2 East P. C. 713, 788 ; Rex ». Elm- 2 Post. N. H. 303; Pike v. Hanson, 9 stead, 1 Russ. Crimes, 3d Eng. ed. 894; N. H. 491 ; Vol. II. § 746 et seq. Rex v. Jones, 2 East P. 0. 714, 715, 1 8 Click V. The State, 3 Texas, 282 ; Leach, 4th ed. 139 ; Rex v. Harrold, 2 Vol. II. § 750. East P. C. 715 ; Rex v. Hickman, 1 Leach, 1 Rex c;. Peat, 1 Leach, 4th ed. 228; 4th ed. 278, 2 East P. C. 728 ; Rex v. Ast- Rex V. Lapier, 1 Leach, 4th ed. 820, 321 ; ley, 2 East P. C. 729 ; Rex v. Brown, 2 Vol. IL § 1177, 1178. East P. C. 731 ; Rex v. Reane, 2 East P. 6 Kit V. The State, 11 Humph. 167 ; C. 734, 2 Leach, 4th ed. 616 ; Rex u. Commonwealth v. Snelling, 4 Binn. 379 ; Gardner, 1 Car. & P. 479 ; Britt v. The Rex V. Mason, Russ. & Ry. 419 ; Rex v. State, 7 Humph. 45 ; Rex v. Egerton, Edwards, 5 Car. & P. 518 ; s. o. nom. Rex Buss. & Ry. 375 ; Rex v. Fuller, Russ. & V. Edward, 1 Moody & R. 257 ; United Ry. 408 ; Reg. v. Stringer, 2 Moody, 261 ; States V. 3onea, 3 Wash. C. C. 209, 216 ; People v. McDaniels, 1 Parker C. C. 198. Eex V. Fallows, 5 Car. & P. 508 ; Rex v. ' Vol. IL § 1156. 310 CHAP. XL.] PEOTECTIOK TO rSTDIYrDTTAiS. § 557 § 554. Rape. — There is no form of violence more odious either in law or in morals than rape. It is the having of unlawful car- nal knowledge, by a man of a woman, forcibly and against her will,^ or when she does not consent ; ^ and it is committed only by a male person (that is, as principal in the first degree), arrived at his age of legal puberty, which is conclusively four- teen years.^ Puberty in the female is not essential.* § 555. Forcible Marriage (or Abduction). — Every form of un- lawful physical constraint being indictable, it is particularly so to carry off forcibly a woman to marry her against her will.^ For the force is greatly aggravated by this intent. An old English statute, 3 Hen. 7, c. 2, made such forcible abduction, if for lucre, the woman being an heiress, felony ; ^ but whether this statute is common law with us is a question not settled by adjudication.'^ § 656. Further of Physical Force. — Let US proceed to further illustrations, — the doctrine being, it is remembered,^ that one is indictable for every wrongful act of physical force, whereby he injures another. Acting through Agent — Physical Elements. — It is not necessary the force should be immediate and direct ; we have already seen, that a crime may be committed through the instrumentality of a third person, innocent or guilty ; ^ so may it be equally through the agency of the physical elements. Thus, — § 557. Abandoning Child or Servant — Neglect to provide — (As- sault — Homicide). — If one exposes or abandons a child, incapa- ble of taking care of itself, to cold or wet, whereby it receives an injury, he is indictable for misdemeanor ; i" or, if the child dies, 1 Vol. II. § 1113 ; 4 Bl. Com. 210 ; 1 6 4 Bl. Com. 208 ; 1 Hawk. P. C. 6th Hale P. C. 628 ; 1 East P. C. 434 ; 1 Russ. ed. o. 42 ; 1 East P. C. 452 ; Keg. v. Swan- Crimes, 3d Eng. ed. 675 ; The State v. son, 7 Mod. 101, 102 ; Reg. o. Whistler, Jim, 1 Dev. 142 ; Reg. v. Camplin, 1 Car. 7 Mod. 129, 132. & K. 746, 1 Den. C. C. 89, 1 Cox C. C. ' Stat. Crimes, § 618. We have stat- 220 ; Reg. v. Hallet, 9 Car. & P. 748 ; utes of oar own against this and analo- Eex V. Jackson, Russ. & Ry. 487 ; The gous offences, as see Stat. Crimes, § 614^ State V. Shepard, 7 Conn. 54. 652. 2 Vol. II. § 1114, 1115. 8 Ante, § 546, 548. 8 Ante, §373, it appearing, however, ' Ante § 310; post, § 564, 631, 673, that some courts allow evidence of act- 677. ual puberty in boys under fourteen. See ^o Reg. v. Renshaw, 11 Jur. 615, 2 Cox Vol. II. § 1117. C. C. 285, 20 Eng. L. & Eq. 593 ; Reg. v. < Vol. II. § 1118. Mulroy, 3 Crawf. & Dix C. C. 318 ; Reg. 6 Attempt. — So the attempt is in- v. Cooper, 1 Den. C. C. 459, Temp. & M. diotable at common law. Rex v. Pigot, 125, 13 Jur. 502 ; Reg. v. Hogan, 5 Eng. Holt, 758; Stat. Crimes, § 619. L. & Eq. 553, 2 Den. C. C. 277, 15 Jur. 311 S559 THE ACT REQUIRED. [book V. for a felonious homicide.^ And the same consequence follows if he neglects,^ being under legal obligation, to furnish it with suit- able food and clothing ; ^ or thus neglects a servant, apprentice, or other person, where there is a legal duty.* § 558. Malpractice by Physician. — We have seen, that, if a medical man takes the life of a patient by gross malpractice, he is answerable for a felonious homicide ; ^ so, if the injury falls short of the deprivation of life, he may be punished for a misdemeanor.^ And — Unwholesome Pood. — Partly on this ground rests the offence, already mentioned,''' of providing unwholesome food to be con- sumed in the community.* § 559. Burglary — Arson. — Dwelling-places are built to pro- tect people from the physical elements and from the violence of beasts and men. Offences, therefore, against the habitation are indirectly such against the person. Of these, the common law has two, burglary and arson. The former ^ is the breaking ^^ and entering,^! in the night,'^ of another's dwelling-house,-'^ with intent to commit a felony therein.^* The latter ^^ is the malicious ^^ burn- ing "' of another's house.^* 805 ; Gibson's case, 2 Broun, 366 ; Reg. V. Phillpot, 20 Eng. L. & Eq. 691. 1 Reg. V. Waters, 1 Den. C. C. 356, Temp. & M. 57, 13 Jur. 130. 2 Ante, § 241, 316, 317, 433; Vol. II. § 643, 659-662, 696. 3 Rex V. Friend, Buss. & Ry. 20 ; Rex V. Smith, 2 Car. & P. 449. * Rex V. Ridley, 2 Camp. 650 ; Rex v. Squire, 1 Russ. Crimes, 3d Eng. ed. 19; Reg. V. Pelhara, 8 Q. B. 959, 10 Jur. 659, 15 Law J. N. s. M. C. 105 ; Rex v. War- ren, Russ. & Ry. 47, note ; Rex v. Mere- dith, Russ. & Ry. 46 ; Rex v. Booth, Russ. & Ry. 47, note ; Reg. v. Gould, 1 Salk. 381 ; Rex v. Gierke, 2 Show, 193; Rex w. Barney, Comb. 405 ; Rex v. Friend, Russ. & Ry. 20. 6 Ante, § 217, 314. ° Greonvelt's Case, 1 Ld. Raym. 213 ; Parke, J. in Rex ». Long, 4 Car. & P. 898, 405. ' Ante, § 484, 491. 8 Treeve's Case, 2 East P. C. 821. » Vol. II. § 90. i» Stat. Crimes, § 290, 312. 11 Rex t). Rust, 1 Moody, 183 ; Rex «. 312 Roberts, Car. Crim. Law, 3d ed. 293 ; Rex V. Bailey, Russ. & Ry. 341 ; Rex v. Bailey, 1 Moody, 23 ; The State v. McCall, 4 Ala. 643 ; Rex v. Hughes, 1 Leach, 4th ed. 406, 2 East P. C. 491 ; Rex v. Davis, Russ. & Ry. 499. 12 Stat. Crimes, § 276. 18 Stat. Crimes, § 277-287. 1* 1 Russ. Crimes, 3d Eng. ed.785 ; ante, § 427 ; Commonwealth v. Newell, 7 Mass. 245 ; The State v. Wilson, Coxe, 439 ; The State v. Bancroft, 10 N. H. 105; Lewis V. The State, 16 Conn. 32; Rex v. Kniglit, 2 East P. C. 510 ; Reg. «. Segar, Comb. 401 ; Rex b. Dobbs, 2 East P. C. 513 ; Rex v. Dingley, cited 1 Show. 53 ; The State v. Cooper, 16 Vt. 551. 15 Vol. II. § 8. '« Ante, § 427-429. " Stat. Crimes, § 310. 18 Stat. Crimes, § 277, 289 ; ante, § 329, 334; 2 Russ. Crimes, 3d Eng. ed. 548; 4 Bl. Com. 220 ; 2 East P. C. 1015 ; Bloss v. Tobey, 2 Pick. 320, 325 ; Curran's Case, 7 Grat. 619; Sullivan v. The State, 5 Stew. & P. 175 ; Ritchey v. The State, 7 Blackf . 168 ; McNeal «. Woods, 3 Blackf . CHAP. XL.] PROTECTION TO INDIVIDUALS. § 560 § 560. Mental Force — (" Cruelty " in Divorce Law). — The fore- going are illustrations of the law's protection to the person against wrongful physical force. Mental force,i when directed against the personal safety and comfort, is not, like physical, uni- versally indictable. But we shall see under the next sub-title, that, in some circumstances, it is so when employed to injure a man in his pecuniary interests ; ^ and, in_ reason, it should be equally so when directed against his physical well-being. Prac- tically, this question cannot often arise ; because it is seldom that what proceeds only from the mind, with no aid from any thing physical, can injure a person in his physical existence. And there is no authority for holding that the production of mental unhappiness, by whatever means, is indictable. Even in matri- monial law, as administered in England and in most of our States, it is not, however extreme, the cruelty which authorizes a divorce.^ And in the criminal law, we have seen, that one is not punishable for going frequently to a neighbor's house and so abusing his family as to render their lives uncomfortable.* Yet in matrimo- nial law, according to the better opinion, it is cruelty for a hus- band to injure his wife physically, as in her health, by conduct addressed primarily to her mind.^ Assuming, then, that a physi- cal injury produced by mental causes is in like manner indictable, stUl it results from the differing nature of the criminal law, that the mental force must be of a sort, or attended by circumstances, to place him who employs it on unequal ground toward the other.^ Thus, — Yielding to Persuasion — Kidnapping. — In a North Carolina case, Pearson, J., observing upon the construction of a statute against carrying free negroes out of the State to make slaves of them, said : " As a subject of the State, he [the free negro] has a right to expect protection against force ; but, if he yields to seduction or persuasion, or allows himself to be beguiled by fraud, and of his own accord goes out of the State, it is his own folly. 485 ; Eex v. Pedley, Cald. 218, 1 Leach, i Ante, § 546. 4th ed. 242, 2 East P. C. 1026 ; Rex v. " Post, § 581-589. Scofield, Cald. 397 ; Rex v. Spalding, 1 ' 1 Bishop Mar. & Div. § 722-725. Leach, 4th ed. 218, 2 East P. C. 1025 ; * Commonwealth u. Edwards, 1 Ashm. Rex V. Breeme, 1 Leach, 4th ed. 220, 2 46 ; ante, § 538. East P. C. 1026; Rex v. Gowen, 2 East ' 1 Bishop Mar. & Div. § 728-732. P. C. 1027, 1 Leach, 4th ed. 246, note ; « Ante, § 252, 545 ; post, § 681, 582, Rex V. Harris, 2 East P. C. 1023. 585-588. 313 § 562 THE ACT EEQUmED. [BOOK V. And although he has the protection of the State, and can bring an action for damages, he has no right to call for protection by the use of the strong arm of the criminal law, when he consents to the act, and does it of his own folly." ' § 561. How in Principle. — Nothing can be cleetrer in legal principle than that, in the proper circumstances, mental force employed to create a physical injury to an individual may be punishable. For while it is established, that, as to various other things, particularly as to property, there can be guile or fraud cognizable by the criminal law, — being, indeed, a plain and admitted ground of common-law liability to indictment, — surely such guile or fraud employed to the detriment of a nian's physical nature deserves reprehension, and merits punishment, quite as much as if it merely took away a little of his property. § 562. Mental Force in Homicide. — If life may be taken by mental force, and the act of so taking it be deemed murder or manslaughter, that will settle the entire question. Lord Hale says : " If a man either by working upon the fears of another, or possibly by harsh or unkind usage, put another into such passion of grief or fear that the party either die suddenly or contract some disease whereof he dies ; " this, though murder or man- slaughter in the sight of God, is not such at the dommon law, because of the difficulty of making proof .^ And later elementary writers follow Hale.^ But this proposition rests merely on pri- vate opinion, having never been affirmed in adjudication. And 1 The State v. WeaTer, Busbee, 9, 12. hardly sustains them. For instance, it ^ 1 Hale P. C. 429. is there said ; •' Among other charges ^ 1 East P. C. 225. And see Commis- against Patrick .Kinninmouth is that of sioners Phillips & Walcott's Report on breaking into a person's house, and the Penal Code of Massachusetts, a. d. grievously alarming his wife, recently 1844, tit. Homicide, p. 12, note. These delivered, to the great injury (the libel commissioners recommend that it be says) of her health, and so tliat her child not an indictable homicide " to occasion died, soon after, at her breast. The inler- death by the operation of words or signs locutor sustains the personal injm-y done to upon the imagination of persons." Tliey the mother as a ground of arbitrary pain ; say this rule accords with the French but it takes no notice of the death of the code. They also deem it to be the rule child." The learned Scotch author cites of both the common and the Scotch law ; this ease, with another, to the point that but they add, that the British commis- the death must sufficiently appear to sioners recommended the opposite for have been caused by the injury alleged the code in India. As to the common in the libel. So much it shows ; and also law, they cite simply Lord Hale, and shows, it seems to me, that the principle writers who cite him. As to the Scotch of the Scotch law is not in accordance law, they refer to 1 Hume Crim, Law, with the recommendation of the Massa- 267, 2d ed. 177, — an authority which chusetts commissioners. 314 CHAP. XL.] PKOTECTION TO INDIVIDUALS. § 564 the reason assigned by this eminent authority is unsatisfactory ; since — why cast out from court a case, the proof of which is plain, simply because it may be difficult to prove cases not in court ? On the other hand, a learned judge more recently said to the jury : " A man may throw himself into a river under such circumstances as to render it not a voluntary act, by reason of force applied either to the hody or to the mind. It becomes then the guilty act of him who compelled the deceased to take the step. But the apprehension must be of immediate violence, and well grounded." ^ And — Command from a Superior. — There are other cases which recog- nize the doctrine, that threats,^ or a command from one who stands in a relation entitling him to command,^ requiring an act dangerous in itself, and not necessary to be performed, in conse- quence of which, the person threatened or commanded does what causes his death, may lay the fouildation for an indictment. § 563. Mental Force in Homicide, continued. — These cases may not be deemed to meet directly and fully the point of our present inquiry, but they do in effect. When one, who sustains to an- other a relation entitling him to command, compels by a mere unlawful order, accompanied or not by threats of violence, the person in subjection to do an act which causes his death, he applies mental force alone. The person threatened is not moved by external physical impulses to obey ; the threat, indeed, is no more a physical force than is a lecture from a moralist, who incul- cates the doctrine of physical suffering following immoral acts ; but the force is purely mental, from mind to mind. § 564. Distinguished from Act through Another. -^ This doctrine, of the indictability of mental force, is not related to the familiar one, that he whose will contributes to an act performed by the physical volition of another is in law guilty. As resting on the latter doctrine, — Procuring Capital Conviction by Perjury — (Homicide). — The old common law held it to be murder intentionally to cause the death of a human being, on trial for his life, by appearing as a witness against him, and committing perjury.* So all the books 1 Erskine, J. in Reg. v. Pitts, Car. & » United States v. Freeman, 4 Mason, M. 284. 505. 2 Rex V. Evans, 1 Russ. Crimes, 8d * 1 Russ. Crimes, 3d Eng. ed. 494. Eng. ed. 489. And see 1 Hawk. P. C. 6th ed. c. 31, § 7. 315 §564 THE ACT EBQTJIEED. [book V. say ; but there is room for doubt whether this was ever truly the law. Perjury is an offence distinct from murder : the inflicting of a capital punishment, by officers of the law, in conformity to a judicial record, can hardly be deemed the act of the false wit- ness ; and, should we undertake to regard the government as the innocent agent of the witness,^ there is a difficulty in making the act and intent appear concurrent in point of time,^ because he has lost power over this agent, and he cannot prevent the execu- tion if he repents. Probably this "old doctrine is not to be deemed law at the present day.* 1 Ante, § 310. 2 Ante, § 207. 3 1. 1 Russ. Crimes, 3d Eng. ed. 494, 495 ; Commissioners Phillips & Walcott's Keport on the Penal Code of Massachu- setts A. D. 1844, tit. Homicide, p. 11, note ; Rex V. Maedaniel, 1 Leach, 4th ed. 44. See, as illustrative, Peekliam v. Tomlin- 8on, 6 Barb. 253. 2. Statutory OfTences within this Sub-title. — My endeavor, in the text, has been to present a view of the com- mon law of the subject. Probably every one of the offences there mentioned has been more or less legislated upon. Arson, for example, which by the common law can be committed only of a house, has been made to include the burning of shops, and other structures not used for habita- tion. And burglary has been extended in like manner. These extensions are considered, in connection with the com- mon-law offences, in the second volume. And there are more or less distinct crimes, created by statutes, discussed in " Statutory Crimes." Two, of consider- able consequence, not included within either of those volumes, yet not such as it is deemed best to occupy much space with, are the Slave Trade and Revolt. 3. The Slave Trade. — There are statutes, English and American, intended to suppress the carrying away of slaves from Africa, and the trading in them. See R. S. of U. S. § 629, 1046, 5375, 5382, 5561-5569. But questions do not often arise under these statutes, therefore a mere reference to the adjudications is sufBcient. Besides, the slave trade, with slavery, is passing away. The Josefa Segunda, 5 Wheat. 338 ; The Emily, 9 316 Wheat. 381 ; the St. Jago de Cuba, 9 Wheat. 409; The Antelope, 10 Wheat. 66 ; United States v. Gooding, 12 Wheat. pO ; United States v. Preston, 3 Pet. 57 ; United States v. The Garonne, 11 Pet. 73 ; United States u.The Amistad, 15 Pet. 518; United States v. Schooner Kitty, Bee, 252 ; United States u. Smith, 4 Day, 121 ; FalesK. Mayberry, 2 Gallis. 560; United States V. La Coste, 2 Mason, 129 ; La Jeune Eug&ie, 2 Mason, 409 ; The Brig Alexander, 3 Mason, 175 ; United States V. Battiste, 2 Sumner, 240 ; United States V. Libby, 1 Woodb. & M. 221 ; The Brig Caroline, 1 Brock. 384 ; United States v. Kennedy, 4 Wash. C. C. 91 ; Brig Try- phenla v. Harrison, 1 Wash. C. C. 522 ; The Porpoise, 2 Curt. C. C. 307 ; United States V. Darnaud, 3 Wal. Jr. 143 ; Strohm V. United States, Taney, 413 ; The Slav- ers, 2 Wal. 350, 375, 383 ; United States u. Smith, 3 Blatch. 255 ; United States V. The Isla de Cuba, 2 Clif. 295, 458, 2 Sprague, 26 ; United States v, Catharine, 2 Paine, 721 ; United States v. Smith, 2 Mason, 143 ; United States v. Kelly, 2 Sprague, 77 ; The State v. Caroline, 20 Ala. 19; Neal v. Farmer, 9 Ga. 555; Commonwealth v. Greathouse, 7 J. J. Mar. 590 ; Commonwealth v. Griffin, 7 J. J. Mar. 588: Commonwealth v. Nix, 11 Leigh, 636 ; The State v. Turner, 5 Har- ring. Del. 501 ; Commonwealth ». Jack- son, 2 B. Monr. 402 ; Commonwealth v. Griffin, 3 B, Monr. 208. For the English law, see 1 Russ. Crimes, 3d Eng. ed. 163 ; Reg. V. Zulueta, 1 Car. & K. 215 ; Reg. v. Serva, 1 Den. C. C. 104, 2 Car. & K. 53. 4. Revolt. — Making and endeavoring to make a revolt or mutiny on shipboard are also statutory offences against the OHAP. XL.J PROTECTION TO INDIVIDUALS. § 566 II. Offences against the Right of acquiring and retaining Property. I § 565. Order of this Discussion. — We shall first call to mind, by name, the several common-law offences within this sub-title, and the definition or a general description of each, then inquire after the rules of law which goyern them, as viewed in a sort of collective way. And, as we proceed, we shall now and then bring within our vision some statutory modification of the com- mon law, or analogous statutory crime. § 566. The Several Offences : — Larceny. — Larceny is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the intent to deprive such owner of his ownership therein ; and, perhaps it should be added, for the sake of some advantage to the trespasser, — a proposition on which the decisions are not harmonious. ^ Compound Larcenies. — A larceny committed under certain circumstances of aggravation is termed a compound larceny .^ Thus, — Prom the Person — from Shop — from Dwelling-house — Robbery. — Of this class are larcenies from the person,^ from the dwelling- house, from the shop,* robbery,^ and the like ; a part of which, however, exist in theii" aggravated form only by force of statutes. Again, — § 567. Receiving Stolen Goods. — Under the old common law, it United States. E. S. of U. S. § 5359, Forbes, Crabbe, 558; United States v. 5360. But a simple reference to author- Borden, I Sprague, 374 ; United States v. ities relating to these offences will be Nye, 2 Curt. C. C. 225 ; Ely v. Peck, 7 sufficient. United States v. Kelly, 11 Conn. 239 ; Galloway v, Morris, 3 Yeates, Wheat. 417 ; United States u. Savage, 5 445. Mason, 460 ; United States u. Smith, 3 ^ For other definitions, and authorities Wash. C. C. 525 ; United States v. Smith, to sustain them and this one, see Vol. II. 3 Wash. C. C. 78 ; United States v. Smith, § 758, note. 1 Mason, 147 ; United States v. Keefe, 3 2 vol. II. § 892 et scq. Mason, 475 ; United States u. Hamilton, » 2 East P. C. 700, 703-706 ; Common- 1 Mason, 443 ; United States v. Barker, wealth v. Dimond, 3 Cush. 235 ; Rex v. 5 Mason, 404 ; United States v. Gardner, Thompson, 1 Moody, 78 ; Reg. f. Walls, 5 Mason, 402 ; United States v. Haines, 2 Car. & K. 214. 5 Mason, 272 ; United States v. Morrison, * See Stat. Crimes, § 233 ; Reg. v. Ash- 1 Sumner, 448 ; United States v. Mat- ley, 1 Car. & K. 198 ; The State v. Cham- thews, 2 Sumner, 470 ; United States v. bers, 6 Ala. 855. Ashton, 2 Sumner, 13 ; United States v. « Ante, § 553 ; Vol. 11. § 892, 1158. Cassedy, 2 Sumner, 582 ; United States v. 317 § 569 THE ACT EBQtriEED. [BOOK V. was an indictable misprision to receive stolen goods knowing them to be stolen ; but, before this country was settled, the receiver was by statute made an accessory after the fact.^ In our States gener- ally, the receiving is now, by statute, a substantive offence. Embezzlement. — Embezzlement is a sort of statutory larceny, committed by servants and other like persons where there is a trust reposed, and therefore no trespass, so that the act would not be larceny at the common law.^ § 568. Malicious Mischief. — There is an offence at the common law known as malicious mischief ; but it has been so much legis- lated upon, and some of the statutes are of dates so early, that its common-law limits are indistinct. Blaekstone says, that it " is such as is done, not animo furandi, or with an intent of gain- ing by another's loss ; which is some, though a weak, excuse : but either out of a spirit of wanton cruelty, or black and diaboli- cal revenge. In which it bears a near relation to the crime of arson ; for, as that affects the habitation, so this does the , other property of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree." And he goes on to enumerate several statutes which have elevated it to felony.^ §569. How in our States — (Misapprehension from " Trespass "). — As accurate a writer as Blaekstone would, at the present day, use, in a passage like the above, the word " misdemeanor," where he has " trespass." * But if we consider the slight change which the current language of the law has undergone, the passage is plain. Some judges, however, not rightly apprehending it, and relying on his authority, have denied that this offence exists under the common law of this country ; ^ but the prevailing and better opinion is, that it does.^ 1 Post, § 699. 276 ; Eeg. v. Norman, Car. & M. 501 ; 2 See, as illustrating the nature of this Rex v. Headge, 2 Leach, 4th ed. 1038, offence. Rex v. Grove, 1 Moody, 447; Euss. & Ry. 160; The State v. Snell, 9 People V. Dalton, 15 Wend. 581 ; Reg. «. R. I. 112 ; Vol. II. § 318 et sect. Chapman, 1 Car. & K. 119; Rex y. Tay- s 4 bi. Com. 243, 244. lor, 3 B. & P. 596; Reg. v. Jackson, 1 * See post, § 625. Car. & K. 384 ; Rex v. Hall, Euss. & Ry. 6 The State v. Wheeler, 3 Vt. 344. 463, 3 Stark. 67 ; Commonwealth v. Simp- And see lilies v. Enight, 3 Texas, 312 ; son, 9 Met. 138 ; Reg. v. Creed, 1 Car. & K. Black v. The State, 2 Md. 376. 63 ; Commonwealth v. Libbey, 11 Met. 64 ; « People u. Smith, 5 Cow. 258 ; Loomis Eex V. Murray, 5 Car. & P. 145, 1 Moody, v. Edgerton, 19 Wend. 419 ; People ». 318 CHAP. XL.] PROTECTIOK TO INDIVrDXJALS. §570 Limits of the Offence. — One of the doubtful questions is, whether this offence extends at the common law to real property, or is limited to personal. The North Carolina court defined it to be, " the wilful destruction of some article of personal property, from actual m-will or resentment towards its owner." ^ And this definition, thus limiting it, is sustained alike by considerable authority 2 and legal reason. Other courts, with great force, maintain that it includes also injuries to real estate.^ The stat- utes on this subject have generally, perhaps universally, extended it to real estate, the same as to personal. § 670. How Limits in Reason. — This question is of a sort which can be settled by no judicial reasoning ; it must depend on authority.* On the one hand, it may be said that malicious mischief is of like nature with larceny ; and, as the latter can be committed only of personal property, so therefore can the former. On the other hand, we have the view that all wrongful and wan- ton injuries to another's property, whether real or personal, are, when of a certain degree of turpitude,^ and with certain exceptions, an assumption of unfair ground toward him ; ® and, as such, are Moody, 5 Parker, C. C. 568 ; Common- wealth V. Leach, 1 Mass. 59; The State V. Simpson, 2 Hawks, 460 ; The State v. Landreth, 2 Car. Law Eepos. 446 ; The State V. Robinson, 3 Dev. & Bat. 130; Respubliea v. Teischer, 1 Call. 335 ; The State V. Council, 1 Tenn. 305. And see Commonwealth v. Taylor, 5 Binn. 277. Shell K.The State, 6 Huraph. 283, can hard- ly be understood as opposing our doctrine, but rather as indicating one of its limits. How in Scotland. — A standard Scotch law writer says : " It may be affirmed generally, with respect to every act of great and wilful damage done to the prop- erty of another, and whether done from malice or misapprehension of right, that it is cognizable with us as a erime at common law ; if it is done, as ordinarily happens, with circumstances of tumult and disorder, and of contempt and indig- nity to the owner. For instance, to enter a neighbor's lands, with a convocation of servants and dependants, and cast down the houses, or root out or spoil the woods, or throw open and deface the enclosures; to break down, in the like fashion, the sluices and agueduuts of a mill ; to break or burn the boats and nets at a fishery ; to tear and destroy the peats, turf, and fuel in a heath or moss ; all these are competent articles of dittay. The same is true even of the bare usurpation of posses- sion, though without any great damage done to the property, if it is accomplished with the show of a masterful force ; so as to have a mixture of riot, as well as mo- lestation or intrusion." 1 Hume Crim. Law, 2d ed. 119. I 1 The State v. Robinson, 3 Dev. & Bat. 130. 2 The State v. Helmes, 5 Ire. 364; Brown's Casey 3 Greenl. 177. And see The State v. Burroughs, 2 Halst. 426; Commonwealth v. Powell, 8 Leigh, 719. See, as to destroying an account stated, Reg. V. Crisp, 6 Mod. 175 and notes. * Loomis V. Edgerton, 19 Wend. 419; Comfort V. Fulton, 39 Barb. 56. And see Rex V. Westbeer, 2 Stra. 1133, 1 Leach 4th ed. 12 ; Rex v. Joyner, J. Kel. 29. For a fuller view of this question, see Vol. II. § 984, 985. * Vol. II. § 984, 985. 5 Ante, § 212 et seq. 6 Post, § 574, 575. 319 ^ §570 THE ACT EEQUIEBD. [book V. indictable. The injury called larceny was by the common law separated from the mass and elevated to felony (so the reasoning will run) ; leaving the other injuries, whether to real or personal property, indictable as misdemeanors.^ To repeat, then, this ques- tion cannot be settled by legal argumentation. ^ statutory Malicious Mischiefs. — As to statutory malicious mischiefs, see Vol. II. § 983, 986-991, 994, 995, 997, 1000 ; and particularly Stat. Crimes, § 156, note, 246, 314, 431-449. There is one form of malicious mischief not there discussed ; namely, — Destroying Vessels : — Under United States Xiaws. — The Revised Statutes of tho United States make punishable, by fine and imprison- ment, a conspiracy to destroy a vessel in order to defraud underwriters or per- sons having a lien upon it, and the build- ing or fitting out of a vessel to be so de- stroyed. And they make it a capital of- fence actually to east away or otherwise destroy the vessel for this purpose ; also, without reference to underwriters and persons having liens, they make it capi- tal for one not the owner " corruptly " to east away or otherwise destroy a ves- sel " to which he belongs " on the high seas. And they make the unsuccessful attempt punishable, but less severely. These provisions are a mere re-enact- ment, with unimportant changes, of for- mer ones ; as see Act of March 26, 1804, and Act of March 3, 1825, 2 Stats, at Large, 290, and 4 lb. 122. And see, as perhaps relating to some changes in phraseology, Roberts u. The State, 2 Head, 501 ; United States v. Johns, 1 Wash. C. C. 363, 4 Dall. 412. For Eng- lish statutes which served as the origi- nals of our own, see 2 East P. C. 1095 et seq. The meanings of some of the terms employed in this statute are explained in Statutory Crimes. Thus, " Destroy." — This word does not require an irreparable disruption of the parts ; it is satisfied when the vessel is unfitted for service beyond recovery by ordinary means. Stat. Crimes, § 224. And see § 214 and note, 223, 446. Therefore, when holes were bored in a vessel's bottom, and she filled and was abandoned, but the crew of another vessel, finding her, pumped 320 her out and towed her to port, she was held to have been destroyed. United States V. Johns, 1 Wash. C. C. 363, 4 Dall. 412. And see United States v. Vanranst, 3 Wash. C. C. 146. But, says Mr. East, " If the ship be only run aground or stranded upon a rock, and be afterwards got off in a condition to be capable of being easily refitted, she can- not be said to be ' cast away or de- stroyed.'" De Londo's Case, 2 East P. . C. 1098. "To injure any Person that may have underwritten," &o. — A cor- poration is a " person " within this pro- vision. Stat. Crimes, § 212. And, on a trial, the act of Incorporation being proved, it is only further necessary to show that the company was de facto or- ganized, and conducting as a corporation, and persons usually doing business as its ofiicers signed the policy. It was also observed ; " The law punishes the act when done with an intent to prejudice ; it does not require that there should be an actual prejudice. The prejudice in- tended is to be to a person who has un- derwritten, or who shall underwrite, a policy thereon, which, for aught .the pris- oner knows, is valid ; and does not pre- scribe that the policy should be valid so that a recovery could be had thereon. It points to the intended prejudice of an underwriter de facto." United States v. Amedy, 11 Wheat. 392, 410, opinion by Story, J. Conspiring. — The act of March 3, 1825, making a conspiring punishable, was intended to protect the commerce on our rivers and lakes as well as on the high seas ; and, as such, it does not exceed the constitutional power of Congress. United States v. Cole, 5 Mc- Lean, 513. The Procedure. — See, as to the form of the indictment and fur- ther as to the proofs. United States v. McAvoy, 4 Blatch. 418 ; United States v. Johns, 1 Wash. C. C. 368 ; Reg. v. Kohn, 4 Fost. & F. 68. Under State Laws. — It seems to fol- CHAP. XL,j PEOTBCTION TO INDIVTDTJALS. §572 § 571. Cheat at Common Law. — The common-law cheat is im- portant to be understood, though practically it is nearly super- seded by the statutes against false pretences. It is a fraud accomplished through the instrumentality of some false symbol or token,' of a nature against which common prudence can- not guard,2 to the injury^ of one in some pecuniary interest. And there are indictable public wrongs analogous to cheat.* The English statute, 33 Hen. 8, c. 1,^ against obtaining money or goods by a false privy token or counterfeit letter, affirmed the prior common law^ to which it seems to have added little, if any thing ; ^ and it is common law in this country.^ False Pretences. — Later English and American legislation has extended the doctrine to false pretences, where no symbol or token is employed.^ § 572. Forgery. — One class of common-law cheats, including as well the unsuccessful attempt ^ as the executed act, is forgery. low, from principles already discussed (see ante, § 162, and other places), that it is not competent for the States to pun- ish offences of this sort, committed beyond their territorial limits. For il- lustration : The Massachusetts statute provides, that "whoever wilfully casts away, bums, sinks, or otherwise destroys a ship or vessel, with intent to injure or defraud any owner of such ship or ves- sel, or the owner of any property laden on board the same, or an insurer of such ship, vessel, or property, or of any part thereof, shall be punished," &c. Mass. Gen. Stats, c. 161, § 76. But though the writer is not able to refer to any decision of the question, it would seem the courts should not construe this statute to apply to acts committed out of the State ; and, should they do so, the construction would render the statute so far unconstitutional. 1 Eex V. Lara, 2 Leach, 4th ed. 647, 2 East P. C. 819, 6 T. R. 565 ; Common- wealth V. Boynton, 2 Mass. 77 ; Eeg. v. Jones, 2 Ld. Raym. 1013 ; Anonymous, Lofft, 146 ; Anonymous, 7 Mod. 40 ; Rex V. Govers, Say. 206 ; The State v. Grooms, 5 Strob. 158 ; People o. Stone, 9 Wend. 182 ; Commonwealth v. Warren, 6 Mass. 72; Respublica v. Teischer, 1 Dall. 335; Commonwealth v. Speer, 2 Va. Cas. 65; The State v. Patillo, 4 Hawks, 348 ; Peo- VOL. I. 21 pie V. Gates, 13 Wend. 311, 319 ; Respub- lica V. Powell, 1 Dall. 47 ; The State v. Wilson, 2 Mill, 135, 139; Hartmann v. Commonwealth, 5 Barr, 60; Rex ». Fowle, 4 Car. & P. 592; Rex v. Fawcett, 2 East P. C. 862. 2 Anonymous, 6 Mod. 105 ; People v. Babcock, 7 Johns. 201 ; Cross v. Peters, 1 Greenl. 376, 887 ; Commonwealth v. Warren, 6 Mass. 72 ; People v. Stone, 9 Wend. 182 ; The State v. Stroll, 1 Rich. 244 ; The State v. Patillo, 4 Hawks, 848 ; Respublica v. Powell, 1 Dall. 47. And see Rex v. Flint, Russ. & Ry. 460. 8 Rex V. Fawcett, 2 East P. C. 862 ; Commonwealth v. Davidson, 1 Cush. 33 ; Rex V. Dale, 7 Car. & P. 352 ; The State V. Little, 1 N.. H. 257, 258 ; People v. Thomas, 3 Hill, N. Y. 169; People ». Galloway, 17 Wend. 540. As to the limit of the doctrine on this point, see The State v. Mills, 17 Maine, 211. 4 Vol. II. § 161-164. 8 Anonymous, 6 Mod. 105, note ; 2 East P. C. 826. 6 1 Gab. Crim. Law, 206. 1 Commonwealth v. Warren, 6 Mass. 72. And see Respublica «. Powell, 1 Dall. 47. 8 Vol. IL § 409 et seq. 8 Ante, § 434, 437. It is said that for- gery was indictable as a cheat at common 321 §572 THE ACT EEQTJIEBD. [book V. It is the false ^ making or materially altering,^ with intent to defraud,^ of any writing which, if genuine, might apparently be * of legal efficacy, or the foundation of a legal liability.^ And the act may be equally forgery, though the person purporting to be- come liable in the writing is a mere fictitious name, because this may be equally an attempt to defraud.^ law only when successful. 2 East P. C. 825; 1 Gab. Grim. Law, 205. Clearly this must be so, owing to the distinction between a, complete offence and an in- dictable attempt. Stat. Crimes, § 225 and note. But this distinction refers only to the form of the indictment ; an 'unsuccessful forgery being an attempt to cheat. That there need be no fraud ac- . tually effected, see The State v. Washing- ton, 1 Bay, 120 ; Rex v. Crocker, 2 Leach, 4th ed. 987, Euss. & Ey. 97, 2 New Eep. 87 ; Eex v. Ward, 2 Ld. Raym. 1461, 2 East P. C. 861 ; Commonwealth v. Ladd, 15 Mass. S26. Contra, Eeg. v. Boult, 2 Car. & K. 604. 1 Eex V. Story, Euss. & Ey. 81 j Eeg. V. Inder, 1 Den. C. C. 325 ; Eex ». Webb, 3 Brod. & B. 228, Euss. & Ey. 405, cited 6 Moore, 447 ; Eex v. Aickles, 1 Leach, 4th ed. 438, 2 East P. C. 968 ; The State V. Shurtliff, 18 Maine, 868 ; Mead K.Young, 4 T. E. 28. 2 The State v. Floyd, 5 Strob. 58 ; The State V. Eobinson, 1 Harrison, 507 ; Eeg. V. Blenkinsop, 1 Den. C. C. 276, 2 Car. & K. 531 ; Eex v. Dawson, 1 Stra. 19, 2 East P. C. 978 ; Eex v. Post, Euss. & Ey. 101 ; Eex V. Treble, 2 Leach, 4th ed. 1040, 2 Taunt. 328, Euss. & Ey. 164 ; The State V. McLeran, 1 Aikens, 311 ; Eex v. Bander, 2 East P. C. 855 j The State v. Waters, 2 Tread. 669 ; The State v. Gherkin, 7 Ire. 206 ; The State v. Thornburg, 6 Ire. 79 ; The State v. Greenlee, 1 Dev. 523 ; Peo- ple V. Fitch, 1 Wend. 198. » Blake v. Allen, Sir F. Moore, 619 ; The State v. Odel, 3 Brev. 552 ; Eeg. o. Cooke, 8 Car. & P. 582 ; Eeg. v. Beard, 8 Car. & P. 143, 148 ; Grafton Bank v. Flan- ders, 4 N. H. 239, 242 ; People v. Peabody, 25 Wend. 472 ; Eex «. Crocker, Euss. & Ey. 97, 2 New Rep. 87, 2 Leach, 4th ed. 987; Eeg. v. Page, 8 Car. & P. 122; Jackson v. Weisiger, 2 B. Monr. 214 ; The State v. Girens, 5 Ala. 747. As to principles which limit this intent, see 322 Eeg. V. Hill, 2 Moody, 30; Eex v. Whiley, Euss. & Ry. 90; Eeg. v. Beard, 8 Car. & P. 143 ; Eeg. v. Wilson, 2 Car. & K. 527, 1 Den. C. C. 284 ; Rex v. Forbes, 7 Car. & P. 224 ; Eeg. v. Parish, 8 Car. & P. 94. * People o. Galloway, 17 Wend. 540, 542; Eex v. Teague, Euss. & Ey. 33, 2 East p. C. 979 ; De Bow v. People, 1 De- nio, 9 ; Eeg. v. Pike, 2 Moody, 70 ; Rex V. Deakins, 1 Sid. 142 ; Eex v. Mcintosh, 2 East P. C. 942 ; s. c. nom. Eex v. Mac- kintosh, 2 Leach, 4th ed. 883 ; Common- wealth V. Linton, 2 Va. Cas. 476. Yet see People v. Pitch, 1 Wend. 198. 5 Ames's Case, 2 Greenl. 365 ; Eex v. Jones, 2 East P. C. 991 ; Reg. v. Toshack, 1 Den. C. C. 492 ; Commonwealth v. Ayer, 3 Cush. 150 ; The State v. Smith, 8 Yerg. 150; Eex v. Knight, 1 Salk. 375, 1 Ld. Eaym. 530; Eeg. v. King, 7 Mod. 150; Eex V. O'Brian, 7 Mod. 378 ; Eex v. Har- ris, 1 Moody, 393 ; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; Harris w. People, 9 Barb. 664 ; The State V. Van Hart, 2 Harrison, 327 ; Van Home V. The State, 5 Pike, 349 ; Eeg. v. Boult, 2 Car, & K. 604; Commonwealth v. Chandler, Thacher Crim. Cas. 187 ; Eex V. Burke, Euss. & Ey. 496 ; Common- wealth ». Mycall, 2 Mass. 136 ; Barnum V. The State, 15 Ohio, 717 ; Eex v. Ward, 2 Ld. Raym. 1461, 2 Stra. 747 ; Bex o. Harris, 6 Car. & P. 129 ; Eex v. Wall, 2 East P. C. 953 ; Eex v. Gade, 2 Leach, 4th ed. 732, 2 East P. C. 874 ; Upfold v. Leit, 5 Esp. 100; Foulkes v. Common- wealth, 2 Eob. Va. 886; The State v. Jones, 1 Bay, 207 ; The State v. Gutridge, 1 Bay, 285 ; People w. Cady, 6 Hill, N. Y. 490. fi Rex V. Marshall, Russ. & Ry. 75; Eex V. Taft, 1 Leach, 4th ed. 172, 2 East P. C. 959 ; People v. Peabody, 25 Wend. 472 ; Rex v. Peacock, Russ. & Ry. 278 ; Eex V. Bontien, Euss. & Ey. 260 ; Reg. v. Hill, 2 Moody, 30 ; Eex v. Francis, Russ. & Ey. 209 ; Rex v. Shepherd, 2 East P. CHAP. XL.] PROTECTION TO INDIVIDUALS. §572 a § 572 a. Fraudulent Conveyance — (Secreting — Mortgaged, &c.) — The statute of 13 Eliz. c. 5, against fraudulent conveyances, is very familiar in our civil jurisprudence. It is, in its principal provisions, common law in our States.^ By § 3, " all and every the parties " to the fraudulent conveyance, " and being privy and knowing of the same," who " shall wittingly and willingly put in ure, avow, maintain, justify, or defend the same " as being true " and upon good consideration," or " shall alien, &c., any the lands, &c., goods, leases, or other things to him, &c., conveyed as is aforesaid, &c., shall incur the penalty and forfeiture, &c., and also, being thereof lawfully convicted shall suffer imprisonment for one-half year without bail or mainprise." An indictment lies upon this statute in England,^ and there is no reason why it should not also in our States, But the author is unable to refer to any case in which this proceeding has actually been attempted. Yet, in some of our States, there are similar statutes, generally in broader terms, and extending to secreting property, selling it when mortgaged, and the like, on which there have been indict- ments.^ C. 967 ; s. c. nom. Eex v. Sheppard, 1 Leach, 4th ed. 226; Eex v. Parkes, 2 Leach, 4th ed. 775, 2 East P. C. 963, 992; Bex V. BoUand, 1 Leach, 4th ed. 83, 2 East P. C. 958 ; Rex v. Lewis, 2 East P. C. 957, Poster, 116 ; Eex v. Whiley, Euss. & By. 90 ; Commonwealth 'v. Chandler, Thacher Grim. Cas. 187; The State v. Glvens, 5 Ala. 747 ; Eex v. Wilks, 2 East P. C. 957 ; Eeg. v. Avery, 8 Car. & P. 596 ; Eex v. Dunn, 1 Leach, 4th ed. 57. 1 1 Bishop Mar. Women, § 737-740 ; Report of Judges, 3 Binn. 595, 621 ; Kilty Rep. Stats. 234. 2 Eeg. V. Smith, 6 Cox C. C. 31. ' People «. Underwood, 16 Wend. 546 ; People I). Morrison, 13 Wend. 399 ; Com- monwealth V. Brown, 15 Gray, 189 ; Com- monwealth V. Strangford, 112 Mass. 289 ; Commonwealth v. Damon, 105 Mass. 580 ; The State u. Marsh, 36 N. H. 196 ; The State V. Small, 31 Texas, 184 ; The State V. Derereaux, 41 Texas, 383; Stow v. People, 25 111. 81 ; People v. Stone, 16 Cal. 369 ; People v. Garnett, 35 Cal. 470; Goodenough v. Spencer, 46 How. Pr. 347. And see Christopher k. Van Liew, 57 Barb. 17. Of the like kind with the offences mentioned in our text are — Frauds against BaiCkTupt Acts. — It is not proposed to discuss these frauds. There have long been statutes in Eng- land against them and the like, under the insolvent laws; as see 1 Hawk. P. C. Curw. ed. p. 586, 588 ; 2 Euss. Crimes, 3d Eng. ed. 228 et seq., 235 ; 4 Bl. Com. 156. And the English books contain various reported cases on this subject, as — Eex V. Mitchell, 4 Car. & P. 251 ; Eex v. Wal- ters, 5 Car. & P. 138 ; Eeg. . Girard, 4 Eawle, 186; McDonald v. &K.494; Bex w. Brooks, 4 Car. & P. 131 ; The State, 8 Misso. 283 ; Pomeroy t. Vol. II. § 771-779. Commonwealth, 2 Va. Caa. 342 ; The * -Stat. Crimes, § 232. State V. Tillery, 1 Nott & MoC. 9 ; The » Ante, § 212 et seq. State V. Caeados, 1 Nott & McC. 91 ; Culp « Ante, § 224. V. The State, 1 Port. 33 ; Cummlngs v. ^ Bex v. Philipps, 2 East P. G. 662 ; Commonwealth 2 Va. Gas. 128 ; Com- and ante, § 566. monwealth v. Messinger, 1 Binn. 273; 326 CHAP. XL.] PEOTEGTION TO INDIVIDirALS. § 582 property. And although such force, thus applied, is indictable under some circumstances, we find the rule relating to it not so broad as prevails respecting physical force. Men acquire physical strength by the cultivation of the soil, and by the vari- ous other active labors and pleasures of life, without exercising themselves upon one another; while mind is developed almost solely by collision with mind. Therefore in such collision the government, consulting the general good, allows its subjects free scope, if no one assumes toward another what we have called unfair ground.^ Thus, — § 582. Cheats — Breach of Contract — Enticing Apprentice. — When one injures his neighbor by telling him a falsehood, the common law says, the neighbor should not have believed him ; ^ when, by a breach of contract, or of k duty in the nature of contract, the injured person is admonished that he should have learned better than to trust him : ^ and so, in these and other like cases, as, where an apprentice is enticed from his master's ser- vice,* the government merely permits the party injured to carry on, in its courts, a suit for civil redress,^ but declines itself to interfere by a criminal prosecution. What would be the conse- quence if the like injuries were produced by physical force may not be quite plain ; yet, — Robbery — Larceny. — Where one gets away the personal prop- erty of another by the use, actual or even sometimes only threat- ened, of physical force, he commits robbery or larceny ; ^ while, 1 Ante, § 262, 546. * Reg. v. Daniel, 6 Mod. 182, 1 Salk. 2 Anonymous, 6 Mod. 105 ; Reg. v. 380, 3 Salk. 191 ; s. c. nom. Reg. v. Dan- Jones, 2 Ld. Raym. 1013, 1 Salk. 379 ; iell, 6 Mod. 99 ; Rex v. Pettit, Jebb, 151. Commonwealth ». Warren, 6 Mass. 72 ; ' Ante, § 251. The State v. Delyon, 1 Bay, 353 ; Rex v. 6 Rex v. Blackham, 2 East P. C. 711 ; Bower, Cowp. 323 ; People v. Babcock, 7 Rex v. Taplin, 2 East P. C. 712 ; Reg. v. Johns. 201 ; The State v. Justice, 2 Dev. Walls, 2 Car. & K, 214 ; Rex v. Macau- 199 ; People «. Miller, 14 Johns. 371 ; ley, 1 Leach, 4th ed. 287 ; Rex v. Robins, Reg i;. Hannon, 6 Mod. 311 ; Rex v. 1 Leach, 4th ed. 290, note ; Rex v. Hor- Lewis, Say. 205 ; Rex «. Driffield, Say. ner, 1 Leach, 4th ed. 270 ; Rex v. Lapier, 146 ; Rex v. Botwright, Say. 147 ; Rex v. 1 Leach, 4th ed. 320, 2 East P. C. 557, Grantham, 11 Mod. 222 ; Rex v. Osborn, 708 ; Rex v. Frances, 2 Comyns, 478, 2 3 Bur. 1697 ; Rex t; Bryan, 2 Stra. 866. Stra. 1015; s. c. nom. Rex v. Francis, 3 Rex V. Channell, 2 Stra. 793 ; Rex v. Cas. temp. Hardw. 113 ; Rex v. Simons, Dunnage, 2 Bur. 1130 ; Rex v. Bradford, 2 East P. C. 712 ; Rex i;. Spencer, 2 East 1 Ld. Raym. 366; Commonwealth v. P. C. 712; ante, § 261, 553-566. And Hearsey, 1 Mass. 137 ; Rex v. Wheatley, see Rex v. Phipoe, 2 Leach, 4th ed. 673, 1 W. Bl. 273 ; s. c. nom. Rex v. Wheatly, 2 East P. C. 599 ; The State v. Vaughan, 2 Bur. 1125 ; Rex v. Watson, 2 T. R. 199. 1 Bay, 282. 327 § 584 THE ACT REQUIRED. [BOOK V. if he obtains it by any fraud, short of what will presently be ex- plained,^ his act is not a crime.^ § 683. Larceny, continued — (FosseBsion of Property — Cheat). — The little regard which the common Jaw of crimes pays to mental force directed against property rights appears from a dis- tinction in the law of larceny. If one, meaning to steal another's goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny ^ nor any other crime by the taking, unless the transaction amounts to an indictable cheat.* But if, with the like intent, he fraudulently gets leave to take the pos- session only, and takes and converts the whole to himself, he becomes guilty of larceny ; because, while his intent is thus to appropriate the property, the consent, which he fraudulently obtained, covers no more than the possession.^ Again, — §584. Forgery — Cheat. — According to a doctrine apparently just in reason, and sustained by numerous authorities, while yet they are conflicting,^ one does not commit forgery,^ who, fraudu- lently misrepresenting the contents of an unexecuted instrument, or misreading or altering it, thereby prevails on another to sign it, supposing himself executing what is different.* Yet circum- 1 Post, § 585. 1 Leaeh, 4th ed. 520, 2 East P. C. 673 ; = Post, § 583. Rex v. Patch, 1 Leaeh, 4th ed. 238, 2 3 Rex V. Coleman, 2 East P. C. 672 ; East P. C. 678 ; Eex v. Marsh, 1 Leach, Rex V. Nicholson, 2 Leach, 4th ed. 610, 2 4th ed. 345 ; Rex v. Watson, 2 Leach, 4th East P. C. 669 ; Rex «. Parkes, 2 Leach, ed. 640, 2 East P. C. 680 ; Eex v. Pearce, 4th ed. 614 ; 8. c. nom. Rex v. Parks, 2 2 East P. C. 603 ; Reg. v. Johnson, 14 East P. C. 671 ; Reg. v. Barnes, 1 Eng. Eng. L. & Eq. 570, 2 Den. C. C. 310 ; Rex L. & Eq. 579, 2 Den. C. C. 59, Temp. & v. Robson, Russ. & Uy. 413 ; The State v. M. 387 ; Wilson v. The State, 1 Port. 118 ; Gorman, 2 Nott & McC. 90 ; The State v. Eex t). Adams, Russ. & Ry. 225 ; Reg. u. Thurston, 2 MoMuUan, 382; Common- Adams, 1 Den. C. C. 38 ; Reg. v. Thomas, wealth v. James, 1 Pick. 375 ; Starkie v. 9 Car. & P. 741 ; Reg. v. Wilson, 8 Car. Commonwealth, 7 Leigh, 762 ; Eex v. &P. Ill; Eex V. Hawtin, 7 Car. & P. Longstreeth, 1 Moody, 137; Eex i>. Pratt, 281 ; Mowrey v. Walsh, 8 Cow. 238 ; Eoss 1 Moody, 250 ; Eex v. Summers, 8 Salk. t). People, 6 Hill, N. Y. 294; Lewer v. 194; Anonymous, J. Kel.. 36, 81, 82; The Commonwealth, 15 S. & R. 93 ; Vol. II. State o. Lindenthall, 5 Rich. 237. Con- § 808. tra, in Tennessee, Felter v. The State, 9 * Ante, § 571 ; post, § 585. Yerg. 397. And see Vol. II. § 809, 813, 814. s Rex V. Semple, 1 Leach, 4th ed. 420, « See Vol. II. § 156, 589-591. 2 East P. C: 691 ; Rex v. Hench, Russ. & 7 Ante, § 572. Ry. 163 ; Eex v. Aickles, 1 Leach, 4th ed. » Eeg. 0. Chadwick, 2 Moody & E. 294, 2 East P. C. 675 ; Eex v. Pear, 1 546 ; Eeg. v. Collins, 2 Moody & E. 461 ; Leach, 4th ed. 212, 2 East P. C. 685, 697 ; Woodward's Case, cited 2 Leach, 4th ed. Rex V. Tunnard, 2 East P. C. 687, 1 ' 782 ; Eeg. v. White, 1 Den. C. C. 208 ; Leach, 4th ed. 214, note ; Eex v. Wilkins, Marvin's Case, 3 Dy. 288, pi. 52 ; Eex v. 328 CHAP. XL.J PEOTBCTION TO INDIVIDTJAIiS. § 586 stances may arise in which this kind of fraud will be indictable as a cheat of a different character.^ §585. Cheat, continued — (False Token — Larceny — Forgery). — When, however, one makes use of a false token, of such a nature that, according to the necessary customs and order of society, men must place confidence in it, and thereby persuades another to part with property, he is indictable, as we have seen, for the cheat ;^ though the act is not larceny.^ Some of the cases imply that the token must be a public one ; * but, according to t]^e better view, it need only be calculated to deceive men generally ; ^ for we have seen,^ that the criminal common law is not administered on the principle of extending a particular pro- tection to the weak and feeble. Such a cheat, indeed, is forgery ; "^ which need not be of a public document. § 586. False Pretences. — We have seen,* that various modern statutes make it indictable to obtain goods by false pretences, though no false token is employed ; for the extended trade and more refined culture of modern times ^ require a certain degree of universal confidence to be placed in mere verbal representa- tions. Yet these statutes are interpreted in the spirit of the common law and by its reasoijs ; ^'^ and they do not, therefore, extend, as the non-professional reader might suppose, to every imaginable kind of false pretence.'^ So that, notwithstanding the Haddocks, 2 Russ. Crimes, 3d Eng. ed. Osbom, 3 Bur. 1697 ; Bex v. Atkinson, 2 499; Putnam v. Sullivan, i Mass. 45; East P. C. 673 ; ante, § 571. And see and Commonwealth v. Sankey, 10 Harris, Pa. compare Rex v. Jackson, 3 Camp. 370, 390; Hill v. The State, 1 Yerg. 76. Con- and Rex v. Lara, 2 Leach, 4th ed, 647, 2 tra, The State v. Shurtliff, 18 Maine, 368. East P. C. 819, 827, 6 T. R. 565. And see Vol. II. § 166, 589-591. « Ante, § 251. 1 Ante, §571; Hill v. The State, 1 ' Ante, § 572; Butler v. Common- Yerg. 76. And see Rex v. Hevey, Russ. wealth, 12 S. & R. 237. & Ry. 407, note, 2 East P. C. 856, 1 Leach, « Ante, § 571. 4th ed. 229 ; Rex v. Webb, 3 Brod.-& B. » Ante, § 252. 228, Russ. & Ry. 405, cited 6 Moore, 447; w Stat. Crimes, § 123, 133, 141, 154, 1 Hawk. P. C. Curw. ed. p. 318, § 1. But 155. see The State v. Justice, 2 Dev. 199 ; Vol. " Rex v. Fuller, 2 East P. C. 837 ; Peo- n. § 156. pie y.Williama, 4 Hill, N.Y. 9 ; The State v. 2 Ante, § 571. Simpson, 3 Hawks, 620 ; Commonwealth 3 Ante, § 583. v. Wilgus, 4 Pick. 177, 178 ; People a. 4 The State v. Stroll, 1 Rich. 244; Crissie, 4 Denio, 525; People d. Haynes, People V. Stone, 9 Wend. 182. 14 Wend. 546, 557 ; McKenzie u. The 5 People o. Babcock, 7 Johns. 201 ; State, 6 Eng. 594 ; Burrow u. The State, Cross V. Peters, 1 Greenl. 376, 387 ; Com- 7 Eng. 65 ; Rex v. Wavell, 1 Moody, 224 ; monwealth v. Warren, 6 Mass. 72; Rex v. Rex v. Goodhall, Russ. & Ry. 461. 329 § 589 THE ACT EEQTJIEED. [BOOK V. statutes, there are cheats and frauds not indictable either under them or at the common law.^ - §587. Officer — (Extortion). — Moreover, when one in office takes advantage of his official position to extort money, he is in- dictable for this, as we have seen ; ^ because, in drawing thus on the obedience due from the subject to the government and its agents, he places himself on unfair ground toward the person whom he injures.^ Perhaps this offence may be traced also to the general obligation of the officer to discharge well his official duties.* Likewise, — False Personating. — It Seems, that, if a man cozens another by falsely representing himself to be an officer, he is indictable for this ; ^ and he may be so though the one personated is a mere pri- vate individual.^ § 588. Abusing Legal Prooeedinga. — One not an officer may subject himself to punishment by an oppressive use of legal pro- ceedings. When, therefore, a man purchased three several prom- issory notes against another, and brought on them three separate suits instead of one ; and, on obtaining judgment, caused the executions to be levied oppressively ; the court considered, that, though this was not barratry,' it was an indictable common-law offence.* Perhaps this conduct may be deemed an exercise rather of physical force than of mental.^ § 589. Perjury. — Perjury, in a criminal proceeding, is an offence against the public, rather than the individual.^" And this may be also one ground on which it is cognizable criminally, though committed in a civil cause ; ^^ since the government fur- nishes courts for the redress of private wrongs. But it is also an offence against the individual ; it is such, even in a criminal cause, if committed to the injury of the prisoner; for he who thus wrongs him does it standing toward him on an unequal ground. 12 1 Commonwealth v. Eastman, 1 Cush. « 2 East P. C. 1010 ; Vol. 11. § 152-155, 189, 223 ; The State v. Roberts, 34 Maine, 439. 820. ' Ante, § 541. 2 Ante, § 573; Vol. II. § 390. 8 Commonwealth v. McCuUoch, 16 « Ante, § 262. Mass. 227. « Ante, § 469. » And see ante, § 564. 6 Serlested's Case, Latch, 202; ante, "> Ante, § 468. § 468. 11 Ante, § 467. 12 Ante, § 252. 330 CHAP. XL.] PEOTBCTION TO INDIVrDTJALS. § 591 § 590. Summary, as to Mental Force. — This doctrine of mental force, employed to injure men in their property, is briefly thus : When minds combat with one another, a strength is generated useful to the community. This is the general rule ; and, so long as the conflict is of this sort, the one who obtains an advantage over the other is not indictable. But, when one of the parties, assuming an unfair ground toward the other, changes the combat from a strengthening to a destructive process, he commits a pub- lic offence.'' III. Offences against Personal Reputation. § 591. Damage to Reputation not punishable. — It is the policy of the law to leave the care of men's reputations to themselves. No damage done to a reputation, therefore, at least by a single individual,^ is foundation for a criminal prosecution. Libel and Slander — (Obscene). — In libel and slander,^ the ex- ception to this proposition is apparent, not real. For the courts, whether correctly or not in principle, hold these wrongs to be indictable, not because of injury to the reputation, but by reason of their tending to create breaches of the peace.* Thus it is of libels against the individual ; but obscene libels are indictable as tending to corrupt the public morals.^ Hence the common-law rule, that it is immaterial whether what is said in a libel is true/ or false,^ — a question vital in the suit for damages, — but, the tendency to disturb the public tranquillity or corrupt the public morals being the same in either alternative, the offence is the same. This legal rule is somewhat modified by other doctrines, but not so as to impair it for the present illustration.^ And modern legis- 1 Ante § 230 et seq., 258-260. indictable. Rex v. Rispal, 1 W. Bl. 368, 3 2 Conspiracy against Reputation.— Bur. 1320. And see Vol. 11. § 216, 217, 286. A conspiracy, see post, § 592, to charge ^ Ante, § 540. one with an indictable offence, or with * Vol. II. § 907, 909. being the father of a bastard child, is in- 5 Ante, § 500, 504 ; Vol. II. § 910. dictable ; but possibly this is not on the ^ Vol. II. § 918. ground of injury to the reputation. Com- ' Cropp v. Tilney, Holt, 422 ; Com- monwealth V. Tibbets, 2 Mass. 536 ; Beg. monwealth v. Clap, 4 Mass. 163, 108, 169 ; ». Best, 2 Ld. Raym. 1167, 6 Mod. 137, The State v. Burnham, 9 N. H. 34 ; Peo- 185 ; Timberly v. Childe, 1 Sid. 68 ; Rex pie v. Croswell, 3 Jolins. Cas. 336 ; Com- V. Armstrong, 1 Vent. 304 ; 1 Gab. Crim. monwealth v. Blanding, 3 Pick. 304; Rex Law, 252. Yet, on the whole, the doc- v. Draper, 3 Smith, 390 ; The State v. trine seems pretty clearly to be, that a Lehre, 2 Tread. 809; Bex v. Halpin, 9 B. conspiracy to injure one's reputation is & C. 65. 831 § 593 THE ACT BEQUIKBD. [BOOK V. ' lation has, to a still further extent, permitted the truth of a libel against the individual to be given in evidence by the accused.^ IV. Combinations to commit Private Injuries. § 592. Conspiracy. — In the foregoing discussion we have as- sumed, that the wrongful thing is done by one only. But often numbers combine for wrong ; and then the combination may be criminal, even where the tiling contemplated would not be so if actually performed by one.^ Because obviously two or more per- sons, united in skill and endeavor, may stand toward another on unfair ground ; while, if one alone had undertaken the same thing, there would be no inequality. Therefore, in the former instance, a criminal liability is incurred, whether what was agreed upon is accomplished or not ; but not in the latter, even though the thing is actually done.^ This combination is called conspir- acy.* The offence is not confined to injuries to individuals ; but it extends also to those injuries which concern directly the public.^ § 593. ■Witchcraft. — Like conspiracy, is the antiquated offence of witchcraft. " Of offenders of this nature there are said to be three kinds, — first, conjurers, who by force of certain magic words endeavor to raise the Devil, and compel him to execute 1 Commonwealth v, Bonner, 9 Met. Rex v. Hilbers, 2 Chit. 163 ; Common- 410 ; Barthelemy v. People, 2 Hill, N. Y. wealth c;. Ward 1 Mass. 473 ; Patten «. 248 ; The State v. White, 7 Ire. 180 ; Peo- Gurney, 17 Mass. 182, 184 ; Bean v. Bean, pie V. Croswell, 3 Johns. Cas. 336; Rex 12 Mass. 20, 21 ; Commonwealth v. East- V. Burdett, 3 B. & Aid. 717, 4 B. & Aid. man, 1 Cush. 189 ; Rhoads u. Common- 95 ; Vol. II. § 920. wealth, 3 Harris, Pa. 272 ; People v. 2 Vol II. § 172, 173, 178, 181, 182. Fisher, 14 Wend. 9 ; Commonwealth v. 8 Twitchell v. Commonwealth, 9 Barr, Ridgway, 2 Aehm. 247 ; Rex v. Cope, 1 211, 212 ; Reg. v. Orhell, 6 Mod. 42 ; Rex Stra. 144 ; Reg. v. Gompertz, 9 Q. B. 824; u. Macarty, 2 East P. C. 823, 6 Mod. 301 ; Mifflin „. Commonwealth, 5 Watts & S. 8. c. nom. Rex v. Mackarty, 2 Ld. Raym. 461 ; Commonwealth v. Tibbetts, 2 Mass. 1179; 2 East P. C. 824; People k. Stone, 536; Reg. o. Best, ti Mod. 137, 185, 2 9 Wend. 182 ; People v. Babcock, 7 Johns. Ld. Raym. 1167, Holt, 151 ; Timberly v. 201 ; Commonwealth v. Warren,. 6 Mass. Childe, 1 Sid. 68 ; Rex v. Armstrong, 1 72; Anderson a. Commonwealth, 5 Rand. Vent. 304; The State v. Buchanan, 5 627 ; The State v. Burnham, 15 N. H. 396 ; Har. & J. 317 ; Rex v. Worrall, Skin. 108 ; The State o. Murphy, 6 Ala. 765; Com- Reg. v. Blacket, 7 Mod. 89; The State v. monwealth v. Judd, 2 Mass. 829; Lam- »e Witt, 2 Hill, S. C. 282.' Contra, The bert V. People, 7 Cow. 166, 9 Cow. 578 ; State v. Rickey, 4 Halst. 293, 300. Commonwealth v. Hunt, 4 Met. Ill, 181; * And see ante, § 482. The State «. Rowley, 12 Conn. 101 ; Syd- « Por the full discussion, see Vol. IL serfE V. Beg., 11 Q. B. 245, 12 Jur. 418 ; § 169 et seq. 332 CHAP. XL.] PROTECTION TO INDIVrDTJALS. § 593 their commands ; secondly, witches, who by way of friendly con- ference are said to bargain with an evil spirit to do what they desire of him ; thirdly, sorcerers or charmers, who, by the use of certain superstitious forms of words, or by means of images or other odd representations of persons or things, &e., are said to produce strange effects, above the ordinary course of nature." ^ This offence appears to have been misdemeanor at the common law ; 2 but, by 1 Jac. 1, c. 12, it was elevated to felony.^ Belief in the existence of the thing called witchcraft having become obsolete, — Falsely pretending Witchcraft. — Later English legislation, not in force with us, abolished the crime of real witchcraft and created another of falsely pretending to it.* How in our States. — In this country, witchcraft is in effect no offence, because its existence is not believed. But if the opinion should again become general, that spirits hold intercourse with mortals, and have such power over them as to render conspiracies between the embodied and disembodied to the injury of their victims practicable, no reason appears why such confederations would not be indictable by force of the common law. It might be difficult to seize and bring to punishment the rogues out of the flesh, yet this would furnish no reason why those in the flesh should escape. 1 1 Hawk. p. C. 6th ed. c. 3, § 1. Howell St. Tr. 647 ; The Devon Wituhea' " Witchcraft seems to be the skill of ap- Case, 8 Howell St. Tr. 1017 ; The trial of plying the plastic spirit of the world un- Witches, before Sir Matthew Hale, to some unlawful purpose, by means of bound up among other papers with Ja- a confederacy with evil spirits." Cotton cob's Supp. to Hale P. C. And see 3 Mather's Wonders of the Invisible Inst. 43. World, Eng. ed. of 1862, p, 161. For 2 Hawk, ut sup. § 2. But see 1 Hale interesting matter on witchcraft, see P. C. 429. Smith's Case, 2 Howell St. Tr. 1049 ; " 1 Hawk. P. C. 6th ed. c. 3, § 4. The Essex Witches' Case, 4 HoweU St. * 1 East P. C. 6. Tr. 817 ; The SufColk Witches' Case, 6 333 § 596 THE ACT BBQTJIBBD. [BOOK V. CHAPTER XLI. PBOTECTION TO THE LOWER ANIMALS. § 594. No direct Protection. — Man has always held in subjec- tion the lower animals, to be used or destroyed at wiU, for his advantage or pleasure. The right to take their life, and to make property of them, includes all other rights which concern them ; therefore the common law recognizes as indictable no wrong, and punishes no act of cruelty, which they may suffer, however wan- ton or unnecessary.^ Consequently — § 595. Malicious Mischief. — Malicious mischief, whether at the common law, under the old English statutes,_or under a part of the modern enactments, cannot be committed on an animal through malice to it, but the malice must be against its owner.2 § 596. CoUateral Effect. — But a learned judge once observed, that " cruelty to a domestic animal has, in some cases, been held to change what otherwise would have been a simple trespass into a criminal offence ; " ^ and from other judges have fallen words tending more or less to the same meaning.* We cannot find in the common law itself any general doctrine of this nature ; though perhaps cruelty to such animals may enter into the con- sideration when an act is sought to be made punishable as cor- rupting to the public morals,^ and the like. So — Statutory Cruelty. — Cruelty to animals is made an offence by statute in England and perhaps all our States.® And, — 1 See Stat. Crimes, § 1093, 1094. ■ Otherwise, under the present English 2 The State v. Pierce, 7 Ala. 728 ; The statute, by its express terms, Reg. «. State V. Wilcox, 3 Yerg. 278; The State Tivey, 1 Car. & K. 704; Stat. Crimes, V. Jackson, 12 Ire. 329 ; Rex o. Austen, § 434. Russ. & By. 490 ; The State v. Latham, * Beardsley, C. J., in Kilpatriok v. 13 Ire. 33;' Eex v. Fearce, 1 Leach, 4th People, 5 Denio, 277, 279. ed. 527, 2 East P. C. 1072 ; Rex v. Kean, * Commonwealth v. Tilton, 8 Met. 2 East P. C. 1073 ; 8. c. nom. Rex v. 232, 234. Hean, 1 -Leach, 4th ed. 527, note ; Ban- ^ Ante, § 495 et seq. ger's Case, 2 East P. C. 1074 ; Rex v. ' For a discussion of the statutory Shepherd, 1 Leach, 4th ed. 539, 2 East offence, see Stat. Crimes, § 1093 et seq. P. C. 1073; Stat. Crimes, § 433, 485. 334 CHAP, XLI.] PROTECTION TO LOWER AZSTIMAIiS. § 597 § 597. Public Cruelty. — Quite consistently with the foregoing doctrines, it has been held, in the District of Columbia, that the public beating of a cow in a street in Washington is indictable at the common law as a public nuisance. " The gist of the offence," said the judge, " was the public cruelty to the common nuisance, and it was not necessary for the United States to prove that the cow died of the beating." ^ The same was adjudged, by the same tribunal, of the beating of a slave in the streets of the city, in public view.^ 1 United States v. Jackson, 4 Cranch ^ United States v. Cross, 4 Cranoh C. C. 483. C. C. 603. 335 § 600 DIVISIONS AND DISTINCTIONS. [BOOK VI. BOOK VI. TECHNICAL DIVISIONS AND DISTINCTIONS, WITH THEIR ATTENDANT DOCTRINES. CHAPTER XLII. OUTLINES OP DIVISIONS AND DISTINCTIONS. § 598. Scope of this Chapter. — The technical divisions and dis- tinctions which, extending through the entire field of the crimi- nal law, part it off into separate grounds as to the unequal turpitude of the respective crimes, and the several degrees and forms in which different persons may participate in each, will in this chapter be presented in outline. The filling up, and the authorities for the outHne itself, are reserved for a series of sub- sequent chapters ; which, moreover, will be carried forward to include still minuter divisions. But, — § 599. Specific Crimes. — Before looking at the larger divisions of the criminal field, let us obtain some idea of what is a specific crime. The prohibitions of the criminal law are in a degree spe- cific, and its penalties vary with the thing done. Now, if the law, whether' statutory or common, forbids a defined combination of act and intent, and attaches a certain penalty to a violation of the inhibition, it establishes what is termed a specific crime. It usually, not always, gives to the crime a name ; as, larceny, malicious mischief, cheat, false pretences, or the like. But the wrong is equally a specific crime whether named or not. § 600. Aggravations of Crimes. — In morals, we look Upon a crime as more or less heinous according to the circumstances of its commission. But, in law, there is, in the strict sense, no aggravation of a crime. If a man does the forbidden thing with the intent forbidden, he incurs the legal guilt ; and he can be punished with only the law's penalty, though he does with it a thousand other things reprehensible in morals. Yet the law 336 D FELONY. 3 MISDEMEANOR. jyT,yii.;. — E F (/, ill England, is treason; but, according to the views presented in this book, it is lijlony in the States, and misdemeauur under the laws of the United States. Entered, aC(:<;r(iiMg fu Act uf Congrct^B, in the yesir lfiri6, hy Jnel rrentiss Hisliup, in tlie Clerk's Office ijf the District Court of the Pistrict of MaFRarhupetts. CHAP. XLU] OUTLINES. § 603 itself not unfrequently makes an offender more heavily punish- able who adds to a specified offence an aggi-avation which it points out ; but, in this instance, he becomes guilty of another and distinct crime. Thus, — In Homicide. — At an early period in the history of this offence, it was punishable with death to kill a man by any of the unjustifi- able means which now render the killing manslaughter. If the killing was also of " malice aforethought," which now makes it murder, it was worse in morals but not in law. Afterward the law adopted the rule' of morals, by making the killing murder when done of " malice aforethought ; " while, if it was without such malice, it was called by the name of manslaughter ; and pun- ished only murder with death, manslaughter less severely. Still, if the malice aforethought with which a murder was committed was " deliberately premeditated," it was in morals more aggra- vated, not in law. Of such a circumstance, the law took no cog- nizance. At last, however, the law has in most of our States j taken this aggravation also into account; punishing the murder! capitally only when thus aggravated, while a milder punishment! is provided for simple murder, called murder in the second degree. Yet there remain aggravations, recognized in morals, of which the law even now takes no notice. § 601. Aggravations as to Discretionary Funishment. — Yet where the punishment is discretionary with the tribunal, the considera- tions which aggravate an offence in morals may be taken into the account. In the instances depending on positive law, the aggra- vations must be set out in the indictment ; ^ in these they need not be, though sometimes in practice they are. Let us now pro- ceed to consider — § 602. The larger Technical Divisions : — Diagram. — The other technical divisions of the criminal field are displayed on the accompanying " Diagram of Crime." The colored part represents what is indictable, and around it there is a space to denote " public wrongs not indictable, because too small for the law to notice." Let us look a little into the indictable part. § 603. Treason — Felony — Misdemeanor. — At the common law, every crime is treason, or felony, or misdemeanor. Treason is the heaviest, misdemeanor the lightest, and felony holds an intep- 1 Crim. Prooed. I. § 77 et seq., 95 et seq., II. § 562-609. TOL. I. 22 337 § 604 DIVISION'S AND DISTINCTIONS. [BOOK VI. mediate ground. These three gradations are represented hj three distinct colors on the Diagram. § 604. Degrees of Participation. — As there are thus grades in crime, so also there are degrees of participation in the criminal thing. These degrees are represented on the Diagram by what lies within the nearly vertical lines ; as, — Attempt. — If a man undertakes to do a thing which in law is a crime, and, after proceeding a certain way in the doing, is inter- rupted, or if his effort otherwise miscarries, so that the intended crime is not committed, he is still indictable for what he does, imder the name of " Attempt." This sort of wrong is indicated, in the Diagram, by A B P. Now, A B P does not extend quite to the top of the indictable space. The explanation is, that some of the lesser misdemeanors are of too small magnitude in the criminal field to draw the indictable quality to the mere attempt to commit them. Accessory before. — Persuasion is one form of attempt. It is, therefore, indictable to persuade or hire a persoH to commit a crime, especially of the heavier sort, though he declines to do it, or undertakes it and fails. Yet if this person actually does what he is persuaded or hired to do, the effort of the procurer ceases to be called an attempt, because it has become a success. If the thing is felony, the procurer is now termed an " Accessory before the Fact ; " or, if it is treason or misdemeanor, his conduct is still in its nature accessorial, though in strict law he is a princi- pal offender. His position on the Diagram is indicated by B C O P. Yet here we come to a mere point at O, indicating that there may be some small misdemeanors for which even the pro- curer is not indictable, the quality of indictability being restricted to the actual doer. Principal of First Degree. — The offence of the actual doer appears next on the Diagram, indicated by C D N 0. It requires no special observation. He is called " Principal of the First Degree." Principal of Second Degree. — Next we have the offence of him who stands by, encouraging the act of crime, while the hand of another performs it. Such an offender is " Principal of the Sec- ond Degree." Yet, even in felony, this sort of principal may, in strict law, be regarded the same as the other, if the prosecuting power chooses. His crime is indicated on the Diagram by D E 338 CHAP. XLII.] OUTLINES. § 60^ M N. This region comes to a point at N, denoting that there are inferior misdenaeanors for which one in the position of principal of the second degree is not indictable. Accessory after. — One harboring another who has committed a cfime, to screen him from justice, incurs legal guilt. He is termed an " Accessory after the Fact." In the Diagram, his position is represented by E F L M. His guilt is less intense than that of him who stands by encouraging the other ; and there are more crimes to which it does not attach. Consequently the space devoted to this form of offence ends at M, not extend- ing to the top, at N. Compounding. — " Compounding a Crime," or agreeing not to prosecute it, is a participation in it after the fact, of the same nature as last described, except that the guilt is less intense. On the Diagram, therefore, it is placed further from the principal offence ; and it extends less far among the misdemeanors, showing that there are more offences here, than under the last specifica- tion, which do not subject this sort of participant to indictment. It is represented by F G K L. Misprision. — Finally, we have " Misprision." The reader will see, on looking at the Diagram, that it attaches to treason and felony, but not to misdemeanor. It is represented by G H K. It is a criminal neglect, and consists either in not preventing the crime, or in forbearing to take steps to bring the perpetrator to justice. § 605. Treason, Felony, and Misdemeanor, again. — Looking once more at the Diagram, the reader perceives that A H I R is marked " Region of Treason." But this " Region " is divided into the various parts just specified. Beginning at the left hand, we have A B a R, which represents the " attempt " to commit a treason. Observing the coloring, we see that this attempt is not treason, but misdemeanor. The coloring also indicates, that the accessory before the fact in treason is a traitor ; as, of course, is the prin- cipal, whether of the first or second degree. But EF e d, denot- ing the guilt of the accessory after the fact in treason, is, on this Diagram, colored for felony. So, according to views in this work, is the law in our States. But in England the crime of the acces- sory after is treason. Compounding treason, and misprision of treason, are, as the coloring shows, misdemeanors. It is not necessary to go over the " Region of Felony " in this way, the 339 § 606 DIVISIONS AND DISTINCTIONS. [BOOK VI. reader can do it for himself. He will notice that all of it is felony, except attempt, compounding, and misprision, — these three are misdemeanors. All the " Region of Misdemeanor " is misdemeanor. § 606. Course of the Discussion. — What is thus given in out- line in this chapter will, in a series of chapters next following, be presented in detail, sustained by the authorities. It will be most convenient, however, to proceed in an order differing from that in the foregoing sections. Heavier and Lighter Offences. — Since offences differ in turpi- tude, the heavier and lighter are, on the Diagram, distinguished in a general way by the heavier and lighter shadings from the ink. But this, which is palpable both to the eye and the under- standing, requires no particular explanation. 340 CHAP. XLUI.] TBEASON, FELONY, AJjfD MISDEMEANOR. § 609 CHAPTER XLIII. THE DIVISION OF CEIMBS INTO TREASON, TELONT, AND MISDE- MEANOR. § 607-610. Introdnction. 6H-613. Treason. 614-622. Felony. 623-625. Misdemeanor. , § 607. Uses of Division. — Divisions and classifications are essential to the orderly disposition and mastery of every science. It is so in the law. Those of the criminal department are more than mere helps to the learner ; they adhere in the law itself. And though some of them are qtdte technical, even they are practically promotive of justice. § 608. Division into Treason, Felony, and Misdemeanor. — An old division is into treason, felony, and misdemeai^or. Though tech- nical, it proceeds on the reasonable idea of classifying crime according to its turpitude ; what is most reprehensible being treason, felony occupying a middle ground, and the rest being misdemeanor. § 609. Importance of this Division. — Technical as this division is, it is one of the most important in our law. In other pages of tills work, and in the works on Criminal Procedure and Statutory Crimes, the reader will see numerous instances in which questions the most grave turn on this division. Let us note some of them. A man may be guilty of a misprision of felony, but hot of a mis- prision of misdemeanor.-' One, in misdemeanor or treason, may commit the crime of a principal by procuring another to do the act in his absence ; but in felony such a procurer is only an acces- sory before the fact.^ A person against whose property a misde- meanor has been committed may immediately sue the offender ; but, when the wrongful act is felony, he must, according to the 1 Post, § 717. 2 Post, § 673, 675, 681, 682, 685. 341 // § 613 DIVISIONS AND DISTINCTIONS. [BOOK VI. better opinion, wait until he has set on foot a criminal prosecution.^ These illustrations might be continued to great length ; and, among them, uncertainties and contradictions of doctrine would appear, more than on any other line of inquiry in the entire criminal field. § 610. How this Chapter divided. — We shall consider, I. Trea- son ; II. Felony ; III. Misdemeanor. I. Treason. § 611. English Treasons — High and Petit. — When our ancestors brought the common law from England, treasons were numerous there. And they were divided into high and petit. But what is now meant by the simple word treason, is high treason. By the ancient common law, there were several forms of petit treason, which, by 25 Edw. 3, stat. 5, c. 2, were peduced to three. They were the killing, by a servant, of his master ; the killing, by a wife, of her husband ; and the killing of a prelate by an ecclesi- astic owing obedience to him.^ In 1828, these petit treasons were abolished.^ How with us. — Treason, with us, is reduced to a single form of what was formerly termed high treason.* And petit treason is unknown to our laws. § 612. Treason is also Felony. — In the language of Mr. East, " all treason is felony, though it may be something more." ^ Consequently, — ■What was Treason. — An offence which, On the settlement of this country, was in England treason, is here, when the traitorous quality is taken from it, felony. § 613. Does not foUow Rules of Felony. — Since, therefore, treason is composed of felony and the aggravation which makes it treason, we might suppose it would follow rather the rules of felony than of misdemeanor. But we shall see, further on, that it more resembles misdemeanor than felony, 1 Ante, § 254 et seq. vision Is continued by 24 & 25 Vict. o. 2 1 Hawk. P. C. Curw. ed. p. 105. 100, § 8. 8 By 9 Geo. 4, c. 31, § 2, providing, < Ante, § 456. that " every offence which, before the ^ 1 East P. C. 334, 836 ; 1 Hawk. P. commencement of this act, would have C. Curw. ed. p. 71, § 2 ; 4 Bl. Com. 94, amounted to petit treason, shall be 95. And see Co. Lit. 391 a. deemed to be murder only." This pro- 342 CHAP. XLin.] TREASON, FELONY, AND MISDEMEANOE. § 615 II. Felony. § 614. Difficulties — Statutes. — The common-law do,ctrine of felony is in some particulars difficult, but in the general it is plain. We shall see that, in some of our States, statutes have been passed to remove obscurities, creating others of their own. § 615. How defined. — Felony is any. offence which by the stat- utes or by the common law is punishable with death, or to which the old English law attached the total forfeiture of lauds or goods or both, or which a statute expressly declares to be such.^ Exposition of Doctrine. — Gabbett says : " The word felon is (according to the best opinions) derived from two northern words,^ fee which signifies fief, feud, or beneficiary estate, and Ion, which signifies price or value ; and the word ' felony ' imports rather the feudal forfeiture, or act by which an estate is forfeited or escheats to the lord of the fee, than the capital punishment to which lay or unlearned offenders were formerly liable in all cases of felony. In proof of this, — Suicide — Homicide — Heresy — Treason. — " Suicide has been alwaj's considered to be a felony, because it subjected the person ' committing it to forfeiture, though the party, being already dead, could not be the object of capital punishment : and homicide by misadventure, or in self-defence, is, strictly speaking, a felony also, being followed with forfeiture, though according to the bet- ter opinions it never was punished with death ; Avhile heresy, which was a capital offence by the common law,^ but not a felony, never worked any forfeiture of goods.* And, as a further proof, treason was anciently held to be a felony ; which can only be accounted for upon the principle that forfeiture was one of the consequences of attainder in high treason. Though this is th« 1 See and compare, 1 Gab. Grim. Law, ^ Spelman Glos. tit. Felon ; 4 Bl. Gom. 15, 16 ; 1 Hawk. P. G. Curw. ed. p. 71- 94, 95. 73 ; Co. Lit. 391 a. See also 4 Bl. Com. ^ xhe life, however, was taken by 94, 95 ; Gray v. Reg. 6 Ir. Law Kep. 482, burning, not by hanging, 3 Inst. 43 ; and 502 ; Adams v. Barrett, 5 Ga. 404 ; Fox- possibly this difference was what pre- ley's Case, 5 Co. 109 a ; Finch's Case, 6 vented the offence from being a felony. Co. 63, 68; Reg. v. Whitehead, 2 Moody, * 4 Bl. Com. 97; 3 Inst. 43, where it 181, 9 Car. & P. 429; Whitaker v. Wis- appears, however, that there was forfeit- bey, 9 Eng L. & Eq. 4-57 ; United States ure for this offence by Stat. 2 Hen. 5, V. Jacoby, 12 Blatch. 491 ; United States u. 7, which was repealed by Stat. 1 Eliz. B. Cross, 1 McAr. 149. c. 1. 343 § 618 DIVISIONS AND DISTINCTIONS. [BOOK VI. proper definition of felony, yet this term has been so generally connected with, the idea of capital punishment, that, . . . when- ever a statute made any new offence a felony, the law implied that it should be punished with death by hanging, as well as for- feiture, unless the offender prayed the benefit of clergy." ^ § 616. How under our Common Law. — Now, forfeitures and corruptions of blood, consequent upon crimes, are almost^ un- known in this country ; ^ yet the distinction between felonies and the other two grades is a part of our common law.* The punish- ment of felony with us is neither always nor usually death, and the same is now true also in England. In both countries, therefore, the term, at the present day, simply denotes " the degree or class of crime committed." * And the former test to determine what is felony, and what is not, has little or no practical use in either country. Consequently, where no statute has defined felony, we look into the books upon common-law crimes, and see what was felony and what was not under the older laws of England. And, though we have lost the old test, we hold that to be felony whicji was such when the test was operative. For, with us, if a -.ti tute reduces the punishment of a capital felony to imprisonment, it does not cease to be a felony.^ § 617. Continued. — The general rule, therefore, is, that what is felony under the English common law is such also under ours. But there may be exceptions,'^ founded on special reasons. Also we have seen,^ that, if what is treason at the common law is cut off from being such by a constitutional or legislative provision, it will then be felony. § 618. Statutes regulating the Question: — Punishable by Death or Imprisonment. — In a considerable num- ber of our States, statutes have defined, that all offences punish- able either by death or by imprisonment in the State prison shall be fqlonies.^ 1 1 Gab. Crim. Law, 16, 16. ' Commonwealth v. Newell, 7 Mass. 2 See Wooldridge v. Lucas, 7 B. Monr. 245 ; A. v. B., E. M. Charl. 228, 232, 234, 49- note. And see Commonwealth v. Lester, 8 Ante, § 278 ; post, § 970. 2 Va. Cas. 198. * " The rule once fixed must remain s Ante, § 612. until altered by the legislature." Lord » Weinzorpflin v. The State, 7 Blackf. Campbell in Reg. v. Gray, 3 Crawf. & 186,188; Wilson v. The State, 1 Wis. Dlx C. C. 238, 343. And see ante, § 275. 184 ; The State v. Smith, 8 Blackt 489 ; 6 1 Russ. Crimes, 3d Eng. ed. 44. People v. Brigliam, 2 Mich. 550 ; Randall 6 The State v. Dewer, 65 N. C. 572. u. Commonwealth, 24 Grat. 644 ; Nichols See post, § 621. v. The State, 35 Wis. 308 ;" Buford u. 344 CHAP. XLIII.] TREASON, FELONY, AND JVUSDEMEANOE. § 621 § 619. Eifect of Discretion as to Punishment. — If, by the terms of the statute, the court or jury is at liberty to inflict some milder punishment instead of imprisonment or death, this discretion, it is held, does not prevent the offence from being felony. That the heavier punishment may be imposed is sufficient.^ And the majority of the New York court adjudged, that the case is not different, though, by reason of immature age, the particular de- fendant is by law subject only to a milder penalty .^ § 620. Effect of Statutes on Common-law Felonies. — There may be an offence which at common law is felony, while yet it is pun- ishable neither by death nor by imprisonment in the State prison. What is the effect, upon it, of this sort of statute ? By a general rule of interpretation, a statute without negative words does not abrogate the common law, but both stand together.^ On this sound principle, the Michigan court has held, that common-law felonies, punishable less severely than the statutory standard, do not cease to be felonies because of this provision.* So also it has been said in New York ; ^ but later authority there, is possibly (the author does not say it is) the other way.^ And special terms in a statute may require an interpretation contrary to what we have thus seen to be the better general doctrine. It is so in some of the States, or the ordinary words are so construed.' § 621. How in Particular States — (Vermont — Louisiana — South Carolina). — The judge in a Vermont case intimated, that, in this State, common-law felony is unknown, things indictable being divided simply into crimes and misdemeanors.^ Yet, from other cases,^ and a consideration of the statutes and jurisprudence of the State, ib seems not improbable that the question is here much as in the States just mentioned, where capital offences, and all pun- ishable in the State prison, are felonies. Even in Louisiana, Commonwealth, 14 B. Monr. 24, and the ^ Ward v. People, 3 Hill, N. T. 395; cases cited in the next three notes. yet see Carpenter v. Nixon, 5 Hill, N. Y. 1 The State v. Smith, 32 Maine, 369 ; 260. Johnston w. Tlie State, 7 Misso. 183 ; In- « Shay v. People, 22 N. Y. 317. See gram v. The State, 7 Misso. 293 ; People Fassett *. Smith, 23 N. Y. 252. V. Van Steenburgh, 1 Parker C. C. 39 ; 1 Nathan v. The State, 8 Misso. 631 ; People V. War, 20 Cal. 117 ; The State ». Tharp v. Commonwealth, 3 Met. Ky. 411 ; Mayberry; 48 Maine, 218 ; Chandler u. People v. War, 20 Cal. 117. Johnson, 39 Ga. 85 ; Smith v. The State, » The State v. Scott,. 24 Vt. 127 ; R. 33 Maine, 48. S. of 1839, c. 102. 2 People V. Park, 41 N. Y. 21. = The State v. "Wheeler, 3 Vt. 344, » Stat. Crimes, § 154 et seq. 347. * Drennan v. People, 10 Mich. 169. 345 § 623 DIVISIONS AND DISTINCTIONS. [BOOK VI. whose jurisprudence is not purely of the common law, the dis- tinction of felony and misdemeanor prevails.^ In South Caro- lina, the act of 1801 made forgery a felony ; that of 1845 changed the punishment from death to whipping, imprisonment, and a fine ; and the court held, that forgery was still, according to the act of 1801, a felony.^ § 622. ■What statutory Words create Felony. — The statutes thus far discussed are in terms express ; but, where' a statute is not so, it will not create a felony except by necessary implication.^ If, however, it makes the penalty for its violation death by hang- ing ; * or provides for the punishment of accessories after the fact, there being in law none in misdemeanor ; ^ or declares that one doing the forbidden thing " shall be deemed to have feloniously committed such act ; " ^ the effect will be to create a felony.'^ " But an offence shall never be made a felony by any doubtful or ambiguous words ; as, when an act is proliibited under pain ' of forfeiting all that a man has,' or ' of forfeiting body and goods,' or ' of being at the king's will for body and lands and goods ; ' for such words will only make the offence a high misdemeanor." * So, where the provision was, that one assaulting another as pointed out should "be deemed a felonious assaulter," and pun- ished by imprisonment, it was held not to create a felony ; for " the word ' felonious ' may be applied to the disposition of the mind of the offender, as aggravating a misdemeanor, and not as descriptive of the offence." ^ III. Misdemeanor. §623. How defined. — All crime less than felony is misde- 1 The State v. Rohfrischt, 12 La. An. Mass. 439. And see Hughes v. The State, 382. 12 Ala. 458. 2 The State v. Eowe, 8 Rich. 17. And e Rex o. Johnson, 3 M. & S. 539, 556. see ante, § 616. 7 See also Rex v. Wyer, 1 Leach, 4th 8 1 Hawk. P. C. Curw. cd. p. 72, § 5, ed. 480, 2 East P. C. 753, 2 T. R. 77 ; Rex 6 ; ante, § 123. And see United States v. Solomons, 1 Moody, 292 ; Rex v. Cale, V. Lancaster, 2 McLean, 431 ; Common- 1 Moody, 11. wealth V. Macomber, 3 Mass. 264 ; Com- ' 1 Gab. Crim. Law, 17 ; 1 Hawk. P. monwealthf. Barlow, 4 Mass. 439; Com- C. Curw. ed. p. 72, § 6 ; 1 Co. Lit. 391; monwealth «. Simpson, 9 Met. 138. Bac. Abr. Statute, I. 1. * 1 Hale P. C. 703; 3 Inst. 91; 1 » Commonwealtli v. Barlow, 4 Mass. Hawk. P. C. Curw. ed. p. 72, § 5. 439. See Mead v. Boston, 3 Cush. 404. ^ Commonwealth o. Macomber, 3 i" 1 Russ. Crimes, Sd Eng. ed. 45; Mass. 254 ; Commonwealth t. Barlow, 4 Commonwealth u. Callaglian, 2 Va. Cas. 346 460; Rex v. Powell, 2 B. & Ad. 75. CHAP. XLni. j TREASON, FELONY, AND MISDEMEANOR. § 625 § 624. Further of the Word " Misdemeanor." — The word mis- demeanor is sometimes loosely used in meanings less broad than as thus defined.^ But its employment in the sense of our defini- tion is sufficiently established. Russell ^ observes : " The word misdemeanor, in its usual acceptation, is applied to all those crimes and ofPences for which the law has not provided a particu- lar name ; and they may be punished, according to the degree of the offence, by fine, or imprisonment, or both.^ A misdemeanor is, in truth, any crime less than felony ; and the word is gener- ally used in contradistinction to felony ; misdemeanors compre- hending all indictable offences which do not amount to felony, as perjury, battery, libels, conspiracies, and public nuisances.* Misdemeanors have been sometimes termed — "'Misprisions.' — Indeed, the word misprision, in its larger sense, is used to signify every considerable misdemeanor which has not a certain name given to it in the law ; and it is said that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please.^ But generally misprision of felony is taken for a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law or by statute."^ § 625. " Trespass " — (Escape). — The word trespass sometimes, in the older law writings, and occasionally in those of recent date,^ means substantially misdemeanor, in distinction from felony ; ^ or, more especially, a misdemeanor of the less aggra- 1 On the other hand, the word " mis- " reduced the- offence to a trespass, and demeanor " may even denote a mere civil subjected the party to two years' impris- trespass. The State v. Mann, 21 Wis. onment, and a fine at the king's will." 692. The word " trespass " is also used in the 2 1 Euss. Crimes, 3d Eng. ed. 45. I same sense by Parsons, C. J., in Com- copy, in connection with the extract, the monwealth .v. Newell, 7 Mass. 245, 248. author's notes. So also by the court in Commonwealth v. 3 3 Burn Just. tit. Misdemeanor, cit- Miller, 2 Ashm 61, 63 ; Chanet «. Par- ing Barrow Just. tit. Misdemeanor. ker, 1 Tread. 333. And see Wortham v. * 4 Bl. Com. 5, note 2 ; 3 Burn Just. Commonwealth, 5 Rand. 669 ; The State tit. Misdemeanor. v. Hurt, 7 Misso. 321. 6 1 Hawk. c. 20, § 2, and c. 50, § 1, 2 ; » For example, in Reg. v. Tracy, 6 Burn Just. tit. Felony. Mod. 30, 32, Holt, C. J., said : " It is 6 1 Hawk. P. C. c. 59, § 5. known, that a fact which would make 7 See, for a modern illustration, 1 one accessory in felony, in trespass and Russ. Crimes, 3d Eng. ed. 675, where it in treason makes him a principal." In is said, that, though rape was anciently Rex v. Westbeer, 1 Leach, 4th ed. 12, 14, a felony, the statute of Westm. 1, c. 13, we are informed, that the question arose, 347 § 625 DIVISIONS AND DISTINCTIONS. [BOOK VI. vated kind, or embracing some such element as is signified by the same term in the civil department. Thus it is used in vari- ous places by Blackstone ; as, where,, speaking of ofi&cers who voluntarily suffer prisoners to escape, he says : "It is generally agreed, that such escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass." ^ Since there are civil trespasses, and this is our only word to designate them, the precision of legal language is best preserved by limiting its use to the civil wrong, and employing instead of it the term misdemeanor when treating of the criminal law. " whether the prisoner should be dis- to Rex v. Joyner, J. Kel. 29 ; Rex v. New- charged, or receive judgment as for a ton, 2 Lev. Ill ; 2 Hawk. P. C. Curw. ed. trespass." In an argument in favor of p. 65, § 63 j 2 East P. C. 743 ; or he may the latter course, " it was answered, that open at random the old books of criminal the prisoner would, in this case, lose law, and the collections of ancient stat- many advantages to which, if he were utes. indicted for the misdemeanor, he would In 14 Bl. Cora. 130. See also 4 Bl. law be entitled." Examples without end Com. 36. might be added. The reader may refer 348 CHAP. XlilV.] PBOXTMTTY TO COMPLETED CEIME. § 627 CHAPTER XLIV. PROXIMITY OF THE OFFENDER TO THE COMPLETED CRIME. § 626. Nearness of Participant. — We sa"w, in the last chapter, that the law makes three degrees of crilne, as to its enormity. Now, in like manner, we shall in a series of chapters consider how the law regards crime as to the nearness of the several par- ticipants in its commission. For example, one man may under- take to commit a crime but not accomplish what he meant, a second may excite a third to go elsewhere and do it, the third may stand by and encourage a fourth, and the fourth may with his own hands accomplish what all intended should be done. And we say that these four persons, all of whom incurred legal guilt, stand in different degrees of proximity to the completed crime. Does the law treat them alike ? This is what is to be explained in the chapters on which we are now to enter. § 627. In what Order discussed. — But, before we enter ]ipon the direct inquiries thus suggested, we shall examine, in the next chapter, the general doctrine of the combination of persons in crime, as to the degree and nature of the participation which, when it is committed, will make one, in any form, guilty. The transition wiU then be easy, in subsequent chapters, to the degree and nature of his guilt. Further on, we shall consider compound- ing and misprision, wherein one, without combining with another, still incurs a guilt in respect of the, other's wrong-doing. After- ward, under the title Attempt, we shall consider how a man. not combining with another, becomes guilty in respect of an offence which neither he nor any one else in fact commits. 349 § 631 DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER XLV. COMBINATIONS OF PERSONS IN CEIMB. § 628. In General. — If one employs another to do a thing, we commend or blame him precisely as though it were done with his own hands. In like manner, we commend or blame the other, if his will concurred, the same as though he had proceeded self- moved. And if two act together in the doing, it is the same as to each. To illustrate this principle, as seen in the criminal law, is the purpose of the present chapter. § 629. Doctrine defined. — The doctrine of combination in crime is, that, when two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or of all, proceeding seyeraUy or collectively, each individual whose will contributes to the wrong-doing is in law responsible for the whole, the same as though performed- by himself alone. It may be particularized thus, — § 630. Acting jointly — Severally. — If persons, combining in intent, perform a criminal act jointly, the guilt of each is the same as if he had done it alone ; ^ and it is the same if, the act being divided into parts, each proceeds with his several part unaided.2 And, — § 681. Acting by Agent. — Since an act by an agent has in law the effect of a personal act,^ if one employs another to do a criminal thing for him, he is guilty the same as though he had done it himseK.* Nor is his guilt the less if the agent 1 People w. Mather, 4 Wend. 229, 259; Lewin, 119, 297; Reg. v. Kelly, 2 Cox Reg. V. Haines, 2 Car. & K. 368 ; Reg. o. C. C. 171 ; Smith „. People, 1 Col. Ter. Mazeau, 9 Car. & P. 676. 121. 2 Rex V. Lockett, 7 Car. & P. 300 ; » Broom Leg. Max. 2d ed. 643. Reg. V. Nickless, 8 Car. & P. 757 ; Reg. * United States v. Morrow, 4 Wash. V. Whittaker, 1 Den. C. C. 310;' Reg. v. C. C. 733 ; Reg. v. Williams, Car. & M. Hurse, 2 Moody & R. 860 ; Rex v. Stand- 259 ; Schmidt v. The State, 14 Misso. 187 ; ley, Russ. & Ry. 806 ; Reg. v. Gerrish, 2 Adams v. People, 1 Comst. 173 ; Com- Moody & R. 219 ; Rex v. Passey, 7 Car. monwealth v. Stevens, 10 Mass. 181 ; & P. 282 ; Reg. v. Rogers, 2 Moody, 85, 2 Commonwealth v. Nichols, 10 Met. 259 ; 350 CHAP. XLV.] COMBINATIONS 01" PERSONS. § 633 proceeds equally from his own desires or on his own account.^ Finally, — § 632. 'Will contributing. — By this sort of reasoning we reach the conclusion, that every person whose corrupt intent contributes to a criminal act, in a degree sufficient for the law's notiee,^ is in law guilty of the whole crime.^ Thus, — Present countenancing — (Prize-fight). — It may be said in a sort of general way, that all who by their presence countenance a riot or a prize-fight or any other crime, — especially if ready to help should necessity require,* — are liable as principal actors.* But this statement needs to be made more exact. § 633. Mere Presence — What more. — A mere presence is not sufficient ; ^ nor is it alone sufficient in addition, that the person present, unknown to the other, mentally approves what is done.'^ There must be something going a little further ; ^ as, for example, some word or act.^ The party to be charged " must," in the language of Cockburn, C. J., " incite, or procure, or encourage the act." ^^ Rex i). Dyson, Russ. & Ry. 52-3; The State V. Dow, 21 Vt. 484 ; Commonwealth V. Hill, 11 Mass. 136. And see Ewing v. Thompson, 13 Misso. 132 ; Caldwell v. Sacra, Litt. Sel. Cas. 118; Leggett u. Simmons, 7 Sm. & M. 348. 1 Rex V. Russell, 1 Moody, 356 ; Ross V. Commonwealth, 2 B. Monr. 417. 2 Ante, § 212 et seq. 8 Lord Mohun's Case, Holt, 479 ; 1 East P. C. 89 ; Rex v. Plummer, J. Kel. 109, 114, 118 ; Rex v. Whithorne, 3 Car. & P. 394; United States v. Jones, 3 Wash. C. C. 209 ; The State v. Heyward, 2 Nott & McC. 312 ; Howlett v. The State, 5 Yerg. 144 ; Reg. v. Howell, 9 Car. & P. 437 ; Collins v. Commonwealth, 3 S. & R. 220 ; The State v. Caldwell, 2 Tyler, 212 ; Reg. V. Swindall, 2 Car. & K. 230 ; Reg. V. Harris, Car. & M. 661, note ; Green v. The State, 13 Misso. 382 ; Reg. v. Young, 8 Car. & P. 644 ; Rex v. Skerritt, 2 Car. 6 P. 427 ; Rex v. Douglas, 7 Car. & P. 644. 4 Doan V. The State, 26 Ind. 495. 5 Rex V. Hunt, 1 Keny. 108 ; Rex v. Perkins, 4 Car. & P. 537 ; Rex v. Billing- ham, 2 Car. & P. 234 ; Rex v. Murphy, 6 Car. & P. 103 ; Rex v. Fursey, 6 Car. & P. 81 ; The State v. Straw, 33 Maine, 554 ; Williams v. The State, 9 Misso. 270. And see Reg. v. Young, 8 Car. & P. 644. ^ Butler V. Commonwealth, 2 Duvall, 435 ; The State v. Parr, 33 Iowa, 553 ; The State v. Hardy, Dudley, S. C. 236 ; People V. Woodward, 45 Cal. 203 ; Peo- ple V. Ah Ping, 27 Cal. 489. So mere knowledge that an offence is about to be committed will not involve in guilt a per- son who takes no part in it, and is not present at its commission. TuUis v. TJie State, 41 Texas, 598. .7 Clem V. The State, 33 Ind. 418; Plummer v. Commonwealth, 1 Bush, 76. And see Thompson «. Commonwealth, 1 Met. Ky. 13; Ring v. The State, 42 Texas, 282; People v. Ah Ping, 27 Cal. 489; Smith i>. The State, 37 Ala. 472. 8 Burrell v. The State, 18 Texas, 713. And see United States v. Poage, 6 Mc- Lean, 89. 9 Reg. V. Atkinson, 11 Cox C. C. 330; Commonwealth v. Cooley, 6 Gray, 350. And see The State v. Cockman, Winston, No. 2, 95 ; The State v. David, 4 Jones, N. C. 353 ; Huling v. The State, 17 Ohio State, 583 ; Cabbell v. The State, 46 Ala. 195. 1° Reg. V. Taylor, Law Rep. 2 C. C. 147, 149, 13 Cox C. C. 68, 12 Eng. Rep. 361 § 644 DIVISIONS AND DISTINCTIONS. [BOOK VI. His will must in some degree contribute to what is done. To illustrate, — False Pretence — Conspiracy. — If one of several persons utters a false pretence in the presence of the others who concur in it, all are guilty.^ And if several conspire to seize and run away with a vessel, and death comes to one opposing, all who are present abetting are punishable criminally for the murder.^ § 634. Applications of the Doctrine in Varying Circumstances : — Sometimes Difficult. — It is believed that the foregoing illustra- tions sufficiently explain the general doctrine ; but its application is sometimes difficult ; and, as to this, further views will be helpful. Persons Lawfully together — Crime by One. — From the proposi- tion that mere presence at the ■ commission of a crime does not render a person guilty ,8 it results, that, if two or more are law- fully together, and one does a criminal thing without the concur- rence of the others, they are not thereby involved in guilt.* But, however lawful the original coming together, the after conduct may satisfy a jury that all are guilty of what is done.^ Unlawfully together. — Even where persons are unlawfully to- gether, and by concurrent understanding are in the actual perpe- tration of some crime, if one of them, of his sole volition, and not in pursuance of the main purpose, does a criminal thing in no way connected with what was mutually contemplated, he only is liable.^ Thus, — Robbery after joint Wounding — Resisting Arrest. — If, in Eng- land, poachers join in an attack on the gamekeeper, and leave him 636, and Moak's note. Compare this case " Rex v. Hodgson, 1 Leaoh, 4th ed. 6 ; with Vol. 11. § 311. s.o.nom.Eex«.Hubson,l East P.O. 258; 1 Young 0. Rex, 3 T. R. 98. And see Rex v. Mastin, 6 Car. & P. 396; Rex a. Reg. V. Tisdale, 20 TJ. C. Q. B. 272. CoUison, 4 Car. & P. 565 ; Rex v. Haw- •■i United States v. Ross, 1 Gallis. 624. kins, 3 Car. & P. 392 ; Rex v. Plummer, 3 Ante, § 633. J. Kel. 109, 111, 113 ; United States v. 4 J. Kel. 47; 1 East P. C. 334; Anon- Gibert, 2 Sumner, 19, 29 ; Rex «. Mcll- ymous, 6 Mod. 43 ; The State v. Stalcup, hone, 1 Crawf. & Dix C. C. 156; Reg. i>. 1 Ire. .SO ; United States v. Jones, 3 Soley, 2 Salk. 594, 595 ; Anonymous, 6 Wash. C. C. 209, 223 ; Reg. v. Luck, 3 Mod. 43 ; Rex v. Southern, Rus«. & Ry. Fost. & F. 483. And see Reg. v. Howell, 444; Reg. l. Price, 8 Cox C. C. 96; Reg. 9 Car. & P. 437. „. Doddridge, 8 Cox C. C. 335 ; Gommon- 6 Vol. II. §1150; The State v. St. wealth k. Campbell, 7 Allen, 641 ; Reg. «. Clair, 17 Iowa, 149. See also Kelly v. Luck, 8_Fost. & F. 483. And see Reg. v. Commonwealth, 1 Grant, Pa. 484 ; Brown Howell,'9 Car. & P. 437. «. The State, 28- Ga. 199; Strawhern „. The State, 37 Missis. 422. 352 CHAP. XLV.] COMBINATIONS OF PBESONS. § 636 senseless, — then, if one of them returns and steals his money, this one alone can be convicted of the robbery .^ So, if two have committed a larceny together, and one suddenly wounds an oflScer attempting to arrest both, the other one cannot be con- victed of this wounding unless the two had conspired, not only to steal, but to resist also, with extreme violence, any who might attempt to apprehend them.^ Again, — § 635. Maiming by one to prevent Arrest. — If several are OUt committing a felony, and, on alarm, run different ways, and one to avoid being taken maims a pursuer, the others are not guilty parties in the mayhem.^ And — Assault ending in Mayhem. — It has been even held, that, where two join in an assault, and one commits mayhem, the other is not liable for the latter offence, unless he also intended to maim.* But the correctness of this decision is doubtful.^ So, — Homicide by One. — If two are riding rapidly along a highway as in racing, and one of them passes a third without harming him, but the other rides against his horse and it throws and kills him, this one alone is responsible for the manslaughter.^ Yet a man who invites another to a place to be murdered by an accomplice is accessory to the homicide when committed.'' Again, — Robbery by One. — Where a statute had made the obtaining of goods on a false charge of sodomy ^ a different offence from rob- bery,^ and two combined thus to obtain goods of a third, and, while they were jointly in the execution of this plan, one of them without the other's concurrence got possession of the goods by force, the one only was held to have committed robbery.^" § 636. Acts within Common Plan. — But, as we saw in another connection,^^ a man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally from some other specific, or a general, evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of 1 Eex V. Hawkins, 3 Car. & P. 392. « Eex v. Mastin, 6 Car. & P. 396. And see Sloan v. The State, 9 Ind. 565. ' Eeg. v. Manning, 2 Car. & K. 887. . 2 Eex V. CoUison, 4 Car. & P. 565. « See Vol. II. § 1172. And see Reg. v. Howell, 9 Car. & P. 437. ' In a subsequent ease, it was doubted 3 Eex v. White, Russ. & Ry. 99. whetlier the statute — 1 "Vict. c. 87, § 3 * The State v. Absence, 4 Port. 397. — did so operate. Eeg. o. Stringer, 2 And see Frank v. The State, 27 Ala. 37 ; Moody, 261. Brennan u. People, 15 111. 511; Thomp- i° Reg. v. Henry, 9 Car. & P. 309, 2 son V. The State, 25 Ala. 41. Moody, 118. 6 Post, § 636. " Ante, § 313-336. VOL. I. 23 353 § 638 DIVISIONS AiTD DISTINCTIONS. [BOOK YI. one, proceeding according to the common plan, terminates in a criminal result, though not the particular result meant, all are liable.i § 637. Degree of Departure from Plan. — There is a degree, not exactly definable, in which a departure, by a confederate, from the contemplated plan will relieve the rest from responsibility for what he does, and another less degree which will not relieve. Some instances are the following, — Rioters, and Homicide by those suppressing. — If there is a riot, and an innocent third person is accidentally killed by those sup- pressing it, the rioters are not guilty of the homicide ; for in no way did they concur in or encourage the act which caused death.^ But,— KiUing Person opposing. — If several are committing a crime together, and one of them kills an officer or other person who opposes or attempts to arrest them, the rest are not necessarily, as we have seen,^ to be deemed participants in the homicide ; but in various circumstances they are, although it was not their original design to take life.* Libel. — If one requests another to write a libel, which he does, but swells it beyond the matter contemplated, the former is re- sponsible for the whole .^ Homicide not contemplated. — If two combine to fight a third with fists, and death accidentally results from a blow inflicted by one, the other also is responsible for the homicide. But if the one resorts to a deadly weapon without the other's knowledge or consent, he only is thus liable.^ §638. Changing Means to agreed End — (Treason). — " If," in 1 United States v. Ross, 1 Gallis. 624 ; v. The State, 32 Ga. 658. But see Frank Eex V. Plummer, J. Kel. 109, 114, 118; v. The State, 27 Ala. 37; The State <,. United States v. Gibert, 2 Sumner, 19, Absence, 4 Port. 397. 29; Mansell's Case, 2 Dy. 1286, pi. 60 ; 2 Commonwealth v. Campbell, 7 Al- Eex V. Murphy, 6 Car. & P. 103 ; Asliton's len, 541. Case, 12 Mod. 256 ; Rex v. Keat, 5 Mod. s Ante, § 685. 288, 292; Sir C. Stanley's Case, J. Kel. * Ruloff v. People, 45 N. Y. 213, 11 86; Kex v. Edmeads, 3 Car. & P. 390; 1 Abb. Pr. N. s. 245, 5 Lans. 261; Moody East P. C. 258 ; Reg. v. Tyler, 8 Car. & t;. The State, 6 Coldw. 299. P. 616 ; Reg, v. Howell, 9 Car. & P. 487 ; 6 Reg. v. Cooper, 1 Cox C. C. 266. Brennan v. People, 15 111. 511 ; Thomp- « Reg. ... Caton, 12 Cox C. C. 624, 10 son V. The State, 25 Ala. 41 ; Reg. v. Eng. Eep. 506. And see Watts ». The Bernard, 1 Fost. & P. 240 ; Reg. v. Jack- State, 5 W. Va. 532 ; Reg. v. Skeet, 4 eon, 7 Cox C. C. 367 ; Reg. v. Caton, 12 Fost. & F. 931 ; Reg. v. Lee, 4 Fost. & F. Cox C. C. 624, 10 Eng. Rep. 506 ;^Reg. v. 63; Reg. ... Phillips, 8 Cox C. C. 225; Harrington, 5 Cox C. C. 231 ; Ferguson The State v. Shelledy, 8 Iowa, 477. 354 CHAP. XLV.] COMBINATIOlSrS OP PERSONS. § 640 the words of Popham, C. J., " many do conspire to execute trea- son against the prince in one manner, and some of them do exe- cute it in another manner, yet their act, though different in the manner, is the act of all them who conspire, by reason of the general malice of the intent." ^ Thus, also, — § 639. Joining in Part — (Rescue — Homicide). — If a person is present aiding in the commencement of an assault with intent to rescue a prisoner, he does not cease to be guilty though his fears prevent him from going all lengths with his party .^ Yet East observes, that, " in order to make the killing, by any, murder in all of those who are confederated together for an unlawful pur- pose, merely on account of the unlawful act done, or in contem- plation, it must happen during the actual strife or endeavor, or at least within such a reasonable time afterwards as may leave it I probable that no fresh provocation intervened." ^ § 640. Prompting to a Crime. — It is within a principle already stated,* that, if one purposely excites another to commit an offence, — as, if he harangues people inflaming them to a riot, — and the offence is accordingly committed, he is guilty, though he personally takes no part in it. But the connection between what is done by him and them must be reasonably apparent.^ And it may be a nice question what departures from the plan wUl relieve from responsibility the person who sets it on foot.^ 1 Blunt'B Case, 1 Howell St. Tr. 1409, cessory, because the act done varies in \ 1412. And see 1 East P. C. 98. substance from that which was com- 1 2 The State v. Morris, 3 Hawks, 388 ; manded. But It is observable, that Plow- Eeg.D.Wallis, 1 Salk. 334, Holt, 484; Rex den, in his report of Saunders's Case V. Warner, 1 Moody, 380, 6 Car. & P. 525. (Reg. v. Saunders, 2 Plow. 473, 475), ' 1 East P. C. 259. which seems to be the chief foundation 4 Ante, § 631. of what is said by others concerning 5 Reg. ». Sharpe, 3 Cox C. C. 288 ; these points, in putting the case of a com- Vol. II. § 1146, 1153. mand to burn the house of A, which shall 6 Hawkins says : " If a man command not make the commander an accessory another to commit a felony on a particu- to the burning of the house of B unless lar person or thing, and he do it on an- it were caused by burning that of A, other : as, to kill A, and he kill B ; or, to states in this manniar : ' If I command a burn the house of A, and he burn the man to burn the house of such an one, house of B ; or, to steal an ox, and he which he well knows, and he burn the steal an horse ; or, to steal such an horse, house of another, there I shall not be ac- / and he steal another; or, to commit a cessory, because it is another distinct felony of one kind, and he commit an- thing, to which I did not give assent,' &c. other of a quite different nature, — as, to By which it seems to be implied, that it rob J. S. of his plate as he is going to is a necessary ingredient in such a case market, and he break open his house in to make B no accessory, that he knew\ the night and there steal the plate, — it j the house which he was commanded to is said, that the commander is not an ac-l burn; for, if he did not know it, but mis- 355 § 642 DIVISIONS AND DISTINCTIONS. [BOOK VI. § 641. Rules to determine Responsibility. — The true view is doubtless as follows : One is responsible for what of wrong flows directly from his corrupt intentions ; but not, though intending wrong, for the product of another's independent act. If he set in motion the physical power of another, he is liable for its result. If he contemplated the result, he is answerable though it is pro- duced in a manner he did not contemplate. If he did not con- template it in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into action an indiscriminate power, he is responsible. If he gave directions vaguely and in- cautiously, and the person receiving them acted according to what he might have foreseen would be the understanding, he is responsible. But, if the wrong done was a fresh and indepen- dent product of the mind of the doer, the other is not criminal therein, merely because, when it was done, he meant to be a par- taker with the doer in a different wrong. These propositions may not always be applied readily to cases arising, yet they seem to furnish the true rules. § 642. Joining in Act partly performed. — If, while persons are doing what is criminal, another joins them before the crime is completed, he becomes guilty of the whole ; because he contrib- uted to the result.-' Should the offence be one requiring a speci- fic intent,^ and the charge be that he was present abetting the others, his knowledge of their intent must also be shown .^ If, in these cases, there is no mutual understanding of each other's purpose, then each who contributed in act to the result will be responsible simply for what he personally meant.* After Offence completed. — When a crime has been fully com- mitted, one not already guilty is too late to be a sharer in it ; ^ though, if it is a felony, he may become an accessory after the took another for it, and, intending only Anonymous, 6 Mod. 43 ; 1 East P. C. 70 ; to burn the house which he was com- Keg. v. Simpson, Car. & M. 669 ; Keithler manded to burn, happen by such mistake ;;. The State, 10 Sm. & M. 192. to burn the other, it may probably be ^ Ante, § 320, 342. argued, that the commander ought to be " Reg. v. Cruse, 8 Car. & P. 541. And esteemed an accessory to such burning ; see Rex v. Southern, Russ. & Ey. 444 ; because it was the direct and immediate Brown v. The State, 28 Ga. 199. effect of an act wholly influenced by liis < Beets v. The State, Meigs, 106 ; Rex command, and intended to have pursued v. Murphy, 6 Car. & P. 103 ; Reg. v. it." 2 Hawk. P. C. Curw. ed. p. 444, § 21, Howell, 9* Car. & P. 437. 22. 6 Rex V. Hawkins, 8 Car. & P. 392 ; 1 People V. Mather, 4 Wend. 229, 259; Rex v. King, Russ. & Ry. 332; Bex v. Sir Charles Stanley's Case, J. Kel. 86 ; McMakin, Russ. & Ry. 333, note. 356 GHAP. XLV.] COMBrNATIONS OV PEUSOKS. § 643 fact.^ Therefore, it appearing on an indictment against three for cutting and wounding, that the third came to the spot only after one of the others had gone away, and there kicked the wounded man struggling on the ground- with the remaining one, he was deemed entitled to an acquittal.^ § 643. Conclusion. — Having thus seen under what circum- stances the law holds different persons responsible for a crime committed by more than one, we are prepared to inquire what is the particular form of guilt which it attributes to each. 1 Rex V. Lee, 6 Car. & P. 536. 2 Eeg. v. McPhane, Car. & M. 212. 357 § 647 DIVISIONS Airo distinctions. [book VI. CHAPTER XL VI. THE PEINCIPAL ACTOE.^ § 644, 645. Introduction. 646-654. As to Felony. 655. As to Treason. 656-669. As to Misdemeanor. § 644. Scope of this Chapter — (Principals of First and Second Degrees). — On the " Diagram of Crime," ^ the scope of this chapter is indicated by C E M N O. It includes principals of the first and second degrees in felony, and those who sustain the like relation in treason and misdemeanor. But participants who are treated as principals in treason and misdemeanor, by reason of their having advised what another performs in their absence, will be considered in the next chapter. § 645. How the Chapter divided. — We shall examine the doc- trine, I. As to Felony ; II. As to Treason ; III. As to Misde- meanor. I. As to Felony. § 646. Participants how named. — A mere attempt to commit felony ,3 or a compounding * or misprision ^ of it, is misdemeanor. But there are four differing methods of participation in it which make the participant a felon.^ He may be an accessory before the fact,^ or an accessory after the fact,^ or a principal of the first, or a principal of the second degree. The last two are now for consideration. § 647. Contribution of 'Will. — We saw, in the last and preced- ing chapters, that, for a man to be criminal in respect of an act performed either by his own physical volitions or another's, his 1 See Crim. Proced. II. § 1 et seq. 6 pogt, § 716 et seq. 2 Ante, § 602. 8 And see Vaux's Case, 4 Co. 44. s Post, § 723 et seq. ' Post, § 672 et seq. * Post, § 709 et soq. s Pogj^ § 692 et seq. 358 CHAP. XXVI.] THE PBINCIPAL ACTOR. § 648 will must contribute to it. In these chapters, we assume that the will does thus contribute. § 648. Two degrees of Principals. — In felony, there are two degrees in which men become principal offenders. Principal First Begree defined. — A principal of the first degree is one who does the act, either himself directly, or by means of an innocent agent.^ Principal Second iJegree. — A principal of the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act.^ Distinction Formal — (its Origin — How the Indictment). — But the distinction between the two degrees is without practical effect.^ Its origin is, that anciently those only who are now called principals of the first degree were deemed principals at all : persons present abetting were accessories at the fact. But when the courts came to hold the latter to be principals, they termed them principals of the second degree.* And now an in- dictment against one as principal of the first degree is sustained by proof of his being principal of the second ; and, on the con- trary, an indictment against him as principal of the second degree is supported by proof that he is principal of the first.^ The dis- tinction is in all respects without a difference ; ^ and it should not be preserved in the books. 1 See ante, § 310 ; post, § 649, 651. , « The State ». Fley, 2 Brev. 338 ; Reg. 2 Williams v. The State, 47 Ind. 568, v. Rogers, 2 Moody, 85 ; GrMth's Case, 1 574. Plow. 97, 98, 100 ; Reg. v. Phelps, Car. & 8 erim. Proced. II. § 3. M. 180 ; Rex v. Taylor, 1 Leach, 4th ed. * 1 Russ. Crimes, 3d Eng. ed. 26 ; Grif- 360 ; Shaw's Case, 1 East P. C. 351 ; Rex fith's Case, 1 Plow. 97, 98 ; Foster, 347, v. Folkes, 1 Moody, 354 ; Reg. v. Wil- 348. liams. Car. & M. 259; Rex v. Gray, 7 5 Crim. Proced. II. § 3 ; The State v. Car. & P. 164 ; Rex v. Potts, Russ. & Ry. Mairs, Coxe, 453 ; The State v. Anthony, 358 ; Rex v. Royce, 4 Bur. 2073 ; Rex v. 1 McCord, 285 ; Rex v. Cunningham, 1 Moore, 1 Leach, 4th ed. 314, 2 East P. 0. Crawf. & Dix C. C. 196 ; Rex v. Greene, 679 ; Dennis v. The State, 5 Pike, 230 ; 1 Crawf. & Dix C. C. 198 ; The State v. Fugate v. The State, 2 Humph. 397 ; The Cameron, 2 Chand. 172 ; Bauson v. Offley, State v. Arden, 1 Bay, 487 ; Hately v. 3 Salk. 38; Reg. v. Wallis, 1 Salk. 334; Tlie State,.15 Ga 346; McCarty v. The Reg. V. Crisham, Car. & M. 187 ; Rex v. State, 26 Missis. 299, 303 ; United Stales Towie, Russ. & Ry. 314, 3 Price, 145 ; v. Wilson, Bald. 78 ; The State v. Ross, Rex V. Gogerly, Russ. & Ry. 343 ; Foster, 29 Misso. 32 ; Hill v. The State, 28 Ga. 351 ; Shaw v. The State, 18 Ala. 547 ; 604 ; The State v. Simmons, 6 Jones, Archb. New Crim. Proced. 13. The State N. C. 21; The State v. McGregor, 41 V. Hill, 72 N. C. 345 ; Young v. Common- N. H. 407 ; King v. The State, 21 Ga. wealth, 8 Bush, 366 ; People v. Ah Fat, 220 ; The State v. ElUs, 12 La. An. 390; 48 Cal. 61. But see Reg. v. Tyler, 8 Car. Brown v. The State, 28 Ga. 199 ; The & P. 616. State v. Merritt, Phillips, 134 ; Common- 359 § 650 DIVISIONS AND DISTINCTIONS. [BOOK VI. Under Exceptional Statutes. — Occasionally, however, we meet with a statute so drawn upon this distinction as necessarily to keep it alive for its particular purpose.^ § 649. Who a Principal. — It being, therefore, unimportant to draw any nice distinctions between the two sorts of principal, let us see where the line separates the principal of either degree from the accessory. One plain proposition is, that there can be no crime without a principal. There may be more principals than one ; but there must be, at least, one. Therefore a man whose sole will procures a criminal transaction is principal, whatever physical agencies he employs,^ and whether he is. present or absent^ when the thing is done. Or, if he is present abetting while any act necessary to constitute the offence is being performed through another,* though not the whole thing necessary, — and perhaps, while any act is being done which may enter into the offence,^ though not strictly necessary, — he is a principal. But he is not such if what is accomplished in his presence is in no sense a part of the offence.^ Again, — §650. Distinct Acts to one End — (Forgery). — "Where several acts constitute together one crime, if each is separately per- formed by a different individual in the absence of the rest, all are principals as to the whole." For example, where forgery is a statutory felony, if persons make distinct parts of a forged in- strument, each is a principal as to the whole, even though he does not know by whom the other parts are executed, and one finishes it alone while the rest are absent.^ Were the law not so, no one could be punished ; for a person whose own hand does wealth V. Fortune, 105 Mass. 592 ; The Ey. 72, 2 Leach, 4th ed. 978, 1 New Rep. State V. Jenkins, 14 Rich. 215 ; Clay v. 96 ; Rex v. Standley, Russ. & Ry. 305 ; The State, 40 Texas, 67 ; The State v. Rex v. County, 2 Russ. Crimes, 3d Eng. SqUaires, 2 Nev. 226 ; The State v. Dyer, ed. 118 ; Rex v. Butteris, 6 Car. & P. 147 ; 69 Maine, 303 ; The State v. Center, 85 Cornwal's Case, 2 Stra. 881 ; Hawkins's Vt. 378 ; Washington «. The State, 36 Case, cited 2 East P. C. 485 ; Rex «. Har- Ga. 222 ; People v. Cotta, 49 Cal. 166. ris, 7 Car. & P. 416 ; ante, § 642. 1 And see Foster, 355 et seq. ; Bren- 5 Rex v. Dyer, 2 East P. C. 767 ; Rex nan v. People, 15 111. 511 ; Reg. v. Whist- v. Hornby, 1 Car. & K. 305. ler, 11 Mod. 25, 2 Ld. Raym. 842 ; War- e Rex v. King, Russ. & Ry. 332 ; Rex den V. The State, 24 Ohio State, 143. v. McMakin, Russ. & Ry. 833, note ; Rex 2 See post, § 651. „. Badeock, Russ. & Ry. 249. 8 Pinkard v. The State, 30 Ga. 757. ' See, as illustrative, Rex v. Cope, 1 « Reg. V. Kelly, 2 Car. & K. 379 ; Reg. Stra. 144. And see post, § 653. V. Simpson, Car. & M. 669 ; Rex v. Jor- s Rg^ «. Kirkwood, 1 Moody, 304 ; dan, 7 Car. & P. 4.32 ; Rex v. Harding, Rex v. Dade, 1 Moody, 807 ; Rex v. Bing- Russ. & Ry. 125 ; Rex ii. Palmer, Russ. & ley, Buss. & Ry. 446. 360' CHAP. XLVI.] THE PRINCIPAL ACTOK. §652 the criminal act, either wholly or in part, is not an acces- sory.^ § 651. Act through Innocent Agent. — And because there must always be a principal,^ one is such who does the criminal thing through an innocent agent,^ though personally absent. If a dose of poison,* or an animate object like a human being, with ^ or without * general accountability, but not criminal in the particu- lar instance, inflicts death or other injury in the absence of him whose will set the force in motion, the latter is deemed in law a principal offender, for there is no other. But, if the agent em- ployed incurs guilt, then the employer is simply an accessory before the fact.^ § 652. Counselling to Suicide. — If one counsels another to sui- cide, and it is done in his presence, the adviser is, in every view, guilty as principal.^ Accordingly where two persons, agreeing to commit suicide together, employ means which take effect on one only, the survivor is a principal in the murder of the other.^ But does the person who takes his own life occupy the position 1 In an English jury case, Cresswell, J., on consultation with Patteson, J., ruled, that, if one of two confederates unlocks the door of a room in which a larceny is to be committed, then goes away, and the other confederate comes and steals the goods, the former is not a principal in the theft. Eeg. v. Jeffries, 3 Cox C. C. 85. I doubt the soundness of this ruling. If sustainable, it must be on the ground that the unlocking of the door constituted no part of the crime. But it seems to me that it was a part of the criminal transaction, distinctly contrib- uting to the end. In Ohio, one of several confederates enticed the owner of a store a mile away and detained him, while the others broke open the store and took the goods'; and the court held, it seems to me correctly, that he was a principal. The decision was put upon the ground that he was construc- tively present. He not merely ad- vised, but bore a part in the criminal transaction ; that constitutes a principal, whether we call it being constructively present or not. Breese v. The State, 12 Ohio State, 146. In these two cases, which seem on principle alike, but de- cided differently by different courts, it would appear not unreasonable to hold, that, as the unlocking of the door in the one, and the enticing away of the owner in the other, were not necessarily parts of the crime, it would have been competent for the prosecuting power, at its election, to deal with these persons as accessories before the fact. See post, § 663, 664. 2 Ante, § 649. 8 Ante, § 310. * Vaux's Case, 4 Co. 44 ; Eeg. v. Mi- chael, 9 Car. & P. 356, 2 Moody, 120. 6 Rex V. Giles, 1 Moody, 166, Car. Crim. Law, 3d ed. 191 ; Commonwealth V. Hill, 11 Mass. 136 ; Adams v. People, 1 Comst. 173 ; Reg. o. Mazeau, 9 Car. & P. 676 ; Reg. v. Saunders, 2 Plow. 473 ; The State v. Fulkerson, Phillips, 233, and other cases cited ante, § 810. 8 Anonymous, J. Kel. 53. And see Eeg. V. Tyler, 8 Car. & P. 616 ; Beg. v. Michael, 9 Car. & P. 356, 2 Moody, 120. ' Wixson V. People, 5 Parker C. C. 119 ; Reg. v. Manley, 1 Cox C. C. 104. 8 Vol. II. § 1187 ; Eex v. Dyson, Buss. & By. 523 ; Eeg. v. Alison, 8 Car. & P. 418. 9 Eeg. V. Alison, 8 Car. & P. 418. And see 1 East P. C. 229. 361 § 653 DIVISIONS AND DISTINCTIONS. [BOOK TI. of an innocent or a guilty agent ? The latter is the English doc- trine ; so that, if the adviser is absent at the commission of the act, he is only an accessory before the fact, who cannot be con- victed except after or with his principal, — which is never.^ It is not quite certain whether this is the American doctrine also ; or whether, with us, the person committing suicide is to be deemed an innocent agent in inflicting the violence on himself,^ so that the adviser will be principal, though absent when the deed is done. In Massachusetts, two prisoners being confined in adjoining cells within hearing of each other, one advised the other to take his own life, which he did ; and it was ruled, that, if the advice was the cause moving to the deed, the adviser was guilty of murder.^ To some extent, at present, this question is regulated by stat- utes. § 653. In Presence of Principal of First Degree. — Some of the fore- going doctrines, the reader perceives, grow out of the necessity of there being a principal. But where there is unquestionably a principal of the first degree, — that is, a responsible person in the actual commission of the offence through his own volition, — no other person will be a principal as abetting him, unless in a position to render, if necessary, some personal assistance. If the will of the other contributes to the act,* the test, to determine whether he is a principal rather than an accessory,^ is, whether he is so near, or otherwise so situated, as to make his personal help, if required, to any degree available.^ He need not be in the actual presence of the other principal ; but, if he is constructively there, as thus explained, it is enough.^ And, for reasons already 1 Hex V. Russell, 1 Moody, 356 ; Reg. State, 6 Blaokf. 110 ; Rex v. Davis, Russ. V. Leddington, 9 Car. & P. 79. See Reg. & Ry. 113 ; The State v. Wisdom, 8 Port. V. Fretwell, Leigh & C. 161, 9 Cox C. C. 611 ; Norton v. People, 8 Cow. 137 ; Reg. 152. i: Perkins, 12 Eng. L. & Eq. 587 ; Breese ■' And see Vol. II. § 1187. v. The State, 12 Ohio State, 146, 154 8 Commonwealth v. Bowen, 13 Mass. Wixson v. People, 5 Parker C. C. 119 356. See, as perhaps illustrative, Berry Trim v. Commonwealth, 18 Grat. 983 t: The State, 10 Ga. 511, 518. The State v. Nash, 7 Iowa, 347 ; Doan v. i Ante, § 628 et seq. The State, 26 Ind. 496; Selvidge v. The 6 Post, § 663. State, 30 Texas, 60. Commonwealth o. Knapp, 9 Pick. ' Tate v. The State, 6 Blackf. 110; 496, 616-519 ; Rex u. Manners, 7 Car. & The State u. Heyward, 2 Nott & McC. P. 801; Rex W.Stewart, Russ. &Ry. 363; 312; Coyles w. Hurtin, 10 Johns. 85; Green M. The State, 13 Misso. 382; Rex Commonwealth v. Lucas, 2 Allen, 170; V. Soares, Rues. & Ry. 25, 2 East P. C. Reg. v. Vanderstein, 16 Ir. Com. Law, 974 ; Rex v. Kelly, Russ. & Ry. 421 ; Reg. 574, 10 Cox C. C. 177. V. Jones, 9 Car. & P. 761 ; Tate ;;. The 332 CHAP. XLVI.] THE PEQfCIPAIi ACTOR. § 656 seen,^ this is especially so when he does something which enters into the offence, as constituting a part of it.^ Thus, — § 654. In Iiarceny — Duelling — Uttering Forgeries. — A person waiting outside of a house to receive goods which his confederate is stealing within, is a principal of the second degree in the lar- ceny.^ So may one be who is in a lower room while his con- federate is operating in an upper room.* And if death occurs in a duel, the seconds are principals in the murder.* But it was held not sufficient in evidence to convict one as principal in the utter- ing of a forged note (assumed to be felony), that he came with the utterer to town, put up at the same inn with him, walked out with him ; and, two hours later, the other alone passed off the note ; in twenty minutes more, the two came together ; and, when he saw that the utterer was arrested, he ran from the officer, and each affected ignorance of the other.^ II. In Treason. § 655. In General. — We shall see, in the next chapter, that, in treason, not only are they principals who would be such if the offence were felony, but they also who would be accessories before the fact. There is, therefore, relating to treason, nothing which demands consideration in this chapter. III. As to Misdemeanor. § 656. In General. — Likewise, in misdemeanor, the distinction between principals of the first and second degree is unknown. Neither is there any distinction between accessories before the fact and principals ; all participants being principals, the same as in treason,'^ — a question for the next chapter. 1 Ante, § 649. v. Young, 8 Car. & P. 644 ; Reg. v. Bar- s' Rex V. Passey, 7 Oar. & P. 282 ; Rex ronet, Dears. 51 ; Vol. II. § 311. V. Loekett, 7 Car. & P. 300 ; Rex v. Frank- « Rex v. Davis, Russ. & Ry. 118. And lyn, 1 Leach, 4th ed. 255, Cald. 244. And see for similar facts. Rex o. Else, Russ. see Rex v. Borthwick, 1 Doug. 207 ; Rex & Ry. 142. The judges, in both of these V. Harris, 7 Car. & P. 416. cases, were under the misapprehension 3 Rex V. Owen, 1 Moody, 96. And see that the offence was felony ; it was really Rex V. Skerrit, 2 Car. & P. 427. misdemeanor, therefore the cases were * Commonwealth «. Lucas, 2 Allen, wrongly decided, but they are good in il. 170, lustration of the doctrines of the text, s Rex V. Cuddy, 1 Car. & K. 210; Reg. ' Ante, § 655. 363 § 658 DIVISIONS AND DISTINCTIONS. [BOOK VI. Persons acting together. — If persons are proceeding together in the commission of a misdemeanor, the act of each is the act of all, the same as in felony ; for the same reasons control the one case as the other.^ And the possession of a thing by one, contrary to the prohibition of a statute, is the possession of all.^ § 667. Lighter Misdemeanors distinguished. — But when we as- cend among the lighter misdemeanors, we find some difPerences occasioned by the smaller degree of blameworthiness involved in an offence, or the special terms of the statute creatilig it. The cases are neither sufficiently numerous nor uniform to enable an author to state precisely and fully what the doctrine of the courts is on this subject ; but the principle is reasonably plain, as fol- lows. If the terms of a statute distinctly limit the penalty to persons who participate in the act only in a certain way, those terms furnish the rule for the court. Or, if the expression is gen- eral, then, if the offence is of minor turpitude, and especially if the thing is only malum prohibitum, the courts, by construction, will limit its operation to those persons who are more particularly within the reason or the express words of the enactment. And there are misdemeanors of such a nature, and so small in turpitude, that even a person present and lending the support of his will to the commission of the act is, nevertheless, not pun- ishable.^ Thus, — § 658. Retailing Liquor. — Under the Statutes making it penal for unlicensed persons to retail intoxicating liquor, it is generally held * that one who, as purchaser, lends the concurrence of his wiU 1 And see Edelmuth v. McGarren, 4 tempted within the knowledge of the Daly, 467 ; The State v. Potter, 30 Iowa, court, although a similar law has been in 587. force almost from the foundation of the 2 Eeg. V. Thompson, 11 Cox C. C. 362, government, and thousands of proseeu- 364; Eeg. v. Goodfellow, 1 Den. C. C. 81, tions and convictions of sellers have been 1 Car. & K, 724. had under it, most of which have been * See ante, § 212 et seq. sustained by the testimony of buyers," * Why ? And Conueoted Views. — proceeded : " It is difficult to draw any In Commonwealth v. Willard, 22 Pick, precise line of distinction between the 476, the purchaser of intoxicating liq- cases in which the law holds it a misde- uor sold without license was held not to meanor to counsel, entice, or induce an- be excusable from testifying against the other to commit a crime, and where it seller, on the ground that he would crimi- does not. In general, it has been con- nate himself. In delivering the opinion sidered as applying to cases of felony, of the court, Shaw, C. J,, after observ- though it has been held that it does not ing that " no precedent and no authority depend upon the mere legal and techni- has been shown for such a prosecution, cal distinction between felony and mis- and no such prosecution has been at- demeanor. One consideration, however, 364 CHAP. XLVI.] THE PEINCIPAIi AOTOE. § 658 to what is done, and tempts the seller witli his money, and is present encouraging him, is still not liable to punishment. But — ia manifest in all the cases, and that is, that the offence proposed to be com- mitted by the counsel, advice, or entice- ment of another is of a high and aggra- vated character, tending to breaches of the peace or other great disorder and vio- lence, being what are usually considered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifEerent than as they are re- strained by positive law." p. 478. And see, as confirming this doctrine, The State V. Hopkins, 4 Jones, N. C. 305 ; The State v. Wright, 4 Jones, N. C. 308. And see Rawles v. The State, 16 Texas, 681. The question thus adjudged in the Massachusetts court was decided in the same way in New Hampshire. The State V. Rand, 51 N. H. 361. Smith, J., who delivered the opinion, put the result in part upon a consideration of the general scope and purpose of the statute. And, referring to the Massachusetts case, he said : " We are not prepared to adopt the view there advanced, that one who ap- proximates so nearly to the, direct act, as a purchaser does, is not liable as an aider or accessory because of the comparative- ly insignificant character of the main of- fence." p. 366. But, while he thus dis- claimed, he affirmed a doctrine not differ- ing essentially from this, as follows: "The rules of statute interpretation, enunciated prior to the enactment of the prohibitory liquor law, and still recog- nized as sound, justify the court in giv- ing weight to the above considerations. In cases of mala prohibita, the fact that the penalty is in terras imposed upon only one of two parties whose concur- rence is requisite to the commission of the offence, and that the statute was made for the , protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground^ for giving the statute a construction exempting the party not named from criminal liability." p. 364. As sustaining this doctrine he referred to Browning v. Morris, Cowp. 790; WiUiams v. Hedley, 8 East, 378; Tracy v. Talmage, 14 N. Y. 162, 181-186 ; Curtis I). Leavitt, 15 N.Y. 9 ; Buffalo City Bank v. Codd, 25 N.Y. 163; Richardson, C. J., in Roby v. West, 4 N. H. 285, 288, 289 ; Perley, C. J., in Prescott v. Norris, 32 N. H. 101, 105 ; White v. Franklin Bank, 22 Pick. 181 ; Sargent, J., in Butler v. Northumberland, 60 N. H. 33, 38, 39. Now, as we have seen (ante, § 333), the substance of the distinction between malum in se and malum prohibitum is that the forrfter is more intensely evil than the latter ; so that in essence this New Hampshire doctrine does not differ from what is held elsewhere. And see, as con- firming in a general way the foregoing views, Commonwealth v. Wood, 11 Gray, 85 ; Commonwealth v. Boynton, 116 Mass. 343. On the other hand, there is a Tennessee case, the reporter's head- note to which is as follows: " The sale of liquor by a slave is a criminal offence, and a white man who tempts him to com- mit the offence, by purchasing liquor from him, is an aider and abettor, and as much guilty, as a principal offender, of a misdemeanor, as if the seller had been of his own color." And McKinney, J., said : " In the case of a Duhite man, we suppose it cannot be seriously controverted, that, upon general principles, the purchaser of spirituous liquors, in violation of the stat- utes passed to suppress tippling, is as much guilty of the violation of the law, and as much amenable to criminal prose- cution and punishment, as the seller. They are, in all respects, particeps crimi- nis ; they are alike wilful violators of the law. The express prohibition to sell, up- on every just principle of construction, must be considered as implying a prohi- bition to purchase. The purchaser — whether we regard his intent, or the ef- fect and consequences of his act — is no less guilty, no less within the mischief intended to be suppressed, than the seller. It matters not that the former is not placed under the obligation of a bond or oath. This takes nothing from the force of the argument. He still stands guilty of wilfully participating in, and aiding 365 §659 DIVISIONS AND DISTINCTIONS. [book VI. Agent of Retailer. — One is indictable who himself sells as an- other's servant, though without compensation.^ And — Participants in Riots, &c. — All who by their presence counte- nance a riot,^ or an affray,^ are criminally responsible.* § 659. Treason and Fornication compared. — Another illustra- tion, distinguishing the lighter offences from the heavier, is the following : The statute of 25 Edw. 3, stat. 5, c. 2, made it high treason " if a man do violate .the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir ; " and the construction was, that the woman, if con- senting, was guilty as well as the man.^ But when, in Tennessee, it was enacted, that, " if any white man or woman shall pre- sume to live with any negro or mulatto man or woman, as man and wife, each and every of the parties so offending shall be liable to forfeit and pay the sum of five hundred dollars to any person and encouraging the commission of, a criminal offence. Does not this, upon the soundest principles of criminal law, constitute him a principal in the offence f We think it does. And perhaps it would scarcely be going too far to say, that he ought to he regarded as less excusable than the seller. He has not the poor pre- text of the latter, that the forbidden traf- fic is in part his means of procuring a living." The State u. Bonner, 2 Head, 135, 137. For further views on this topic, see, as respects small things, ante, § 212 et seq. See also Brown v. Perkins, 1 Allen, 89 ; Stamper v. Commonwealth, 7 Bush, 612. Malicious Shooting. — In the case last cited it was held, that one who abets at the fact a malicious shoot- ing is not pursuable under the Kentucky statute, which provides only for the pun- ishment of the principal offender. The statutory words are, that, " if any person shall wilfully and maliciously shoot at and wound another, with an intention to kill him, so that he does not die thereby, ... he shall be confined in the peniten- tiary not less than one nor more than five years." Said Hardin, J. : " As a general rule, where a statute creates a felony and prescribes a particular punishment therefor, or where a statute provides a punishment for a common-law felony by name, those who were present, aiding and abetting in the commission of the crime, 366 are held to be included by the statute, although not mentioned as such in the statute. But where, as in this case, the punishment is imposed by the statute upon the person alone who actually com- mitted the acts constituting the offence, and not in general terras upon those who were quiUy of the offence, according to common-law rules mere aiders and abet- tors, "will not be deemed to be within the act." P. K14, referring to Rose. Grim. Ev. 215. I do not propose to inquire how far these views would be generally accepted as sound. 1 The State v. Bngbee, 22 Vt. 32. And see Commonwealth v. Hadley, 11 Met. 66 ; Geuing v. The State, 1 McCord, 578 ; Hays v. The State, 13 Misso. 246 ; The State «. Bryant, 14 Misso. 340 ; Rob- erts V. O'Conner, 83 Maine, 496 ; Vaughn u. The State, 4 Misso: 530. 2 Rex V. Hunt, 1 Keny. 108 ; Williams I. The State, 9 Misso. 270; ante, § 628 et seq. 8 Hawkins v. The State, 13 Ga. 322. » Participants in Gaming. — And see, as to gaming. Smith v. The State, 5 Humph. 163; Hewlett v. The State, 5 Yerg. 144 ; The State v. Smitherman, 1 Ire. 14. In Perjury. — As to perjury, United States v. Staats, 8 How. U. S. 41. « 1 East P. C. 65 ; 1 Hale P. C. 89, 128 ; 3 Inst. 1, 2, 9 ; Eden Penal Law, 8d ed. 125. CHAP. XLVI.] THE PEINCIPAL ACTOK. § 659 who shall or will sue for the same, by action of debt, and more- over be liable to be indicted and punished at the discretion of the court ; " the white person only was held to be liable, not also the colored.^ So, — Hiring Time. — In North Carolina, a former statute to pre- vent -slaves from hiring their time of the owners, was con- strued to make the slave alone guilty in case of its violation.^ Now, — Reason why. — The different degree of wrong in the offences created by these statutes accounts for the different construction given them ; and this result comes in spite of what might seem to be the opposing rule,^ that the graver the offence created by a legislative enactment, the stricter must be its interpretation. 1 The State v. Brady, 9 Humph. 74. And see Rawles v. The State, 15 Texas, 2 The State v. Clemons, 3 Dev. 472. 581. 8 Stat. Crimes, § 199. 367 § 663 DIVISIONS AST) DISTINCTIONS. [BOOK VI. CHAPTER XLVII. THE ACCESSOEY BEFOEB THE PACT, AND THE LIEE.^ § 660-661. Introduction. 662-671. General Doctrine of Accessory. 672-680. Before the Fact in Felony. 681-684. In Treason. 685-689. In Misdemeanor. § 660. Scope of this Chapter. — On the " Diagram of Crime," ^ the subject of this chapter is indicated by B C O P. It embraces ' the accessory before the fact, properly so called, in felony ; the party who sustains the like relation in treason, being himself, in law, a principal offender ; and the one thus related in misde- meanor, also regarded, in law, as a doer. § 661. How the Chapter divided. — We shall consider, I. The Gen- eral Doctrine of Accessory, whether before or after the Fact ; II. Before the Fact in Felony ; III. In Treason ; IV. In Misde- meanor. I. The General Doctrine of Aocessory, whether hefore or after the Fact. § 662. Limit of Term " Accessory." — The word accessory properly refers only to one who participates as such in a felony. In this chapter, for convenience, we consider also the party who sustains the like relation in treason and misde- meanor. § 663. How defined. — An accessory is one ,who participates in a felony too remotely to be deemed a principal.^ Distinguished from Principal. — If the participant is a principal, though but of the second degree, he cannot be held under an 1 See Grim. Proced. II. § 1 et seq. » See ante, § 658. 2 Ante, § 602. 368 CHAP. XLVn.] ACCESSOEY BEFORE THE FACT. § 666 indictment charging him as accessory ; ^ if he is an accessory, he cannot be held as principal.^ § 664. Separate Acts — (Both Principal and Accessory). — Yet, by separate acts, one may become both principal and accessory in the same felony: as, by commanding, another to kill a third per- son, rendering him an accessory when the murder is done ; and afterward joining with the person commanded in doing it, which makes him a princi^al.^ Also, — Accessory both Before and After. — By separate acts, a person may be both an accessory before, and an accessory after, the fact.* § 665. In statutory Felonies. — And, in a statutory felony, one may be an accessory, precisely as in a felony at the common law, unless special terms in the statute preclude this construc- tion.^ § 666. Accessory follows Principal. — An accessory follows, like a shadow, his principal.^ Thus, — Guilt not exceed Principal's. — He can neither be guilty of a higher offence than his principal ; nor at all guilty as accessory,^ unless his principal is guilty. For illustration, — In Petit Treason and Murder. -^ "When petit treason was an of- fence separate from murder,^ " if a wife or servant cause a stranger to murder the husband or master, and are absent when the mur- der is committed, they cannot be said to be accessories to petit treason, but to murder only ; because the offence of the principal is but murder. But if such wife or servant had been present when the murder was committed, they would have been guUty of petit treason, and the stranger of murder ; because, in respect to 1 Rex V. Gordon, 1 Leach, 4th ed. 515, 3 Inst. 139; Reg. u. Hilton, Bell C. C. 20, 1 East P. C. 352 ; Reg. v. Perkins, 12 Eng. 8 Cox C. C. 87. L. & Eq. 587 ; The State v. Larkin, 49 * Rex v. Blackson, 8 Car. & P. 43 ; N. H. 39. That in some respects this The State v. Coppenhurg, 2 Strob. 273. was formerly thought otherwise by some And see Rex i.. Dannelly, 2 Marshall, writers, see Foster, 361, 362. 471 ; Norton ^. People, 8 Cow. 137 ; 2 Course's Case, cited Foster, 349 ; Stoops v. Commonwealth, 7 S. & R. 491 ; Hughes V. The State, 12 Ala. 458 ; Hate- Bibithe's Case, 4 Co. 43 b. ly V. The State, 16 Ga. 346 ; The State v. 5 gtat. Crimes, § 139, 145, 775; Rex v. Dewer, 65 N. C. 572 ; McCoy «. The Bear, 2 Salk. 417, 418. State, 52 Ga. 287 ; Wicks v. The State, 6 Broom Leg. Max. 2d ed. 374 ; 4 Bl. 44 Ala. 398 ; The State v. Larkin, supra ; Cora. 36 ; 3 Inst. 139. Reg. V. Munday, 2 Fost. & F. 170. And ' See ante, § 651. see Rex v. Plant, 7 Car. & P. 575. « Ante, § 611. 8 2 Hawk. P. C. Curw. ed. p. 436, § 1 ; YOL. 1. 24 369 § 668 DIVISIONS AND DISTINCTIONS. [BOOK VI. such presence, they would have been principals^ in killing." ^ Again, — § 667. Convicted only with or after Principal. — Where no change in common-law rules has been made by statute, not only is it im- possible for one to be guilty as accessory unless there is a guilty principal, but he cannot be convicted except jointly with or after the principal, whose acquittal acquits him.^ According to what Hawkins esteems the better opinion, he may be indicted and arraigned before, yet can be tried before only with his consent.* After his conviction, judgment will not be arrested though the indictment does not allege the attainder of the principal.^ If there are several principals, the accessory may be tried in respect of such as are already attainted, before the attainder of the rest.^ But if, without his consent, he is tried as to all, and convicted generally, the conviction will not be good.'^ Some of these doc- trines, as concerns merely the procedure, are perhaps doubtful on authority, though believed to be as above stated. Indeed the earlier and later cases are not quite harmonious. In matter of evidence, — Proof, of Principal's Guilt — Where the accessory is tried after the principal, it is prima facie sufScient, in proof of the latter's guilt, to produce the record of his conviction.^ § 668. Omitting to sentence Principal. — The accessory is at common law so completely attached to his principal, that, if sen- tence is not passed on the latter's conviction (the consequence of which is called in the English law attainder), no judgment can 1 Ante, § 653. wealth v. Andrews, 8 Mass. 126; Com- 2 2 Hawk. P. C. Curw. ed. p. 442, § 15. monwealth v. Woodward, Thacher Crim. 8 The State v. Pybasa, 4 Humph. 442 ; Cas. 63. United States v. Crane, 4 McLean, 317 ; 5 Harty w. The State, 3 Blackf. 386. Whitehead v. The State, 4 Humph. 278 ; But see, on this point. Stoops v. Cora- Commonwealth V. Woodward, Thacher monwealth, 7 S. & R. 491. Crim. Cas. 63 ; 2 Hawk. P. C. Curw. ed. 6 Stoops v. Goramonwealth, 7 S. & E. p. 483, § 47 ; Baron v. People, 1 Parker 491 ; Commonwealth o. Knapp, 10 Pick. C. C. 246 ; The State v. Yancy, 1 Tread. 477 ; Starin v. People, 45 N. Y. 333. And 241 ; Sampson v. Commonwealth, 5 see The State v. Pybass, 4 Humph. 442 ; Watts & S. 385; Smith v. The State, 46 Whitehead v. The State, 4 Humph: 278; Ga. 298. See Loyd v. The State, 45 Ga. Commonwealth v. Woodward, Thacher 67 ; Brown u. The State, 18 Ohio State, Crim. Cas. 63. 496. ' Stoops V. Commonwealth, 7 S. & E. * 2 Hawk. P. C. Curw. ed. p. 451, 491 ; Starin v. People, supra. § 46 ; 2 Hale P. C. 224. See, for the con- s xhe State v. Chittem, 2 Dev. 49 ; trary doctrine as to the arraignment. Git- Commonwealth v. Knapp, 10 Pick. 477 ; tin's Case, l.Plow. 98, 99; Common- Crim. Proced. II. § 12. 370 CHAP. XLVn.] ACCESSOKY BEFORE THE FACT. § 669 be pronounced against the accessory. Thus, said Lord Hard- wicke : " Before the statute of 1 Anne, stat. 2, c. 9, if the prin- cipal was convicted only of a clergyable felony, and had his clergy allowed ; ^ or stood mute, or peremptorily challenged above the number of twenty jurors ; the accessory could not be arraigned. By this means accessories to very flagrant crimes frequently avoided all manner of punishment." ^ This statute is of a date too recent to be generally received as common law in this coun- try.^ It provides, among other things, that, " if any principal offender shall be convicted of any felony, or shall stand mute, or peremptorily challenge above the number of twenty persons returned to serve of the jury, it shall and may be lawful to pro- ceed against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding any such principal felon shall be admitted to the benefit of his clergy, pardoned, or otherwise delivered before attainder." But, — Death or Escape of Principal. — Since this provision was enacted, as well as before, if, for a cause not mentioned in it, as the escape or death of the principal, he is not attainted, the accessory can- , not be proceeded against.* Yet — Attainder Erroneous. — An erroneous attainder of the principal ^inreversed justifies proceedings against the accessory,^ though a reversal of it discharges him.^ Pardon. — A pardon of the principal, after he is not only con- victed but attainted, will in no way avail the accessory.^ American Statutes. — This common-law impediment is in some of our States removed by statute.* § 669. Deny Principal's Guilt. — Though the record of the principal's attainder is, as against an accessory tried sepa- rately, prima facie evidence of the guilt of the former,^ it 1 Stevens's Case, Cro. Car. 566, 567. & Ry. 241, 2 Leach, 4th ed. 928, note ; 2 Eex V. Burridge, 3 P. Wms. 439, 485. The State v. Duncan, 6 Ire. 236. And see 2 Hawk. P. C. Curw. ed. p. 450, « Marsh's Case, 1 Leon, 325. §41. See, as to Georgia, Loyd w. The ' Syer's Case, 4 Co. 436,- Bibithe's State, 45 Ga. 57. Case, 4 Co. 43 b ; s. c. nom. GofE v. Byby, 3 See post, § 700 and note. Cro. Eliz. 540. * Commonwealth v. Phillips, 16 Mass. » As to Virginia, see Commonwealth 423; The State v. McDaniel, 41 Texas, v. Williamson, 2 Va. Cas. 211. And see 229. post, § 670. * Eex V. Baldwin, 8 Camp. 265, Buss. ^ Ante, § 667. 371 § 670 DIVISIONS AND DISTINCTIONS. [BOOK VI. is not conclusive,^ being in a proceeding between other par- ties. § 670. statutes making Accessory a Principal. — If a contrary rule would be unjust ; so, in natural reason, it is unjust to hold the State concluded, in its prosecution of one person, by its fail- ure to convict another. Therefore, as already observed, legisla- tion has in some of the States directed, that proceedings may be carried on against the accessory, irrespective of the case against / the principal offender.^ The statutes are not all in these terms ; / but, in Massachusetts,^ Maine,* Missouri,^ Illinois,^ Ohio,^ Iowa,* California,^ Nevada,^" Kansas,^i and probably- some of the other States, the accessory before the fact is in law, as in reason, either actually or substantially a principal.^^ So he is in England, since the statute of 11 & 12 Vict. c. 46.i3 " Counsel or Procure." — In England, 24 & 25 Vict. c. 94, § 2, makes it felony to " counsel, procure, or command any other per- son to commit any felony ; " and this is held to include only those cases in which the felony persuaded to is committed ; the mere attempt, through solicitation, remaining a misdemeanor.'* " Before or after Principal." — The Indiana statute, after provid- ing punishments for persons abetting or counselling to a felony, and being accessories after the fact, proceeds : " Every person who shall be guilty of any crime punishable by the [above] provi- 1 Eex V. Smith, 1 Leach, 4th ed. 288 ; ° People v. Bearss, 10 Cal. 68 ; People Commonwealth v. Knapp, 10 Pick. 477 ; v. Trim, 39 Cal. 75 ; People v. Campbell, Kex V. Turner, 1 Moody, 347 ; Keithler 40 Cal. 129 ; People v. Outeveras, 48 Cal. V. The State, 10 Sm. & M. 192 ; The 19 ; People v. Shepardson, 48 Cal. 189. State V. Duncan, 6 Ire. 98. lo The State v. Jones, 7 Nev. 408 ; The 2 Crim. Proced. II. § 4. State v. Chapman, 6 Nev. 320. a R. S. c. 133, § 2 ; Gen. Stats, c. 168, n The State v. Cassady, 12 Kan. 550. § 4 ; as to the construction of which see '^ As to North Carolina, see The State The State v. Ricker, 29 Maine, 84. As v. GrofE, 1 Murph. 270 ; The State o. to the earlier law in Massachusetts, Goode, 1 Hawks, 463. As to Kentucky, see Commonwealth v. Knapp, 9 Pick. 496. see Able v. Commonwealth, 5 Bush, 698. * The State v. Ricker, 29 Maine, 84. " Reg. «. Manning, 2 Car. & K. 887, 6 Loughridge v. The State, 6 Misso. 903 ; Reg. v. Hughes, Bell C. C. 242. 594. The statute now regulating the subject 6 Baxter v. People, 3 Gilman, 368 ; in England is 24 & 25 Vict. o. 94. Brennan v. People, 15 111. 511, 516 ; Demp- See Greaves Crim. Law Acts, 2d ed. 18 ; sey V. People, 47 111. 323 ; Yoe v. People, Reg. v. Gregory, Law Rep. 1 C. C. 77. 49 111. 410. 14 Reg. o. Gregory, Law Rep. 1 C. C. 7 Noland v. The State, 19 Ohio, 131. 77, 10 Cox C. C. 459. 8 Bonsell ti. United States, 1 Greene, Iowa, 111. 372 CHAP. XLVII.] ACCBSSOEY BEFORE THE PACT. § 673 sions, may be indicted and convicted before or after the principal offender is indictied and convicted." And this is construed not to take away the common-law right of an accessory to be exempt from prosecution if the principal has been tried and acquitted. Even if a verdict has been rendered against him, then, if the prin- cipal is acquitted, the accessory may show the acquittal in bar of judgment, and demand his discharge.^ § 671. Further of the Statutes. — In Massachusetts, a statute in force before the present enactments provided, that, "if any per- son shall aid, assist, abet, counsel, hire, command, or procure, any person to commit the crime, &c., he is and shall be considered as an accessory before the fact to the principal offender or offenders, and, being thereof convicted, shaU. suffer the like punishment as is by law assigned for the crime to the commission of which he shall be so accessory ; " and this was held, not to impair the common- law distinction between principal and accessory. Consequently it did not refer to persons aiding and abetting at the fact, as princi- pals of the second degree.^ Moreover, statutes like these do not supersede the necessity of proving the guilt of the principal ; for, in the nature of things, one cannot procure what is not done, or receive the doer of what was never performed.* Where the ac- cessory is indicted separately from the principal, the latter's con- fession does not prove his guilt as against the former ; for, in this issue, it is mere hearsay.* II. Before the Fact in Felony. § 672. Doctrines of last Sub-title. — What is said in the last sub- title belongs also under this. It was separated from this because relating equally to the accessory after the fact. § 673. How defined. — An accessory before the fact is a person whose wiU contributes^ to a felony committed by another as principal,^ while himself too far away to aid in the felonious aet.'^ Nature and Origin. — The distinction between such accessory and a principal rests solely in authority ; being without founda- 1 McCarty v. The State, 44 Ind. 214. * Ogden v. The State, supra. 2 Commonwealth v. Knapp, 9 Pick. ^ Ante, § 628 et seq. 496. And see Stat. Crimes, § 142. « Ante, § 651. » Simmons i;. The State, 4 Ga. 465; ^ Ante, § 653. Ogden V. The State, 12 Wis. 532. 373 § 675 DIVISIONS AND DISTINCTIONS. [BOOK VI. tion either in natural reason or the ordinary doctrines of the law. The general rule of the law is, that what one does through another's agency is to be regarded as done by himself.^ And, even in felonies, the common law makes no distinction in the punishment between a principal az\d an accessory, — the crime of each being felony, of which the penalty was originally death.^ So likewise in morals, there are circumstances in which we attach more blame to the accessory before the fact than to his principal ; as where a husband commands his wife,^ or a master his servant, to do for his benefit a criminal thing which, in his absence,* is done reluctantly through fear or affection overpowering a sub- ject mind. How this distinction, then, came into the law, can only be conjectured ; probably it originated in the same confused legal apprehension from which sprang the now exploded distinc- tion between principals and accessories at the fact.* Having, however, become established as a technical rule, it cannot be removed by the courts.^ § 674. Not favored — (Statute interpreted). — Since, however, this distinction rests on no good foundation, our judges usually permit it to extend no further than compelled by the authorities. Consequently, where a statute in New York provided, that " aU suits, informations, and indictments for any crime or misde- meanor, murder excepted" should be brought within three years after its commission ; the word " murder " was held to include as well accessories before the fact as principals. " Writers on crimi- nal law," said Marcy, J., " make some difference between the offence of a principal and that of an accessory, but it is chiefly as to the order and mode of proceeding against them." ' , § 675. How distinguish Accessory, -rr In respect of the criminal ' intent, the rules of which have already been discussed, there is no distinction between the accessory before the fact and the prin- 1 Broom Leg. Max. 2d ed. 643 ; Co. ' See Rex v. Morris, 2 Leach, 4th ed. Lit. 258 a. " The principle of common 1096. law, Qni facit per aUum,facit per ee, is of * Ante, § 355, 359 ; post, § 678. universal application, both in criminal * Ante, § 648. and civil cases." Hosmer, C.J., in Bark- ^ See ante, § 275. For some unsatis- hamsted v. Parsons, 3 Conn. 1, 8. factory reasons by Blackstoue, see 4 Bl. 2 2 Hawk. P. C. Curw. ed. p. 440, § 11 ; Com. 39, 40. Foster, 343, 359 ; 4 Bl. Com'. 39 ; ante, ' People v. Mather, 4 Wend. 229, 255. § 646; Rex v. Higgins, 2 East, 5, 18, 19, Possibly the relation of the ^particular 21. words to their context might have influ- enced the construction. 374 CHAP. XLVn.] ACCESSORY BEFOEE THE FACT. § 677 cipal.^ In many instances, the accessory is tlie one in whose mind the idea of the crime originated, and he excites the doer to it. But the legal consequence is the same though the evil pur- pose is born in the mind of the latter, and the former encourages him therein.^ There must be, first, a principal ; * secondly, the accessory must not be so near him as to be able to render personal assistance ; because, if he is so able, he will be himself a principal.* Also, the thing counselled must be done,^ else the counselling will be only an indictable attempt. To illustrate, — § 676. In Murder of ChUd. — If, before the birth of a child, a person advises the mother to murder it when born, and she does so, the adviser is an accessory before the fact in the mui-der.^ And, — Uttering Forgery. — If several plan the uttering of a forged order, where this offence is felony by statute, and one of them utters it in the absence of the rest, he only is a principal, while the others are accessories.'^ Again, — Larceny in Dwelling-house -. — Burglary. — A servant, on a Satur- day afternoon, let a man into his master's house to rob it ; con- cealed him there till Sunday morning ; and then, by arrangement, left. The man, after the servant's departure, stole money ; and he was held to be rightly indicted as a principal in the larceny, and the servant as accessory before the fact.^ If the charge had been for the burglary of breaking into the house, both would have been principals.^ § 677. Accessory to an Accessory. — Where one employs an- other to procure a third to commit a felony, and it is committed, — in other words, becomes an accessory before the fact to another like accessory, — he is an accessory also to the third ; that is, to the principal.^" " And it 'will be sufficient, even though the accessory 1 Ante, § 204 et seq., 285 et seq. These English cases were decided under ^ Keithler v. The State, 10 Sm. & M. the misapprehension that the uttering 192. was felony. 3 See ante, § 649-651, 663-666. ' Reg. v. Tuckwell, Car. & M. 215. « See ante, § 653, 663. ' liex v. Jordan, 7 Car. & P. 432 ; « 1 Hale P. C. 622. ante, § 648, 649. » Parker's Case, 2 Dy. 186, pi. 2 ; 2 i° Rex v. Cooper, 5 Car. & P. 635 ; Mc- Hawk. P. C. Curw. ed. p. 443, § 18. Daniel's Case, Foster, 121, 125 ; 4 Bl. ^ Rex u. Badcock, Russ. & Ry. 249 ; Com. 37 ; 2 Hawk. P. C. Curw. ed. p. 436, Rex V. Scares, Russ. & Ry. 25, 2 East P. § 1. And see Reg. v. Williams, 1 Den. C. 974; Rex v. Else, Russ. & Ry. 142. C. C. 39; post, § 698. And see Rex v. Stewart, Russ. & Ry. 363. 375 § 679 DIVISIONS AND DISTINCTIONS. [BOOK VI. does not name the person to be procured, but merely directs the agent to employ some person." ^ § 678. Nature of the Offence. — A particular felony may be of a nature rendering it impossible there should be an accessory before the fact in it. Thus, — Manslaughter. — There Cannot be an accessory before the fact in manslaughter ; because, when the killing is of previous malice, it is murder.^ ' Plainly this is the ordinary doctrine, yet probably a form of manslaughter may appear, admitting of this accessory ; as, if one should order a servant to do a thing endangering life, yet not so directly as to make a death from the doing murder, it might be manslaughter, — then, why should not the master be an accessory before the fact in the homicide ? And — Principals of Second Degree. — There may be principals of the second degree in manslaughter.^ Also, — In Murder of Second Degree. — Murder of the second degree admits of accessories before the fact.* And — •Wife. — A wife may be an accessory before the fact in a crime by the husband.^ § 679. Petit Larceny. — In England, when our country was set- tled, larceny was divided into grand and petit, — the former being committed where the goods stolen were over twelve pence in value ; the latter, where they were of the value of twelve pence or under. " And this," observes Lord Coke, " was the ancient law before the Conquest." ^ In the year 1275, the statute of Westm. 1 (3 Edw. 1), c. 15, mentioned the minor offence as "petty larceny that amounteth not above the value of twelve pence." ^ " In these prosecutions," says East, following Lord Coke, " the valuation ought to be reasonable ; for, when the stat- ute (of Westm. 1, c. 15) ^ was made, silver was but 20c?. an ounce, 1 Parke, J., in Eex v. Cooper, supra. The State, 10 Ohio State, 459 ; under See Rex «. Giles, 1 Moody, 166; Com- tlie Indiana statute, GofE u. Prime, 26 monvvealth v. Glover, 111 Mass. 395. Ind. 196. 2 Bibithe's Case, i Co. 436; Goose's * Jones v. The State, 13 Texas, 168. Case, Sir F. Moore, 461 ; 2 Hawk. P. C. ' Reg. v. Manning, 2 Car. & K. 887. Curw. ed. p. 444, § 24. See Reg. v. Gay- « 8 Inst. 109. lor, Dears. & B. 288, 7 Cox C. C. 253, 40 ' And see 2 Russ. Crimes, Sd Eng. ed. Eng. L. & Eq. 556 ; Stipp v. The State, 1, and note ; 11 Law Mag. & Rev. 268. 11 Ind. 62. 8 Mr. East, by misprint, gives the 3 The State v. Coleman, 5 Port. 32. Stat, as Westm. 2, c. 25. And, under the Ohio statute, Hagan v. 376 CHAP. XLVn.] ACCESSORY BEFOEB THE PACT. § 680 and at the time Lord Coke wrote it was worth 5«., and it is now higher." ^ How punished — Abolished in England. — The leading distinction between grand and petit larceny was in the punishment ; both were felonies ; but the latter was never visited by death. The penalty was " only to be whipped, or some such corporal punish- ment," 2 understood afterward to be imprisonment,^ together with the same forfeiture of goods * as in grand larceny. Petit larceny was, in England, elevated to the higher degree by Stat. 7 & 8, 'Geo. 4, 0. 29, § 2.^ Petit Larceny in our States. — In this country, the distinction has been recognized as having a common-law existence, and in some of the States it seems fully to prevail, though perhaps more or less modified by legislation.^ There are States in which petit larceny is even reduced to misdemeanor.^ In North Carolina, a statute makes thefts of all kinds petit larcenies ; obliterating the distinction between the two grades, in a manner the opposite of that adopted in England.** In various other States, the distinc- tion has ceased to be of importance. § 680. No Accessories. — Where petit larceny is felony, still, in consequence of the smallness of the offence,^ it has no accessories. Those who, in grand larceny, would be accessories before the fact, are principals in petit larceny ; ^^ those who would be accessories after are not, it has been held, deemed criminal at all in petit > 2 East P. C. 736, referring to 2 Inst. State v. Murphy, 8 Blackf. 498 ; The 189, where Lord Coke says : " The things State v. Smith, Brayt. 143 ; The State v. stolen are to be reasonably valued, for Wheeler, 15 Rich. 362 ; Montgomery v. the ounce of silver, at the making of this The State, 7 Ohio State, 107 ; Jenkins «. act, was at the value of 20rf., and now it The State, 50 Ga. 258. is at the value of 5s. and above." And ^ Shay u. People, 22 N. Y. 317 ; Peo- sce 4 Bl. Com. 289. pie i;. Adler, 3 Parker C. C. 249, 254 ; 2 1 Hale P. C. 530. People o. Rawson, 61 Barb. 619 ; The « 2 East P. C. 737 ; 3 Inst. 218. Stote v. Gray, 14 Rich. 174 ; The State * Ante, § 615. v. Hurt, 7 Misso. 321. 5 2 Russ. Crimes, 3d Eng. ed. 1, 82. » The State v. Gaston, 73 N. C. 93. * The State v. Larumbo, Harper, 183 The State v. Wilson, 3 McCord, 187 The State v. Spurgin, 1 MoCord, 252 And see The State w. Minton, Phillips, 196. 9 See ante, § 212 et seq. ; The State a. The State v. Wood, 1 Mill, 29 ; The State Goode, 1 Hawks, 463 ; Chancellor Wal- V. Bennet, 2 Tread. 693 ; Ward u. The worth, in Ward v. People, 6 Hill, N. Y. People, 3 Hill, N. Y. 395, 6 Hill, N. Y. 144 ; Lasingtou's Case, Cro. Eliz. 750. 144; The State v. Goode, 1 Hawks, 463; i" The State v. Harden, 1 Dev. 518 ; 2 The State v. Barden, 1 Dev. 518 ; Car- East P. C. 743 ; Ward v. People, 3 Hill, penter v. Nixon, 5 Hill, N. Y. 260 ; The N. Y. 395, 6 Hill N. Y. 144.' 377 § 682 DIVISIONS AND DISTINCTIONS. [BOOK VI. larceny.^ In North Carolina, these rules apply to all larcenies, even of things of the greatest value ; because they are all by statute made petit.^ How it is of larcenies of small sums under statutes of a different sort in other States, and the late English enactment, we are not informed by adjudication. III. In Treason. § 681. In General. — In petit treason, never known in this country and abolished in England,^ there were accessories the same as in felony.* But in high treason, now simply termed treason, there are, say the books, no accessories either before or after the fact ; those who would be accessories in felonj'^ and petit treason being principals.^ This proposition, however, does not accord with the adjudged law as to the accessory after the fact ; ^ and, as to the accessory before, it requires some observation, though the present author accepts it as correct. § 682. No Accessories before. — To repeat, there are no acesso- ries before the fact in treason, but they who in felony would be such accessories are principals.^ Let us see what this doctrine implies. Regarded as Doers — (How the Indictment). — The consequence of this doctrine is, that, at the election of the pleader, the in- dictment may allege the criminal thing to have been done through the agency of another, or, omitting this, charge it di- rectly as the act of him who procured the doing, the proofs at the trial to proceed on the rule that what one does by an agent is in law his own aet,^ — either method according with the established 1 The State v. Goode, 1 Hawks, of Treason, 2 Wal. Jr. 134, 137 ; United 463. States .>. Hanway, 2 Wal. Jr. 139, 195 ; 2 The State v. Gaston, 73 N. C. ' Anonymous, Dalison, 16 ; Anonymous, J. 93. Kel. 19, Dalison, 14; Throgmorton's 8 Ante, § 611. Case, 1 Dy. 98 b, pi. 56 ; 1 East P. C. 93, « 4 Bl. Com. 36'; 1 East P. C. 338 ; 1 178, 186 ; Reg. v. Tracy, 6 Mod. 30, 82, Hawk. P. C. Curw. ed. p. 105, § 5 ; Anon- 12 Co. 81 ; Whitaker o. English, 1 Bay, ymous, Dalison, 16. 16 ; Chanet v. Parker, 1 Mill, 333 ; Rex 5 1 Hale P. C. 233, 237, 613 ; 3 Inst. t.. Bear, 2 Salk. 417 ; s. c. nom. Rex v. 16, 138 ; Foster, 341 ; 4 Bl. Com. 35, 36 ; Beare, 1 Ld. Raym. 414; Somervile's 1 Hawk. P. C. Curw. ed. p. 15, § 39 ; 2 Case, 1 Anderson, 109. lb. p. 487, § 1 ; 1 Hume Crim. Law, 2d « Post, § 701. ed. 525, 526, note, where the Scotch law 7 Ante, § 681. appears to be the same ; Charge on Law 8 Ante, § 673. 378 CHAP. XLVn.] ACCBSSOBY BEFOEE THE PACT. § 683 practice in all other pleadings, civil ^ and criminal.^ That such is the only meaning which this doctrine can have is plain ; because the distinction between the accessory before the fact and his principal, in felony, is merely in the form of the allegation, and in the order of the trial ; while, as we have seen,^ the accessory would be a principal but for a technical rule of the old common law, introduced into it by a blunder, against reason, and against all its other teachings in both civil and criminal procedure. § 683. So in Authority. — The authorities also seem to establish, that the allegation in the indictment against one who has pro- cured a treason may be in form as above stated.* But — Contrary — (Order of Trial). — Lord Hale has transmitted to us his private opinion, not based on adjudication, that, in the order of trial, the procurer should not be convicted except after or with the person who did the act.^ This expression has been echoed by later writers : ^ and, on the trial of Aaron Burr before Mar- shall, C. J., for the high treason of levying war against the United States, the counsel for the defendant argued that the English law is so ; the counsel for the United States, quite against the inter- est of the prosecution, conceded the point ; and the learned chief- justice, in his opinion, fell into the current ; not, however, deciding absolutely the question.^ 1 Brucker v. Fromont, 6 T. E. 659 ; ^ United States v. Burr, 4 Cranch, Heys V. Heseltine, 2 Camp. 604 ; CoUis 469, 604, Burr's Trial, passim. Too V. Eraett, 1 H. Bl. 313, 321 ; Feltmakers many Counsel and too Eminent. — V. Davis, 1 B. & P. 98, 102 ; 2 Chit. Plead. This was a case of immense public inter- 117, note; Lawes on Assumpsit, 110, 111. est and notoriety; and, on each side, ^ Reg. V. Tracy, 6 Mod. 30, 32 ; United were employed several very eminent States u. Morrow, 4 Wash. C. C. 733; lawyers. The reader, therefore, need not and other cases cited post, § 685, 686 ; be surprised at finding it within the com- Crim. Proced. I. § 332. mon fact, that, in proportion as a case * Ante, § 673. attracts the public attention, and the * 1 Hale P. C. 214, 238 ; 1 Gab. Crim. counsel (engaged in it are multiplied, it Law, 895 ; 1 East P. C. 127 ; Keg. i;. increases in learned fervor, but dimin- Tracy, 6 Mod. 30, 32 ; Rex v. Toy, Vern. ishes in true wisdom and the genuine & S. 540. See United States v. Burr, 4 learning of the law. A principal reason Cranch, 469, 470, 496-498. is, that no one of the half-dozen or dozen 5 2 Hale P. C. 223. lawyers on a side feels a particular re- 8 Foster, 346 ; 1 East P. C. 100, 101 ; sponsibility for those parts of the per- 1 Gab. Crim. Law, 889. Hawkins, how- formance which, with the honor follow- ever, lays down the true doctrine; but in g, are necessarily shared in common; one of his editors. Leach, following Lord while each is impelled, by the instincts Hale, sets him wroTy. 2 Hawk. P. C. 6th which go out after Ume, to lift his indi- ed. c. 29, §^2, Curw. ed. p. 437, § 1 and vidual light as high as possible, in the note. presence of a community better able to 379 §685 DIVISIONS AND DISTINCTIONS. [book VI. § 684. Further Explanation. — Lord Hale, to whom the misap- prehension is thus traced, says, in another place, the same thing of the principal in the second degree in felony ; namely, that he should not be tried in advance of the principal in the first degree.^ But this doctrine, we have seen,^ was long ago exploded. As to treason, the mistake of this eminent person may have arisen from not distinguishing the procurer of the treason from him who after- ward receives the traitor.^ And it is believed, that, in spite of the doubts created by Burr's case, a man may, according to the law of this country, commit treason without being present at the overt act ; and may be prosecuted in advance of those who were present.* Still the authorities to this proposition are not very distinct. IV. In Misdemeanor. §685. All are Principals — (How Procurers indicted). — The authorities concur, that, in misdemeanor, there are no accessories either in name or in the order of the prosecution. When, there- judge of eloquence tlian of law. Be- sides, a man who is not answerable for the whole of even a subdivision cannot well bring his mind to so minute and ex- act a study of the entire case as is often indispensable to his seeing any one ob- ject, in any one part of it, correctly and clearly. This may be an infirmity of his nature ; but it is inherent in the human mind, and no integrity, station, calling, or learning can rise entirely superior to it. Again, if the lawyers employed are men who feel themselves to be very emi- nent, the care of each, which is necessa- rily given most to what is most impor- tant, is to sustain his position, rather than evolve true legal doctrine and win a just cause. A great case requires more lawyers than one on a side, because it involves more hard work than one can do. But they should not be unduly multiplied. And an eminent lawyer is not so good as a truly able one. Occa- sionally a lawyer is both able and emi- nent ; then, in a trial, his ability is of service, but his eminence is an impedi- ment. An eminent lawyer without abil- ity is always a damage. Judge and jury resist what they deem the danger of 380 being captured by his wiles ; and, when they find nothing proceeding from him worthy of regard, they conclude that the fault is in his cause, and lean against it, and forbear to exercise their own inge- nuity in the discovery of merits which otherwise they might see. It would be interesting to draw, as I might, illus- trations of these views from several notorious cases, but I forbear. 1 1 Hale P. C. 613. ■■i Ante, § 648. 8 See post, § 692. * Charge on Law of Treason, 2 Wal. Jr. 134, 137 ; United States v. Hanway, 2 Wal. Jr. 139, 195 ; Ex parte BoUman, 4 Cranch, 75. And see Throgmorton's Case, 1 Dy, 98, pi. 56. Judge Tucker combats this doctrine. See 4 Bl. Com. Tucker ed. Appendix, 49, and at various other places. The following from Lord Coke is as sound in common sense as in law : " All agree, that procurers of such treason to be done, before the fact done, if after the fact be done accordingly, in case of treason, are prirtcipals ; for that they are participes criminis in the very act." 8 inst. 138. CHAP. XLVII.] ACCESSORY BEFORE" THE FACT. § 686 fore, one sustains in misdemeanor a relation which in felony makes an accessory before the fact, if what he does is of sufficient magnitude,'' he is to be treated as a principal ; the indictment charges him as such, and, unless the pleader chooses, it does not mention that the act was through another ; ^ and he may be pro- ceeded against either in advance of the doer, or afterward, or jointly with him.^ Thus, — § 686. Assault and Battery — Betting on Election — Passing Counterfeits — False Imprisonment — Selling Liquor — Obstructing Way — Burning Building — False Pretences — Bavrdy-House. — If one employs another to commit an assault and battery ; * or to bet for him on an election ; ^ or to pass counterfeit money, where this offence is misdemeanor ; ^ or to make an arrest, amounting to an indictable false imprisonment ;'' or to sell, contrary to a statute, intoxicating liquor without license ; * or to throw dirt into the highway, being a common-law nuisance ; ^ or to set fire to a building, where the burning is misdemeanor ; i" or to obtain money for him by false pretences ; '^ or to keep a bawdy-house ; ^^ the employer may be indicted, as doing the thing, either before or after or with the person whom he employs. 1 Ante, § 212 et seq. ler, 5 Ohio, 250, a civil c'aae ; Greer v. 2 See ante, § 682. Emerson, 1 Tenn. 12, a civil case ; Baker 8 2 Hawk. P. C. Curw. ed. p. 437, § 2 ; v. The State, 12 Ohio State, 2U. The State v. Cheek, 13 Ire. 114 ; The = Williams u. The State, 12 Sm. & State V. Westfield, 1 Bailey, 132 ; Wil- M. 68. liams V. The State, 12 Sm. & M. 58 ; ^ 2 East P. C. 073 ; United States v. United States v. Morrow, 4 Wash. 0. C. Morrow, 4 Wash. C. C. 733; The State 733 ; Eloyd v. The State, 7 Eng. 43 ; Cur- v. Cheek, 13 Ire. 114 ; Reg. v. Greenwood, lin V. The State, 4 Yerg. 143; Reg. v. 2 Den. C. C. 453, 9 Eng. L. & Eq. 535. Clayton, 1 Car. & K. 128 ; Rex v. Dixon, ' Floyd v. The State, 7 Eng. 43 ; Reg. 3 M. & S. 11, 14 ; Commonwealth v. Mc- v. Tracy, 6 Mod. 178. Atee, 8 Dana, 28 ; The State u. Lym- " The State v. Dow, 21 Vt. 484 ; burn, 1 Brev. 397 ; Reg. v. Tracy, 6 Mod. Commonwealth v. Nichols, 10 Met. 259; 30, 32 ; Reg. v. Greenwood, 2 Den. C. C. Schmidt v. The State, 14 Misso. 137 ; 453, 9 Eng. L. & Eq. 535 ; Reg. v. Mo- The State v. Anone, 2 Nott & McC. 27 ; land, 2 Moody, 276 ; United States «. The State v. Borgman, 2 Nott & McC. Mills, 7 Pet. 138 ; Rex v. Douglas, 7 Car. 34, note ; Smith v. Adrian, 1 Mich. 495. & P. 644; Rex v. Jackson, 1 Lev. 124; And see The State v. Brown, 31 Maine, Uhl V. Commonwealth, 6 Grat. 706 ; Com- 520 ; The State v. Stewart, 31 Maine, 515 ; . monwealth v. Gillespie, 7 S. & R. 469, ante, § 658. 478 ; Sanders o. The State, 18 Ark. 198 ; » Tuberville v. Stampe, 1 Ld. Eaym. Stratton v. The State, 45 Ind. 468 ; Low- 264. enstein v. People, 54 Barb. 299; Riley v. i" Reg. v. Clayton, 1 Car. & K. 128. The State, 43 Missis. 397. " Reg. v. Moland, 2 Moody, 276. * The State v. Lymburn, 1 Brev. 397 ; ^ Ross v. Commonwealth, 2 B. Monr. Rex V. Jackson, 1 Lev. 124 ; BeU v. Mil- 417. 381 §689 DIVISIONS AND DISTINCTIONS. [spOK VI. § 687. Intent to concur with Act. — For one to be guilty, his intent must concur sufficiently with his act.^ And — § 688. Small Offences — (Liquor Selling). — For reasbns already mentioned,^ the accessorial act must draw closer to the principal one as the misdemeanor is lighter. Yet in a small offence, like the selling of intoxicating liquor without license,^ if the one who instigates to the act is also to be benefited by it, he is, though absent, criminally responsible.* The agent in these cases is like- wise, we have seen, responsible.^ Again, — Preventing Inquest — (Mistake of Law) . — Where the captain of a man of war, mistaking his legal duty,^ had prevented the coroner from taking an inquest on the body of a man hanged in his ship, the court, granting an information, refused to proceed also against his boatswain, who had participated in the transac- tion under his order.'^ Yet an information is in a measure dis- cretionary with the court, and on an indictment it may be the boatswain would have been deemed liable. § 689. Crimes of Peculiar Nature. — There are crimes which in their nature can be committed only by a personal doing of the forbidden thing.® They are probably not so numerous as might seem on the first impression. Thus, — Rape. — A boy physically incapable or a woman may become a principal offender in rape, by abetting a capable person.^ Surely, therefore, most other offences can be committed in like manner.. And — Statutory Offences. — The offences of this sort are chiefly such as are created by the special terms of a statute.^" 1 Ante, § 628 et seq. ; The State v. « See Stat. Crimes, § 145 ; ante, § 364, PoUok, 4 Ire. 303 ; The State v. Hunter, 369 ; Eex v. Douglas, 7 Car. & P. 644 6 Ire. .369. Commonwealth v. Dean, 1 Piuk. 387 2 Ante, § 212 et seq. 657-669. Mount v. The State, 7 Sm. & M. 277 3 See ante, § 685, 686, and the author- O'Blennis v. The State, 12 Misso. 311 ities there cited. Vaughn v. The State, 4 Misso. 530. * Stat. Crimes, § 1024. And see ante, » Vol. II. § 1135. § 673. 10 See the first note to this section ; s Ante, § 658 ; Stat. Crimes, § 1024. ante, § 657, 658 ; Stamper v. Common- 6 Ante, § 294. wealth, 7 Bush, 612. ' Rex V. Solcguard, Andr. 231, 234, 235. 382 CHAP. XLVin.] ACCESSOEY APTEK THE FACT. § 692 CHAPTER XLVIIL THE ACCESSORY: AFTER THE EACT, AND THE LIKB.^ § 690, 691. Introduction. 692-700 a. As to Felony. 701-704. As to Treason. 705-708. As to Misdemeanor. § 690. Scope of this Chapter. — On the " Diagram of Crime," ^ the subject of this chapter is represented within E F L M. It includes the accessory after the fact proper in felony, and those who sustain the like relation in treason and misdemeanor. § 691. How divided. — Having, under the fi^st sub-title of the last chapter, considered the general law of the accessory, we shall, in this chapter, examine the special doctrines pertaining to the accessory after the fact, I. As to Felony ; II. As to Treason ; III. As to Misdemeanor. I. As to Felony. § 692. AooesBory after defined. — An accessory after the, fact is a person who, knowing a felony to have been committed, harbors the felon, or renders him any other assistance to elude punishment.^ On vrhat Principle punished — (Concurring Act and Intent). — According to general principles, we have seen, one by corruptly consenting to a criminal fact already accomplished by another does not become a partaker in the guilt of the doer ; because, only when an act and evU intent concur in point of time, is a crime committed.* An accessory after the fact is not one who is made answerable for the principal's offence in violation of this 1 See Crim. Proced. II. § 1 et seq. "knowing a felony to have been com- 2 Ante, § 602. mitted, receives, relieves, comforts, or » Rex V. Greenacre, 8 Car. & P. 35. assists the felon." 4 Bl. Com. 37. Blackstone, following 1 Hale P. C. 618, * Ante, § 207, 642. defines such accessory as a person who, 383 § 693 Divisioi>rs and distinctions. [book vi. rule. An accessory before is within the rule itself, but an acces- sory after is different. The ground of his liability seems to be, that the harboring or assisting constitutes a separate crime. And we may presume, as explaining the origin of- the doctrine, that anciently the helping of a felon to elude punishment was deemed worthy of the same condemnation as the act of him who was helped ; ^ that the judges, who gave shape to our common law, thought it not safe, in a capital case, to convict the one rendering the assistance in advance of the one assisted ; and, therefore, this second offence, philosophically independent of the first, was called accessorial, and its perpetrator an accessory. To distin- guish him from an accessory before the fact, who is punishable from a different reason,^ he was termed an accessory after the fact. The law on this subject is not easily vindicated if this view of it is not correct.^ § 693. Felony completed. — If, when one assists a felon, the felony is not fully accomplished, he becomes a principal with the other.* It is only help given subsequently to the completion of the felony that can make him an accessory after the fact.^ And, — Guilt known. — To be an accessory after the fact, a man must be aware of the guilt of his principal.^ Therefore — Helping escape. — One cannot become such an accessory by helping a prisoner convicted of felony to escape, unless he has notice of the conviction, or, at least, of the felony committed.'' So,— In Homicide. — On this ground, and also, according to some opinions, because of the non-completion of the felony, if a man 1 Ante, § 321, 673. Whoever after the commission of the 2 Ante, § 673. crime, and without preliminary stipula- 8 Austrian Law of Accessory. — Ac- tion, gives assistance to the criminal, or cording to the penal code of Austria, divides the spoils with him, is not equal- " The immediate criminal is not alone ly guilty, but by those acts becomes guilty of a crime, but also he who, by guilty of another and special crime." command, counsel, instruction, or praise, Sanford Penal Codes in Europe, 96. prepares the offence, or intentionally has * Ante, § 642, 649, 650. rendered assistance towards the execu- ^ 4 iji. Com. 38. tion of the same, or towards removing « Rex v. Burridge, 3 P. Wms. 439, the obstacles to its commission ; lastly, 493 ; Rex v. Greenacre, 8 Car. & P. 35 ; lie who has stipulated with the offender 4 Bl. Com. 87 ; 1 Hale P. C. 823, 622 ; beforehand to give him criminal assist- Reg. v. Butterfleld, 1 Cox C. C. 39 ; ante, ance after the deed, or to participate § 301-303. with him in the gain arising therefrom. ' Rex v. Burridge, supra. 384 CHAP. XLVni.J ACCESSOEY AFTER THE FACT. § 695 has of malice aforethought inflicted a blow on another, a third cannot become an accessory after the fact in the murder, by harboring the murderer, until death has rendered the result of the blow certain.^ § 694. How far Assistance proceed — (Compounding — Mispris- ion). — Compounding a felony,^ and a misprision of it,^ are severally wrongs of the like nature with that of becoming an accessory after the fact in it, but are less helpful to the felon and of milder degrees of turpitude. When, therefore, the thing done amounts to no more than a compounding of the felony, or a mis- prision of it, the doer will not be an accessory. Thus — Neglect to prosecute or arrest — Taking back Goods stolen, &c. — A person will not be such, who merely neglects to make known to the authorities that a felony has been committed, or forbears to arrest the felbn,* or agrees not to prosecute him. A fortiori, one does not become an accessory who merely receives back his own stolen goods,^ or charitably supplies a prisoner with food ; ^ for neither of these acts is any offence. § 695. The- Test. — The true test, whether one is an accessory after the fact or not, is, whether what he did was by way of per- sonal help to his principal, to elude punishment, — the kind of help being unimportant.'' Thus, — Escape — Money — Victuals — Instruments to break Prison' — Bribing Jailer. — He is an accessory who, with the requisite knowledge and intent, furnishes the principal felon "with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a felon to enable him to break jail, or to bribe the jailer to let him escape, makes a man an accessory to the felony." ^ But — Keeping 'Witness away. — One is not thus chargeable who, by persuasion or intimidation, keeps a witness from appearing against 1 2 Hawk. p. C. Curw. ed. p. 448, § 35 ; Curw. ed. p. 444, § 23, and p. 447, § 29 ; Harrel v. The State, 39 Missis. 702. As Wren v. Commonwealth, 25 Grat. 789. to whether the blow is murder before 5 i Hale P. C. 619 \ 2 East P. C. 743. death, see ante, § 113-115 and note ; Reg. « 1 Hale P. C. 620 ; 4 Bl. Com. 38. V. O'Brian, 1 Den. C. C. 9, 3 Car. & K. '' See 2 Hawk. P. C. Curw. ed. p. 445- 115. 457, § 26-31 ; Rex v. Lee, 6 Car. & P. 636 ; 2 Post, § 709 et seq. Beg. v. Chappie, 9 Car. & P. 355 ; Loyd 8 Post, § 716 et seq. ». The State, 42 Ga. 221. • 1 Hale P. C. 618, 619; 2 Hawk. P. C. 84 b1. Com. 38. TOL. I. 25 385 § 698 DIVISIONS AND DISTINCTIONS. [BOOK VI. the felon on his trial ; ^ though such conduct is punishable as a misdemeanor.^ § 696. Substantive Felony. — A substantive felony is one de- pending on itself alone, and not on another felony to be first established by the conviction of the person who directly com- mitted it.^ Now, — Accessories distinguished. — We should not confound the guilt of him who commits a substantive offence with his who becomes an accessory after the fact. Yet, in various circumstances, the prosecuting power may hold an offender for the one or the other, at its election. ' Thus, — § 697. Prison Breach, Rescue, Escape. — In discussing prison breach, rescue, and escape, in the second volume, we shall see illustrations of this.* One mode of helping a felon is to rescue him from lawful confinement, either before or after his conviction ; and the rescuer may be indicted for the substantive offence of rescue, or for being an accessory after the fact in the other's fel- ony, at the election of the prosecutor.^ The idea on which the prosecution proceeds differs a little in the tw;o forms, but not essentially. If a man is committed on a charge of felony, though only awaiting his trial, the rescuing of him, or helping of him to break prison, is a distinct felony, equally whether he is guilty or not : when the commitment is on a charge of misdemeanor, it is, irrespective of the question of his guilt, a misdemeanor.^ Still, where the commitment is for felony, the rescuer is also, or may be, an accessory after the fact in it ; and, as the crime of the accessory is itself felony,^ it is immaterial with which form of felony he is charged. § 698. Accessory after to Accessory before. — Since, also, acces- sories in felony, whether before or after the fact, are felons,* a man may become an accessory after, by helping the accessory 1 Eoberts's Case, 3 Inst. 139 ; Reg. v. Cent. 171 ; ante, § 321 ; Anonymous, 1 Chappie, 9 Car. & P. 855. Dy. 99, pi. 60 ; Kyle v. The State, 10 Ala. 2 Roberts's Case, supra ; ante, § 468. 236 ; The State v. Murray, 15 Mains, 100 ; 8 The State v. Rieker, 29 Maine, 84. Reg. v. Allan, Car. & M. 295 ; People v. * Vol. II. § 1064 et seq. Duell, 3 Johns. 449 ; Rex v. Stokes, 6 6 See, as affording much light on this Car.& P. 148 ; Commonwealth v. Miller, question, Rex v. Burridge, 3 P. Wms. 2 Ashm. 61 ; Rex v. Haswell, Russ. & Ry. 439, 483-485, 493; Commonwealth v. 458. Miller, 2 Ashm. 61. 7 Ante, § 673 ; post, § 700 a. 6 1 Gab. Crim, Law, 305, 310 ; Jenk. 8 Ante, § 673. CHAP. XLVin.] (ACCESSORY AFTEB THE PACT. § 700 before, the same as by helping the principal felon, to elude jus- tice.^ And such accessory after is deemed an accessory to the principal felon.^ He would seem, on principle, to be likewise an accessory to the other accessory. How in Manslaughter. — We have seen, that, in general, man- slaughter admits of no accessories before the fact ; ^ it does, how- ever, admit of acces-sories after the fact.* § 699. Receiving Stolen Goods. - — The receiver of stolen goods, knowing them to be stolen, is not, within oui- definition, an acces- sory ; because he renders no personal help to the thief.* At common law he is indictable for the misprision ^ of knowing the felon and neglecting to prosecute him ; or, if he had agreed not to prosecute him, or to pursue him but faintly, his offence would be compounding felony.^ But, in England, by 3 Will. & Mary, c. 9, § 4, the receiver was made an accessory after the fact ; ^ the consequence of which was, that he could be punished only as an accessory, agreeably to the rule stated in " Statutory Crimes," ® that, when a misdemeanor is by statute made a felony, the offence is no longer indictable as a misdemeanor.^" Stat. 5 Anne, c. 31, § 5, confirmed that of William & Mary ; and § 6, as also 1 Anne, stat. 2, c. 9, § 2, provided, that, where the principal felon could not be taken, the receiver of the stolen goods might be prosecuted separately for the misdemeanor." By the later and present Eng- lish law, the receiver of stolen goods may be proceeded against for felony, as a substantive offence, without any reference to the principal offender.^^ § 700. How in our States. — The statutes just mentioned, of 1 2 Hawk. P. C. Curw. ed.' p. 436, § 1. ^ Stat. Crimes, § 174. See as to the lavF of Tennessee, The i» 2 East P. C. 744; Foster, 373; 4 BI. State V. Payne, 1 Swan, Tenn. 383. Com. 133. 2 Eex V. Jarvis, 2 Moody & E. 40 ; » 2 East P. C. 744, 745 ; Foster, 373, Eeg. V. Parr, 2 Moody & R. 346 ; Cassels 374 ; 4 Bl. Com. 133. And see Eex v. V. The State, 4 Yerg. 149 ; Wright v. The "Wilkes, 1 Leach, 4th ed. 103, 2 East P. C. State, 5 Yerg. 154. And see ante, § 677. 746 ; Eex v. Pollard, 8 Mod. 264, 265. » Ante, § 678. See ante, § 668. 4 Rex V. Greenacre, 8 Car. & P. 35. i^ Rex v. Solomons, 1 Moody, 292 ; 5 Loyd V. The State, 42 Ga. 221 ; Peo- Eex v. Pulham, 9 Car. & P. 280 ; Eex v. pie «. Stakem, 40 Cal. 599. "Wheeler, 7 Car. & P. 170 ; Eex w. Hart- 8 Post, § 717 et seq. all, 7 Car. & P. 475 ; Eex v. Austin, 7 Car. 7 2 East P. C. 743, 744 ; 4 Bl. Com. & P. 796. And see Rex v. "Wyer, 1 Leach, 38, 133 ; 1 Hale P. C. 619 ; 2 Hawk. P. C. 4th ed. 480. The crime of the receiver, Curw. ed. p. 447, § 30 ; Foster, 373. however, is not, like that of the principal, 8 The State v. Butler, 3 McCord, 383. larceny. People v. Maxwell, 24 Cal. 14. 387 § 701 DIVISIONS AND DISTINCTIONS. [BOOK VI. William & Mary, and of Anne (A. D. 1691^1706), are subsequent to the settlement of the older colonies 'which became our original States ; therefore, on principle, they are common law in not all of the States.^ But in most, and perhaps all, the legislative power has made provisions, following the English ones, whereby the receiving of stolen goods is punishdble separately from the larceny of them, either as felony or as misdemeanor.^ § 700 a. Offence of Accessory is Felony. — The offence of an accessory, whether before or after the fact, is, like his principal's, felony.^ II. As to Treason. § 701. In General. — The books tell US, that there are no acces- sories after the fact in treason ; but they who in felony would be such, are, in treason, principals. Yet these persons are practically treated, by whatever name called, in every particular as accesso- ries ; the charge in the indictment against them must specify the accessorial nature of their offence, and they cannot be convicted in advance of the one by whose direct volition t.he traitorous act was performed.* Evidently, therefore, it is a mere abuse of terms to call them principals ; for they are really accessories. The English common law, however, makes them traitors ; ^ just as it makes accessories after the fact in felony felons. 1 Kilty, in his Report of Statutes, 276 ; The State v. Sanford, 1 Nott & McC. says : " The 4th section [of the statute b\i ; The State a. Coppenburg, 2 Strob. o£ William & Mary], which made the re- 273 ; Commonwealth i\ Frye, 1 Va. Cas. ceiver of stolen goods an accessory to the 19 ; The State v. Weston, 9 Conn. 527 ; felony, did extend to the province [of Cassels a. The State, 4 Yerg. 149 ; Maryland], as appears by cases of prose- Wright v. The State, 6 Yerg. 154; Swag- cutions under it, as did also those of 1 gerty «. The State, 9 Yerg. 338 ; The Anne, c. 9, and 5 Anne, c. 31, by which State v. Ires, 13 Ire. 338 ; Commonwealth such receiver was liable to be prosecuted v. Elisha, 3 Gray, 460 ; Bieber u. The for a misdemeanor before the conviction State, 45 Ga. 569. of the principal offender ; but both these ^ 4 b1. Com. 39 ; 2 Hawk. P. C. c. 20, cases are provided for by the act of 1809, § 11 ; Crim. Proced. II. § 7. And see c. 138." p. 179, 180. And see The State Long v. The State, 1 Swan, Tenn. 287 ; V. Butler, 3 McCord, 383 ; Loyd v. The ante, § 673. State, 42 Ga. 221. 1 1 Hale P. C. 233, 237, 238 ; 2 Hawk. •i See People u. Wiley, 3 Hill, N. Y. P. C. Curw. ed. p. 437, 441, § 3, 14; 1 194 ; Rohan v. Sawin, 5 Cush. 281 ; Com- East P. C. 101 ; Foster, 341 et seq. monwealth v. Andrews, 2 Mass. 14 ; The ^ Bensted's Case, Cro. Car. 683. State V. S. L.,2 Tyler, 249; The State v. There was doubt anciently, whether the Counsil, Harper, 53 ; The State «. Butler, guilt of the receiver of a traitor rose 8 McCord, 383 ; The State v. Scovel, 1 above misdemeanor. 1 Hale P. C. 233, Mill, 274 ; The State v. Harkness, 1 Brev. 234; 2 Hawk. P. C. Curw. ed. p. 437, § 3. CHAP. XLVm.] ACCESSORY AFTER THE PACT. § 704 §702. How in Statutory Treasons. — The English statutes of treason were evidently intended to abolish all common-law trea- sons ; ^ yet they have not been always, in all respects, so inter- preted.2 And if the view, that the accessory after the fact is j really guilty, not of his principal's crime, but of a distinct one of ' his own, suggested several sections back,^ i^ correct, it follows, that, where the treason is statutory, he is not a traitor under the statute, but at the common law : just as, when a legislative enact- ment forbids a thing, yet provides no penalty, the person violating it is indictable at the common law, not under the enactment ; or as an unsuccessful attempt to commit a statutory crime is a com- mon-law offence, — doctrines already explained in these pages.* § 703. Under United States Constitution — (State Constitutions}. — From this view it follows, that, under the Constitution of the United States, and State constitutions on the same pattern, the accessory after the fact is not a traitor. As against the United States, we have seen, not only there are no common-law crimes,^ but the Constitution prohibits any thing not mentioned in it from being made treason. Its words are : " Treason against the United States shall consist only in levying war against them, or in adher- ing to their enemies, giving them aid and comfort." ^ But — Misprision. — Doubtless the receiver of a traitor is guilty of a misdemeanor, within the act of Congress concerning misprision of treason.'^ § 704. In states having Common-law Offences. — Even in States where the common law prevails, — if the question arises under a constitution providing that treason against the State shall consist only, &c., — the effect of the negative " only " must be to exclude 1 See Rex v. Speke, 3 Salk. 358 ; 1 Harg. St. Tr. 63, 72, 1 Howell St. Tr. Hale P. C. 86, 89; 1 Gab. Criin. Law, 869,889. And Lord Coke, with this stat- 882 ; 4 Bl. Com. 76 ; 1 East P. C. 65 ; 1 ute before him, said : " High treason is Hawk. P. C. Curw. ed. p. 7, § 2. either by the common law or by aut of 2 4 Bl. Com. Tucker ed. App. 16 ; 1 Parliament ; " and he went on to men- Hale P. C. 236, 237 ; 1 Gab. Crim. Law, tion the receiving, comforting, and aid- 885. " You are deceived to conclude all ing of " any man who committeth high treasons be by the statute of 25 Edw. 3 ; treason," as an " example " of treason at for that statute is but a declaration of the common law. 3 Inst. 138. certain treasons, which were treasons be- ^ Ante, § 692. fore at the common law. Even so there * Stat. Crimes, § 138 ; ante, § 237. do remain divers other treasons at this And see 1 East P. C. 96. day at the common law, which be not ex- ' Ante, § 198. pressed by that statute, as the judges * Const. U. S. art. 3, § 8. can declare." Throckmorton's Case, 1 ' Post, § 722. 389 § 707 DIVISIONS AND DISTINCTIONS. [BOOK VI. common-law treasons.^ But in such States it would seem, from principles already laid down,^ that the accessory after the fact to the treason is a felon. Yet his felony must remain acces- sorial to the treason, and retain also the peculiar quality of admit- ting the procurer to sustain to it the same legal relation as the doer.^ This question, however, both as concerns the States and the United States, is one on which we have no light of authority ; only there has been manifested an undefined repugnance to ac- cepting in this country the entire English doctrine of accessorial treason.* III. As to Misdemeanors. § 705. In General. — Those who would be accessories after the fact in felony and treason are not such in misdemeanor. When their offence is cognizable at all by the criminal law, it is itself a distinct misdemeanor.^ § 706. SmaU Offences. — There are under this head things too small for the law's notice.^ Therefore — Receiving Vagrant — One charged with Bastardy. — No indictment lies for entertaining a vagrant knowingly ; "^ or for harboring one against whom there is a warrant in a bastardy case, knowing him to be guilty.^ Indeed, — § 707. Receiver in Other Misdemeanors. — If we were to look merely for direct adjudications, we might doubt whether the assisting of a person, guilty of any mere misdemeanor, to elude justice, is cognizable by the criminal law. Bxit — Escapes in Misdemeanor. — A constable has been held to be indictable for suffering a street-walker, delivered to his custody by one of the night watch, to escape.^ And we have seen,^" that, generally, escapes and prison breaches are punishable when the offence charged or committed is a misdemeanor, the same as when it is a felony.^i 1 Stat. Crimes, § 151, 152. « Ante, § 212 et seq. = Ante, § 612. 1 Bex v. Langley, 2 Ld. Raym. 790. 3 Ante, § 612, 698. 8 Vaughan's Case, Popliam, 134, 2 * United States v. Burr, 4 Cranch, Eol. Abr. 75. 469, 470. 9 Kex v. Bootie, 2 Bur. 864 ; s. c. nom. 6 2 Hawk. P. C. Curw. ed. p. 438, § 4 ; Eex v. Booty, 2 Keny. 575. 1 Hale P. C. 684 ; 2 East P. C. 973 ; Com- i» Ante, § 696. mon wealth v. Macomber, 8 Mass. 254 ; n And see Rex v. Stokes, 5 Car. & P. Commonwealth v. Barlow, 4 Mass. 439 ; 148 ; Reg. v. Allan, Car. & M. 295. Stratton v. The State, 46 Ind. 488. 390 CHAP. XLVm.] ACCESSORY AFTER THE PACT. § 708 In Principle. — What is conclusiTe in principle is, that, as we shall see in the next chapter, the compounding of the higher mis- demeanors is indictable ; and compounding is precisely of the same nature as harboring, yet one degree further removed from the act of the principal ofPender.^ Since, therefore, the agree- ment not to prosecute a person guilty of a high misdemeanor is indictable, much more must be the assisting of him to elude justice. § 708. Law of this Sub-title uttle cultivated. — There is a reason why this branch of the law has been practically neglected in England; namely, that the statutes taking away clergy from specific, felonies did not usually extend to accessories after the fact ; 2 therefore, if such accessories were convicted, they could not be punished to any efPect. So it became common to overlook their offence altogether ; and, this being the course in felony, the same thing would naturally follow in misdemeanor, else he who had harbored a small offender would be in a worse condition than he who had harbored a great one. 1 Ante, § 694. " 4 Bl. Com. 39. 391 § 711 DIVISIONS AND DISTINOTIONS. [BOOK VI. CHAPTER XLIX. COMPOtnSTDING. § 709. Scope of this Chapter. — The subject of this chapter is indicated on the " Diagram of Crime " ^ by F G K L. We there see that compounding is a misdemeanor, and it extends through the entire regions of Treason and Felony, and in part through that of Misdemeanor. § 710. How defined. — Compounding crime is an agreeing with one who has committed an offence not to prosecute him.^ Theft Bote. — A species of compounding was anciently called theft bote, " which," says Blackstone, " is where the party robbed, not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute." ^ In very early times, contrary to the later and present law, a person so conducting was held to be an accessory after the fact.* How accessorial. — Still, in the Sense discussed in the last chap- ter, the offence of compounding is accessorial,^ not after the man- ner of felony and treason,^ but of misdemeanor,^ where the offender may be proceeded against without reference to any prosecution of the principal.^ § 711. Compounding of Treason, Felony, Misdemeanor. — The language of the books is general, that the taking of money to forbear or stifle a criminal prosecution of any sort, whether for felony or misdemeanor, or, of course, treason, is an indictable offence.* Yet — 1 Ante, § 602. 6 Ante, § 692, 701. 2 The State v. Duhammel, 2 Barring. ' Ante, § 705. Del. 532 ; Bothwell v. Brown; 51 111. 234. » People ». Buckland, 13 Wend. 592. 8 4 Bl. Com. 133 ; 2 East P. C. 748, « Jones o. Rice, 18 Pick. 440 ; Com- 790; 1 Hawk. P. C. Curw. ed. p. 74, § 6. monwealth v. Pease, 16 Mass. 91 ; Plumer * Anonymous, Sir F. Moore, 8; 1 v. Smith, 5 N. H. 553; Rex v. Stone, 4 Hawk. P. C. Curw. ed. p. 74, § 7. Car. & P. 379 ; Collins v. Blantern, 2 5 The State v. Duhammel, 2 Harring. Wils. 341, 349 ; Johnson v. Ogilby, 3 P. Del. 632 ; The State v. Henning, 33 Ind. Wms. 277, commented gn, 6 Q. B. 316 ; 189. Train & Heard Prec. 136. And see Por- 392 CHAP. XLIX.] COMPOUNDIKG. § 713 Small Offences. — Various teachings of the criminal common law, already considered, show, that a misdemeanor may be so small, pr so much of the nature of a private injury,^ as will ren- der the compounding of it not indictable. But we have almost no direct authority on this question.^ § 712, Compounding Penalties — (l8 Eliz.). — The English stat- ute of 18 Eliz. c. 5, provided, says Blackstone, " that, if any per- son, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent of commencing the prosecution to be merely to serve his own ends, and, not for the public good), he shall forfeit £10, shall stand two hours in the pillory, and shall be for ever disabled to sue on any popular or penal statute." ^ How in our States. — This statute is sufficiently early to be com- mon law in our States, wh^le yet it is of a penal class not gener- ally so regarded. We have no decisions on the direct question of its common-law force,* or informing us what was the anterior common law ; but we have, from an American judge, a dictum, that " the compounding of penalties is an offence at common law," ^ — which, if in any degree correct, must be accepted with modifications.* A penal statute, imposing only a pecuniary penalty, should make it very heavy to cause a compound- ing under it, especially if the prohibited act is not malum in se, indictable, according to just principles of jurisprudence. But, — § 713. Private Settlement under Sanction of Court. — In the lan- guage of Blackstone, " it is not uncommon, when a person is con- victed of a misdemeanor which principally and more immediately ter V, Jones, 6 Coldw. 313 ; Chandler v. * Kilty deems that a part of this stat- Johnson, 39 Ga. 85 ; Brown v. Padgett, ute, not saying what part, was received 36 Ga. 609 ; Cannon i>. Eands, 11 Cox C. in Maryland. Kilty Eep. Stats. 235. 0. 631 ; Golden v. The State, 49 Ind. 424. The Pennsylvania judges do not mention 1 Ante, § 212 et seq., 237, 247. It among the statutes accepted in the lat- 2 See Fallowes v. Taylor, 7 T. K. 475 ; ter State. Report of Judges, 3 Binn. 593, Keir v. Leeman, 6 Q. B. 308 ; Golden v. 621. The State, 49 Ind. 424. * CoUamer, J., in Hinesburgh v. Sum- 8 4 Bl. Com. 136 ; 1 Russ. Crimes, 3d ner, 9 Vt. 23, 26. And see Edgcombe v. Eng. ed. 132 ; 1 Deac. Crim. Law, 269 ; Rodd, 5 East, 294. Rex V. Crisp, 1 B. & Aid. 282; Rex v. « See Rex v. Crisp, 1 B. & Aid. 282; Southerton, 6 East, 126; Rex w. Gotley, Rex v. Southerton, b East, 126; ante, Buss. & Ry. 84, 1 Buss. Crimes, 3d Eng. § 711. ed. 133 ; Reg. v. Best, 2 Moody, 124, 9 Car. & P. 368. 393 §T14 DIVISION'S AND DISTINCTIONS. [book VI. affects some individual, as a battery, imprisonment, or tlie like, for the court to permit the defendant to speak with the prosecutor before any judgment is pronounced ; and, if the prosecutor de- clares himself satisfied, to inflict but a trivial punishment," — a proceeding, however, -which this commentator considers danger- ous, except in particular cases, before the higher courts.^ Yet the proceeding is well established by English authority.^ And, — Amends Mitigating Punishment. — Both in England and the United States, the court wiU take into ' its consideration, in determining the amount of punishment, that the offender has shown repent- ance by doing all in his power to repair the wrong.^ More- over, — Statutes authorizing Private Settlement. — In some of our States, legislation has provided for the discharge of the wrong-doer alto- gether, in a few special offences, on his making full reparation to the injured person.* § 714. Reclaiming Stolen Goods ^- Taking Amends. — We have seen,^ that one from whom goods have been stolen may lawfully 1 4 Bl. Com. 363. 2 1 Buss. Crimea, 3d Eng. ed. 132; Beeley v. Wingfleld, 11 East, 46 ; Baker V. Townsend, 7 Taunt. 422; Kirk v. Striekwood, 4 B. & Ad. 421 ; Rex ». Eng- land, Cas. temp. Hardw. 158 ; Reg. v. Roxburgh, 12 Cox 0. C. 8, 2 Eng. Rep. 165. Where a part of the penalty was going to the crown, a motion to permit the defendant to compound with the prosecutor was denied after verdict of guilty ; " for the king's moiety of the penalty is vested by the conviction, and then it is too late to compound." Brery «. Levy, 1 W. Bl. 443. 8 Beeley v. Wingfleld, 11 East, 46, 48 ; Rex V. Grey, 2 Keny. 307. See post, § 948-950. * See People v. Bishop, 5 Wend. Ill ; Bradway v. Le Worthy, 9 Johns. 251; Price V. Van Doren, 2 Southard, 578. In Georgia the statute provides, that " it shall be lawful in all criminal offences against the person or property of the cit- izen, not punishable by fine and impris- onment, or by a more severe penalty, for the offender to settle the case with the prosecutor, upon the consent of the in- jured party being obtained, at any time 394 before verdict." The statutory offence of trading with a slave has been held not to be so exclusively " against the person or property of the citizen " as to come within the provision. Dunn v. The State, 15 Ga. 419. And see McDaniel v. The State, 27 Ga. 197 ; Chandler u. Johnson, 39 Ga. 85 ; Statham v. The State, 41 Ga. 507. In Louisiana : " In all cases of as- sault and battery and misdemeanors, when the parties compromise, and the prosecution is withdrawn, no charges shall be brought against the parish ; the parties compromising shall pay all costs In such cases ; it shall be lawful for the Attorney-General or District Attorney to enter a nolle prosequi." And, IfoUe Prosequi. — The court has held, that the prosecuting officer is not bound, under this statute, to enter as of course a nolle prosequi whenever a case for as- sault and battery has been compromised between the parties ; he is to consult the public good, and act as in his judgment it demands. The State v. Hunter, 14 La. An. 71. See also Bone v. The State, 18 Ark. 109. » Ante, § 694. And see ante, § 699. CHAP. XLIX.] COMPOUNDING. § 715 receive them back, but he must not also agree to forbear prose- cuting the offender. And it is believed that the right to take amends applies in all other private injuries from public wrongs.^ Yet this does not justify a compounding under the guise of amends. Enforcing Agreements to forbear Prosecution. — Under what cir- cumstances a court will decline to enforce a private undertaking • to pay damages for acts done in committing a public offence, as being calculated to obstruct the course of justice,^ is an inquiry not lying in our present path. If, in a particular case, the plain- tiff is not permitted to prevail in his civil suit, he may still not be indictable. § 715. Extortion. — There are extortions by ofScers, and other obstructions of public justice by persons in and out of ofSce, analogous to compounding, and punishable on nearly the same grounds, while not usually classed under this title.^ 1 Plumer v. Smith, 5 N. H. 553 ; Bee- 4 Barb. 453. A man accused his cashier ley «. Wingfield, 11 East, 46, 48; Baker of stealing money, but did not set on foot V. Townsend, 7 Taunt. 422, 426. any prosecution ; the cashier acknowl- 2 See Bell v. Wood, 1 Bay, 249 ; Mat- edged that he had omitted to enter cer- tocks V. Owen, 5 Vt. 42 ; Plumer v. tain sums, begged the employer not to Smith, 5 N. H. 553 ; Cameron v. McFar- expose him, and gave his note, secured land, 2 Car. Law Eepos. 415 ; Corley v. by his father's indorsement and mort- Williams, 1 Bailey, 588 ; Hinesburgh v. gage, for the amount which he said he Sumner, 9 Vt. 28, 26; Bailey t). Buck, 11 had taken. The employer made no Vt. 252 ; State Bank v. Moore, 2 South- agreement not to prosecute, neither did ard, 470 ; Murphy v. Bottomer, 40 Misso. .he agree that the amount so secured was 67 ; Ford v. Cratty, 52 111. 313 ; Brown v. all which had been taken. And it was Padgett, 36 Ga. 609 ; Porter ». Jones, 6 held, that the note was not extorted by Coldw. 313 ; Collins v. Blantern, 2 Wils. threats, and was not given to compound 341, 350 ; Edgcombe v. Rodd, 5 East, 294 ; a felony. Catlin v. Henton, 9 Wis. 476. Keir v. Leeman, 6 Q. B. 308, where tliere And see Eeg. v. Daly, 9 Car. & P. 342. is a general review of the authorities ; * See Rex v. Harrison, 1 East P. C. Fallowcs B. Taylor, 7 T. R. 475 ; Kings- 382 ; Rex «. Buckle, 1 Russ. Crimes, 3d bury V. Ellis, 4 Cush. 578; Daimouth v. Eng. ed. 408 ; Eeg^ v. Loughran, 1 Crawf. Bennett, 15 Barb. 541 ; Kirk v. Strick- & Dix C. C. 79. wood, 4 B. & Ad. 421 ; Loomis v. Cline, 395 § 718 DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER L. MISPRISION. § 716. Scope of this Chapter. — On the " Diagram of Crime," ^ the subject of this chapter is represented by G H K. It extends through the regions of treason and felony, but not into misde- meanor. § 717. Meaning of " Misprision." — The word misprision is some- times employed to denote " all such high offences as are under the degree of capital, but nearly bordering thereon." ^ The term " high misdemeanor," however, better conveys this meaning, while the precision of our language is promoted by restricting " misprision " to neglects ; and such, it is believed, is the better modern usage. How defined. — Misprision of felony, therefore, is a criminal neglect, either to prevent a felony from being committed, or to bring to justice the offender after its commission.^ Misprision of treason is the same of treason. Misprision of Misdemeanor — is unknown equally in the facts and the language of the law ;• because, for reasons already ex- plained,* it is too trifling a dereliction from duty to engage the attention of the tribunals. Is Misdemeanor. — Misprision of treason, on the other hand, being an appendage to the highest crime, was anciently held to be a common-law treason ; but now both it and misprision of fel- ony are misdemeanors.^ § 718. Two Forms. — The reader perceives, that the neglect which constitutes a misprision may be in either of two forms, — a neglect to prevent a treason or felony, or to bring to justice its 1 Ante, § 602. his knowledge ; but the law which would 2 4 Bl. Cora. 119. See further, as to punish him in every case for not per- the meaning of the word, ante, § 624. forming this duty is too harsh for man." 8 1 Hale P. C. 484. Marbury i>. Brooks, 7 Wheat. 556, 575. * Ante, § 212 et seq. 267. " It may » 4 Bl. Com. 120 ; Eden Penal Law, be the duty of a citizen," said Marshall, 3d ed. 202. And see 1 Hale P. C. 371. C. J., " to accuse every offender, and to And see ante, § 710. proclaim every offence which comes to 396 CHAP. L.J MISPEISrON. § 720 4 perpetrator. Our law treats the two forms as of equal turpitude, though few would regard them so in morals. By the laws of Egypt, observes a learned historian, " whoever had it in his power to save the life of a citizen, and neglected that duty, was punished as a murderer," — a provision which the same authority deems " remarkably severe." ^ By our law, it is not murder even for one to stand by and see anotlier murdered, without interfering, where his will does not contribute to what is done.^ It is only misprision of felony. But any law would be regarded as some- thing more than " severe " which should condemn to the gallows a man who was merely too slothful or too humane to procure the execution of another guilty of a capital crime. § 719. Misprision as to Libel. — Lord Coke says : " It was re- solved in the Star-chamber, in Halliwood's Case, that, if one finds a libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a magistrate ; but, if it concerns a magistrate or other public person, the finder ought presently to deliver it to a magis- trate, to the intent, that, by examination and industry, the author may be found out and punished." ^ This seems to carry the doc- trine into cases of aggravated misdemeanor ; but there is no ground for believing that any courts of the present day would follow this lead of the old Star-chamber. § 720. Doctrine of Misprision, stated. — The doctrine of mis- prision, as now understood, is as follows : A man, to be respon- sible for a crime directly committed by another, must give to the criminal act some contribution from his own will.* But, if it is treason or felony, and he stands by while it is done without using means in his power to prevent it, though his will does not concur in it ; ^ or, if he knows of its having been done in his absence, yet neither makes disclosure of it to the authorities, nor does any thing to bring the offender to punishment, — the law holds him to be guilty of a breach of the duty due to the community and the government.^ 1 1 Tytler's History, Boston ed. of ed. p. 440, § 10 ; Foster, 350 ; The State 1844, p. 37. «■ Hildreth, 9 Ire. 440. '^ Connaughty v. The State, 1 Wis. » 1 East P. C. 377 ; 1 Riiss. Crimes,- 159; Burrell v. The State, 18 Texas, 713; 3d Eng. ed. 45; 2 Hawk. P. C. Curw. ed. ante, § 633, 634. p. 440, § 10 ; Foster, 350. 8 Case de Libellis Famosis, 6 Co. 125. « 1 Russ. Crimes, 8d Eng. ed. 45; 1 * Ante, § 629 ; 2 Hawk. P. C. Curw. East P. C. 139, 140 ; 2 Hawk. P. C. Curw. 397 § 722 DIYISIONS ANB DISTINCTIONS. [BOOK VI. § 721. Limit of Duty as to MispriBlon. — How much a man, to avoid the guilt of misprision, must do to prevent a crime, or bring the offender to punishment, it is difficult to state ; and doubtless the rule will vary with the nature and magnitude of the offence, and the kind and degree of public provision made for searching out and prosecuting offenders.^ Russell observes, in accordance with the general language of the English books, that " a man is bound to discover the crime to a magistrate with all possible expedition ; " ^ and Lord Coke says, that, " if any bq present when a man is slain, and omit to apprehend the slayer, it is a misprision." ^ We saw in " Criminal Procedure " what a private person may do to arrest offenders ; but one is not always indictable for not doing all that the law permits.* § 722. TTnited States Statutes. — The statutes of the United States make punishable both misprision of felony,^ and misprision of treason,^ against the general government. ed. p. 444, 447, § 23, 29 ; 1 Hawk. P. C. The State u. Leigh, 3 Dev. & Bat. 127 ; Curw. ed. p. 73, § 2; 4 Bl. Com. 121, 1 Long v. The State, 12 Ga. 293. Hale P. C. 371, 374. And see ante, « 3 Inst. 139. § 267-276. 4 Crim. Proeed. I. § 164-172. 1 And see ante, § 271. 6 r. s. of U. S. § 5390. 2 1 Rusa. Crimes, 3d Eng. ed. 45. And « lb. § 5333. see 1 East P. C. 139 ; 1 Hale P. C. 372; 398 CHAP. LI,] ATTEMPT. §< 725 CHAPTER LI. ATTEMPT.^ § 723-726. Introduction. 727-730. General Doctrine of Attempt. 731-736. The Kind of Intent. 737-769. Kind and Extent of Act. 770, 771. Combination of Act and Intent. 772. Degree of the Offence. § 723. 'Scope of this Chapter. — The subject of this chapter is indicated on the " Diagram of Crime " ^ by A B P. Attempt, it is seen, is misdemeanor, extending through the Regions of Trea- son and Felony, and partly through that of Misdemeanor. § 724. Indictable Endeavor short of Attempt. — In England, the courts speak of indictable endeavors, which are too remote from the accomplished crime intended to be termed attempts.^ No satisfactory reason appears why they should not be so termed, but there is ample reason why they should be.* In no American case, the writer believes, has this English distinction been made. And it is to be hoped that no judge among us will ever under- take to introduce a refinement so absolutely without practical advantage. If it were accepted, the thing thus receiving a new name would be indicated on the " Diagram of Crime " by a line drawn from some point between A and B to some point between P and A. The change would not enlarge the criminal field, but assign to a minuter space in it a new name. § 725. Subject Intricate and Important. — The subject of this chapter is alike intricate and important. The reports are full of cases upon it, yet it is but imperfectly understood by the courts. As for text-books, there was no one, English or American, until the present author wrote, which contained more than a few para- 1 Tor the pleading, evidence, and ^ Ante, § 602. practice in attempt, see Crim. Proced. II. s Ante, § 435, 436. § 71 et seq. * Crim Proced. II. § 71. 399 § 729 DIVISIONS AND DISTINCTIONS. [BOOK VI. graphs of loose and inadequate statements of doctrine. The reader, therefore, will not object if in this chapter he is delayed more with discussion than in some others. § 726. Order of the Chapter. — We shall consider, I. The Gen- eral Doctrine of Attempt ; II. The Kind of Intent ; III. The Kind and Extent of Act ; IV. The Combination of Act and Intent ; V. The Degree of the Offence. I. The Creneral Doctrine of Attempt. § 727. Why indictable. — If a man undertakes to do a par- ticular wrong of the indictable sort, and does some act toward it but fails to coi^plete what he meant, his evil intent and act together constitute what is shown in the foregoing discussions to be a common-law crime ; ^ provided the act is not too trivial and small for the law's notice.^ For the intent is sufficient, and the adequacy of the act is the only further object of inquiry.^ There- fore, — § 728. How defined. — An attempt is an intent to do a particu- lar thing which the law, either common or statutory, has declared to be a crime, coupled with an act toward the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law that does not concern itself with things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended.* § 729. Two Elements. — An attempt, therefore, is, like any other crime, composed of the two elements of an evil intent and a simultaneous act. As to — The Act. — We have seen,^ that an act may be evil in itself, or evil by reason of the intent prompting it,^ or being in itself evil may be rendered more so by the intent. Now, in attempt, the act may be either evil or indifferent in itself ; but, whether the one or the other, its special reprehensible quality, as an element in this form of indictable wrong, is derived from the particular 1 Ante, § 204-207, 4S5. The State v. Marshall, 14 Ala. 411 ; Cun- 2 Ante, § 212, 223 et seq. ningham v. The State, 49 Missis. 685. 3 People V. Lawton, 56 Barb. 126; « Ante, § 434 et seq. and other places. Cunningham v. The State, 49 Missis. 685. ' Eex v. Sutton, Cas. temp. Ilardw. * See Johnson v. The State, 14 Ga. 55 ; 870. 400 CHAP. LI.] ATTEMPT. § 731 intent whence it proceeds. An act which, whether more or less evil in itself, is punishable when done simply from general malev- olence, is not classed with attempt, but is a substantive offence. If a man, from this sort of wicked impulse, does less of such an act than the law requires to constitute the substantive offence, he incurs no criminal liabilit3^ But, — Specific Intent. — An attempt is committed only when there is a specific intent to do a particular criminal thing, which intent im- parts a special culpability to the act performed toward the doing.^ It cannot be founded on mere general malevolence. When we say that a man attempted to do a thing, we mean that he intended to do, specifically, it ; and proceeded a certain way in the doing. The intent in the mind covers the thing in full ; ^ the act covers it only in part. Thus, — § 730. Murder — Attempt to Murder. — To constitute murder, the guilty person need not intend to take life ; ^ but, to constitute an attempt to murder, he must so intend.* Further Course of Discussion. — The object of this introductory sub-title is to give the reader a general view of the subject before entering on its minuter consideration. But what is said here wUl be in substance repeated in the subsequent discussions of this chapter. II. The Kind of Intent. § 731. To do what, if' done, would be Substantive Crime. — It is but another form of foregoing propositions to say, that, in attempt, the intent must be specific to do some act, which, if it were fully performed, would constitute a substantive crime.^ Therefore, as just seen, — General Malevolence — is not sufficient, even though of a sort 1 Cunningham v. The State, 49 Missis. Leigh & C. 443, 9 Cox C. C. 471 ; SulU- 685. ' vant v. The State, 3 Eng. 400. 2 Post, § 735, 736 ; Eden Penal Law, s Vol. II. § 676. 3d ed. 86, 87 ; Rex v. Boyce, 1 Moody, * Vol. II. § 741 ; post, § 736 ; Maher 29 ; Commonwealth v. Martin, 17 Mass. v. People, 10 Mich. 212 ; Slatterly v. Peo- 359; The State u. Mitchell, 5 Ire. 350 ; pie, 58 N. Y. 354; Reg. ^. Lallement, 6 Beg. V. Stanton, 1 Car. & K. 415 ; Rob- Cox C. C. 204 ; Henderson v. The State, erts V. People, 19 Mich. 401 ; The State 12 Texas, 525 ; Reg. v. Donovan, 4 Cox V. Jefferson, 3 Barring. Del. 571 ; Reg. v. C. C. 399. Cox, 1 Post. & F. 664. And see Reg. v. ^ As to what is meant by " substan- Adams, Car. & M. 299 ; Reg. v. Fretwell, tire crime," see ante, § 696. VOL. I. 26 401 § 733 DIVISIONS AND DISTINCTIONS. [BOOK VI. which, added to the appropriate act, would constitute an ordinary substantive offence. So — Civil Wrong. — We saw, under a previous title ,^ that sometimes an act is indictable when the intent is no more than to commit a mere civil wrong. That doctrine applies only to substantive offences, not to attempts. But, — Entire Crime — (Rape). — The offender's purpose must be to commit au entire substantive crime ; as, if the alleged offence is an assault with intent to commit rape, he must, to be guilty, have meant to use force, should it be necessary, to overcome the woman's will.^ § 732. Change of Purpose. — A Crime, once committed, may be pardoned, but it cannot be obliterated by repentance.^ In reason, therefore, if a man resolves on a criminal enterprise, and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such, though he voluntarily abandons the evil purpose.* This doctrine may not be established absolutely beyond controversy by the authorities, but it is reasonably so. Thus, — § 733. In Rape. — If a man assaults a woman fully intending / to ravish her, but this intent subsides before the act is committed, I and he desists, he may still be guilty of assault with intent to I commit rape.^ Or if, after he has made the assault with the 1 Ante, § 208. dent of the will of the author.'" lb. 122. 2 Taylor «. The State, 80 Ga. 79 ; And by the Austrian code, " Criminal Eeg. V. Wright, 4 Fost. & F. 967. attempt is punishable when the criminal 8 Vol. H. § 1028, 1122; Common- has committed an action leading to the wealth V. Tobin, 108 Mass. 426, 429. commission of a crime, which crime, * See the cases to the next section ; however, was hindered by some circum- also The State u. McDaniel, Winston, stances independent of the will of the au- No. 1, 249 ; observations of Gibson, C. J., thor. . . . An attempt exists also when in Shannon o. Commonwealth, 2 Harris, a person endeavors to persuade another Pa. 226. Under Foreign Codes — The to a crime which he does not commit." Prussian penal code, following that of lb. 96. But these codes cannot control France, declares, as stated by Mr. San- the principles of an unwritten jurispru- ford, that " an attempt is only punish- dence. able when the same is manifested by ^ Lewis v. The State, 35 Ala. 380, 389. acts which constitute a commencement In delivering the opinion of the court, of execution, and when the consumma- Stone, J., said : " If the attempt was in tion is hindered only by circumstances, fact made, and had progressed far independent of the will of the author." enough to put Miss Ozlery [the prosecu- Sanford Penal Codes in Europe, 61. So, trix] in terror, and render it necessary by the penal code of Spain, " Criminal for her to save herself from the consum- attempt is a direct commencement of ex- mation of the attempted outrage by ecution, by external acts, the realization flight, then the attempt was complete ; of which is hindered by causes indepen- and an after-abandonment by the de- 402 CHAP. LI.] ATTEMPT. § 734 intent to ravish, the woman, who had resisted, yields voluntarily, so that there is no rape, the offence of assault with intent to com- mit rape, which had been perpetrated, remains.^ But — Purpose abandoned before Attempt. — If, in these eases, the criminal purpose is abandoned before enough of the evil act is done to constitute an attempt, guilt, of course, is not incurred.^ § 734. Intent presumed — Tendency of Act. — It is a rule of criminal evidence, that a man is presumed to intend the natural, necessary, and even probable consequences of what he intention- ally does ; and that, in some circumstances, the presumption is conclusive.^ Upon this principle, — Substantive Crimes — (Libel — Bawdy-house — Forgery — Perjury — Hindering VTitness, &c.). — Some acts are made substantive crimes, not so much on account of their inherent evil, as of their tendency to promote ulterior mischief; Thus, libels are indicta- ble, because they tend to break the peace,* or to corrupt the public morals, or to stir up sedition against the government ; ® bawdy- h&uses, because their tendency is to corrupt the public morals ; forgeries, as tending to defraud individuals ^ or the public ; false oaths and affidavits employed in judicial proceedings,^ preventing the attendance of witnesses,^ and the like, because they are calcu- lated to pervert public justice ; and illustrations of this sort might be multiplied indefinitely.^ Here, if a man intentionally does the thing, he cannot be heard to say, in his defence, that he did not intend the ulterior mischief.^" And thence it is that these wrongs are substantive crimes, instead of attempts. fendant of his wicked purpose, if he had Hex v. Ward, 2 Ld. Eaym. 1461, 1469 ; proceeded thus far, could not purge the People v. Genung, 11 Wend. 18. crime." See Taylor v. The State, 50 Ga. ' Omealy «. Newell, 8 East, 364 ; 79. So, if one endeavoring to ravish a Hamper's Case, 3 Leon. 230. woman is frightened off by persons com- * The State v. Carpenter, 20 Vt. 9. ing in answer to her cries, he is still ' ° See Williams v. East India Corn- liable for attempting to commit rape, pany, 3 East, 192, 201 ; Reg. v. Chapman, The State v. Elick, 7 Jones, N. C. 68. . 1 Den. C. C. 432 ; The State v. Taylor, 3 1 The State v. Cross, 12 Iowa, 66; Brev. 243; Smith r. The State, 1 Stew. post, § 766. 606 ; Holmes's Case, Cro. Car. 376 ; Bare- 2 Pinkard v. The State, 30 Ga. 757. field v. The State, 14 Ala. 603 ; Reg. i>. 8 Crim. Proced. I. § 1060. Darby, 7 Mod. 100.; Rex v. Philipps, 6 ' Hodges V. The State, & Humph. 112; East, 464 ; Reg. v. Renshaw, 11 Jur. 615 ; Reg. K. Nun, 10 Mod. 186. Smith's Case, 1 Broun, 240; Gibson's 6 Rex V. Woodfall, Lofit, 776 ; Reg. v. Case, 2 Broun, 866. Lovett, 9 Car. & P. 462. i" And see Reg. v. Gathercole, 2 Lewin, Reg. V. Marcus, 2 Car. & K. 356 ; 287 ; The State v. Nixon, 18 Vt. 70 ; Rex V. Farrington, Russ. & Ry. 207. 403 J^J §735 DIVISIONS AND DISTINCTIONS. [book VI. § 735. Tendency of Act as Evidence of Intent. — On an indict- ment for a technical attempt, the jury may take into view the nature of an act proved, to determine the intent which prompted it. And the court will instruct them, that the defendant should be presumed to have intended the natural and probable conse- quences of his act.i But — Intent in Fact — (intent in Law not adequate). — They cannot go further. The doctrine of an intent in law, differing from the intent in fact, is not applicable to these technical attempts ; and, if the prisoner's real purpose were not the same which the indict- ment specifies, he must, according to views already explained,^ be acquitted.^ To hold otherwise would be unjust and absurd. For the charge is, that the defendant put forth an act whose criminal quality or aggravation proceeded from a specially evil intent prompting it ; * and, in reason, we canjiot first draw an eviL intent from an act, and then enhance the evil of the act by adding this intent back again to it. There are a few cases ^ which seem to overlook this truth, and even possibly to deny it ; but it is sustained by the clear preponderance of judicial author- ity, English and American.® Thus, — 1 Reg. V. Jones, 9 Car. & P. 258 ; The State V. Davis, 2 Ire. 153 ; Cole v. The State, 5 Eng. 318 ; Rex v. Hewlett, 7 Car. & P. 274 ; Rex v. Holt, 7 Car. & P. 518 ; Jeff V. The State, 37 Missis. 321 ; Jeff v. The State, 39 Missis. 593. And see Rex V. Moore, 3 B. & Ad. 184 ; Rex v. Bailey, Russ. & Ry. 1 ; Southworth v. The State, 5 Conn. 325 ; The State «. Jefferson, 3 Harring. Del. 571 ; Dains v. The State, 2 Humph. 439. Said Campbell, J., in a Michigan case : " The intent to kill must undoubtedly be established as an infer- ence of fact, to the satisfaction of the jury ; but they may draw that inference, as they draw all other inferences, from any fact in evidence which, to their minds, fairly proves its existence. In- tentions can only be proved by acts, as juries cannot look into the breast of the criminal." People v. Scott, 6 Mich. 287, 296. 2 Ante, § 728-730. ' s Reg. V. Ryan, 2 Moody & R. 213, overruling Rex v. Lewis, 6 Car. & P. 161 ; Rex V. Duffln, Russ. & Ry. 365 ; Rex v. Thomas, 1 Leach, 4th ed. 330, 1 East P. 404 0. 417 ; Rex v. Holt, 7 Car. & P. 518 ; Mooney v. The State, 33 Ala. 419 ; Ogle- tree V. The State, 28 Ala. 693 ; and cases cited ante, § 729. 4 Ante, § 729. 6 The State v. Bullock, 13 Ala. 413 ; McCoy V. The State, 3 Eng. 451 ; Rex v. Jarvis, 2 Moody & R. 40; The State v. Boyden, 13 Ire. 505. ^ The State o. Jefferson, 3 Harring. Del. 571 ; Moore v. The State, 18 Ala. 532 ; Reg. v. Sullivan, Car. & M. 209 ; Reg. V. Cruse, 8 Car. & P. 541 ; Rex v. Holt, 7 Car. & P. 518 ; Rex v. Mcllhone, 1 Crawl & Dix C. C. 156 ; Rex v. Kelly, 1 Crawf. & Dix C. C. 186; People v. Shaw, 1 Parker C. C. 327 ; Davidson v. The State, 9 Humph. 455 ; and see The State V. Hailstock, 2 Blackf. 257 ; Dains V. The State, 2 Humph. 439; Cole v. The State, 5 Eng. 318; Rex v. Hunt, 1 Moody, 93 ; Reg. ii. Stringer, 2 Moody, 261 ; Reg. w. Nicholls, 9 Car. & P. 267; Reg. V. Griffiths, 8 Car. & P. 248 ; Rex v. Davis, 1 Car. & P. 306 ; Rex v. Mogg, 4 Car. & P. 864; Roberts v. People, 19 Mich. 401 ; People v. Woody, 48 Cal. 80. CHAP. LT.J ATTEMPT. § 736 § 736. In Homicide. — As already observed,^ there are circum- stances in -which the unintentional killing of a human being is murder ; ^ « as, if one from a housetop recklessly threw down a billet of wood upon the sidewalk where persons are constantly passing by, and killed one : this would be, by the common law, murder. But if, instead of killing, it inflicts only a slight injury, the party could not be convicted of an assault with intent to com- mit rnurder," ^ since there is, in fact, no intent to take life. In like manner, — In Burglary. — If one, in the night, breaks and enters another's dwelling-house, intending to commit a misdemeanor in it, he does not become guilty of burglary, which requires an intent to com- mit a felony,* though unintentionally his act therein amounts to a felony. He may be convicted of the unintended felony perpe- trated in the dwelling-house, but not of the burglary.^ What constitutes Particular Intent — (^Homicide, again — Rape). — A man, committing a crime, does not first name an offence, and then resolve to become guilty of what falls within the name, but he proposes to himself certain evil acts, or the bringing about of a certain evil end. The law fixes the form and degree of his guilt and gives name to it. If, for example, he assaults another, whose life he means to take, his act is an assault with intent to commit murder, or an assault with intent to commit manslaugh- ter, according as the killing would be the one or the other if effected ; and it is neither, if, under the circumstances, the kill- ing would not be an offence.^ Thus, if an officer, having a proper warrant, undertakes to arrest a man, the latter who kills the officer to avoid being arrested commits murder ; ' or, if his assault, meant to kill, fails, his offence is assault with intent to murder ; while yet he may not know whether the officer has a warrant or not, And see the cases in a previous note to State, 24 Missis. 54 ; The State v. Stew- this section, and ante, § 729. art, 29 Misso. 419 ; King v. The State, 21 1 Ante, § 730. Ga. 220. 2 Ante, § 314. * Ante, § 559 ; Vol. II. § 90. 8 Moore v. The State, 18 Ala. 532. « 2 East P. C. 509 ; Rex v. Dobbs, 2 See The State v. Neal, 37 Maine, 468 ; East P. C. 513. And see Eex v. Thomas, Scitz V. The State, 23 Ala. 42 ; Rapp ii. 1 Leach, 4th ed. 330, 1 East P. C. 417; Commonwealth, 14 B. Monr. 614; The Rex v. Trusty, 1 East P. C. 418; The State u. Beaver, 5 Barring. Del. 508 ; State v. Eaton, 3 Earring. Del. 554. Ogletree v. The State, 28 Ala. 693; Jeff 6 And see Vandermark v. People, 47 K. The State, 37 Missis. 321; Walker v. 111. 122. The State, 8 Ind. 290; Herman v. The ' Vol. II. § 652. 405 §736 DIVISIONS AND DISTINCTIONS. [book VI. and whether he is himself endeavoring to perpetrate murder or manslaughter. But if the officer, in a case where a warrant is required, has none, then the offence of the man, who meant to take life, but failed, will be assault with intent to commit man- slaughter, and he cannot be convicted on an indictment for as- sault with intent to murder.^ For a like reason, one does not become guilty of assault with intent to commit rape, if, under the circumstances, an actual violation of the woman's person would not be rape.^ Again, if a man intending to murder A, shoots at B, whom he mistakes for the one meant, still, though he intends to take the life of A, he also intends to take the life of the one at whom he shoots, namely, B ; and, if the charge from his gun inflicts only a wound, he may be convicted of wounding B with the intent to murder B.^ And if, with an intent in fact, of a wider range, he discharges loaded arms into a group of persons, mean- ing to inflict grievous bodily harm generally, whereby he wounds one of them, he commits the offence of wounding this one with intent to do him grievous bodily harm.* The greater includes the less. ^ Commonwealth v. McLaughlin, 12 Gush. 615 ; Mitton's Case, 1 East P. C. 411. And see Bex v, Payne, 4 Car. & P. 558 ; Bex v. Curran, 3 Car. & P. 397 ; Sharp V. The State, 19 Ohio, 379 ; Nancy V. The State, 6 Ala. 483. Intent to KUI. — There is a difference between an in- tent to kill and an intent to murder : the former may exist where the party intends only such killing as amounts to man- slaughter. People V. Shaw, 1 Parker C. C. 327 ; The State v. Nichols, 8 Conn. 496; Nancy v. The State, 6 Ala. 483; Bonfanti v. The State, 2 IMinn. 123. It seems, however, to be the doctrine in Mississippi, that by an intent to kill is meant an intent to murder. Bradley v. The State, 10 Sm. & M. 618. See Mor- man v. The State, 24 Missis. 54 ; post, §747. 2 People V. Quin, 50 Barb. 128; Rhodes v. The State, 1 Coldw. 351 ; Peo- ple V. Brown, 47 Cal. 447 ; post, § 746. « Beg. V. Smith, Dears. 569, 25 Law J. N. 8. M. C. 29, 7 Cox C. C. 51, 1 Jur. 406 N. s. 1116, 33 Eng. L. & Eq. 567 ; Keg. v. Stopford, 11 Cox C. C. 643. In Reg. v. Hewlett, 1 Post. & F. 91, the prisoner had struck with a knife at one Withy, whom he meant to wound, but the prose- cutor interfered and caught the blow on his arm. And it was ruled that an in- dictment would not lie for wounding the prosecutor with intent to do him grier- ous bodily harm. Here the prisoner committed no mistake, he did not strike at the prosecutor, he did not have him in any sense in his mind, and did not mean to wound him. And I do not see that this ruling conflicts with the doc- trine of the text. But in Bex v. Stop- ford, the learned judge said: "I doubt the case of Reg. v. Hewlett, as it appears to me inconsistent with Rex v. Hunt, 1 Moody, 93 ; it seems to me to be only partially reported, a bald report in fact." p. 645. * Keg. V. Fretwell, Leigh & C. 443, 9 Cox C. C. 471. CHAP. LI.] ATTEMPT. § 739 III. The Kind and Extent of the Act. § 737. In General. — Questions of the gravest difficulty, in- volving some conflicts of judicial opinion, and a few departures from sound doctrine, present themselves under this sub-title. But the general proposition is plain, that any act sufficient in turpitude for the law's notice, and near enough, to the offence intended to create an apparent danger of its commission, will, when done in pursuance of the intent described under the last sub-title, complete the criminal attempt. But this proposition can furnish practical help only as it "is made definite by a com- parison with the adjudications and the other principles governing them. Offender in Condition to perform. — It is of no consequence that the person accused was not in a condition to do the criminal thing which he meant,^ if he appeared to be, and thus created the rea- sonable apprehension required. § 738. Adaptation of Means. — Some of the cases, particularly some of the English ones, seem to proceed on the idea, that the means employed must be really adapted to the accomplishment of the end, and not merely apparently so.^ But this, we shall see,^ is not the true doctrine ; for the alarm created by the en- deavor is the same whether the means are really adapted or only appear to be. And generally the reason why an attempt is not effectual is because of some occult inefficacy of the means. This doctrine would overturn the law of attempt itself. But, — § 739. Act foreign to Purpose — Too Remote. — ■ If one, from a wicked purpose, does an act quite foreign to what he intends, he creates no apparent danger that his intent will be executed, and ' In the Indiana case of Kunkle v. tery is perpetrated on a woman, with The State, 32 Ind. 220, 230, 281, Elliott, intent to ravish, and she proves the J., after referring to the earlier case of stronger of the two, and thereby prevents The State v. Swails, 8 Ind. 524; observes : the accomplishment of the object in- " If the case is to be understood as lay- tended. The failure results alone from ing down the broad proposition that, to the want of the present ability to aceom- constitute an assault, or an assault and plish the end ; and would it be contended battery, with intent to commit a felony, that the party could not, in such a case, the intent and the present ability to exe- be convicted of the felonious intent "i " cute must necessarily be conjoined, it ^ Rog. v. Sheppard, 11 Cox C. C. 302; does not command our assent or ap- The State w. Napper, 6 Nev. 113. proval. . . . Suppose an assault and bat- * Post, § 749 et seq. 407 § 741 DIVISIONS AND DISTIKrCTIONS. [BOOK VI. evidently he does not become guilty of an attempt. And it is the same if an act, though adapted, does not proceed far enough for the law's notice.-^ § 740. How, in Principle, determine Indiotability. — The follow- ing view will be helpful. An intent to commit a substantive crime having been shown to exist, the prisoner cannot, as we have seen,^ complain though he is made to suffer the full punish- ment for the act intended, while yet he has been unable to take even one step toward its performance. And, as said in an old case, "«w foro conscientice the attempt is equal with the execution /of it." ^ But, to justify the government in punishing the intent, it must have developed itself in something done, whereby society has received an injury.* There are cases, as disclosed in a pre- vious chapter,^ wherein, while a person is intending to do one wrong, he, failing in it, does another ; and then, as a general rule, he is punishable for the wrong done, as a substantive offence. But where the thing done does not amount to such substantive offence, it is a criminal attempt, if the doing has proceeded far enough for the law's notice, and is also of a kind from which the community suffers. And the community suffers fi-om a mere alarm of crime. § 741. Discussions of Cases and Doctrines : — Attempted Pocket- picking and Abortion in England. — The cases are not all reconcilable with any uniform principle. Thus, in England, some defendants having been, in 1864, convicted of an attempt to commit larceny from a woman by picking her pocket, the conviction was held to be wrong, because no evidence had been produced, nor was it submitted to the jury to find, that she had in her pocket any thing which was the subject of larceny.^ But, in 1846, it having been made punishable by 7 Will. 4 & 1 Vict. c. 85, § 6, unlawfully to " use any instrument " " with intent to procure the miscarriage of any woman," one was held to be guilty, though the evidence showed affirmatively that the woman, supposed to be pregnant, was not so in fact.'' The acut- 1 Ante, § 112 et seq. Contra, in the United States. See post, 2 Ante, § 325 et seq. § 743, 744. 3 Rex V. Kinnersley, 1 Stra. 193, 196. ' Reg. v. Goodhall, 1 Den. C. C. 187 ; * Ante, § 204, 384. s. c. nom. Reg. v. Goodall, 2 Cox C. C. 6 Ante, § 323 et seq. 41 ; s. o. nom. Reg. v. Goodchild, 2 Car. 6 Reg. V. Collins, Leigh & C. 471. & K 293. In the earlier case of Rex v. 408 CHAP. LI.] ATTEMPT. §741 est understanding could not reconcile these two cases, — the one, for putting the hand into the pocket, but not finding there any thing to be removed ; the other, for penetrating to the womb, yet not discovering an embryo or foetus to be taken away — and the differing decisions must have sprung from opposite views in the two benches of judges. But he who adopts the line of argu- ment indicated in our last section will readily choose between the two decisions. It being accepted truth, that the defendant de- serves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether, in the unseen depths of the pocket or the womb, what was supposed to exist was really present or not.^ Scudder, 1 Moody, 216, the indictment being for administering a drug to a wo- man with intent to procure an abortion, contrary to 43 Geo. 3, c. 58, § 1, it was held, "that," in the language of the re- port, " the statute did not apply when it appeared negatively that the woman was not with child." But the terms of the statute were, " with intent, &c., to cause and procure the miscarriage of any woman then being quick with, child." Ob- viously this decision was required by the express statutory words. See also Rex V. Phillips, 3 Camp. 76 ; Eex v. Phillips, 3 Camp. 73. 1 1. In the second edition of Bennett & Heard's "Leading Criminal Cases," vol. ii. p. 482, 483, Mr. Heard has fallen into a singular misapprehension, which, as it occurs in a book of much value, ex- tensively before the profession, it be- comes necessary for me to correct. He quotes this section of mine, and adds : " Obviously the decision in Regina u. Goodhall [miscarriage] was required by the express language of the statute. [The writer's reference to a statute, at this place, has nothing to do with the case, as perhaps he did not mean to be understood that it had; it having been enacted fifteen years after the decision was pronounced.] And it is equally ob- vious that the decision in Regina v. Col- lins [pocket-picking] was required by the express language of the indictment. The two cases are thus reconciled. During the argument in Regina v. Collins, Crompton, J., said : 'It is important to notice how the indictment is framed. The prisoners are charged with putting their hands into the pocket " with intent the property of the said woman in the said gown pocket then being from the person of the said woman to steal.""' As the putting a hand into a pocket with intent to steal is clearly an act accompanied by a criminal intent, though there be noth- ing in the pocket, it is a common-law misdemeanor, and a count should in cases of this kind be framed to meet this view of the case. And the counsel for the prisoner argued, 'if the goods had not been specified as in the said gown pocket then being, an indictment might perhaps have been framed which would have been supported by the evidence.' Cock- burn, C. J. : ' This case is governed by Regina v. McPherson, Dears. & B. C. C. 197, 7 Cox C. C. 281. That case pro- ceeds on the .ground that you must prove the property as laid.' 9 Cox C. C. at p. 499." 2. I shall now show that Mr. Heard is mistaken in both branches of his propo- sition. The decision in Reg. u. Goodhall was not required by the express language of the statute, nor did it proceed on any such ground ; and the decision in Reg. v. Collins was not required in fact, and was not understood by the judges to be re- quired, by the express language of the indictment. 3. As to the latter case, it contains no two such connected sentences as Mr. 409 §742 DIVISIONS AND DISTINCTIONS. [book VI. § 742. Unseen Impediments, in Reason how regarded. — A further word, as to how an unseen impediment should in legal reason be Heard puts into tlie mouth of Cockburn, C. J., or their equiralent in meaning, but the contrary. As Mr. Heard relies on tlie report in Cox, whose series is not deemed regular, or consequently of the highest authority, whatever be its intrin- sic merit, I shall quote from this source the whole of the mature opinion of the court, as delivered by Cockburn, C. J., at the rendering of final judgment. He said : " We are all of opinion that tliis conviction cannot be sustained; and, in so holding, it is necessary to observe that the judgment proceeds on the assump- tion that the question, whether there was any thing in the pocket of the prosecu- trix which might have been the subject of larceny, does not appear to have been left to the jury. The case 'was reserved for the opinion of the court on the ques- tion, whether, supposing a person to put his hand into the pocket of another for the purpose of larceny, there being at the time nothing in the pocket, that is an at- tempt to commit larceny 1 We are far from saying, that, if the question whether there was any thing in the pocket of the prosecutrix had been left to the jury, there was not evidence on which they might have found that there was, and in wffich case the conviction would have been affirmed. But, assuming that there was nothing in the pocket of the prose- cutrix, the charge of attempting to com- mit larceny cannot be sustained. The case is governed by that of Reg. v. Mc- Pherson, and we think that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged. In this case, if there is noth- ing in the pocket of the prosecutrix, in our opinion the attempt to commit lar- ceny cannot be established. It may be illustrated by the case of a person going into a room, the door of which he finds open, for the purpose of stealing what- ever property he may find there, and finding nothing in the room, in that case no larceny could be committed and there- 410 fore no attempt ta commit larceny could be committed. In the absence, therefore, of any finding by the jury in this case, either directly, or inferentidlly by their verdict, that there was any property in the pocket of the prosecutrix, we think that this conviction must be quashed." And that this learned Chief Justice ex- pressed no such idea as the words inter- polated by Mr. Heard import, but quite the contrary, is further apparent from what appears in the same report of the ground taken by the counsel for the de- fendants. " For the defence, it was con- tended that to put a hand into an empty pocket was not an attempt to commit felony, and that as it was not proved af- firmatively that there was any property in the pocket at the time, it must be taken that there was not, and as larceny was the stealing of some chattel, if there was not any chattel to be stolen, putting the hand in the pocket could not be con- sidered as a step towards the completion of the offence." p. 497. 4. But Mr. Heard professes to tell us what Cockburn, C. J., said at the argu- ment. If he said any thing contrary to his deliberate opinion pronounced at the rendering of final judgment, it should be disregarded. But he did not. Accord- ing to Cox, when the case of Reg. v. Mc- Pherson was mentioned at the. argument, he remarked : " That case proceeds on the ground that you must prove the property as laid." He is not reported to liave observed also at this time that the case under consideration must be gov- erned by that one. He said so, indeed, at the rendering of final judgment. But he never said the two things in connec- tion, as Mr. Heard reports him to have done. Now, if the reader will look into Reg. V. McPherson (Dears. & B. 197, post, § 757), he will see the explanation. Two points were discussed in it : first, whether the matter as proved constituted in law a criminal attempt ; secondly, whether, if it did, there could be a con- viction on the indictment as drawn. And the judges intimated opinions in the neg- ative on both these points. When, there- CHAP. LI.J ATTEMPT. §742 regarded, will- be helpful on this most difficult part of the doctrine of attempt. We have seen, that, if what a man contemplates fore, at the argument of Reg. v. Collins, this case of McPherson was alluded to, and the learned Chief Justice used the words reported, he had one point in mind ; and, when he referred to it in de- livering final judgment, he had in mind the other point. This is an obvious ex- planation, assuming the report in Cox to be correct, which quite likely it is. But as these words, if employed at the argu- ment, might mislead a reader who did not look into McPherson's case, when this case of Collins came to be reported in the regular series (Leigh & C. 471), the learned Chief Justice seems to have taken care that the words should be struck out. At all events, they are not to be found in the regular report. 5. Again; it is impossible that any legal tribunal could have seriously enter- tained so untenable a position as is at- tributed to, this court by Mr. Heard. None of the reports of this case give the words of the indictment under marks of quotation ; but, I have compared the re- ports of Cox and of Leigh & Cave, and they agree in saying, that the prisoners were tried, &c.," on an indictment which stated that they unlawfully did attempt to commit a certain felony ; that is to say, that they did then put and place one of the hands of each of them into the gown pocket of a certain woman, whose name is to the jurors unknown, with in- tent the property of the said woman, in the said gown pocket then being, from the person of the said woman to steal, &c." Now, if it is in matter of law an offence to put the hand into a woman's gown pocket, supposed to contain prop- erty of hers, but in fact containing noth- ing, " with inUrd the property of the said woman in the* said gown pocket there being " to steal, the person charged be- ing mistaken in supposing there was in it such property, surely these words de- scribe the offence as accurately as any words are capable of doing. They do not say,' that, in fact, there was such property ; but that the intent with which the hand was thrust into the pocket was to steal such property. If they did say there was such property, and it was not in law necessary there should be any In order to constitute the offence, then this particular allegation would be simply surplusage. Thus, in this very case, the allegation puts one hand of each defend- ant into the pocket, and the proof was that only one hand of one of the defend- ants was actually there ; yet no one thought that, therefore, the offence was not proved as laid. Consequently it is simply absurd to say that this was a case of variance between the allegation and the proof. To be sure, Crompton, J., dropped, at the argument, a remark which possibly looks a little toward this idea ; but it was not followed up by any other judge, it was evidently abandoned by him as untenable, if indeed he enter- tained the idea, and nothing came of it as nothing could come. 6. Let us now look into the other case, Reg. V. Goodhall, the decision in which Mr. Heard says " was required by the express language of the statute." This, the reader remembers, was an indictment for an attempt to commit an abortion ; the proof showing that there was no foetus to be removed, and the court hold- ing that there need be none. The stat- ute on wliich the indictment was framed (7 Will. 4 & 1 Vict. c. 85, § 6) is, in full, " that w-hosoever, with intent to procure the miscarriage of any woman, shall un- lawfully administer to her or cause to be taken by her anypoison.or other noxious thing, or shall unlawfully use any instru- ment or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable at the discretion of the court to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be im- prisoned for any term not exceeding three years." The reader can see for himself, that here is no "express lan- guage," as Mr. Heard says there is, ren- dering pregnancy in the woman unnec- essary. Nor is there in the report any intimation that the case was adjudged on any such ground. To be sure, Mr. 411 § 742 DIVISIONS AND DISTINCTIONS. [BOOK VI. doing would not be in law a crime, lie cannot be said, in point of law, to intend to commit the crime. If he thints his act will be a crime, this is a mere mistake of his understanding, where the law holds it not to be such. His real intent being to do a par- ticular thing, if the thing is not a crime he does not intend to commit one, whatever he may erroneously suppose!^ But, where the thing he intends is a crime, and what he does is of a sort to create alarm, — in other words, excite apprehension that his evil intent will be can-ied out, — the incipient act which the law of attempt takes cognizance of, is, in reason, committed. Should a man mistake an effigy in female dress for a real woman, and undertake to ravish it,^ he would not even intend to commit rape, because the law holds the ravishment of an inanimate object not to be rape ; but, if a real woman occupied the place of the effigy, and he undertook to ravish her, yet, unknown to him, she carried a revolver, and with it disabled him, so that he could not effect his object, surely, in reason, and, it is believed, in law also, he would commit a criminal attempt. Again, if a man undertakes to rob one who, contrary to appearances, has no money, by reason of which the undertaking miscarries, shall he, after having throt- tled, stripped, and searched his victim, be permitted to deny his intent to commit robbery? The victim was a real person capa- ble of being robbed, on whom he reasonably expected to find money ; and, had it not been for the accident of no money being there, his offence would have been the completed crime of rob- bery. There is no analogy between this case and one in which an outrage is attempted on a mere inanimate substance.* There- fore, — Heard, in his report, p. 446, says the woman was or was not with child, in ao- judges were of opinion the question of cordance with the decision in Regina v. pregnancy was immaterial " under this Goodhall." A hasty reader might un- statute," and the authoritative report in derstand this to be the statute whicli Denison (1 Den. C. C. 187) says it was governed the ease. I am not clear that deemed immaterial under this " indict- Mr. Heard fell into the error ; I think he ment," — but X do not consider the partiq- did not. At all events, this statute of ular wording of the report, in this in- Victoria was enacted in 1861, and Beg. b. stance, important. Thus the matter Goodhall was decided in 1846, so that the stands in fact. But, at the place where statute could not have governed the de- Mr. Heard says this decision " was re- oision. quired by the express language of the i Ante, § 736. statute," he has the following note ; ^ See, for the principle, ante, § 441. " The statute 24 & 25 Vict. c. 100, in s Post, § 744. terms makes it immaterial whether the 412 CHAP. LI.j ATTEMPT. § 743 Rule in Reason. — In reason the rule is, that, if there is an intent \ to do what in law constitutes a substantive crime, and the person \ intending such crime proceeds in its commission till interrupted by some unforeseen impediment or lack, outside of himself, spe- cial to the particular case, and not open to observation, he com- mits the indictable attempt. § 743. American Doctrine — (Pocket-pioking, continued). — In mere form of words, the foregoing exposition may not be found among the judicial utterances, but it is believed to embody the American — or, at least, the better American — doctrine. Thus, in Pennsyl- vania, it was held, contrary to the English adjudication, that an indictment for assault with intent to steal from the pocket is good, though it contains no setting out of, any thing in the pocket to be stolen. And Duncan, J., in delivering the opinion of the court, said : " The intention of the person was to pick the pocket of what- ever he found in it ; and, although there might be nothing in the pocket, the intention to steal is the same." ^ Afterward, in Mas- sachusetts, the same question arose on a statute which, in affirm- ance of the common law, provided a punishment for " every person who shall attempt to commit an offence prohibited by law, and in such attempt shall do any act towards the commission of such offence, but shall fail in the perpetration, or shall be inter- cepted or prevented in the execution of the same."^ And it was held, that the indictment for an attempted pocket-picking need not allege, and the prosecutor need not prove, that there was in the pocket any thing which could be the subject of lar- ceny. Said Fletcher, J., speaking for the whole court: "To attempt is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose. A ^ man may make an attempt, an effort, a trial, to steal, by breaking open a trunk, and be disappointed in not finding the object of pursuit, and so not steal in fact. Still he remains nevertheless chargeable with the attempt, and with the act done toward the commission of the theft. So a man may make an attempt, an experiment, to' pick a pocket, by thrusting his hand into it, and not succeed, because there happens to be nothing in the pocket. Still he has clearly made the attempt, and done the act towards the commission of the offence. So, in the present case, it is not 1 Commonwealth v. Sogers, 5 S. & K. 463. " Mass. E. S. c. 133, § 12. 413 § 745 DIVISIONS AND DISTINCTIONS. [BOOK VI. probable that the defendant had in view any particular article, or had any knowledge whether or not there was any thing in the pocket of the unknown person ; but he attempted to pick the pocket of whatever he might find in it, if haply he should find any tiling ; and the attempt, with the act done of thrusting his hand into the pocket, made the offence complete. It was an ex- periment, and an experiment which, in the language of the stat- ute, failed ; and it is as much within the terms and meaning of the statute, if it failed by reason of there being nothing in the pocket, as if it had failed from any other cause." ^ § 744. Continued. — Afterward, in a pocket-picking ease in Connecticut, the same doctrine was affirmed. " It would be a startling proposition," said Butler, J., " that a known pick-pocket might pass around in a crowd, in full view of a policeman, and even in the room of a police station, and thrust his hands into the pockets of those present, with intent to steal, and yet not be liable to arrest or punishment, until the policeman had first ascer- tained that there was in fact money or valuables in some one of the pockets on which the thief had experimented." ^ This obser- vation opens to view what the author has set down in these sec- tions ^ to be the true legal reason for the conclusion ; namely, that the defendant, with the criminal intent, has performed an act tending to disturb the public repose. On every principle of law, therefore, the act is indictable. Again, — Attempted Robbery. — The Indiana court, following the Penn- sylvania, Massachusetts, and Connecticut doctrine, has held, that an assault on one with intent to rob him of his money may be committed, though he has no money in possession.* § 745. Further of Reasons in Pocket-picking. — The principle On which the English judges hold the attempt to steal not committed when the pocket contains no money appears to be, that, — " If successful, Full Offence." — " There must," in the words of Cockburn, C. J., " be an attempt which, if successful, constitutes the ful l offence." ^ There can be no doubt of the soundness of this doctrine. We have even seen,^ that, in law, a man does not 1 Commonwealth v. McDonald, 5 ' Ante, § 740, 742. Cush. 365 ; afttrmed in Commonwealth * Hamilton v. The State, 36 Ind. 280. V. Jacobs, 9 Allen, 274. 5 Eeg. v. Collins, Leigh & C. 471, 474 ; 2 The State v. Wilson, 30 Conn. 500, ante, § 741, note. 606. 8 Ante, § 736, 742. 414 CHAP. LT.] ATTEMPT. § 748 intend to commit a particular offence, if the act he intends would not, when fully performed, constitute such offence. But if, in these pocket-picking cases, the accused persons had found the money they meant to steal, they would have been guilty of a substantive offence : not finding it, their crime was, by this acci- dent, interrupting their operations, reduced to attempt. § 746. Legal Incapacity of Accused Person. — One without legal \ capacity to commit a crime cannot, in law, intend its commission.^ \ Nor can he do any act toward it ; because, as he cannot accom- '. plish the whole, so neither can he a part. Thus, — Attempted Rape by Boy. — A boy under fourteen is, as we have seen,^ incapable in law of committing rape, whatever be his phys- ical abilities in fact ; therefore he cannot be guilty of assault with intent to commit rape.^ ^ § 747. Where All meant is no Crime in Law. — It is but repeat- ing what is already laid down* to say, that, if all which the accused person intended, would, had it been done, constitute no substantive crime, it cannot be a crime under the name attempt, to do, with the same purpose, a part of this thing. One reason is, that the specific intent, which, we have seen,^ is always neces- sary in a criminal attempt, is wanting. Another reason relates to the act ; namely, if a series of acts together will not constitute an offence, one of the series alone will not. Thus, — § 748. In Robbery. — A person who by violence compels another to write an order for money or goods, intending to take it away, but is intercepted, does not commit an assault with in- tent to rob ; because, if he had got off with the order, the trans- action would not in law be robbery.^ Again, ^- In Forgery. — Forgery, which is a substantive offence, is partly in the nature of attempt.'^' And, though it may be of a fictitious name,® yet, if there is in existence no being or corporation to be 1 Ante, § 736. * Ante, § 736, 745, 746. 2 Ante, § 373 ; Vol. II. § 1117. « Ante, § 728-730, 735, 736. s Reg. V. Philips, 8 Car. & P. 736 ; « Kex v. Edwards, 6 Car. & P. 521. Eex V. Eldershaw, 3 Car. & P. 396 ; Wil- ' Ante, § 572 and note ; Vol. II. § 168, liams V. The State, 14 Ohio, 222; The 521. State V. Handy, 4 Harring. Del. 566 ; » The State v. Girens, 6 Ala. 747 ; People V. Kandolph, 2 Parker C. C. 213 ; Eex v. Taylor, 1 Leach, 4th ed. 214, 2 The State v. Sam, Winston, No. 1, 300. East P. C. 960 ; Rex v. BoUand, 1 Leach, Contra, Commonwealth D.Green, 2 Pick. 4th ed. 83, 2 East P. C. 958; Vol. II. 880, Parker, C. J., dissenting. See Smith § 543. V. The State, 12 Ohio State, 466 ; Vol. II. §1136; ante, § 736. 415 § 750 DIVISIOKS AND DISTINCTIONS. [BOOK VT. injured by the cheat,^ — or, if the forged writing, were it genu- ine, would be neither apparently nor really valid in law,^ — or if, for any other reason, it could not defraud any one,^ — the trans- action is not forgery. § 749. Means adapted. — We have seen something of the doc- trine, that, to constitute attempt, the means employed must have some adaptation to accomplish the intended result ; * for, without this element, they create no alarm, and the public repose is not threatened.^ Yet if the means are apparently adapted, that, in reason, and on the better authorities, is sufficient; while there are cases which seem to require, contrary to principle, a real and complete adaptation.^ § 750. PerfectnesB of Adaptation. — Nor can we split hairs here, and say that, even to outward appearance, the adaptation of means to the proposed end must in all circumstances be perfect ; for thus we should nearly do away with the doctrine of attempt as a practical element in the law. In most cases, the reason why the means employed proved unsuccessful is, that, as a looker-on might have seen, there was some defect in the arrangement, or in the tools, or in the steps taken in carrying out the plan, by reason of which the enterprise failed. Overlooking these obvious views, — Defect in Loading of Fire-arms — (Attempted Homicide). — The Indiana court once held, that a man does not commit the offence of shooting at another with intent to murder, if, contrary to his belief, the charge contains no ball, and the person shot at is dis- tant forty feet ; because, it was said, where the present ability to commit the act contemplated is wanting, the offence of attempt- ing to commit it is not complete." In a subsequent Indiana case, 1 Reg. V. Tylney, 1 Den. C. C. 319; 6 Ante, § 740, 742. People V. Peabody, 25 Wend. 472 ; The ' See and compare Kunkle v. The State V. Givens, 5 Ala. 747; Vol. II. State, 32 Ind. 220; Mullen a. The State, § 699. 45 Ala. 48 ; The State v. Napper, 6 Nev. •■! Rex V. Burke, Russ. & Ry. 496 ; 113 ; Reg. u. Gamble, 10 Cox C. C. 545 ; People V. Harrison, 8 Barb. 560 ; Vol. II. The State u. Epperson, 27 Misso. 255 ; § 533 et aeq. Reg. v. Dale, 6 Cox C. C. 14; Sumpter, 3 Reg. V. Marcus, 2 Car. & K. 356, con- v. The State, 11 Pla. 274 ; People v. cernlng which see Reg. v. Nash, 2 Den. Blake, 1 Wheeler Grim. Gas. 490 ; Reg. C. C. 493, 12 Eng. L. & Eq. 578 ; Rex v. v. Goodman, 22 V. C. C. P. 338. Knight, 1 Salk. 375, 1 Ld. Kaym. 527; ' The State v. Swails, 8 Ind. 624,525. Barnum v. The State, 15 Ohio, 717; See, as perhaps contra, Johnson «. The Vol. II. § 592-595. State, 26 Ga. 611. And see AUen v. The 4 Ante, § 738. State, 28 Ga. 395. In matter of statutory 416 CHAP, LI.] ATTEMPT, § 752 this court in effect overrule this doctrine, accepting the views of the present and accompanying sections as sound.^ Again, — § 751. Indiscriminate Shooting — (No Person in Range). — In a Scotch case, it was held to be a crime wickedly and culpably to discharge loaded fire-arms into an inhabited house, to the appar- ent danger of lives within. And the lord justice-clerk said : " It was not necessary, under the present libel, to prove real danger to individuals within the house. The mere firing of the gun into the house constituted the crime, the panel having taken his chance of the consequences. It would therefore be no defence that the inmates of the house had accidentally left the room when the shot was fired into it, far less that there happened Ho be a screen which possibly might shield them from danger. If a per- son standing upon one side of a wall, and hearing the noise of a crowd collected upon the other, threw over some heavy substance, the act was equally criminal, though the crowd chanced at the moment to have moved back from the wall. In the present case, the act done was one by which lives were endangered, and would in all probability have been lost had it not been for circumstances which the panel could not have foreseen." ^ Again, — § 752. Demanding Thing of one not having it. — In Ireland, the statute of 9 Geo. 4, c. 55, § 6, having made punishable any per- son who " shall with menaces or by force demand any such prop- erty (being any chattel, money, or valuable security) of any other person, with intent to steal the same ; " a defendant was adjudged to be rightly convicted who, with the required intent, demanded a gun, at the house of its owner, of his housekeeper, while neither the owner nor the gun was in fact in the house.^ And, on the whole, we may deem the true doctrine to be, that, — Rule for these Cases. — Where the intended criminal result is not accomplished, simply because of obstructions in the way, or I because of the want of the thing to be operated upon, when the , impediment is of a nature to be unknown to the offender, Avho j used what seemed appropriate means, the criminal attempt is J interpretation, perhaps such an act also Eex v. Coe, 6 Car. & P. 403 ; Rex v. would not be deemed, in England, dis- Crooke, 2 Stra. 901. charging "loaded arms." Post, § 758. ' Rex v. JMcBennfet, Jebb, 148. Com- 1 Kunkle ». The State, 32 Ind. 220, pare, with this case, Rex v. Jenks, 2 232. Leach, 4th ed. 774, 2 East P. C. 514; 2 Smith's Case, 1 Broun, 240. See Rex v. Lyons, 2 East P. C. 497, 498, 1 Leach, 4th ed. 185. VOL. I. 27 417 § 754 DIVISIONS AND DISTINCTIONS. [BOOK VI. committed. This doctrine, which was thus educed by the author in the earlier editions of this work, has been adopted by the Mas- sachusetts court ; Gray, J., expressing it in the following words : " Whenever the law makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplish- ing it, criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance." ■'■ The Indiana court adopted it in the terms of the author.^ i §763. Impossibility — (of Law — Fact). — Another form of stating some of the foregoing doctrines is, that, as a man will not in fact attempt, so neither will the law treat him as attempting, what he knows he cannot do.^ And, all being conclusively pre- sumed to understand the law,* no man can legally intend what is legally impossible. An instance of this is, that, as already stated,^ since a boy under fourteen cannot in law commit rape, he cannot incur the legal guilt of attempting it. This is an impos- sibility of law. But the doctrines of the foregoing sections dis- close, that, in various circumstances, the attempt may be indict- able when an impossibility of fact prevented the commission of the substantive offence. § 764. Mistake of Pact. — Not only may there be an impossi- bility of fact, but also a mistake of fact. The pocket-picking cases and several others, before mentioned, involve this consider- ation. On principle, the doctrine is — Doctrine stated. — The necessary intent existing, the act must 1 Commonwealth v. Jacobs, 9 Allen, the person solicited thus to leave the 274, 275- Enticing out of State to en- State was not fit to become a soldier, list. — In this case the indictment was " there being no evidence tliat his unfit- upon the second clause of the following ness for military service was manifest or statute : " It shall not be lawful for any known at the time ^f this unlawful act." person within this Commonwealth to re- p. 27B. cruit for or enlist in military service, or, ^ Kunkle v. The State, 32 Ind. 220, &c. ; nor to entice or solicit any person 232. See ante, § 750 and note, to leave the Commonwealth for the pur- s Kgx v. Edwards, 6 Car. & P. 515. pose of entering upon or enlisting, or And see Nugent v. The State, 18 Ala. offering themselves as substitutes for 621. drafted persons, in any military service * Ante, § 294. whatever." And it was held that a con- * Ante, § 746. viction might be maintained, although 418 CHAP. LI.] ATTEMPT. § 756 have some adaptation to accomplish the thing intended. But the adaptation need only he apparent ; because the evU to he cor- rected relates to apparent danger, rather than to actual injury- sustained. If the thing meant were accomplished, the offence would be a substantive one ; but, not being accomplished, the danger as it appears to outside observation is the matter indict- able under the name attempt.^ Why ? — The reasons for this doctrine wiU sufficiently appear in the foregoing discussions under the present sub-title. § 755. Special Terms of the Statute or Indictment : — Statutory and Common-law Attempts similar.' — Statutes are con- strued conformably with the common law, except where their express words otherwise require.^ Therefore, in cases not within this exception, statutory attempts are subject in all respects to the same rules as those at the common law ; and, on the other hand, constructions under the statutes govern also attempts at the common law. But — Exceptional Statutes. — Occasionally we meet with a statute in special terms, taking it out of the common-law interpretations ; for express words cannot be disregarded. Also, — Form of Indictment. — Sometimes a pleader incautiously draws the indictment in such form as to restrict the proofs, or confine their effects, within narrower limits than the common law would do. And — Mixed Cases. — There are cases of a mixed nature, proceeding either upon grounds peculiar to themselves, or partly on the common-law rules and partly on special terms in the statute or indictment. These are to be decided, in a measure, on special considerations. The decisions, therefore, are of little weight in other cases. § 756. Special Terms. — Let US Call to mind some special terms already interpreted. Thus, — " Attempt to poison." — An " attempt to poison " is not commit- ted by administering a substance not poisonous, yet believed to be ; because, if it kills the man, he is not poisoned to death.^ 1 This enunciation of doctrine was ^ The State v. Clarissa, 11 Ala. 67. copied and followed in Kunkle v. The And see, as illustrative, Commonwealtli State, 32 Ind. 220, 232. And see ante, v. Manley, 12 Pick. 173 ; Rex o. Coe, 6 § 750 and note. Car. & P. 403 ; Reg. v. Williams, 1 Den. a Stat. Crimes, § 88, 114, 119, 141, 144, C. C. 39 ; Rex v. Hughes, 5 Car. & P. 126 ; 165. Eeg. V. Leddington, 9 Car. & P. 79. 419 § 758 DIVISIONS AND DISTINCTIONS. [BOOK VI. This is the English doctrine ; but those who have read the fore- going discussions will see, that the question lies very near the debatable ground. For, if the substance administered should resemble poison, and appear to ordinary observation to be such, while yet it could be scientifically ascertained not to b6, the re- quirements of the statute would be filled to ordinary apprehen- sion, in a case where the principles of the common law would demand a conviction. § 757. Attempting to steal Particular Goods ■ — Burglary. — The English statute of 14 & 15 Vict. c. 100, § 9, having provided, that, "if, on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason the;'eof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defend- ant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same ; " a prisoner, indicted for the burglary of breaking and entering a dwelling-house and stealing therein certain goods specified, was held to be wrongly con- victed of the attempt, where the particular goods were not in the dwelling-house. The reason for this decision is not quite certain : it may be brought into accord with the late English doctrine as to pocket-picking ; and, indeed, that doctrine was professedly derived from this case.^ But, except for the later exposition, we might suppose the judges deemed the allegation, specifying arti- cles as having been stolen, not sustained, even though the facts constituted a criminal attempt ; while possibly they did not think the facts indictable as such attempt. In truth, both these points appear in the case.^ Again, it is held that — § 758. 1 " Shoot at." — One does not " shoot at any person " ^ who is not, in fact, in the place toward which the gun is pointed, or within reach of the charge, though believed to be so.* " Loaded Arms." — Neither does one attempt to discharge " loaded arms," if the touch-hole is so plugged that the gun can- 1 Ante, § 741 and note. under this statute it has been ruled, that, 2 Eeg. w. McPherson, Dears. & B. 197. if tlie shot hit the person mentioned in * Stat. Geo. 4, c. 31, § 12. the indictment, it is sulBcient, thougli the * Rex V. Lovel, 2 Moody & R. 39. defendant aimed his gun at another. And see Rex v. Kitchen, Russ. & Ry. 95 ; Eex v. Jarvis, 2 Moody & R. 40. Henry v. The State, 18 Ohio, 32. Yet 420 CHAP. LI.] ATTEMPT. § 759 not possibly be fired ; ^ or if, from not being primed or otherwise, it does not contain a charge capable of doing the mischief in- tended.2 In such a case the "arms" are not "loaded." Yet, scarcely in harmony with this interpretation, or, as lying close on the line between this class of cases and another, — " Poison " in Form not Harmful. — The English judges have held, under a statute against administering " poison or other destruc- tive thing " with intent to kill, that coculus indicus berries, in their exterior unbroken pod, given to a child nine weeks old, are " poison ; " though, by reason of the pod covering the poisonous part, they could not, as they did not, harm the child.^ " Personating." — There cannot be a " personating " of a sup- posed individual who never existed ; * there can be, of one who has lived and is dead.^ § 759. Magnitude of thd Act and its Nearness to the consumma- tion of the substantive offence intended : — Small or Remote. — An attempt may be too small a thing, or proceed too short a way toward its accomplishment, for the law to notice.^ How great it must be, and how far progress, is mat- ter not reducible to exact rule.^ Attempt to commit Misdemeanor — Felony — Treason. — It seems to have been formerly supposed by some, that no attempt to com- mit a mere misdemeanor is indictable ; ^ but, if this was ever law, it has not been in modern times. As generally stated, the doctrine is, that every attempt to commit any crime,® whether 1 Rex V. Harris, 5 Car. & P. 159 ; Stat. Reg. v. Cluderoy, 2 Car. & K. 907. And Crimes, § 322. see The State v. Clarissa, 11 Ala. 67 ; 2 Rex V. Carr, Russ. & Ry. 377 ; Whit- Rex v. Phillips, 3 Camp. 73. Form of ley's Case, 1 Le win, 123; Reg. w. Oxford, Indictment. — An indictment for mix- 9 Car. & P. 525; 1 East P. C. 412; Reg. ing sponge with milk, with intent to poi- V. Gamble, 10 Cox C. C. 645 ; Stat, son, was held bad for not setting out that Climes, § 322 ; Vaughan v. The State, 3 the sponge was of a deleterious or poison- Sm. & M. 553. And see Reg. u. Lewis, 9 ous nature. Rex . Mere- st. George, 9 Car. & P. 483 ; The State dith, 8 Car. & P. 589. B. Smith, 2 Humph. 457. » Rex v. Scofield, Cald. 397, 403 ; Rex 8 Reg. V. Cluderay, 1 Den. C. C. 514, v. Higgins, 2 East, 5. Temp. & M. 219, 14 Jur. 71 ; s. c. nom. 421 § 762 DIVISIONS AND DISTINCTIONS. [BOOK VI. treason,^ felony,^ or misdemeanor,^ existing either at the common law or under a statute,* is indictable as misdemeanor. Yet evi- dently, — § 760. Magnitude of TTnited Act and Intent — (Great and Small Offences). — Though, in attempt, some act ,must accompany the special intent,^ still, as the thing noticed by the law is the sum of both, the act may be less, and proceed less far, in proportion as the intent is in enormity greater. Hence, — § 761. Too small for Attempt. — There are offences which, be- cause of their little magnitude, cannot have the appendage of attempt. This is so both in principle and authority.^ Thus, — In Liquor-seUing. — A man is not indictable for attempting, or persuading to, the sale of a glass of intoxicating liquor without license ; ^ or for making a mere contract to sell spirits, where only the selling is interdicted.* But — Procuring Obscene Print — Writing Libel. — One is indictable who procures an obscene print, with the intent to publish it ; ^ and, it seems, who writes any libel with such intent.^" § 762. As to Act being " Illegal." — Lord Abinger once sug- gested, that, in an attempt to commit a misdemeanor, there must be some " illegal act." But, if he meant only that the act must be illegal by reason of the intent prompting it, such a rule would furnish no practical help ; if his idea was, that it must be illegal 1 Rex V. Cowper, 5 Mod. 206, Skin, 637 ; Rex v. Fursey, 6 Car. & P. 81. 2 The State v. Danforth, 3 Conn. 112 The State v. Boyden, 13 Ire. 505 ; Com monwealth v. Barlow, 4 Mass. 439 ; Hawk. P. C. Curw. ed. p. 72, § 3 Hohnes's Case, Cro. Car. 376; Rex v. * Stat. Crimes, § 139, 140; Rex t>. Cartwright, Russ. & Ry. 106; Rex v. Roderick, 7 Car. & P. 795 ; Rex v. But- ler, 6 Car. &P. 368 ; The State v. Maner, 2 Hill, S. C. 453; The State v. Avery, 7 Conn. 266. 6 Ante, § 204 et seq. Hughes, 5 Car. & P. 126; Reg. „. Clay- « Ante, § 760; Rex o. Upton, 2 Stra. ton, 1 Car. & K. 128 ; Rex t,. Higgins, 2 816 ; Rex v. Bryan, 2 Stra. 866 ; Dob- East, 5 ; The State u. Avery, 7 Conn, kins v. The State, 2 Humph. 424 ; Com- 266. monwealth a. WUlard, 22 Pick. 476; 8 Rex V. Scofleld, 2 East P. C. 1028, Pulse v. The State, 5 Humph. 108 ; Ross 1030; Rex v. Burdett, 4 B. & Aid. 95; v. Commonwealth, 2 B.Monr. 417. Reg. V. Martin, 9 Car. & P. 215; Reg. v. ^ Commonwealth v. Willard, 22 Pick. Martin, 9 Car. & P. 213, 2 Moody, 123 ; 476. And see ante, § 658 and note. Commonwealth v. Kingsbury, 6 Mass. s PuUe v. The State, 6 Humph. 108. 106, 108 ; Reg. v. Meredith, 8 Car. & P. » Dugdale v. Reg., 16 Eng. L. & Eq. 589 ; Dugdale v. Reg. 1 Ellis & B. 435, 16 380, 1 Ellis & B. 435 ; ante, § 206. Eng. L. & Eq, 380 ; Rex v. Phillips, Cas. m Rex v. Burdett, 4 B. & Aid. 95, 159 j temp. Hardw. 241 ; Ross v. Common- Vol. II. § 927. wealth, 2 B. Monr. 417 ; Reg. v. Chap- man, 1 Den. C. C. 432, 439. 422 CHAP. LI.] ATTEMPT. § 762 per se, such is not the adjudged law. The foundation principle in attempt is, we have seen,^ that an act in itself innocent, or not completely criminal, is made " illegal," or its illegalit}'^ enhanced, by the special evil intent whence it proceeds. The learned judge illustrated his suggestion thus : — Attempted Carnal Abuse. — If a man, meaning carnally to abuse a girl between ten and twelve, " was to take his horse and ride to the place where the child was, that," said the judge, " would be a step towards the commission of the ofPence, but would not be indictable." ^ Assuming this not to be an indictable act, as probably no court would hold it to be, still the reason is plainly some other than that it is not illegal. If the man, instead of riding to the place, stole a rope with which to tie the girl, the larceny would be a sufficiently " illegal " act, yet Lord Abinger would doubtless not have deelned it indictable under the' name of attempt to commit a carnal abuse. Again, — Attempt to Charge with Crime. — A conspiracy to charge one falsely with crime is punishable at the common law,^ and in some circumstances it is so for a single individual to prefer the false accusation.* There may, therefore, be an indictable attempt to commit the latter offence ; and the act will be sufficient if one puts into a man's pocket " three ducats, with a malicious intent to charge him with felony." ^ Here the act is proximate to the contemplated bringing of the accusation. It derives its criminal quality wholly from the intent ; for the deed would be good if the man was poor, and the ducats were put into his pocket as a present. As to a Rule. — It m"ay be difficult to lay down a rule to deter- mine when the act is in magnitude and proximity to the contem- plated full offence adequate ; it need not, certainly according to the American idea of attempt,^ be the act next preceding the one which would complete the substantive crime intended ; '' and, in reason, the act may be less in magnitude and nearness as the crime is heavier.^ Perhaps the only practicable method is for the judge, in each case, to consider the special facts without 1 Ante, § 729. ° Rex v. Simmons, 1 Wlls. 329. 2 Reg. v. Meredith, 8 Car. & P. 589. 6 Ante, § 724. 8 Ante, § 591, note ; Vol. II. § 216, 7. post, § 764. 217, 220. ° Ante, § 760. * Ante, § 591 and note. 423 § 764 DIVISIONS AND DISTINCTIONS. [^BOOK VI. undertaking a complete generalization, and to give directions to the jury largely with reference to them.^ § 763. Preparation. — It is probable that, in ordinary circum- stances, the making of preparations, at a distance from the place where the substantive offence is to be committed, will not consti- tute an indictable attempt. Yet it would seem that some prepa- rations of this sort, for the commission of some crimes, may be indictable at the common law ; ^ and they would, with us, be called attempt,^ though not known by this name in England. To illustrate, — § 764. Attempted Battery — (Procuring Switch). — If a man, not standing in loco parentis, should simply procure a switch to whip a child, it is not probable that any court would hold him to be indictable for this ; though there may be an indictable attempt to commit a battery.* On the other hand, — "Last Proximate Act." — The act, as already intimated,^ need " not be the last proximate act prior to the consummation of the felony attempted to be perpetrated." ® Still, if the offence, in- stead of being a felony, was the lowest misdemeanor which admits of the indictable attempt, doubtless the act, to be indictable, must be the " last proximate " one. Attempted Incestuous Marriage — (Preparation, continued). — In a California case, declarations of an intent to enter into an incest- uous marriage, followed by elopement for the purpose, and send- ing for a magistrate to perform the ceremony, were held not to 1 See TJhl v. Commonwealth, 6 Grat. misdemeanor is not criminal. Some act 706 ; Rex u. Taylor, Holt, 534 ; Reg. v. is required, and we do not think that all St. George, 9 Car. & P. 483 ; Reg. v. acts towards committing a misdemeanor Lewis, 9 Car. & P. 523 ; United States v. are indictable. Acts remotely leading Twenty-eight Packages, Gilpin, 306; towards tlie commission of the offence The State v. Bruce, 24 Maine, 71 ; Rex are not to be considered as attempts to V. Parfait, 1 Leach, 4th ed. 19, 1 East P. commit it, but acts immediately con- C. 416, 417; Sinclair's Case, 2 Lewin, 49 ; nected with it are." Reg. V. Renehaw, 20 Eng. L. & Eq. 598, 2 3 Ante, § 724. Cox C. C. 285, 11 Jur. 615; Gibson's « United States w. Lyles, 4 Cranch C. Case, 2 Broun, 366. C. 469 ; the form of attempt being a 2 Ante, § 435, 436. Lord Denman, C. solicitation. See Vol. II. § 62. See also, J., once stated the doctrine in the very and query whether contra, White v. The strong terms, that " any step taken with State, 22 Texas, 608. And see Bob v. a view to the commission of a misde- The State, 29 Ala. 20, 25. meanor is a misdemeanor." Reg. v. * Ante, § 762. Chapman, 1 Den. C. C. 432, 439. In Reg. « Uhl v. Commonwealth, 6 Grat. 706. V. Eagleton, Dears. 516, 538, Parke, B., And see post, § 768. said : " The mere intention to commit a 424 CHAP. LI.] ATTEMPT. § 765 constitute the indictable attempt. It was even laid down, that, for the attempt to be punishable, it must have proceeded to some act which would end in the substantive offence, but for the inter- vention of circumstances independent of the will of the parties. In this case, the rule would require them to be standing before the magistrate about to begin the marriage ceremony. Field, C. J., added : " Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence ; the attempt is the direct movement towards the commission after the preparations are made. To illustrate : a party may purchase and load a gun, with the declared intention to shoot his neighbor ; but, until some movement is made to use the weapon upon the person of his intended victim, there is only preparation, and not an attempt." ^ It is believed that this case lies near the partition line between the indictable and the unindictable, and we cannot safely assume that it will be followed by all courts. Indeed, — Attempted Larceny. — A Georgia case of attempt to commit a larceny cannot readily be brought into accord with this one, in principle. It was held, that, to take an impression of the key of a warehouse, and have a key made from it for use in commit- ting a larceny therein, is a sufficient attempt, whether the of- fender means to commit the theft personally, or procure its com- mission by another. One judge dissented on the ground that, as the plan in that instance was to get another to commit the lar- ceny, the defendant " was not guilty of an attempt to steal from the store," but rather of an -attempt to procure another to steal.^ § 765. Further of the Kind of Act : — Any Act. — There is no doctrine limiting the act to any partic- ular species. In general terms, any form of act, apparently adapted to the purpose, is sufficient. Thus, — staking Counterfeits. — The staking, at a gaming-table, of coun- terfeit coin as good, is an attempt to utter it.^ So — Burning Owia House to burn Neighbor's — Carnal Abuse. — One may attempt to burn his neighbor's house, by burning his own ; * 1 People V. Murray, 14 Cal. 159, 160. Arson — Match goes out. — As to at- 2 Griffin v. The State, 26 Ga. 493. tempt to commit arson where the match 8 The State v. Beeler, 1 Brev. 482. goes out, see Keg. u. Goodnjian, 22 U. C. 4 W. Jones, 351 ; 2 East P. C. 1027. C. P. 338. 425 § 767 DIVISIONS AND DISTINCTIONS. [BOOK Vli or, to carnally abuse a girl between ten and twelve years old, by doing with her consent what otherwise would be an assault,^ — it being legally in the power of such a girl to consent to the as- sault but not the carnal act.^ § 766. Rape attempted where Woman yields. — If a man, intend- ing to ravish a woman, assaults her, but before penetration she yields, he is guilty of assault with intent to commit rape. Her consent does not undo what is done ; for, observes Kellogg, J. : " The rules of the criminal law are not founded upon legal fic- tions ; and the doctrine of relation, however useful it may be as a rule defining or regulating private rights in a civil suit, has no application in criminal proceedings." ^ But this has already been illustrated.* § 767. Solicitation. — A common form of attempt is the solicit- ing of another to commit a crime ; the act, which is a necessary ingredient in every offence,^ consisting in the solicitation.® Thus, — To Larceny — Sodomy — Adultery — Bribery — Threatening Not- ice. — To incite a servant to steal his master's goods,'' or other person to undertake a larceny ; ^ to make overtures to one to commit sodomy,^ or adultery where it is a statutory felony ; ^^ to offer, merely, a bribe ; ^^ to request, it seems, one to post up a threatening notice ; ^^ are severally indictable misdemeanors, though the person approached declines the persuasion. Conspiiaoy. — A conspiracy to commit a crime is in some degree in the nature of a solicitation, though it is more ; and it is, in part, within the rules which govern attempt.^^ Solicitation not nearest to Substantive Offence. — A solicitation 1 Reg. V. Martin, 9 Car. & P. 213, 2 iell, 6 Mod. 99 ; s. o. nom. Reg. v. Daniel, Moody, 123. 6 Mod. 182, 1 Salk. 880 ; Reg. u. Quail, 4 2 Stat. Crimes, § 480, 483, 491^93. Tost. & F. 1076. 8 The State v. Hartigan, 32 Vt. 607, a Pennsylvania v. McGill, Addison, 21. 611 ; Vol. II § 1122. See Reg. u. Collingwood, 6 Mod. 288. 4 Ante, § 733. See, also, Hull o. The » Rex v. Hickman, 1 Moody, 34 ; Reg. State, 22 Wis. 580. v. Rowed, 6 Jur. 396. 6 Ante, § 204 et seq., 729. i" The State v. Avery, 7 Conn. 266. 8 Rex V. Higgins, 2 East, 5 ; Reg. o. " United States «. Worrall, 2 Dall. Turvy, Holt, 364, 365 ; People v. Bush, 4 384 ; Hefelton v. Lister, Cooke, 88 ; Vol. Hill, N. Y. 133 ; The State o. Avery, 7 II. § 88, 89. Conn. 266 ; Commonwealth o. Harring- 12 ]jeg. t,. Darcy, 1 Crawf . & Dix C. C. ton, 3 Pick. 26 ; Reg. v. Gregory, Law 33. Eep. 1 C. C. 77, 10 Cox C. C. 459. 18 See ante, § 432, 762-764; Vol. IL ' Rex V. Higgins, supra ; Reg. v. Dan- § 169, 173, 191-195. 426 CHAP. LI.] ATTEMPT. § 769 does not stand so near the substantive offence intended as some other forms of attempt. It appears, properly viewed, to be the first of a series of steps toward the execution, — a " commence- ment of execution." ^ Though not " the last proximate act prior to the consummation," 2 it need not be, and it is adequate. Consequently, — § 768. Solicitation to Lighter Offences. — Though, to render a solicitation indictable, it is, as in other attempts,^ immaterial, in general, whether the thing proposed to be done is technically a felony or a misdemeanor ; * still, as the soliciting is the first step only in a gradation reaching to the consummation, the thing in- tended must, on principles already explained,^ be of a graver nature than if the step lay further in advance. Thus, — To Adultery. — In Connecticut, where adultery is felony, an unsuccessful enticement to it "has been adjudged to be an indict- able attempt ; ^ but, in Pennsylvania, where it is misdemeanor punishable by fine, and imprisonment not exceeding a year, it is not punishable to solicit a married woman to its commission. And this contrariety of conclusion appears not to proceed from differing views of the two courts, but from the differing enormity of the substantive offence in the two States.^ § 769. Adaptation. — From the doctrine of adaptation, already considered,^ further illustrations may be drawn. If there is no aptitude, real or apparent, in the thing done to accomplish the criminal object intended, it does not approach sufficiently near the substantive crime to- create the alarm against which the doc- trine of attempt protects the community, and it is not indictable. Thus, — Similitude, &c. — (Forgery). —7 In affirmance of common-law principles, but resting mainly on statutes, we have in forgery and counterfeiting the doctrine, that there must be in the thing forged or counterfeited a similitude to the supposed original ; for else it could not probably accomplish any intended cheat.^ And 1 Ante, § 732, note. ^ Ante, § 767. The State v. Avery, 7 2 lb. And see, as illustrative, ante. Conn. 266. § 339, 340 ; Eeg. v. Eagleton, Dears. 515, ~ Smith «. Commonwealth, 4 Smith, 538, 24 Law J. N. s. M. C. 158, 1 Jur. N. 8. Pa. 209. As to a conspiracy to commit 940, 33 Eng. L. & Eq. 540. adultery, see Vol. II. § 184 ; Shannon v. i Ante, § 754. Commonwealth, 2 Harris, Pa. 226. 4 See the cases cited to the last sec- ' Ante, § 738 et seq. tion. ' Rex V. Hoost, 2 East P. C. 950 ; Rex 6 Ante § 760, 764. ». Elliott, 2 East P. C. 951 ; s. c. nom. 427 § 771 DIVISIONS ANt) DISTINCTIONS. [BOOK VI. there are various other cases falling within a like principle.^ But — Sort of Thing administered — (Abortion). — Under a statute making it criminal, to administer to a woman, with intent to pro- cure an abortion, " any medicine or other thing" a learned judge intimated, that it was immaterial what the thing was, if given with the intent, though only " a bit of bread." ^ Yet should the prisoner know the thing to be incapable of producing the result, plainly he would not commit the crime ; because then he could not have the intent which the law requires.^ And, on principle, perhaps the intimation itseK is supportable only by applying a very barren sort of interpretation to the statute. IV. The Combination of Act and Intent. § 770. Both Act and Intent. — We have seen,* that every thing, which at the common law is indictable, consists of a criminal in- tent and an act proceeding from it. But, in attempt, this is specially so ; and what would be adequate as an intent in the greater part of the substantive offences is quite insufficient here.^ Now, — Specific Intent. — The specific intent, without which there can be no attempt, must, in reason, impel the act in every one of its essential parts. For example, if a man should, as in a case al- ready supposed,^ ride to a place where there was a girl between the ages of ten and twelve years, intending to commit a carnal abuse upon her, then should bind her under the changed purpose to murder her, then should resolve again upon carnal abuse, but, before taking any further steps should be frightened away, he could not be punished for the carnal attempt, whatever his lia- bility might be for the attempt to commit homicide. There- fore, — § 771. Simultaneous. — Whether, in all other cases of crime. Rex V. Elliot, 1 Leach, 4th ed. 175, 179 ; i Reg. v. Stringer, 1 Car. & K. 188 ; Rex V. CoUicott, Russ. & Ry. 212, 2 Rex i: Griffith, 1 Car. & P. 298. Leach, 4th ed. 1048, 4 Taunt. 308, 309; 2 Rex v. Coe, 6 Car. & P. 403, Rex V. Welsh, 1 Kast P. C. 87, 164, 1 Vaughan, B. Leach, 4th ed. 364 ; United States u. » Ante, § 753. Morrow, 4 Wash. C. C. 733; Rasnick v. « Ante, § 204-207, 287, 430 et seq. Commonwealth, 2 Va. Cas. 356 ; Rex v. ' Ante, § 729, 780. Varley, 1 Leach, 4th ed. 76, 1 East P. C. « Ante, § 762. 164. 428 CHAP. LI.] ATTEMPT. § 772 the evil intent and act must be simultaneous or not,^ it is plain that they must be in all cases of attempt. And if, to repeat, the special intent required in these cases does not continue while every part of the act necessary to complete the attempt is being performed, no criminal prosecution lies for what is done. If, however, enough is done while this intent prompts the act, no objection can be taken that something else, not essential, was done when it was not present.^ V. The Degree of the Offence. § 772. Is Misdemeanor. — In early times, an attempt to commit a felony was supposed to be felony.^ This opinion was long ago exploded ; and it became established, that all indictable attempts, whether to commit felony or misdemeanor, at common law or statutory, are misdemeanors.* Therefore, — Counselling to Felony. — If one counsels to a felonious act an- other, who, in the absence of the adviser, undertakes it and fails, both may be jointly indicted for the attempt ; ^ though, had the effort succeeded, the one would have been an accessory before the fact, and the other a principal, in the felony ; and the indict- ment could not have been in the same sense joint.^ Attempts at Treason. — Some of the English treasons, as the imagining of the king's death, are so purely attempts in their nature as not to admit of technical attempts.^ But it is believed that both of the forms of treason known in this country, though being in some sense attempts,^ do admit, in the States, of indict- able attempts besides,^ which are misdemeanors.^" 1 Ante, § 207. * Ante, § 663, 664 ; Train & Heard 2 Ante' § 339-341. Free. 15. s 1 Hawk. P. C. Curw. ed. p. 72, § 3 ; "^ Eex v. Jackson, 1 Crawf. & Dix C. 1 East P. C. 411 ; Dwar. Stat. 2d ed. 794. C. 149 ; 1 Hawk. P. C. Curw. ed. p. 12, •4 1 East P. C. 85, 411, 415 ; Holmes's § 27, 80-33 ; Rex v. Tooke, 1 East P. C. Case, Cro. Car. 376 ; The State v. Boy- 60 ; Keg. o. Harris, Car. & M. 661, note, den, 13 Ire. 505 ; Commonwealth i'. Bar- » Ante, § 437, 440 ; Rex v. Stone, 6 low, 4 Mass. 439 ; Rex v. Scofield, Cald. T. R. 627 ; Rex v. Gordon, 2 Doug. 590 ; 397 ; Hackett v. Commouwealtii, 3 Har- 3 Inst. 9. And see Respublica v. Rob- ris, Pa. 95 ; Rex v. Kinnersley, 1 Stra. erts, 1 Dall. 39. 193 ; Smith v. Commonwealth, 4 Smith, » See 1 East P. C. 85. " If there be Pa. 209; Ricew. Commonwealth, 3 Bush, only a conspiracy to lery war, it is not 14 treason." Holt, C. J., in Ereind's Case, 6 Reg. V. Clayton, 1 Car. & K. 128 ; 13 Howell St. Tr. 1, 61. See ante, § 767. ante, § 685, 686. " And see ante, § 717. 429 § 772 DIVISIONS AND DISTINCTIONS. [book VI. Under Statutes — (Punishment). — In a note, some cases relating to the grade of attempt, under statutes, and the punishment, are referred to.^ Some attempts, in some of our States, are made felonies, but generally they are misdemeanors. 1 Ex parte Max, 44 Cal. 579; The State V. Swann, 65 N. C. 330 ; Mackay v. People, 1 Parker C. C. 459 ; Pinson u. The State, 23 Texas, 579 ; Usher v. Com- monwealth, 2 Duvall, 394 ; O'Neil «. Peo- ple, 15 Mich. 275 ; Reg. v. Woodhall, 12 430 Cox C. C. 240, 4 Eng. Eep. 529; The State V. Archer, 54 N. H. 465 ; Hamilton V. The State, 36 Ind. 280; People u. Murat, 45 Cal. 281 ; Nevills v. The State, 7 Coldw. 78 ; Jones v. The State, 3 Heisk. 445; The State v. Scott, 72 N. C. 461. CHAP. Ln.] METHODS OF DEFINING CRIME. § 776 CHAPTER LII. THE law's METHODS OP DEFINING CRIME. § 773. Course of Discussion. — In this and the next following two chapters, we are to consider divisions of the criminal field not admitting of representation on our " Diagram of Crime." Some of the doctrines have already been stated in a general way.^ § 774. Surplusage of Wrong. — In looking into any criminal transaction, we shall find more or less of wrongful things com- mitted, of a sort not taken cognizance of by the law, or not entering into the particular crime of which the party may be accused. "We have seen, that there may be a surplusage of crim- inal intents, and that an intent not essential does not vitiate an essential one, if it also exists.^ And it is the same with the act. As a general rule, it is immaterial what wrongful things, whether made crimes by the law or not, a man may have committed in connection with the one charged against him ; if he has commit- ted this one, he should be convicted of it, otherwise not. § 775. Unavoidable. — It is not possible the law should be otherwise. It could not so completely adapt itself to all the facts of wrong-doing as to take cognizance of every shade of motive, and every minute variation of the act, which might attend upon each separate criminal transaction. The transactions of life are nearly limitless and constantly shifting. Even if the law-making power had prophetic vision, it could not so multiply inhibitions as fully to cover all future combinations of evil. It must draw its lines around particular things, and say : " These I forbid ; and it is immaterial whether or not they are accompanied by things around which my lines are not drawn ; whatever lies outside of my lines, I disregard." § 776. Specific Crime — Name. — When the law-making power thus draws its lines around a particular combination of act and 1 Ante, § 599-601. 2 Ante, § 337-339. 431 § 778 DIVISIONS AND DISTINCTIONS. [BOOK VI. intent, and prohibits the thing under a penalty, it creates a spe- cific crime. It may give to the crime a name, or not. This has already been explained. ^ § 777. Transaction and Crime distinguished. — There is a differ- ence between a crime and a criminal transaction. A crimi- nal transaction is a series of acts proceeding from a single impulse or connected series of impulses of the will, such that one or more of them will be indictable. A crime consists of whatever of these acts a single line of the law will enclose. To illustrate : If, in the figure here presented, ABC represents a particular criminal transaction, then A D E may repre- sent a crime ; A B C E D denoting so much of the transaction as is not indictable, or, if indictable, is not a part of the particular crime. § 778. More Crimes than One in One Transaction. — In reason, there may be more crimes than one in a single transaction. The law, in advance, draws its lines around a particular combination of act and intent, and makes what is within those lines punish- able as a specific crime ; then around another, and another, and so on, until it is deemed to have gone far enough, and stops. It is, therefore, found, not only theoretically, but practically, com- petent for a person to do, in one transaction, what will be within more than one of these circles of the law; and this fact the courts recognize in their adjudications.^ But, — Punishing more than One. — Whether a prosecution for one crime carved out of the one transaction should be held to bar an indictment for another, carved out of the same, is a different question; the authorities appear to be, that, in some circum- stances, it will be, and in others it will not.^ 1 Ante, § 599. Dana, 518 ; Smith v. Commonwealth, 7 2 Brown v. Commonwealth, 26 Smith, Grat. 593 ; The State v. Fayetteville, 2 Pa. 319 ; Womack v. The State, 7 Coldw. Murph. 371 ; Rex v. Champneys, 2 508 ; People v. Alibez, 49 Cal. 452 ; Peo- Moody & R. 26, 2 Lewin, 52 ; The State pie V. Smith, 57 Barb. 46 ; Bonsall v. The v. Johnson, 12 Ala. 840 ; Holcomb v. State, 36 Ind. 460 ; Commonwealth u. Cornish, 8 Conn. 375 ; The State v. Butterick, 100 Mass. 1. Squires, 11 N. H. 37; Commonwealth v. s Stat Crimes, § 143; The State v. Tuck, 20 Pick. 356 ; Josslyn w. Common- Standifer, 5 Port. 523 ; The State v. Da- wealth, 6 Met. 286 ; The State v. Thurs- mon, 2 Tyler, 387; The State o. Fife, ton, 2 McMullan, 882; Reg. v. Brettel, 1 Bailey, 1 ; Hinkle v. Commonwealth, 4 Car. & M. 609 ; Rex v. Jones, 4 Car. & P. 432 CHAP. LII.] METHODS OP DEFIOTNG CRIME. § 781 § 779. Parting off Criminal Transaction into Specific Crimes. — Often a criminal transaction presents 'combinations which leave a wide election in methods of dealing with the offender. In other transactions, the alternatives are but few, or even the prosecuting power may be without any choice. Let us look at some of the forms : — Law punishing Part only. — If a son knows that his father, prompted by a special affection, has made a will providing for him more largely than for the other children, yet he meditates a series of frauds on the discovery of which he fears the will may be cancelled ; and, to prevent this and gain immediate possession of the property, takes the father's life ; the law cannot punish his meditated fraud, his ingratitude, or his want of filial duty., It can proceed against him only for simple murder, as it would against a stranger. If the son were also a servant, the English law, as it stood when this country was settled, not as it stands now in either country,^ would hold him to be guilty of petit treason, which is murder aggravated by the single circumstance of the person whose life is taken being the master or husband of the offender ; ^ but the other aggravating matter supposed could not be included in the charge against him in such a way as to enhance his legal guilt. Something like this was illustrated by the figure produced at a previous section.^ > § 780. Crime enclosed within Crime. — A common sort of com- bination occurs where one crime is, in a sense, enclosed within another, as represented in the figure here- to attached. Thus, A K L may represent a simple assault ; A H I a battery, which includes an assault ; A F G a manslaugh- ter, produced by the assault and battery ; A D E a murder of the second degree, where what constitutes manslaughter is aggravated by its being done of " malice aforethought ; " and ABC murder of the first degree, where the "malice aforethought" is aggravated by being "deliberately premeditated." § 781. other Forms. — But this doctrine is not limited to what 217 ; Rex v. Britton, 1 Moody & R. 297 ; " i Hawk P. C. 6th ed. c. 32, § 1, 2. Lorton v. The State, 7 Misso. 55. = Ante, § 777. 1 Ante, § 611. VOL. I. 28 433 § 783 DIVISIONS AND DISTINCTIONS. [BOOK YI. may be termed crimes within crimes. Here, therefore, is a figure more complicated than the preceding ones, and of a somewhat different nature. Suppose A C B D to comprehend the whole of what was done. The law may, or may not, have a way of dealing with the whole. If it has, then, perhaps, the prosecuting officer may elect to indict for the whole, or to indict for AC BE, or for AEBF, or AFBD, or ACBF, or AEBD. For there may be, in one transaction, different offences which will be partly, not wholly, included within one another ; or there may be different offences neither one of which will embrace any thing lying within any other. To illustrate the former sort, a man may be guilty of arson in burning a dwelling-hoiise wherein a human being is consumed, and thus be guilty also, by the same act, of murder.^ The murder and the arson are two offences, each one of which, in the particular instance, includes some element belonging to the other.^ § 782. Continued. — There is really no limit to the variety of combinations. Thus, a man may be a common seller of intoxicat- ing liquor without license, contrary to a statute making this pun- ishable ; and, in carrying on the business of common seller, he may be guilty of specific sales against another statute, which makes each particular sale an offence.^ Or we may suppose, that the law has its lines so drawn as not to include, as constituting any one crime, the whole of a particular criminal transaction ; but, instead, it cuts the transaction up into, it may be, three parts, while no one of them includes- any thing which is also within another.* § 783. Continued. — No solid instruction can be drawn from further elucidations, in this connection, of particular forms. At the same time it should be borne in mind, that no limit can be set down to what is actual, or especially to what is possible, in these 1 The State v. Cooper, 1 Green, N. J. 2 Lewin, 52 ; Hinkle v. Commonwealth, 4 861. Dana, 618. 2 See post, § 815. < See Torey v. The State, IS Mlsso. ' The State v. Maher, 85 Maine, 225 ; 455 ; Wilson v. Commonwealth, 12 B. The State v. Coombs, 32 Maine, 529. Monr. 2; Smith v. Commonwealth, 7 And see The State v. Bugbee, 22 Vt. 32 ; Grat. 593 ; The State v. Fayetteville, 2 Commonwealth r. Perley, 2 Cush. 559 ; Murph, 371 ; The State v. Fife, 1 Bailey, Kex V. Champneys, 2 Moody & R. 26, 1 ; The State v. Standifer, 5 Port. 523. 434 CHAP. LH.] METHODS OF DEFINING CRIME. § 784 combinations. Two further figures are here attached by way of suggestion. In them, the reader sees what may be ; and, to some extent, what is. Suppose, for example, in the first of these fig- Tires, D G C H represents the whole criminal transaction, the law may make all indictable as one crime ; or it may make indictable G C A D, or A C B E, or A C B F, or A E B F, and so on. But these combinations require no further explanation. § 784. Further of the Reason, &c. — Let it be still borne in mind, that this appearance of the law cannot be avoided by any skill of scientific arrangement, or by legislation. The reason is, as already intimated, that, because of the diversity of human actions, no two acts, of the past or the present, viewed in refer- ence to all their surroundings, and the inner motives prompting to them, are precisely alike. And no single future act, viewed with reference to all these things, can be foreseen. We can merely foresee, that, in its own minuter qualities, and in its rela- tions to its surroundings, each future act will differ from every preceding one, and thus the course of events wiU continue for ever. The consequence is, that the law, statutory and common, must forbid things in terms broad enough to comprehend an in- finite variety of shades and particular qualities of wrong-doing. The inhibition must also be specific, descending somewhat to the minute. When it thus descends, it, of course, can include only a part of the wrong things possible to be done. Then must fol- low another somewhat minute direction, then another, then another; until the lawgiver thinks he has gone far enough. Each new defining or drawing of lines around a thing thus newly made indictable is just as likely to embrace within it some acts which were indictable before, by reason of lying within different lines, as to embrace what was not before indictable. The new and the old stand together, and a particular element of wrong 435 § 785 DIVISIONS AND DISTINCTIONS. [BOOK VI. may thus be found to be within any number of the law's enclos- ing circles. And what is thus said applies, as mentioned already, to the common law as well as to the statutes. The common law would be the perfection of folly, instead of meriting the praise bestowed in days past upon it as the perfection of wisdom, if it attempted to divide the indictable into such classes of things that no one transaction would fall into more than a single class. § 785. Committed in Different "Ways. — Some single offences may be committed in different ways. For example, a statute provided a punishment for " every person who shall buy, receive, or aid in the concealment of, any stolen goods, knowing the same to be stolen ; " and the construction was, that it described only one offence, the guUt of which might be incurred by either buy- ing, or receiving, or aiding in the concealment of, the goods ; and, if an indictment alleged all three of these together, no objection could be taken to it as multifarious, though it might equally well have charged but one.^ On a principle somewhat similar, fre- quently a man may be indicted for the same thing, either under a statute, or at the common law, at the election* of the prosecut- ing power.2 1 Grim. Proced. I. § 434-436 ; Stevens 356 ; The State v. Woodward, 25 Vt. 616. tf. Commonwealth, 6 Met. 241 ; The State But see Miller v. The State, 5 How. V. Slocum, 8 Blackf. 315. And see Reg. Missis. 250. V. Bird, 2 Eng. L. & Eq. 448, 2 Den. C. C. 2 gtat. Crimes, § 164, 173. 94; Commonwealth v. Tuck, 20 Pick. 436 CHAP. Lni.] MEBGBK OF OFFENCES. § 787 CHAPTER LIII. MERGER OF OFFENCES. § 786. To what applicable. — The doctrine of merger is applica- ble to two classes of cases, — the one, where a criminal act falls within the definitions of two or more separate offences ; the other, where offences are so graded that the less culpable are included in those involving a larger guilt, as shown at § 780 in our last chapter. The general rule is, as there explained,^ that the prose- cuting power may select for conviction any one of these offences, and the defendant cannot object though his guilt covers also a larger or different one. But — Merger. — Merger, to be discussed in this chapter, creates a sort of exception to that doctrine. § 787. Merger defined. — Merger, in the criminal law, occurs where the same act of crime is within the definition of a misde- meanor and likewise of a felony, or of a felony and likewise of treason ; and the rule is, that the lower grade of offence merges in the higher, so that the act can be punished only as felony in the one instance or treason in the other. Or, — More fully. — There is, at the common law, a wide distinction between felony and misdemeanor.^ It affects alike the punish- ment, the procedure, and several rules governing the crime itself. Out of this distinction grows the doctrine that the same precise act, viewed with reference to the same consequences, cannot be both a felony and a misdemeanor,^ — a doctrine which applies only where the identical act constitutes both offences.* Hence, as seen in another connection,^ if a statute creates a felony of what was before a misdemeanor, or a misdemeanor of what was 1 And see post, § 791, 804. wealth v. Parr, 5 Watts & S. 345 ; John- 2 Ante, § 609, 616. eon v. The State, 5 Duteher, 453. s Reg. V. Button, 11 Q. B. 929 ; Rex v. * Johnson v. The State, supra. Harmwood, 1 East P. C. 411 ; Common- ' Stat. Crimes, § 174. wealth V. Roby, 12 Pick. 496 ; Common- 437 § 789 DIVISIONS AND DISTINCTIONS. [BOOK VI. before a felony, there can be no subsequent prosecution of the act for what it was before the statute. In like manner, if a statute elevates a felony to high treason, it is, as Sir Michael Foster observes, " absorbed in the treason." ^ For illustration, — § 788. In Rape — Murder. — An act which amounts to the common-law felony of a rape ^ or a murder ^ cannot, at the same time, be such an assault as is a misdemeanor. Yet, — Application of Doctrine. — There is much obscurity in the books as to the application of this doctrine. We shall look again at this question in our next chapter.* The Connecticut court has held, that proof of a rape will sustain an indictment for an assault with intent to commit a rape.^ But Hawkins says: "It seems v that, if a man be indicted for a felony generally, and upon the \evidence it plainly appear that the fact amounts to no more than bare trespass [misdemeanor^], he cannot be found guilty of the trespass, but ought to be indicted anew.'^ Yet if the special cir- /cumstances of the case be set forth in an indictment for an offence laid as felony, and the defendant be found guilty gener- ally, and afterwards the court be of opinion that the fact doth not amount to felony, but only to an enormous trespass, it seems agreed, that judgment may be given as for a trespass only.* Also, if the jury find a special verdict on a general indictment for felony, and the crime be adjudged upon such verdict to be but a trespass, judgment may be given upon it as for a trespass only. Also, if on an indictment of trespass the fact appear to have been felonious, it hath been adjudged, that the de endant may be found guilty of the indictment as it is laid, because the king may proceed against the offender as he thinks fit, either as a trespasser or a felon.^ But the contrary is said to have been holden by the late Chief Justice Holt." i" § 789. statutes changing Common Law. — The rule, that an act cannot be both felony and misdemeanor, may, of course, be altered by an express statute ; and we have seen,^^ that it has 1 Foster, 373. 6 The State v. Shepard, 7 Conn. 54. 2 Rex V. Harmwood, 1 East P. C. 411 ; But see post, § 804-809. The State v. Durham, 72 N. C. 447, See, « . Ante, § 625. however. Keg. o. Allen, 2 Moody, 179. 1 As to which see post, § 804 et seq. 8 Commonwealth v. Roby, 12 Pick. " See post, § 810. 496. » See post, § 812-815. * Post, § 804-815. w 2 Hawk. P. C. c. 47, § 6. 438 11 Ante, § 699, 700. CHAP. Lin.J MERGER OF OFFENCES. § 790 been so altered as to prosecutions, under some circumstances, for knowingly receiving stolen goods.^ And there are, in some of our States,^ statutes abrogating or modifying tbe rule in otber cases.2 § 790. Course of Discussion — Conclusion. — This subject will be continued in the next chapter, to which the present one is introductory. 1 See also Noland w. The State, 19 Foster v. People, 1 Col. Ter. 293 ; Can- Ohio, 131. ada v. Commonwealth, 22 Grat. 899 ; 2 Commonwealth v. Dean, 109 Mass. Wolf v. The State, 41 Ala. 412 ; Haiina 849; Stephen v. The State, 11 Ga. 225; v. People, 19 Mich. 816; People v. Bris- Hardy v. Commonwealth, 17 Grat. 592 ; tol, 23 Mich. 118; post, § 808. 439 792 DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER LIV.i THE BELATIONS OP THE SPECIFIC OFFENCES TO ONE ANOTHER AND TO THE CRIMINAL TRANSACTION. § 791. Election of Offences. — Subject to whatever exception may be found in the doctrine of merger, discussed in the last chapter, a criminal person may be holden for any crime, of what- ever nature, which can be legally carved out of his act. He is not to elect, but the prosecuting power is.^ If the evidence shows him to be guilty of a higher offence than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain, — the question being, whether it shows him to be guilty of the one charged.^ Thus, — § 792. In Conspiracy — Manslaughter — Larceny — Robbery — Malicious IVIiscliief — Battery — Non-repair of Way — Accessory. — Where the indictment is for a conspiracy to commit an offence, and the proofs establish that the conspirators actually committed it ; * or for manslaughter, and murder is shown ; ^ or for larceny, 1 In connection with this chapter, con- ii. DrtIs, 1 Car. & P. 306 ; The State v. suit Crim. Proced. I. § 416 et seq. Coppenburg, 2 Strob. 273 ; Eexw. Wilkes, 2 Cole u. The State, 6 Eng. 318, 822; 1 Leach, 4th ed. 103, 2 East P. C. 746; Keg. V. White, 9 Car. & P. 282 ; Reg. v. Rex v. Cramp, Russ. & Ry. 327 ; Reg. o. FrankUn, 6 Mod. 220 ; Reg. v. Brightside Pringle, 9 Car. & P. 408, 2 Moody, 127 ; Bierlow, 4 New Sess. Cas. 47, 14 Jur. 174 ; The State v. Parmelee, 9 Conn. 259 ; The The State v. Jesse, 3 Dev. & Bat. 98 ; State v. Munco, 12 La. An. 625 ; Johnson Simpson ». The State, 10 Yerg. 625; v. The State, 14 Ga. 55; The State u. Hickey v. The State, 23 Ind. 21 ; United Archer, 54 N. H. 466; Commonwealth .;. States V. Grundy, 8 Cranch, 337, and the Burke, 14 Gray, 100 ; Hardy v. Common- cases cited in the remaining notes to this wealth, 17 Grat. 592. section and the next. * The State «. Murphy, 6 Ala. 765 ; 3 Reg. B. Neale, 1 Car. & K. 591, 1 People u. Mather, 4 Wend. 229, 265 ; The Den. C. C. 36; Reg. v. Howell, 9 Car. & State v. Murray, 15 Maine, 100; Com- P. 437, 454 ; Lohman v. People, 1 Comst. monwealth v. Delany, 1 Grant, Pa. 224 ; 879 ; The State v. Sonnerkalb, 2 Nott & post, § 814. McC. 280 ; Thayer v. Boyle, 30 Maine, ^ Commonwealth v. McPike, 3 Cush. 475 ; Reg. v. White, 20 Eng. L. & Eq. 586 ; 181 ; Bamett v. People, 54 111. 325. The State v. Keen, 34 Maine, 500 ; Rex 440 CHAl". LIV.] EELATIONS OP OFFENCES. § 793 and it was perpetrated in the course of a burglary ^ or a rob- bery ; 2 or for malicious mischief, and the facts appearing would equally sustain a charge of larceny ; ^ or for inflicting a battery on one man, when in truth the blow took effect on two ; * or for the non-repair of one street, when the neglect covered several streets;^ or for being accessory to one person, while more per- sons also were guilty of the principal offence,^ — in these and the like cases, the prisoner may be convicted of what is charged against him, if, like what is not charged, it is sustained by the evidence. § 793. Separating Transaction into Specific Offences. — It is some- times a nice question into what parts a criminal transaction is separable, and where the lines must run. We shall see some- thing of this in the second volume, and in " Criminal Procedure " and " Statutory Crimes," where the several offences are discussed. In all cases in which there is no merger of misdemeanor in felony or felony in treason, as shown in our last chapter, the transaction is divisible at whatever place it can be so cut that the part will fill the law's definition of any crime. Again, when the division has been made, and the wrong-doer has been prosecuted for one offence, he may or may not be punishable for a second, properly carved out of his act, — a question for a future chapter.^ More- over, as a practical suggestion, the prosecuting power ought to be cautious how it carves ; because, not only may a miscalculation in the exercise of the discretion result in a failure to convict, but ,in some circumstances it will enable the prisoner, after trial, to plead the prior proceedings in bar of any subsequent ones. These propositions need not be drawn out into their details in this connection ; but a reference to some cases illustrating them will be convenient.^ • 1 "Wyatt V. The State, 1 Blackf . 257 ; The State v. Benham, 7 Conn. 414 ; The People V. Smith, -57 Barb. 46. State v. Fife, 1 Bailey, 1 ; The State v. 2 Hickey <••. The State, 23 Ind. 21 ; FayetteviUe, 2 Murph. 371 ; The State u. Bonsall v. The State, 35 Ind. 460. Johnson, 12 Ala. 840 ; Kex v. Champ- 8 The State v. Leavitt, 32 Maine, 183. neys, 2 Moody & R. 26, 2 Lewin, 52 ; * The State v. Damon, 2 Tyler, 887. Hinkle v. Commonwealth, 4 Dana, 518 ; » The State u. Fayetteville, 2 Murph. The State v. Damon, 2 Tyler, 387 ; Hol- 871. comb V. Cornish, 8 Conn. 875 ; Frasier e. 8 Stoops V. Commonwealth, 7 S. & R. The State, 6 Misso. 195 ; People v. Ward, 491. And see ante, § 666. 15 Wend. 231 ; The State v. Cooper, 1 ' Post, § 978 et seq. Green, N. J. 361 ; The State v. Plunkett, 8 TheStatei!.Moultrieville, Rice, 158; 3 Harrison, 5; The State t. Coombs, 32 441 §795 BIVISIONS AKD DISTINCTIONS. [book VI. § 794. Offences within One Another — (The Indictment). — Where offences are included one within another, as before explained,^ a person indicted for a higher one may be convicted of any below it not merged in that for which he is indicted,^ unless the allega- tion should happen to be in a form not charging the lower;* for, should this occur, contrary to the ordinary course of practice, the want of averment will be fatal to any verdict for the lower.* Thus, assuming the allegation for the heavier offence to be in such form as to include the lighter, — §795. In Homicide — Robbery — Assault with Intent — Mayhem — Carnal Ravishment — Adultery — Fornication — Rape — Incest — Riot — Second Offence — First Offence. — One indicted for murder may be found guilty of manslaughter ; * for robbery, may be convicted of larceny ; ^ for an assault with an intent to commit Maine, 529; The State v. Maher, 35 Maine, 225; Smith v. Commonwealth, 7 Grat. 593 ; Rex v. O'Brian, 7 Mod. 378; Kex V. Reynell, 6 East, 315 ; The State V. Spurgin, 1 McCord, 252 ; Shaw v. The State, 18 Ala. 547. In Iiarceny. — As to larcenies, see Reg. v. Brettel, Car. & M. 609 ; Rex v. Jones, 4 Car. & P. 217 ; The State v. Williams, 10 Humph. 101 ; Lorton ». The State, 7 Misso. 55 ; Reg. ». Bleasdale, 2 Car. & K. 765 ; The State W.Nelson, 29 Maine, 329; The State i). Thurston, 2 McMuUan, 382; Rex v. Blrdseye, 4 Car. & P. 386. In Burglary. — As to burglary, and the like, see Com- monwealth V. Hope, 22 Pick. 1 ; Josslyn V. Commonwealth, 6 Met. 236 ; The State V. Squires, 11 N. H. 37 ; Commonwealth V. Brown, 3 Rawle, 207; The State v. Brady, 14 Vt. 353 ; Jones o. The State, 11 N. H. 269 ; Stoops v. Commonwealth, 7 S. & R. 491 ; Rex v. Comer, 1 Leach, 4th ed. 36 ; Rex v. Vandercora, 2 East P. C. 519; s. c. nom. Rex i;. Vandercomb, 2 Leach, 4th ed. 708 ; Commonwealth v. Tuck, 20 Pick. 356 ; The State v. Moore, 12 N. H. 42 ; Commonwealth v. Dove, 2 Va. Cas. 26. 1 Ante, § 780. 2 Ante, § 787-789; post, § 804 et seq. 8 Post, § 803. * Swinney v. The State, 8 Sm. & M. 576 ; Reg. v. Reid, 1 Eng. L. & Eq. 595, 699, 15 Jur. 181 ; The State v. Nichols, 8 Conn. 496; Durham v. The State, 1 442 Blackf. 33; Wilson k. Commonwealth, 12 B. Monr. 2 ; Reg. v. Wynn, 1 Den. C. C. 365, 2 Car. & K. 859 ; Rex v. Comp- ton, 3 Car. & P. 418 ; Commonwealth v. Harney, 10 Met. 422 ; Wills v. The State, 4 Blackf. 457 ; Reg. v. Yeadon, Leigh & C. 81, 9 Cox C. C. 91 ; Reg. v. Smith, 34 U. C. Q. B. 552 ; Heller «. The State, 23 Ohio State, 582; Hanna v. People, 19 Mich 316 ; Wood v. The State, 48 Ga. 192 ; Reg. ■;. Canwell, 11 Cox C. C. 263 ; Reg. V. Taylor, Law Rep. 1 C. C. 194, 11 Cox C. C. 261 ; Reg. w.Dingman, 22 U. C. Q. B. 283 ; and the other cases cited to sections next following. And see Smith- erman v. The State, 27 Ala. 23 ; post, § 803 ; Crim. Proced. I. § 418, 419. 6 Lisle's Case, J. Kel. 89-108; The State V. Fleming, 2 Strob. 464 ; Rey- nolds V. The State, 1 Kelly, 222 ; King v. The State, 5 How. Missis. 730 ; Watson v. The State, 5 Misso. 497 ; Plummer v. The State, 6 Misso. 231 ; The State «. Gaffney, Rice, 431 ; Commonwealth v. Gable, 7 S. & R. 423 ; The State v. Arden, 1 Bay, 487 ; The State v. Flannigan, 6 Md. 167 ; Gordon v. The State, 3 Iowa, 410 ; Wroe v. The State, 20 Ohio State, 460; The State v. Huber, 8 Kan. 447; Davis 0. The State, 39 Md. 356; The State V. Sloan, 47 Misso. 604, 614. 6 Hickey v. The State, 23 Ind. 21. And see The State «. Taylor, 3 Oregon, 10; Hamilton v. The State, 36 Ind. 280. CHAP. LIV.] EELATIONS OP OFFENCES. §797 murder, or manslaughter,! or mayhem,^ or a carnal ravishment,^ may be convicted of either a simple assault or a compound assault of a less degree than that alleged ; * indicted for adultery, may receive judgment for fornication ; ^ indicted for rape on the per- son of his daughter, convicted of incest ; ^ indicted for riot and assault, convicted of assault only;^ indicted for larceny as a second offence, convicted of the larceny as a first offence.^ Like- wise, — § 796. Burglary and Larceny, &o. — In burglary and statutory breakings into shops and dwelling-houses, if the indictment sets forth a larceny within the building, as a part of the larger offence,' the conviction may be for the larceny alone.^" But if the charge of burglary is simply that the defendant broke and entered the place with intent to steal, the want of allegation precludes his conviction for larceny.^ Again, — § 797. Murder of First and Second Degrees. — Where, as in some of our States, murder is by statute divided into two. degrees, one may be convicted of it in either degree if the indictment is in 1 Gardenheir v. The State, 6 Texas, 348; The State v. Stedman, 7 Port. 495; The State v. Coy, 2 Aikena, 181 ; Stew- art V. The State, 5 Ohio, 241 ; Clark c.. The State, 12 Ga. 350. 2 McBride v. The State, 2 Eng. 374, " Commonwealth v. Fischblatt, 4 Met. 354 ; Rex v. Dawson, 3 Stark. 62 ; People V. McDonald, 9 Mich. 150. 4 And see Smith u. The State, 35 Texas, 500; The State i;. Shepard, 10 Iowa, 126 ; White v. The State, 13 Ohio State, 569. 6 Respublica v. Roberts, 2 Dall. 124, 1 Teates, 6; The State v. Cowell, 4 Ire. 231. And see The State o. Pearce, 2 Blackf. 318; The State v. Cox, N. C. Term R. 165. « Commonwealth v. Goodhue, 2 Met. 193. And see Crim. Proeed. I. § 419. 7 Rex V. Hemings, 2 Show. 93 ; The State V. Townsend, 2 Barring. Del. 543 ; Rex V. Heaps, 2 Salk. 593. It would ap- pear, however, that an indictment for riot may be so framed as, on the princi- ple stated post, § 803, not to include an assault. Reg. v. Ellis, Holt, 636. And see The State v. Allen, 4 Hawks, 356 ; Commonwealth «. Perdue, 2 Va. Cas. 227 ; Childs V. The Sjtate, 15 Ark. 204. " Palmer v. People, 5 Hill, N. Y. 427. ' Stoops V. Commonwealth, 7 S. & R 491 ; The State u. Squires, 11 N. H. 37 Crowley v. Commonwealth, 11 Met. 575 Kite v. Commonwealth, 11 Met. 581 Jones V. The State, 11 N. H. 269 ; Com- monwealth I/. Hope, 22 Pick. 1 ; Josslyn V. Commonwealth, 6 Met. 236 ; Common- wealth u. Tuck, 20 Pick. 356 ; Berry v. The State, 10 Ga. 511; The State o. Moore, 12 N. H. 42 ; Rex v. Comer, 1 Leach, 4th ed. 36 ; Rex v. Vandercom, 2 East P. C. 519 ; s. c. nom. Rex v. Vander- comb, 2 Leach, 4th ed. 708; Common- wealth V. Brown, 3 Rawle, 207 ; Clarke V. Commonwealth, 25 Grat. 908; The State V. Alexander, 56 Misso. 131. 10 The State v. Brady, 14 Vt. 353; Anonymous, 31 Maine, 592 ; The State w. Grisham, 1 Hayw. 12 ; Rex v. Withal, 1 Leach, 4th ed. 88, 2 East P. C. 515, 517 ; Commonwealth v. Hope, 22 Pick. 1 ; The State V. Cocker, 3 Harring. Del. 554; Reg. V. Reid, 1 Eng. L. & Eq. 595, 599, 15 Jur. 181. See Reg. v. Clarke, 1 Car. & K. 421. " Fisher v. The State, 46 Ala. 717; Bell V. The State, 48 Ala. 684 ; People ». Garnett, 20 Cal. 622. 443 § 799 DIVISIONS AND DISTINCTIONS. [BOOK VI. terms to charge the higher; the statutes prescribing that the degree shall be specified in the verdict.^ Or the conviction may be for any lower grade of killing.^ And some of the courts have indulged in the strange absurdity of holding, in violation alike of the fundamental principles of pleading, of guarantees in the constitutions of most of our States, and of common sense, that, if an indictment does not contain any allegation of the aggra- vated facts which constitute murder in the first degree, still, in some mystic manner which no judge ever undertook to explain or himself saw, it is an indictment for murder of the first degree as well as the second ; and, upon it, a conviction for the murder in this higher degree may be maintained. It happened in this way : the fii'st court that considered this sort of statute made a blunder. Judges of other courts shut their eyes and followed the lead. Some other judges have latterly opened their eyes to look ; and every one who has looked has refused to follow the old lead. It would be interesting to see any man, on the bench or off, after looking into the question so as to understand it, undertake to answ,er the argument which explodes the old error. No one ever did undertake it ; no gift of prophecy is requii-ed to enable a writer to say, with absolute certainty, that no one ever wiU.3 § 798. General Result. — The conclusion is, that, whatever the (offence alleged, there may be a conviction for any other, if within the words of the allegation.* Exceptions to this riile will appear in subsequent sections. § 799. Offences not within One Another. — The rule is not con- fined to these cases of a crime within a crime, but it is general, that the defendant may receive judgment on so much of the alle- gation proved as constitutes an offence, whether what is thus 1 MoGee v. The State, 8 Misso. 495 ; ' See, for a full view of this question, The State v. Dowd, 19 Conn. 388 ; Peo- Crim. Proced. II. § 562-609. See, also, pie 0. Doe, 1 Mich. 451 ; McPherson v. Bishop First Book, § 401 and note, 466 ; The State, 9 Yerg. 279; Thomas v. The Stat. Crimes, § 371, 372, 471. And see State, 6 How. Missis. 20, 32 ; Jolinson v. The State v. MoCormick, 27 Iowa, 402, The State, 17 Ala. 618. And see People where, in an able opinion, the court unan- V. White, 22 Wend. 167 ; The State v. imously aflSrm the doctrine which I had Town, Wright, 76 ; The State v. Wil- laid down in Crim. Proced. liams, 3 Post. N. H. 321. * Crim. Proced. I. § 415-420 ; Benham 2 Wroe V. The State, 20 Ohio State, v. The State, 1 Iowa, 642 ; Prindeville v. 460; The State v. Huber, 8 Kan. 447; People, 42 111. 217 ; The State b. Butman, Daris v. The State, 39 Md. 355 ; The 42 N. H. 400 ; The State u. Dumphey, i State V. Sloan, 47 Misso. 604, 614. Minn. 438. 444 CHAP. LIV.J RELATIONS OP OFFENCES, § 801 proved is the same in degree as the entire matter charged, or different in degree, or in nature.^ For example, — In Ubel — Larceny (Grand and Petit) — Fossessing Counter- feits. — One indicted for printing and publishing a libel may be acquitted of the printing, and convicted of the publishing ; ^ one charged with a larceiiy of property of more than one hundred 1 dollars in value may be found guilty of the larceny in a less i value ; charged with having in possession, with intent to utter, more than ten pieces of counterfeit coin, may be found guilty of I having less than ten.* So, on an indictment for grand larceny, — that is, a larceny in which the property stolen is alleged to be worth more than twelve pence,* — the conviction may be for petit larceny.^ And — Alternative Clauses of Statute. — We have seen,® that, when a statute makes punishable several things in the alternative, the indictment may be in one count for the whole, while the proof need cover only so much as constitutes a crime.' § 800. Joint Indictment against Two or More. — In like manner, where two or more persons are indicted together for one offence,* a part may be convicted and the rest acquitted ; ^ or some may be found guilty of the offence in a higher degree, others in a lower.i" But if the acquittal of one shows the others to be neces- sarily innocent, they will not be adjudged by the court to be guilty, though the jury find them so.^^ Therefore, — § 801. In Conspiracy. — Though one of two conspirators may be proceeded against after the other one is dead,^ or they may 1 Eex V. Newton, 2 Lev. Ill, and the Eng. L. & Eq. 532; The State ». AUen, other cases cited to this section ; also 4 Hawks, 356 ; Bloomhuff v. The State, Stat. Crimes, § 243. 8 Blackf. 205; Ward v. The State, 22 2 Bex V. Williams, 2 Camp. 646. Ala. 16. And see CommonwealtH v. Per- s Commonwealth v. Griffin, 21 Pick, due, 2 Va. Cas. 227 ; The State v. Allison, 523. SYerg. 428. * See ante, § 679. ^'' Rex v. Butterworth, Euss. & By. 5 The State «. Bennet, 3 Brev. 515, 2 520; Sliouse v. Commonwealth, 5 Barr, Tread. 693 ; The State v. Wood, 1 Mill, 83 ; The State v. Arden, 1 Bay, 487. 29; The State t>. Murphy, 8 Blackf. 498; Query as to Bex u. Quail, 1 Crawf. & 2 Hawk. P. C. Curw. ed. p. 620, § 6. Dix C. C. 191. And see The State v. Arlin, 7 Fost. N. H. " Reg. v. Ellis, Holt, 636 ; The State 116 ; "Wills V. The State, 4 Blackf. 457. v. Malnor, 6 Ire. 340. As to the limita- s'stat. Crimes, § 243; ante, § 785. tions of the rule, see The State v. AUi- 7 Stevens v. Commonwealth, 6 Met. son, 3 Yerg. 428. And see Eex v. 241 Hughes, 4 Car. & P. 373. 8 Crim. Proced. I. § 463. ^^ Eex v. NicoUs, 2 Stra. 1227 ; People 8 Eeg u. Dovey, 2 Den. C. C. 86, 2 v. Olcott, 2 Johns. Cas. 301. 445 § 803 DrvTSiONS and distinctions. [book VI. have separate trials ; ^ yet, if one is acquitted', where two only- are charged in the allegation, this is in effect an acquittal of the other, it being legally impossible for a man to conspire alone.^ And, — In Grand and Petit Larceny. — If two are jointly indicted for stealing the same goods, one cannot receive judgment for grand larceny and the other for petit larceny, because the fact could not be so ; ^ yet, when the proof shows a grand larceny, if, never- theless, the jury return a verdict against both for petit larceny, they may have sentence accordingly, because the evidence is for the jury, and there is no impossibility of record against this finding.* § 802. Charge Joint or Several. — When two are on trial for an offence laid in a single count as committed jointly,® and each is shown to have done the whole while acting separate from the other, in disconnected transactions, a verdict should not be taken against both ; because the conviction of one exhausts the indict- ment, and no charge remains for the other.^ But when the alle- gation is of an offence committed severally, the word " severally " separates the defendants, so that all may be convicted on the one indictment ; unless the court. interferes with this form of proceed- ing in the earlier stages of the cause.'^ § 803. Allegation to be Sufficient. — The law never condemns without accusation. So that, as already mentioned,^ the fore- going doctrines do not apply where the thing proved is not ade- quately set down in allegation.^ Therefore, for example, — Principal and Accessory — Assaults — Battery. — One indicted as principal in a felony cannot be convicted of being an accessory 1 Crim. Proeed. I. § 1022. ' 1 Stark. Crim. Plead. 2d ed. 43, 44; 2 The State v. Tom, 2 Dev. 569 ; Eex Crim. Proeed. I. § 473-476. V. Hilbers, 2 Chit. 163 ; Commonwealth v. » Ante, § 794, 798. Manson, 2 Ashm. 31. And see Reg. v. ° The State v. Shoemaker, 7 Misso. Gompertz, 9 Q. B. 824 ; The State «. 177 ; Eex v. Hughes, 4 Car. & P. 873 ; Covington, 4 Ala. 603. Rex v. Furnlval, Russ. & Ry. 445 ; Reg. » Wilson V. Davis, 3 McCord, 187. v. Paice, 1 Car. & K. 73 ; Vanvalken- < The State v. Bennet, 2 Tread. 693, burg v. The State, 11 Ohio, 404; The 3 Brev. 615 ; Crim. Proeed. II. § 988 ; State v. Jesse, 3 Dev. & Bat. 98 ; Reg. v. ante, § 799. Reid, 2 Den. C. C. 88, 1 Eng. L. & Eq. 6 Crim. Proeed. I. § 471. 695; Reg. v. Holcroft, 2 Car. filt. 841 ; 6 Stephens v. The State, 14 Ohio, 886 ; Carpenter v. People, 4 Scam. 197 ; Com- Reg. V. Dovey, 2 Den. C. C. 86, 2 Eng. monwealth w. Pischblatt, 4 Met. 354 ; The L. & Eq. 632. See also Elliott v. The State v. Raines, 3 McCord, 633 ; Childs State, 26 Al». 78. v. The State, 15 Ark. 204. 446 CHAP. LIV.] EELATIONS OF OFFENCES. § 804 before the fact ; ^ or, indicted as such accessory, cannot be found guilty as a principal felon ; * or, indicted for an assault with intent to murder, cannot be convicted, not only of a simple assault, but also of a battery.^ § 804. Exceptions and Limitations : — Merger — Rights of Defendants in Felony and Misdemeanor. — Let US now go back to the doctrine of merger, discussed in the last chapter. It appeared there to be very uncertain in its limits and nature. The proposition,* that the same act cannot be both felony and misdemeanor, is only a particular deduction from a principle familiar in the interpretation of criminal statutes, whereby two statutes punishing a thing differently cannot stand together, but one must be adjudged repealed or void.^ Another proposition brought to view under the head of merger is, that, on an indict- ment for felony, there can be no conviction for a misdemeanor included within it ; though, we saw, the contrary has sometimes been held with us.^ This proposition, we are about to see, is derivable from certain distinctions of the old common law as to the differing rights of defendants in trials for felony and misde- meanor. So that, if there is in merger any thing beyond these deductions from familiar principles, it is very little. Indeed, such appears to be the whole of the doctrine of merger, with its reasons. But this presentation of the doctrine does not deny its existence ; on the other hand, it explains and confirms it. Misdemeanor on Indictment for Felony. — The common law is distinct, that there can be no conviction for a misdemeanor on an indictment for a felony.^ If the allegation includes a misde- meanor, and the proofs sustain this part, but not the felony, there must be a general acquittal, which will be no bar to a subsequent prosecution for the misdemeanor.* The reason usually assigned is, that, — 1 Eex V. Plant, 7 Car. & P. 575. 8 2 Hawk. P. C. Curw. ed. p. 621 ; 2 Rex V. Gordon, 1 Leach, 4th ed. 515, Rex v. Westbeer, 2 Stra. 1133, 1 Leach, 1 East P. C. 352. 4th ed. 12 ; Commonwealth v. Gable, 7 8 Sweeden i». The State, 19 Ark. 205. S. & R. 423 ; Reg. o. Eaton, 8 Car. & P. * Ante, § 787. 417 ; Reg. v. Gisson, 2 Car. & K. 781 ; 5 Stat.'crimes, § 156, 168, 174. Reg. v. Goadby, 2 Car. & K. 782, note ; 6 Ante, § 788, 789. Commonwealth v. Roby, 12 Pick. 496, 7 Ante,' § 788'; The State v. Durham, 505, 506 ; Wright o. The State, 5 Ind. 72 N. C. 447 ; Johnson k. The State, 2 527 ; Reg. v. Dungey, 4 Post. & F. 99 ; Dutcher, 313, 834, and the authorities Reg. v. Woodhall, 12 Cox C. C. 240, 4 cited in the next note. Eng. Rep. 529 ; Reg. v. NichoUs, 2 Cox 44T § 806 DIVISIONS AND DISTINCTIONS. [BOOK VI. Doctrine derivable from Procedure. — When this rule was estab- lished,^ persons indicted for misdemeanor had certain advantages at the trial, such as to make a full defence by counsel, and to have a copy of the indictment and a special jury, not permitted in felony. And it was deemed that they could not be deprived of these rights through the device of a too heavy allegation in the indictment. This plain dictate of justice was disregarded in a few of the early English cases,^ wherein, as it was said after- ward, " the judges appear to be transported with zeal too far." ^ But,— § 805. Changed Procedure — How with us. — It is inequitable to deny one charged with felony any privilege which he ought to have in misdemeanor. Therefore the old practice has been gradually done away with in England, and it was never, received in this country. If, with us, there is any discrimination, it is usually in favor of those indicted for the higher crimes ; while, in prosecu- tions for the lower, any peculiar rights of defendants are merely incidental. Hence, — Whether Conviction for Misdemeanor. — - The COUrtS of some of the States have permitted convictions for misdemeanor on indict- ments for felony ; ^ discarding the old rule, in obedience to the maxim, Cessante ratione legis, cessat ipsa lex;^ while in other States it has been followed.^ § 806. What, with us, the True Rule. — It is a nice question whether or not our changed procedure should, as thus indicated, be held to abrogate the old rule on this subject. For, besides the difficulty of casting off a rule solely because of the removal of C. C. 182. See Gillespie v. The State, 9 899 ; Hunter v. Commonwealth, 3 Cent. Ind. 380. Law Jour. 129 ; ante, § 788. See The 1 See ante, § 275. State v. Bridges, 1 Murph. 134; Sweeden " Rex V. Joyner, J. Kel. 29, and cases v. The State, 19 Ark. 205 ; People v. pited in Rex v. Westbeer, supra. Tyler, 35 Cal. 553. ' Rex V. Westbeer, as reported 2 Stra. 5 Ante, § 273, 275. 1133. 6 Black v. The State, 2 Md. 376 ; Com- * Stewart v. The State, 5 Ohio, 241 ; monwealth v. Gable, 7 S. & R. 423; Hack- The State v. Kennedy, 7 Blackf. 233 ; ett v. Coramonwealtli, 3 Harris, Pa. 95 People V. White, 22 Wend. 167 ; People Braddee v. Commonwealth, 6 Watts, 530 V. Jackson, 3 Hill, N. Y. 92; Burk v. Commonwealth u. Roby, 12 Pick. 496 The State, 2 Har. & J. 426 ; The State v. Commonwealth v. Newell, 7 Mass. 245 Sutton, 4 Gill, 494; Cameron v. The The State ?-•. Valentine, 6 Yerg. 633 State, 13 Ark. 712; The State y. John- Johnson v. The State, 2 Dutcher, 313 son, 1 Vroom, 185; Hanna u. People, 19 324. And see United States v. Sharp, Mich. 316 ; Foster- v. People, 1 Col. Ter. Pet. C. C. 181. As to Vermont, see the 293; Canada v. Commonwealth, 22 Grat. notes to the next section. 448 CHAP. LIV.] EELATIONS OP OFFENCES. § 808 its original reason,^ other reasons for adhering to it may exist in addition to the oftener-mentioned ones.^ So thought the Ver- mont court, which, having in some earlier cases put aside the English practice, took it back, saying : " On an indictment for a felony, the prisoner must appear in person, and on trial must here be taken and retained in custody in discharge of his recognizance ; whereas, on an indictment for a misdemeanor, he is allowed to remain on bail, and may in general appear and plead by attor- ney. These are privileges of which the party ought not to be deprived by changing the mode of proceeding against him, and they appear to be of sufQcient importance to require an adherence to the common-law rule."^ Yet this court, at a later period, turned again and embraced its former doctrine, apparently with- out being aware of the intermediate decision.* § 807. Continued. — And there are reasons of a different nat- ure, entitled to weight: as, for example, one indicted for felony cannot be convicted on evidence showing him to have advised the act as an accessory before the fact, while one indicted for misdemeanor can ; and the judge must be embarrassed as to the admission of the testimony, if in doubt whether the verdict, should it convict the defendant, will find him guilty of felony or misdemeanor. In England, at the present time, the before-men- tioned reasons for the rule have practically ceased, defendants there having substantially the same privileges on indictments for felonies as for misdemeanors ; yet the rule itself remains.* And • the court of Massachusetts, sustaining the rule, rejected alto- gether those more common reasons, deeming it to .rest on "the broader consideration, that the offences are, in legal contempla- tion, essentially distinct in their character, and that this is mani- fest from an examination of the authorities." ^ We may doubt, however, whether the Massachusetts reason is broad enough alone to support the rule in all circumstances where it is found in the English law. § 808. Statutory Alterations of the Rule. — Yet this rule, that on indictments for felony there can be no conviction for misde- 1 Ante, § 275. * The State v. Scott, 24 Vt. 127. 2 Ante, § 274. ' Greaves Lord Campbell's Acts, 14. 8 The State v. Wheeler, 3 Vt. 344, 347, ^ Commonwealth o. Koby, 12 Pick. overruling The State v. McLeran, 1 Aik- 496, 606. ens, 311, and The State !>. Coy, 2 Aikens, 181. VOL. I. 29 449 § 809 DIVISIONS AND DISTINCTIONS. [BOOK VI. meanor, has been partly or fully overturned by statutes in some of the States into which it was received from the common law.^ Therefore, — Homicide — Rape, &c. — Under the later law in Massachusetts, one tried on an allegation of manslaughter or of rape, which are felonies, may be found guilty of the misdemeanor of an assault and battery.^ And, by force of statutes, a like practice prevails in some of the other States? ~ § 809. Conviction of Attempt on Indictment for Full Offence. — It is perceived, therefore, that, by the rules of the c ommon law , though an attempt consists of the full ofPence partly executed^* yet, if, on an indictment for felony, the proof shows only enough of the act to constitute the misdemeanor of an at,tempt, there can be no conviction even though the allegation charges an attempt in form. Where the attempt and substantive offence are of one grade, — being either both felonies or both misde- meanors, — it is plain that, if the allegation sets out the attempt as well as the completed offence, the common-law rules will per- mit a conviction for the attempt. It is believed, however, that, in most instances, our forms of indictment for substantive offences do not charge the attempt ; though, in other instances, doubtless they do. In England, the common-law doctrine is changed by 14 & 15 Vict. c. 100, § 9, already cited,^ now in force, and 7 Will. 4 & 1 Vict. c. 85, § 11, repealed,^ which provides, " that, on the trial of any person for any of the offences hereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against a person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding." ^ There are some American statutes following more or 1 Ante, § 789. Newell, 7 Mass. 245 ; Commonwealth v. 2 Commonwealth u. Drum, 19 Pick. Roby, 12 Pick. 496, 506 ; Commonwealth 479 ; Commonwealth v. Dean, 109 Mass. v. Cooper, 15 Mass. 187 ; ante, § 789. 349, 352. « Ante, § 746. 8 Prindeville v. People, 42 111. 217 ; » Ante, § 757. The State v. Johnson, 1 Vroom, 185 ; * Known as Lord Denman's Act, Reg. Garden v. The State, 3 Head, 267. As to v. Dungey, 4 Fost. & F. 99. other American statutes and the deei- ^ Greaves Lord Campbell's Acts, 14. Bions upon them, see The State v. Flani- For the construction put upon these stat- gin, 5 Ala. 477, 482 ; Brittain v. The utes by the English courts, see Reg. v. State, 7 Humph. 159 ; The State v. Val- Bird, 2 Den. C. C. 94, 2 Eng. L. & Eq. entine, 6 Yerg. 533 ; The State v. Bowl- 448 ; Reg. v. Watkins, 2 Moody, 217, Car. ing, 10 Humph. 52; Commonwealth d. & M. 264 ; Reg. k. Eaton, 8 Car. & P. 417 j 450 I CHAP. LTV.] RELATIONS OF OPFEKCES. § 810 less closely these English ones.^ This subject has not been much examined by our courts. The English Parliament is omnipotent. But, while our legislatures may break down all barriers founded on the distinction between felony and misdemeanor, it is not clear that, by our constitutions, they can authorize a conviction for the attempt on an indictment for the full offence, should the allega- tion not include a charge of the less offence.^ § 810. Misdemeanor alleged " feloniously." — We have seen that, according to Hawkins, if an indictment sets out the facts of an offence and lays it as felony, yet in matter of law it is found to be misdemeanor only, a judgment for the misdemeanor may be sustained Upon it,* notwithstanding there can be no conviction of misdemeanor on an indictment for felony. But, in this instance, the indictment is, in law, for misdemeanor, not felony ; the word "feloniously," in the allegation, being rejected as surplusage. For it is a principle in all legal pleadings, that mere surplusage does not vitiate.* If, however, the judge at the trial should, con- trary to the claim of the defendant, treat the indictment as for felony, and deny him privileges due to persons indicted for mis- demeanor, this would be error like any other erroneous ruling. Or, if the defendant admitted, at the trial, that the charge set out was felony, and did not ask for any ruling on the ground of its being misdemeanor, the case would be the same as any other Eeg. V. Brimilow, 9 Car. & P. 366, 2 State, 41 Ala. 412 ; Hanna v. People, 19 Moody, 122 ; Reg. v. Williams, 8 Car. & Mich. 316 ; The State v. Jarris, 21 Iowa, P. 286 ; Reg. v. Saunders, 8 Car. & P. 44 ; The State v. Wilson, 30 Conn. 500 ; 265; Reg. «. Cruse, 8 Car. & P. 641, 2 Clifford v. The State, 10 Ga. 422 ; Moody, 53 ; Reg. v. Folkes, 2 Moody & Stephen v. The State, 11 Ga. 225;' The R. 460 ; Reg.' v. Crumpton, Car. & M. State v. Shepard, 7 Conn. 54, citing Cora- 597 ; Reg. v. NichoUs, 9 Car. & P. 267 ; mouwealth v. Cooper, 15 Mass. 187 ; Reg. V. Ellis, 8 Car. & P. 654 ; Reg. v. which last case was subsequently dis- Pool, 9 Car. & P. 728 ; Reg. v. Guttridges, approved of by the Massacliusetts court, 9 Car. & P. 471 ; Eeg. v. Barnett, 2 Car. though for a reason not distinctly affect- & K. 594 ; Reg. v. Greenwood, 2 Car. & ing the doctrine of the text. Common- K. 339 ; Reg. v. Holcroft, 2 Car. & K. wealth v. Roby, 12 Pick. 496, 507. 341 ; Reg. v. Barratt, 9 Car. & P. 387 ; 2 gee Crim. Proced. I. § 89-112. Reg. «. Lewis, 1 Car. & K. 419 ; Reg. v. » Ante, § 788. And see Crim. Proced. Eeid, 2 D.en. C. C. 88, 1 Eng. L. & Eq. I. § 637. 595 ; Reg! v. Birch, 2 Car. & K. 193 ; * Stephen Plead. 378, 424 ; Lamed v. Reg. o. St. George, 9 Car. & P. 483 ; Reg. Commonwealth, 12 Met. 240 ; Rdx u. V. Phelps, 2 Moody, 240 ; Reg. u. Birch, Redman, 1 Leach, 4th ed. 477 ; Rex v. 1 Den. C. C. 185; Reg. v. Gisson, 2 Car. Hall, 1 T. R. 320, 322; People v. Loh- & K. 781 ; 2 Taschereau Canada Crim. man, 2 Barb. 216, 220 ; Lohman u. Peo- Law Acts, 264-263. pie, 1 Comst. 379; Crim. Proced. I. 1 And see, on this subject, Wolf v. The § 478. 451 § 811 CIVISIONS AND DISTINCTIONS. [BOOK VI. in which erroneous directions not objected to had been given ; the general doctrine being, that the party cannot take advantage of such an error. These propositions, too clear to need further elucidation,! have often lain but indistinctly in the minds of judges ; yet they are suificiently deducible from the decisions.^ Some cases, therefore, in Massachusetts,^ Vermont,* and Mary- land,^ which seem to hold such an indictment not adequate to sustain a conviction for misdemeanor, are not elsewhere good law ; and, in the first-mentioned State, partly by the operation of statutes which do not change the principle, the early determina- tion has been overruled.® § 811. Jurisdiction. — Want of jurisdiction in the tribunal may prevent a conviction for the less offence on an indictment for the greater. Thus, in Tennessee, during slavery, the circuit court had cognizance of murder, but not of manslaughter, committed by a slave, the latter being triable in another tribunal only ; and the consequence was, that, when a slave was charged in the cir- cuit court with murder, the verdict could not be for manslaughter.'^ But in New Hampshire, a statute having given to justices of the peace exclusive jurisdiction over larcenies to the value of ten dollars and under, directing them to commit the defendants for indictment and trial in the Common Pleas Court when the value M'as greater ; it was held that the latter might render judgment on a verdict of guilty, valuing the property at less than ten dol- lars. The reason was, that the committing magistrate had con- clusively settled the question of jurisdiction ; while the jury had determined the degree of the defendant's guilt.^ In Vermont, it 1 See ante, § 140, note. ' Commonwealth v. Newell, 7 Mass. 2 Holmes's Case, Cro. Car. 376 ; Rex 245 ; Commonwealth v. Macomber, 3 V. Scofield, Cald. 397, 2 East P. C. 1028, Mass. 254. 1029 ; Rex v. Garadiue, Rubs. & Ry. 205 ; « The State v. Wheeler, 3 Vt. 344, Rex V. Turner, 1 Moody, 47 ; The State 347. V. Upchureh, 9 Ire. 464 ; Lohraan u. Peo- 5 Black v. The State, 2 Md. 376. pie, 1 Comst. 379; People v. Lohman, 2 ^ Commonwealth v. Sqtiire, 1 Met. Barb. 216; The State v. Wimberly, 3 258. MoCord.lOO; Hackett k. Commonwealth, 7 Nelson v. The State, 10 Humph. 3 Harris, Pa. 96; Commonwealth v. 518. The like doctrine is also held in Squire, 1 Met. 258; 2 Hawk. P. C. Curw. New York, People v. Abbot, 19 Wend. ed p. 621 ; The State v. Knouse, 29 Iowa, 192. 118; The State y. Boyle, 28 Iowa, 522; s The State v. Arlin, 7 Tost. N. H. The State v. McNally, 32 Iowa, 680. See 116. The State v. Bridges, 1 Murpb. 134. And see ante, § 274, 880, note, 361, note. 452 CHAP. LIV.] RELATIONS OY OFFENCfes. § 812 was adjudged, that, if an information in one count charges the larceny of divers articles, some valued above seven dollars and others below, and the verdict finds the respondent guilty as to one article only, of a value less than seVen dollars, the court will, on motion, dismiss the case. Said the judge : " Where the prop- erty is of less value than seven dollars, the offence is within the jurisdiction of the justice of the peace ; who may sentence the prisoner, on conviction, to imprisonment in the county jail. The county court have no jurisdiction over criminal offences which are cognizable before a justice." ^ § 812. Felony proved on Indictment for Misdemeanor. — It has already been explained that the same criminal thing which is a felony cannot also be a misdemeanor ; ^ for the differing conse- quences of felony and misdemeanor cannot exist together, — as, a man cannot be hung and imprisoned at the same time. But, if to what constitutes a misdemeanor some circumstance is added, the aggregate may well be a felony. In such a case, according to Hawkins,^ should the indictment be for the misdemeanor, and the aggravation which makes the act felony appear at the trial, opinions are divided on the question whether or not there can be a conviction for the misdemeanor. There is great weight in the reason which he gives for the 'affirmative of this proposition; natnely, "because the king may proceed against the offender as he sees fit, either as a trespasser or a felon." And this is the , better doctrine. In England, it appears, if on a trial for misde- ' meanor the wrongful act is shown to have been carried to an ex- tent which makes it felony, the court will, in its discretion, not as of course,* order the proceedings to be suspended, until an in- dictment can be brought forward for the felony.^ It is not be- lieved that this practice would be proper with us, or that it is ever resorted to ; it would lead to embarrassing complications under our constitutional guaranties against a second jeopardy. If the judge declines to give this direction, the prisoner cannot complain ; because it is for his advantage to be prosecuted for the 1 The State v. Nutting, 16 Vt. 261. section and. the' next two, with citations 2 Ante, § 787, 804 ; Rex v. Cross, 1 of authorities, Reg. i'. Button, 11 Q. B. Ld. Raym. 711. 929, 12 Jur. 1017, 18 Law J. n. s. M. C. 3 Ante, § 788. 19, 3 Cox C. C. 229. And see 1 Chit. * Bank Prosecutions, Euss. & Ry. 378. Crim. Law, 639; 2 Hawk. P. C. Curw. 5 See, for a full discussion of this ed. p. 621. point and of the matter generally of this 453 § 814 DIVISIONS AND DISTINCTIONS. [BOOK VI. lighter matter, rather than for the heavier.^ There are some de- cisions in Massachusetts,^ founded partly on statutes since re- pealed,^ apparently holding, contrary to this better doctrine, that the prisoner should be found not guilty of the misdemeanor, and then indicted for the felony ; but no satisfactory legal reason for this method appears ; moreover, if the same evidence were not produced on the second trial, the party would altogether escape.. As observed by Lord Denman, C. J. : " The felony may be pre- tended to extinguish the misdemeanor, and then may be shown to be but a false pretence ; and entire impunity has sometimes been obtained by varying the description of the offence accord- ing to the prisoner's interest ; he has been liberated on both charges, solely because he was guilty upon both." * In confirma- tion of the liability to conviction for the misdemeanor,: the books tell us that, — § 813. Misprision of Felony or Treason. — Every treason in- cludes a misprision of treason,^ and every felony a misprision of felony,^ for which misprision, though only a misdemeanor,'' the person guilty of the higher crime may nevertheless be proceeded against, "if the king please." § 814. Merger in Conspiracy. — A conspiracy to commit a fel- ony is a step toward the consummation, but it is only misde- meanor. There are American cases which seem to hold, that) if parties are on trial for such a conspiracy, and they are shown to have proceeded in it to the actual commission of the felony, the misdemeanor is merged, and they cannot be convicted,^ — a rule, the authorities agree, not applicable where the object of the con- spiracy is a misdemeanor.^ This doctrine, the reader perceives, 1 Keg. V. Button, supra ; Reg. v. Neale, ' Commonwealth e. Kingsbury, 5 1 Den. C. C. 36 ; The State v. Leavitt, Mass. 106. And see the cases cited in 32 Maine, 183 ; Bank Prosecutions, Russ. the next note, which, on this point, con- & Ry. 378 And see Lehman v. People, tain mere dicta. Also, Commonwealth 1 Comst. 379, 383 ; People v, Lohman, 2 v. Delany, 1 Grant, Pa. 224 ; Johnson v. Barb. 216,' 220. The State, 5 Dutclier, 453 ; Elkin v. Peo- 2 Commonwealth v. Roby, 12 Pick, pie, 28 N. Y. 177. In Kentucky, it has 496, 508 ; Commonwealth v. Kingsbury, been laid down that a conspiracy to com- 5 Mass. 106. , niit a felony, consummated by commit- 8 Commonwealth v. Squire, 1 Met. ting treason, merges. Commonwealth v. 258, 261, 262. Blackburn, 1 Duvall, 4. * Reg. 0. Button, supra, 11 Q. B. 948. » The State v. Murray, 15 Maine, 100 ; 6 1 East P. C. 140. People w. Mather, 4 Wend. 229, 265 ; « 4 BI. Com. 119. People i>. Richards, 1 Mich. 210; Com- ' Ante, § 717. monwealth v, McGowan, 2 Parsons, 341 ; 454 CHAP. LIV.] EBLATIONS OF OFFENCES. § 815 is contrary to just principle : it has been rejected in England ; ^ and, though there may be States in which it is binding on the courts, it is not to be deemed general American law.^ § 815. Misdemeanor committed by Means of Felony. — There is authority for saying, that, when a man undertakes to commit a misdemeanor by means of an act which is felony, the law stops .with the felony, being the culminating point in the transaction, and punishes him for it, to the disregard of the minor conse- quence beyond. This doctrine is not so completely established by adjudication as to preclude future inquiry into it. Still it seems not unjust in principle. Therefore — False Pretences. — It has been held, that, if one obtains goods by false pretences, where such obtaining is a misdemeanor, through the instrumentality of a forgery, which is a felony, he can be convicted only of the forgery .^ The State o. Noyes, 25 Vt. 415; The in the series may also be a felony. State V. Mayberry, 48 Maine, 218 ; Com- Where that is the case, there appears no monwealth «. O'Brien, 12 Cush. 84; ante, reason why the prisoner should be al- § 804. lowed to defeat the charge of the lesser ' Reg, V. Button, 11 Q. B. 929, 12 Jur. offence by alleging his own guilt in re- 1017, 18 Law J. N. s. M. C. 19, 3 Cox C. spect of the greater offence. The same C. 229. act may be part uf several offences ; the 2 Johnson v. The State, 5 Dutcher, same blow may be the subject of inquiry 453 ; ante, § 790. in consecutive charges of murder and rob- ' Rex V. Evans, 5 Car. & P. 653 ; Reg. bery ; the acquittal on the first charge is V. Anderson, 2 Moody & R. 469. As to no bar to a second inquiry where both this, however, Lord Denman has ob- are charges of felony ; neither ought it to served, " that the misdemeanor of obtain- be where the one charge is of felony and ing goods on false pretences consists of a the other of misdemeanor." Reg. v. But- series of acts, the false pretence, and the ton, supra, 11 Q. B. 946, 947, 3 Cox C. C. obtaining of the goods, and the first step 229, 240. 455 § 819 INCIDBNTAL RELATIONS. [BOOK VD. BOOK YIL INCIDENTAL RELATIONS CONNECTED WITH CRIME. CHAPTER LV. QUASI CRIME EST REM. § 816. Doctrine of this Chapter. — When a thing which is the subject of property passes into a situation antagonistic to the law, its owner may lose his ownership in it, whether personally guilty of crime or not, because the thing has offended. The punishment, if such it may be called, falls on the thing, and does not visit the owner's person. Though he loses it, and it lapses to another or the state, the loss is not in the nature of a penalty for personal crime. To explain this doctrine is the object of the present chapter. § 817. Relations of this Subject. — While, therefore, this is not strictly matter pertaining to crime, it is so connected with the criminal law as to reader its introduction here imperative. In- deed, the suffering of one through the loss of his property, to be explained in this chapter, is, though not strictly a punishment, quasi such, — to be properly, therefore, viewed in connection with the punishment imposed by the court, and the disabilities which follow by operation of law, on conviction for crime. Yet — § 818. Subject Peculiar. — The affinities of this subject are not alone with the criminal law. In 'part, they are with the civil. The popular mind more allies it to the criminal. In fact, it ex- tends its roots into both departments, while its visible branches are its own. § 819. On what Principle. — Nearly every subject of property is some material thing. As matter, it depends for its existence and relations on the law of nature ; but, as property, on the law, of the laud. If a man owns a bag of coin, and drops it in mid- 456 CHAP. LY.] QUASI CRIME IN EEM. § 820 ocean where gravitation carries it beyond his reach, he can enjoy it no more, though it continues to be his property ; while, if he maintains his material grasp, yet so uses it that forfeiture takes from him, not the material substance, but the legal right to it, he no longer enjoys the property, which has passed from him, though he has in his hand the gold. Law is the creator of property ; and the province of a creator is to prescribe to the thing created the conditions of its being. When the conditions are violated, the property falls, — vesting in another, or in the state, or being de- stroyed.i The violation may be either a criminal or a civil wrong; or it may be a thing of which the tribunals take no cog- nizance, further than simply to recognize the change of proprie- torship in the article forfeited when the question comes before them judicially. § 820. Word to express the Idea — (" Forfeiture " — " Pine of Specific Article " — " Destruction by Abatement "). — It is practically difficult to discuss this subject, because our language has neither any single woi-d, nor any convenient phrase, to signify the trans- mutation of which we are speaking, and nothing else. A word commonly employed, not as denoting every thing within this chapter, but many things, is forfeiture. We cannot avoid using it, yet confusion comes from its use. For the doctrine of forfeit- ure, as just explained, differs from various other things in the law known by the same name. It differs from a mulct, or gen- eral fine ; also, from a fine of the specific article of property, whereby, under a sentence of a court, in pursuance of a statute, such specific article, in distinction from a sum of money in gross, is transferred to the government, as will be by and by mentioned.^ And it differs from those forfeitures which in the English law attend corruption of blood, on attainder for treason and felony. But within the sort of forfeiture we are considering is the loss 1 In a Massachusetts case, not of for- such reasonable limitations in their en- feiture, but involving the same principle, joyraent as shall prevent them from be- Shaw, C. J., said ; " All property in this ing injurious; and to such reasonable Commonwealth, as well tliat in the inte- restraints and regulations, established by rior as that bordering on tide waters, is law, as the legislature, under the govern- derived directly or indirectly from the ing and controlling power vested in them government, and held subject to those by the Constitution, may think neces- general regulations which are necessary sary and expedient." Commonwealth v. to the common good and general welfare. Alger, 7 Cush. 53, 85. See also observa- Rights of property, like all other social tions on pages 96, 102, 103, of the report, and conventional rights, are subject to ^ Post, § 944. 457 §821 INCIDENTAL RELATIONS. [book vn. / which one suffers who permits a thing to become a nuisance, and it is abated without appeal to the courts, by private means. § 821. IllustrationB of these Forfeitures. — The forfeitures we are now contemplating may be illustrated as follows : — Nuisance abated — Taxes not paid — Money bet — Confiscations. — If a man so uses his property that it becomes a nuisance, the nuisance is liable to be abated, to the destruction, if necessary, of the property ; ^ if, in some of the States, he declines or omits to pay taxes on his lands, they are forfeited, under statutes, to the State ; ^ one who, in some States, bets money on an election, forfeits the money ; * and, during our revolutionary struggle, con- fiscation acts were in several of the States passed, under which the lands of persons absenting themselves lapsed in some circum- stances to the State.* Again, — Wages for Desertion. — If a seaman deserts the ship, he forfeits his wages.® And — Revenue Laws — Enemy Property — ; Illicit Trade, &o. — Forfeit- ures are appointed to enforce revenue and other similar laws.^ Tliere are also forfeitures of the enemy's property in times of war, 1 Lancaster Turnpike v. Eogers, 2 Barr, 114; Pennsylvania v. Wheeling and Belmont Bridge, 13 How. U. S. 518; Meelter v. Van Rensselaer, 15 Wend. 397 ; Mills V. Hall, 9 Wend. 315; Penrud- dock's Case, 5 Co. 100 b, Jenk. Cent. 260 ; Baten's Case, 9 Co. 536. 2 Blackwell on Tax Titles, 536 et seq. ; Hodgdon v. Wight, 36 Maine, 326 ; Clarke V. Strickland, 2 Curt. C. C. 439. See Martin v. Snowden, 18 Grat. 100 ; Hard- ing w. Butts, 18 111. 502 ; Lee v. Newkirk, 18 111. 550. 3 Doyle w. Baltimore, 12 Gill & J. 484; Hickman v. Littlepage, 2 Dana, 344. See Hull v. Ruggles, 65 Barb. 432 ; Peo- ple i). Kent, 6 Cal. 89. < Gilbert u. Bell, 15 Mass. 44; Bor- land V. Dean, 4 Mason, 174 ; Cooper v, Telfair, 4 Dall. 14 ; Atherton v. Johnson, 2 N. H. 31 ; Thompson v. Carr, 5 N. H. 610 ; Dunham . The State, 36 Ga. 91 ; The State v. Neeley, 20 Iowa, 108 ; The State V. Kennedy, 20 Iowa, 569. 6 Dyson v. The State, 26 Missis. 362 ; 2 East P. C. 272 ; The State v. O'Connor, 31 Misso. 389 ; Lander v. The State, 12 Texas, 462; Hinton v. The State, 24 Texas, 454 ; People v. Scoggins, 37 Cal. 676 ; post, § 872. CHAP. LVI.] DEFENCE OF PBESON ASD PEOPEETY. § 846 should first employ the means in his power to avert the necessity of self-defence ; and, until he has done this, his right of self- defence does not arise.^ Nor can a person avail himself of a necessity which he has knowingly and wilfully brought upon himself.^ Yet one assaulted by another who has threatened to kUl him is not bound to run in the particular instance, thus in- creasing his danger by encouraging the assailant to repeat the attempt when he will be less prepared to resist.^ § 845. Preferring one's own Life to Another's. — The cases in which a man is clearly justified in taking another's life to save his own are where the other has voluntarily placed himself in the wrong. And probably, as we have seen,* it is never the right of one to deprive an innocent third person of life for the preserva- tion of his own. There are, it would seem, circumstances in which one is bound even to die for another. What are these cir- cumstances is a question which cannot often arise in a judicial tribunal ; but — Mariner and Passenger. — The opinion has been expressed, that a mariner at sea should sacrifice himself to a passenger, when his services are not specially needed for the preservation of life. " He is bound," said the court, " to set a greater value on the life of others than on his own ; and, while we admit that sailor and sailor may lawfully struggle with each other for the plank which can save but one, we think, that, if the passenger is on the plank, even the law of necessity justifies not the sailor who takes it from him." 6 § 846. Duty to avoid taking Life. — This doctrine, that one is not to destroy the life of an innocent person to save his own, is mentioned here to distinguish it from the rules pertaining to self- defence. From it, and from what is said in preceding paragraphs, may be deduced the further proposition, that every man is under 1 People V. Sullivan, 3 Seld. 396 ; The v. Bryson, Winston, No. 2, 86 ; The State State V. Martin, 30 Wis. 216 ; Edwards v. v. Starr, 38 Misso. 270. The State, 47 Missis. 581 ; Gonzales ». ■* Philips v. Commonwealth, 2 Duvall, The State, 31 Texas, 495 ; 'The State v. 328 ; Bohanuon v. Commonwealth, supra. Shippey, 10 Miun. 223 ; Atkins v. The And see Tweedy v. The State, 5 Iowa, State, 16 Ark. 568. But there are cir- 433 ; post, § 851. cumstances in which this is not so. * Ante, § 348 and the authorities Bohannon v. Commonwealth, 8 Bush, there referred to ; 4 Bl. Com. 186. 481. ' Baldwin, J., in United States v. 2 The State v. Neeley, 20 Iowa, 108 ; Holmes, 1 Wal. Jr. 1, 25, Whart. Horn, Adams v. People, 47 111. 376 ; The State 237. 471 § 849 INCIDENTAL EBLATIONS. [BOOK VII. a duty to do all he safeljr can to avoid the taking of life, even though the precise letter of the adjudged oases seems to justify the taking. This proposition, though not distinctly announced in the cases, appears to have been in the minds of judges who ha-ve decided some of them. § 847. Care in Self-defence — (Giving Way). — And thus we are conducted to another proposition ; namely, that a man who undertakes a defence of himself against an aggressor, instead of giving way, when by this means he can prevent a collision, does it at extreme peril. Not that he may not resist an attack, or that he must always endanger his own safety by playing the coward ; but, if two paths are open for him, the one leading from a con- flict and the other to it, and he chooses the latter, he must, to escape the penalties of the law, keep within its exact lines. Another preliminary consideration is — § 848. How Old Authorities regarded — (Special Verdicts). — In early times, special verdicts were commonly given in causes of homicide, not general ones as now ; for, said Lord Hale, " the prisoner cannot plead any thing by way of justification, as that he did it in his own defence, or per infortunium, but must plead not guilty ; and upon his trial the special matter is to be found by the jury, and thereupon the court gives judgment." ^ Conse- quently the judicial utterances on self-defence, found in the old books, are not to be regarded altogether as general legal doctrine ; but rather as, in a degree, expressions of views proper to influ- ence the minds of jurors contemplating such particular facts as are embodied in the special verdicts.^ § 849. Course of Discussion. — With these general views in our minds, let us proceed more directly to consider, tkrough the remainder of this sub-title, — Under what circumstances the Perfect Defence — that is, the defence which may extend to the taking of the aggressor'' s life — is Life the Supreme Right. — The law holds the life of a man in the highest regard. And only in extreme instances of wrong-doing, and impelled by a supreme necessity, can another innocently take it away. Therefore, — Resisting Crime — (Misdemeanor — Felony). — When, in general, 1 1 Hale P- C. 478. 2 Vol. II. § 078. 472 CHAP. LVI.J DEFENCE OF PERSON AND PEOPERTY. § 850 a person is in the commission of any mischief whether civil or criminal, no other person opposing him, however lawfully, is entitled to proceed in such apposition to the taking of his life. , But to this rule there are exceptions, of which the most promi- nent one relates to felony. Anciently the punishment of all felony was death ; ^ from which reason, or from some .other not appearing, it became established doctrine both in England and in our States, that one may oppose another who is attempting to perpetrate any felony, to the extinguishment, if need be, of the felon's existence.^ Indeed, a man even commits an indictable misdemeanor who neglects to oppose a felony; or, it may be, stops in his opposition short of taking the felon's life, where that extreme measure is the only one which can be made effectual.^ Again, — Suppressing Riots and Afirays, &c. — It is the duty of officers, and, at least, the right of private persons, to suppress riots and affrays, together with some other misdemeanors of the like nat- ure.* And when the disorder can be put down only by the taking of life, this may lawfully be done.^ Resisting Murderous Assault. — These views may be illustrated by the familiar doctrine, that one assaulted with murderous intent may, to avert the felonious result, take the aggressor's life ; ^ and, though his justification rests also on the right of self-defence, it reposes equally on the authority with which the law invests every man to resist the commission of a felony.'^ 5ut, — § 850. Assault not Murderous. — Where an assault is a simple one, not made with the intent to kill, or do other great bodily 1 Ante, § 616, 616. v. Commonwealth, 14 B. Monr. 614 ; Peo- 2 Oliver t. The State, 17 Ala. 587 ; pie v. Payne, 8 Cal. 341 ; The State v. Monroe v. The State, 5 Ga. 85 ; Moore v. Brandon, 8 Jones, N. C. 463 ; ante, § 84.3 ; Hussey, Hob. 93; Semayne's Case, 5 Co. post, § 853-855, 867, 874 ; Vol. II. § 648- 91 ; The State v. Harris, 1 Jones, N. C. 656, 706. 190 ; Cooper's Case, Cro. Car. 544 ; » Ante, § 717, 719 ; Crim. Proced. I. United States o. Wiltberger, 3 Wash. C. § 164, 165. C. 515 ; The State ... Rutherford, 1 * Crim. Proced. I. § 166, 167, 169-171, Hawks, 457 ; The State v. Roane, 2 Der. 183. 58 ; Dili V. The State, 25 Ala. 15; 1 Hale ' Vol. II. § 655. And see Patten v. P. C. 481, 547 ; McPherson v. "The State, People, 18 Mich. 314. 22 Ga. 478; Noles v. The State, 26 Ala. 6 The State v. Harris, 1 Jones, N. C. 31 ; Mitchell v. The State, 22 Ga. 211 ; 190 ; 3 Inst. 55, 56 ; ante, § 842. Staten u. The State, 30 Missis. 619; ' See Noles w. Tlie State, 26 Ala. 81 ; Keener v. The State, 18 Ga. 194 ; Mc- Staten «. The State, 30 Missis. 619 j Clelland v. Kay, 14 B. Monr. 103 ; Rapp Aaron v. The State, 31 Ga. 167. 473 §860 nsrCIDBNTAL EELATIONS. [book "vrr. harm, and the person assailed is not deceived as to its character, — in other words, where the intent of the assailant is not to com- mit a felony but a misdemeanor,^ — the right of what we call per- fect defence does not exist. The assailed person is not permitted to stand and kill his adversary, if there is a way of escape open to him ; ^ while yet he may repel force by force, and, within limits differing with the facts of cases, give back blow for blow.^ Retreating " to the Wall." — These cases of mere assault, and cases of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books,* that one cannot justify the killing of another, though apparently in self-defence, unless he retreated " to the wall," or other interposing obstacle, before resorting to this extreme right. But, — Not necessary ■where Murder meant — Or Deadly Weapon. — Where an attack is made with murderous intent, the person attacked is under no obligation to fly ; he may stand his ground, and, if need be, kill his adversary.^ And it is the same where the attack is with a deadly weapon ; ^ for, in this case, the person 1 This proposition is practically ac- curate when viewed in connection with the doctrine that the .person assailed is justified in acting from_ appearances. Ante, § 305 and note. But the reader should compare all the doctrines of the chapter with one anotlier. There are many circumstances in which the full de- fence is permissible, while yet the assail- ant could not be convicted of assault with intent to commit a felony. 2 People V. Harper, 1 Edm. Sel. Cas. 180 ; Stoffer v. The State, 15 Ohio State, 47 ; Commonwealth v. Drum, 8 Smith, Pa. 9; United States v. Wiltberger, 3 Wash. C. C. 616 ; Reg. v. Bull, 9 Car. & P. 22 ; Reg. v. Hewlett, 1 Fost. & F. 91 ; Greschia v. People, 53 111. 296. a Vol. II. § 41, 698, 699, 702; Com- monwealth V. Bush, 112 Mass. 280; The State V. Conally, 3 Oregon, 69 ; Evans v. The State, 33 Ga. 4 ; Commonwealth v. Mann, 116 Mass. 58 ; The State v. Ben- ham, 23 Iowa, 154 ; Harrison v. Harrison, 43 Vt. 417; The State v. Martin, ,30 Wis. 216. * 1 Hale P. C. 479-481 ; 4 Bl. Com. 185 ; 8 Inst. 55, 56 ; Shorter v. People, 2 474 , Comst. 193 ; post, § 869-871. See Stew- art ,u. The State, 1 Ohio State, 66, 71 ; Creek v. The State, 24 Ind. 161 ; Farrow V. The State, 48 Ga. 30 ; Anonymous, J. Kel. 58. ^ Foster, 273, where several observa- tions occur, worthy of consideration ; 3 Inst. 56 ; 1 East P. C. 271 ; The State u. Mullen, 14 La. An. 570 ; Pforaer v. Peo- ple, 4 Parker C. C. 558 ; Aaron v. The State, 31 Ga. 167 ; Commonwealth v. Carey, 2 Brews. 404 ; Lingo v. The State, 29 Ga. 470. In a California case, " on the trial of the case," said Cope, J., " it was shown that the deceased had threat- ened to take the life of the defendant, and that these threats were communi- cated to the latter previous to the killing. It does not appear that the threats were followed by any overt act ; and, under the circumstances, the mere apprehen- sion of danger was insufficient to justify the homicide." People v. Lombard, 17 Cal. 816, 820. See ante, § 843. 6 The State v. Thompson, 9 Iowa, 188, 192 ; Tweedy v. The State, 5 Iowa, 483. And see The State v. Potter, 13 Kan. 414 ; Kingen v. The State, 46 Ind. 518. CkAP. LVI.] DEFENCE OP PEESON AND PEOPEKTY. § 853 attacked may well assume that the other intends murder, whether he does in fact or not. § 851. Deductions from foregoing Distinctions. — The foregoing distinctions show how the pure right of self-defence complicates itself with other rights and duties. And, in looking into a par- ticular case, we must bear all in our minds. Thus, — Law of Misprision. — When a felony is attempted, the duty comes immediately to him who witnesses the attempt, to resist it; insomuch that, as we have seen,^ if he merely declines this duty, he is guilty of an indictable misdemeanor, called misprision of felony. Now, if the person whom another attacks with intent tq murder him flies, instead of resisting, he commits substantially this offence of misprision of felony ; even though we should admit that in strict law he will be excused, because acting from the commendable motive of saving life. While, on the other hand, if he flies from one meaning merely to inflict a battery, he is in no way amenable either to the letter or spirit of a broken law. And — § 852. Rights to the Two Defences, again — (Duty permissive). — We see here what appears to be the principal distinction between the rights of perfect and imperfect defence. The perfect defence may be made whenever there is a duty to resist the aggressor ; the imperfect is permissible, in one degree or another, when there is no duty to defend, yet the law permits it, if one pleases. And we shall by and by more fully see,^ that, in the latter, there is a great difference in eases ; which we may liken to ascending steps, laid all the way from the lowest point of privilege to remove for- cibly a force employed against one's rights, up, by regular grada- tion, to the very edge of the perfect defence of which we are now treating. § 853. Further of taking Life to prevent Felony. — • The books have some distinctions as to the right to take life to prevent a felony.^ Thus, — Felony by Force or not. — There are passages in which it seems to be implied, that this right does not exist where the felony is not of a nature to be committed by force.* Now, the cases which 1 Ante, § 716 et seq., 849. State, 5 Ga. 85 ; Aaron v. The State, 31 " Post, § 860 et seq. Ga. 167. In a Connecticut case it was ' Ante, § 849, 850. observed : " The class of crimes in pre- *4 Bl. Com. 180; Monroe a. The vention of which a man may, if necessa- 475 §854 INCrDBNTAL EBLATION.S. [book vn. have arisen are of felony by force ; because in others there is either no opportunity to interfere, or no necessity for a forcible interference. But, on principle, there can be no such distinction in the law itself, and probably none is found in actual adjudica- tion.i Mr. East, however, states the doctrine in a way seldom or never practically misleading, thus : " A man may repel force by force in defence of his person, habitation, or property, against one who manifestly intends or endeavors, hy violence or surprise, to commit a known felony ; such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases, he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger ; and, if he kill him in so doing, it is called justifiable self-defence." ^ Still this statement is ob- jectionable as containing an unhappy mingling of doctrines ; while, yet, the facts of actual life will seldom or never show a case in which the felony can be prevented only by killing the felon,^ unless he was attempting or employing actual force, or his movements were awakening surprise in the person present to resist. § 854. Spring-guns — (Further of Killing to prevent Crime). — ry, exercise his natural right to repel force by force to the taking of the life of the aggressor, axe felonies which are com- mitted by violence and surprise ; such as murder, robbery, burglary, arson, break- ing a house in the daytime with intent to rob, sodomy, and rape. Blackstone says : ' Such homicide as is committed for the preoention of any forcible and atrocious crime is justifiable by the law of nature ; and also by the law of England, as it stood as early as the time of Bracton ; ' and he specifies, as of that character, those whioli we have enumerated. No others were specified by Hale or Haw- kins, who wrote before him on tlie Pleas of the Crown, or have been specified by any writer since." The judge, therefore, goes on to say, that, according to the rules of the common law, a man cannot take life in order to prevent a larceny by one breaking and entering his shop ; yet, as the Connecticut statute has made such a criminal act burglary, the life may be taken to prevent this burglary the same as burglary at the common law. (See Stat. Crimes, § 189). The State Post, § 862, 873. Hawk. P. C. Curw. ed. p. 98, §36; Crim. * The State v. Lazarus, 1 Mill, 33; Proced. I. § 202. While the doctrine of McCoy v. The State, 3 Eng. 461. And the text is clear on principle, it is not so see Reg. v. Sullivan, Car. & M. 209 ; Rex distinctly and uniformly sustained by c^. Longden, Russ. & Ry. 228. the authorities as we might wi.sh. It is ^ Xhe State v. Sraitli, 3 Dev. & Bat plainly the ancient doctrine. Thus Brit- 117. And see People v. Horton, 4 Mich. ton, treating of Appeals of Homicide, 67. Bays : The defendant " may say, that, ^ Ante, § 857 ; post, § 861. 480 CHAP. LVI.] DEFENCE OP PERSON AND PROPERTY. § 862 IV. The Imperfect Defence. § 860. E:stends to both Person and Property. — Though the per- fect defence cannot, as just seen, be resorted to for the protection of property, except where it consists of the castle, or a felony is being committed upon it ; yet, on the other hand, the imperfect defence is permitted as well .of the property as the person. - § 861. As to Property. — A man may lawfully defend his prop- erty in possession by any degree of force, short of the taking of life, necessary to make the defence effectual ; i unless it amounts to a riot, a forcible detainer, or some other like crime. Yet he cannot proceed therein beyond what necessity requires.^ For illustration, — By Assault and Battery — Accidental Homicide. — An assault and battery may be justified as inflicted in defence of one's prop- erty.^ And if, in the employment of necessary force, the party resisted is accidentally killed, the doctrine seems to be on author- ity,* and clearly is in principle, that the homicide is not punish- able. Yet, consistent with this proposition, is another, that one in the defence of his property should not resort to means reason- ably calculated to endanger life.^ For, — § 862. By Dangerous Weapon — Improper Battery — (Homicide). — If a dangerous weapon is used when other means would suffice, resulting in death, however unintended ; ^ or, a fortiori, if the trespasser is intentionally killed ; "> the party so resisting becomes guilty of a felonious homicide. Nor should one turn another out 1 Ante, § 857 ; The State v. Johnson, The State v. Hooker, 17 Vt. 658 ; Paris 12 Ala. 840. Still Mr. East observes : v. The State, 3 Ohio State, 159. " A man cannot justify maiming another * The principle of the statement in in defence of his possessions, but only in the text is possibly sustained in The defence of his person. This restriction, State v. Merrill, 2 Dev. 269. however, cannot be intended to extend ' Kunkle v. The State, 32 Ind. 220. to cases where a man defends himself And see Territory v. Drennan, 1 Mon- against a known felony, threatened to b? tana, 41. committed with violence, against even ^ Commonwealth o. Drew, 4 Mass. his property." 1 East P. C. 402. 391 ; McDaniel v. The State, 8 Sm. & M. 2 Ante, § 842 ; The State v. Clements, 401 ; The State v. Zellers, 2 Halst. 220. 32 Maine, 279 ; The State v. Lazarus, 1 And see Reg. v. Sullivan, Car. & M. 209. Mill, 33. ' Harrison v. The Slate, 24 Ala. 67 ; 8 Harrington v. People, 6 Barb. 607 ; McDaniel v. The State, 8 Sm. & M. 401 ; The State v. Briggs, 3 Ire. 357. And see The State v. Smith, 3 Dev. & Bat. 117. VOL. 1. 31 481 § 865 INCIDENTAL EBLATIONS. [BOOK VII. of his house with a kick,i or beat or tie to a horse a trespasser who yields ; ^ and he who does these things, producing death, com- mits felonious homicide. § 863. Defence of the Person. — Since one may resort to the perfect defence of his person, it follows that he may to the im- perfect. But the doctrine will be more exactly stated under the next sub-title. V. Summary showing the Right to defend one's Person. § 864. How the Discussion distributed. — Much of what WOuld properly appear under this sub-title will be found under the last two, which should be read in connection with this. § 865. 'When killing in Self-defence permissible. — The rule is commonly stated in the American cases thus : if the individual as- saulted, being himself without fault, reasonably apprehends death or great bodily harm to himself, unless he kills the assailant, the '■ killing is justifiable.^ And this proposition, it has been held, cannot be qualified by adding to it the words, "which [bodily harm] might probably endanger his life ; " for persons attacked may destroy the life of an assailant, though no danger, near or remote, threatens their own lives, but only their safety in a less degree.* "The law gives a person the same right to use 1 Wild's Case, 2 Lewin, 214. And see 217 ; Payne v. Commonwealth, 1 Met. McCoy V. The State, 3 Eng. 451. Ky. 370 ; The State v. Mullen, 14 La. 2 Hollowaye's Case, Palmer, 545 ; s. c. An. 570; Klngen v. The State, 45 Ind. nom. Halloway's Case, Cro. Car. 1.31, W. 618 ; People v. Lamb, 54 Barb. 342 ; The Jones, 198 ; 1 Hale P. C. 473 ; Foster, State v. Abarr, 39 Iowa, 185 ; Common- 291. wealth v. Crawford, 8 Philad. 490 ; Berry 3 Young V. The State, 11 Humph. 200 ; v. Commonwealth, 10 Bush, 15. And see People V. Shorter, 4 Barb. 460; Shorter Monroe v. The State, 6 Ga. 85 ; Pennsyl- V. People, 2 Comst. 193 ; Stewart v. The vania v. Robertson, Addison, 246 ; Fah- State, 1 Ohio State, 66, 71 ; Copeland v. nestock v. The State, 23 Ind. 231, 257 ; The State, 7 Humph. 479 ; The State v. The State v. King, 22 La. An. 464 ; Wells, Coxe, 424 ; Holmes v. The State, Thompson v. The State, 24 Ga. 297 ; 23 Ala. 17 ; Carroll v. The State, 23 Ala. Isaacs v. The State, 25 Texas, 174 ; 28; Dill V. The State, 25 Ala. 15; Rapp Pound v. The State, 43 Ga. 88; Head o. V. Commonwealth, 14 B. Monr. 614; The State, 44 Missis. 731 ; Evans k. The Campbell v. People, 16 111. 17 ; Meridith State, 44 Missis. 762 ; The State v. Ber- V. Commonwealth, 18 B. Monr. 49; trand, 3 Oregon, 81 ; The State k. Con- Green u. The State, 28 Missis. 687 ; Pond ally, 8 Oregon, 69; Stoneman v. Com- V. People, 8 Mich. 150 ; People v. Cole, 4 monwealth, 25 Grat. 887. Parker C. C. 35 ; The State v. Swift, 14 * Young v. The State, 11 Humph. 200. La. An. 827 ; Rippy "• The State, 2 Head, And see The State v. Sloan, 47 Misso. 482 CHAP. LVI.] DEFENCE OF PERSON AND PEOPEKTY. § 867 such force as may be reasonably necessary, under the circum- stances by which he is surrounded, to protect himself from great bodily harm, as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault," — though he should thereby kill the ag- gressor.^ Let us look at some points of this doctrine more minutely. § 866. Defence of Limb — Chastity — (Resistance of Felony). — Grotius — not a common-law authority, but worthy of high respect on such a subject^ — observes: "Since the loss of a limb, espe- cially of a principal one, is very grievous, and nearly equal to the loss of life ; and since, moreover, it can hardly be known whether it do not bring in its train loss of life ; if it cannot otherwise be avoided, I think the author of such danger may be slain. Whether the same be lawful in defence of chastity, can 1 scarcely be doubted, since not only common estimation, but the divine law, makes chastity of the same value as life." ^ But the right of self-defence even to the taking of life sufficiently results, in these cases, from the doctrine, already discussed, of resistance to the commission of a felony ; though, doubtless, it equally re- sults from the considerations thus mentioned by Grotius. § 867. Repelling Battery. — According to the books, a man can- not, as we have seen,* justify the killing of another who comes merely to beat him ; though he may repel the assault by a beat- ing till the aggressor desists.^ Now, — Danger of Great Bodily Harm. — The distinction is not a broad one, or quite discernible in principle, between this beating, espe- cially if extreme, and the great bodily harm to prevent which, it has just been stated,^ the assailant's life may be taken. And, in reason, the form of expression does net appear accurate when we say, in the language of most of the cases, that one may take the life of another to avoid great bodily harm from him. Perhaps the expression may be justified on the ground that it is less likely 604 ; People v. Campbell, 30 Cal. 312 ; s Grotius de Jure Belli et Pacis, ii. 1, Eeg. u. Hewlett, 1 Fost. & F. 91; The 6 & 7, Whewell's ed. Vol. I. p. 211. State V. Benham, 23 Iowa, 154 j The * Ante, § 843, 850. State V. Burke, 30 Iowa, 331. ^ 1 East P. C. 272 ; United States v. 1 The State v. Burke, 30 Iowa, 331. "Wiltberger, 3 Wash. C. C. 515; Nailor's 2 See Bishop First Book, § 138, 572, Case, cited Foster, 278. And see Reg. u, Grotius, note. DriscoU, Car. & M. 214. 6 Ante, § 865. 483 § 868 INCIDENTAL RELATIONS. [BOOK VTL to mislead a jury than one scientifically more accurate. But, on principle, and more definitely, the doctrine is thus, — Resisting Attempted Felony — (Mayhem — Sodomy — Rape — Ultimate Danger to Life, &c.). — The attempt to commit any fel- ony, such as a mayhem, the crime against nature, or a rape,^ upon the person, — or, in the language of a learned court as quoted in a previous section,^ any '■'■felonious assault," — comes under the head of perfect defence ; and this attempt may be resisted to the death, without any flying or avoiding of the combat.^ Moreover, the danger, to constitute a danger to the life, need not be of im- mediate death, but of such an injury as will shorten the period of the earthly existence. And these considerations, it is submit- ted, should properly be deemed a sufficient extension of the right to take the life of him who does not endanger the life of the person he assails. But this statement of the doctrine, let it be repeated, does not differ greatly in effect from the common form ; as, for example, the difference is not practically broad between danger of great bodily harm and danger of a felonious maim or mayhem. § 868. Repelling Attempts against Liberty. — The attempt to take away one's liberty is not such an aggression as may be re- sisted to the death. Tjius, — In Unlawful Arrest — Kidnapping. — If one, even an officer, un- I dertakes to arrest another unlawfully, the latter may resist him. He has no protection from his office, or from the fact that the other is an offender. But the doctrine already stated,* that noth- ing short of an endeavor to destroy life will justify the taking of life, prevails in this case ; consequently, if the one to be arrested kills the officer or private individual in resisting, he commits thereby the lower degree of felonious homicide called man- slaughter.^ Still, in principle, life and liberty stand on substan- 1 1 Gab. Crim. Law, 495 ; 4 Bl. Com. 1 Lewin, 57 ; Reg. v. Phelps, Car. & M. 181 ; Foster, 274 j 1 Hale P. C. 486. 180; Rex v. Withers, 1 East P. C. 296, 2 Ante, § 865. 360 ; Commonwealth ^. Drew, 4 Mass, ' Ante, § 849, 850. 391 ; The State v. Craton, 6 Ire. 164 ; 4 Ante, § 863-868. Rex v. Curran, 3 Car. & P. 397 ; Rex v. " Rex V. Deleany, Jebb, 88 ; Reg, v. Addis, 6 Car. & P. 388 ; Rex v. Davis, 7 Tooley, 11 Mod. 242; Roberts u. The Car. & P. 785; Rex w. Howarth, 1 Moody, State, 14 Misso. 138 ; Rex v. Gordon, 1 207. And see Rex o. Dixon, 1 East P. C. East P. C. 315, 352 ; Rex v. Patience, 7 313 ; The State v. Ramsey, 6 Jones, N. C. Car. & P. 775 ; Rex v. Thompson, 1 196 ; Vol. II. § 699. Moody, 80 ; Rex v. Gillow, 1 Moody, 86, 484 CHAP. LVI.] DEFENCE OP PERSON AND PROPERTY. § 869 tially one foundation ; life being valueless without liberty. And the reason why a man may iiot oppose an attempt on his liberty by the same extreme measures permissible in an attempt on his life, may be because liberty can be secured by a resort to the laws. And if a ease should arise, in which the attempt was to convey a person by force beyond the reach of the laws, and there confine him perpetually, doubtless the courts would hold him justified legally, as in the judgment of every man he would be morally, in resisting to death. And there would be foundation for extending this proposition to any attempt to convey the indi- vidual out of the country.^ § 869. Conflict not to be sought. — Though, if one is attacked by a man who intends to kill him, he may stand his ground and kill the assailant as already explained, still it would seem not permissible for him, knowing the other's designs, to seek the con- flict.^ Thus we have seen,^ that one who is threatened must wait for some overt act before resorting to his right of self-defence.* And after a danger has passed, one is not justified in following up the adversary to take his life.^ The principle of the law plainly is, that a conflict for blood should, if possible, be avoided. And from this principle proceeds the doctrine, already mentioned,^ that, — Retreating to the Wall. — If there is a mere fight,' or an assault ' not murderously intended, and it progresses to a conflict for blood, neither party can innocently avail himself of the right of perfect defence by killing the other, until he has endeavored to extricate himself by " retreating to the wall," as the old phrase is. In the words of Lord Hale : " Regularly it is necessary, that the person that kills another in his own defence fly as far as he may to avoid the violence of the assault, before he turn upon his assailant ; for, though in cases of hostility between two na- tions it is a reproach and piece of cowardice to fly from an enemy, yet, in cases of assaults and affrays between subjects under the same law, the law owns not any such point of honor, because the 1 And see Williams v. The State, 44 "Williams v. The State, 3 Heisk. 376 ; Ala. 41. Evans v. The State, 44 Missis. 762 ; The ^ And see Commonwealth h. Drum, 8 State v. Home, 9 Kansas, 119. Smith, Pa. 9. ' The State v. Conally, 3 Oregon, 69 ; s Ante, § 843 ; post, § 872. Evans v. The State, 33 Ga. 4. * Dawson v. The State, 83 Texas, 491 ; « Ante, § 850. Johnson v. The State, 27 Texas, 758; 485 § 870 INCIDENTAL EBLATIONS. [BOOK VH. king and Ms laws are to be the vindices injuriarum, and private persons are not trusted to take capital revenge one of another." ^ But he goes on to show, that this doctrine cannot apply where flight is impossible; and indeed he explains, as do all the old writers on this branch of our law, that the right to take the assailant's life is only to be exercised when no other means of escjipe are open. The proposition is admirably laid down in a New York case, that, when a man expects to be attacked, the right of self-defence does not arise until he has done every thing to avoid the necessity of using it;^ and this proposition seems clearly to apply in all circumstances of the nature of those now under consideration.^ Moreover, a person attacked in his own dwelling-house need not fly from it, but he may use all the violence necessary for his protection.* After a man has retreated, and no further way of escape is open, then, of course, he may turn, and kill the aggressor.^ But one must not have brought on himself the necessity which he sets up in his own defence.^ §870. Continued — (Mutual Combat). — The eases in which this doctrine of retreating to the wall is commonly invoked, are those of mutual combat. Both parties being in the wrong, neither can right himself except by "retreating to the wall." When one, contrary to his original expectation, finds himself so hotly pressed as to render the killing of the other necessary to save his own life, he is guilty of a felonious homicide if he kills him, unless he first actually puts into exercise this duty of j^ithdEaw- ing fromthe_place.^ Lord Hale says : " If A assaults B first, and upon that assault B reassaults A, and that so fiercely that A can- not retreat to the waU or other non ultra without danger of his life ; nay, though A fall upon the ground upon the assault of B, and then kills B ; this shall not be interpreted to be se defen- dendo, but to be murder, or simple homicide, according to the circumstances of the case ; for otherwise we should have all cases 1 1 Hale p. C. 481. 6 stoffer v. The State, 15 Ohio State, 2 People V. SuUiyan, 3 Seld. 396. 47. And Bee United States v. Mingo, 2 Curt. « 1 Hawk. P. C. Curw. ed. p. 82, § 22 ; C. C. 1. Vaiden v. Commonwealth, 12 Grat. 717 j 8 See Oliver v. The State, 17 Ala. 587 ; Haynes v. The State, 17 Ga. 465 ; post, Eeg. V. Smith, 8 Oar. & P. 160 ; Creek v. § 870 and note. The State, 24 Ind. 151. 7 Foster, 227 ; The State v. Hill, 4 4 The State v. Martin, 30 Wis. 216. Dev. & Bat. 491 ; Stoffer v. The State, And see People «. Walsh, 43 Cal. 447. 15 Ohio State, 47. And see The State v. 486 Howell, 9 Ire. 485. CHAP. LVI.j DEFENCE OP PEESON AJSB PEOPEETT. §871 of murders or manslaughters by way of interpretation turned into se defendendo." ^ But a better reason for this just conclusion is, that, by continuing in the combat, the party brought upon himself the necessity of killing his fellow-man.^ §871. Continued — (Repentance — Withdrawal). — This space for repentance is always open. And where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict, and not merely to gain fresh strength or some new ad- vantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is justified.^ But a mere colorable withdrawal avails nothing.* In like manner, where, upon a quarrel, one of the parties retreated fifty yards, desiring to avoid the conflict, but the other pursued him with uplifted arm ; and, being first struck by the retreating one with the fist, stabbed and killed him ; the killing was held to be murder.^ 1 1 Hale P. C. 482. 2 Hawkins maintains, contrary in part to the doctrine of the text, that the one who gives the first blow cannot be per- mitted to kill the other, however neces- sary the killing for his own preservation, even after having put into exercise the virtue of retreating to the wall ; because here also the necessity was brought upon himself. Yet he admits that there are good opinions the other way. 1 Hawk. P. C. Curw. ed. p. 87, § 17. And see Rex V. Kessal, 1 Car. & P. 437. Though this opinion of Hawkins, which shuts the gate of repentance, is not generally re- ceived, yet another proposition of his accords exactly with our text. It is, that, when a person who makes a mur- derous assault is himself driven to the wall, instead of retreating there to avoid further conflict, and there kills the other in his own defence, he is guilty of mur- der. 1 Hawk. P. C. Curw. ed. p. 87, § 18, p. 97, § 26 ; Anonymous, J. Kel. 58 ; The State V. Hill, 4 Dev. & Bat. 491. 3 Stoffer V. The State, 15 Ohio State, 47 ; The State v. Hill, 4 Dev. & Bat. 491 ; The State v. Ingold, 4 Jones, N. C. 216 ; Lord Hale says : " Suppose that A by malice makes a sudden assault upon B, who strikes again, and pursuing hard upon A, A retreats to tbe wall, and, in saving his own life, kills B, — some have held this to be murder, and not se defen- dendo, because A gave the first assault. But Mr. Dalton thinketh it to be se defen- dendo, though A made the first assault, either with or without malice, and then retreated. It seems to me, that, if A did retreat to the wall, upon a real intent to save liis life, and then merely in his own defence killed B, it is se defendendo, and with this agrees Stamf. P. C. lib. 1, c. 7, f. 15 o. But if, on the other side. A, knowing his advantage of strength or skill or weapon, retreated to the wall merely as a design to protect himself under the shelter of the law, as in his own defence, but really intended the kill- ing of B, then it is murder or manslaugh- ter as the circumstance of the case re- quires." 1 Hale P. C. 479, 480. * Foster, 227; Hodges v. The State, 15 Ga. 117. 5 The State v. Howell, 9 Ire. 485. " It ] is true," said Nash, J., " that the deceased \ struck the first blow, but this does not ( mitigate the oflence of the prisoner. In every stage of the transaction he was the assailant. When he approached the de- ceased, his arm was raised in the attitude to strike, and with a deadly weapon. The law did not require the deceased to wait till the prisoner had executed his threat, but justified him in anticipating the premeditated assault." See post, § 872. Where, on a trial for murder, the defendant was shown to have com- 487 §873 INCIDENTAL EELATIONS. [book vn. §872. Overt Steps — (Threats — Apprehended Harm). — What has already been said should be borne in mind, that mere threats will not justify a killing, which is permissible only when some overt step has been taken toward carrying them into execution.^ But a threatened blow need not be actually given,^ — a branch of the doctrine that an assault may sometimes be met by a bat- tery.^ And as words alone will not justify even an assault,* so no mere apprehension of what another will do, however strong the fears excited, will justify one in taking his life.^ Again, — § 873. Improper Force. — If improper force is used for defence, even where force is permissible, he who employs it must answer as for a felonious homicide should death accidentally follow.^ And, — Blow for Provoking Language. — If a man returns provoking language by a blow from an instrument calculated to produce death, which follows, he is guilty of murder.'^ Also, — Killing Ghost. — It has been held to be no excuse for killing a person, that he was out at night dressed in white as a ghost ; and this would be so, even if he could not otherwise be taken ; since menced the affray, and he asked the court to instruct the jury, " that, if. the defendant had reason to believe, and did believe, that he was in great danger of losing his life, and under that belief killed the deceased, he was justified," this instruction was refused, and the re- fusal was held to be right. People o. Stonecifer, 6 Cal. 405. 1 Ante, § 843, 869 ; Wall v. The State, 18 Texas, 682 ; People v. Butler, 8 Cal. 435. And see The State v. Barfield, 7 Ire. 299. 2 The State v. Baker, 1 Jones, N. C. 267. 8 Vol. II. § 41. * Commonwealth v. Green, 1 Ashm. 289, 297 ; Vol. II. § 40. 5 Dyson V. The State, 26 Missis. 362 ; Harrison v. The State, 24 Ala. 67 ; Du- pree v. The State, 33 Ala. 380; The State V. Shippey, 10 Minn. 228. See Monroe v. The State, 5 Ga, 85 ; Pritchet V. The State, 22 Ala. 39 ; Evers v. Peo- ple, 6 Thomp. & C. 156^ 8 Hun, 716; United States v. Carr, 1 Woods, 480. In 488 Georgia there was the following case : A presented a gun at B, and subsequently took it down. B then said, that, if he raised it again, he would throw a brick- bat at him. He did again raise it, the brickbat was thrown, and B was shot. And it was held, that, in consideration of the threat or banter of B, such killing may have been no more than voluntary manslaughter ; and it was error in the court below to charge, that, " if the first presenting of the gun was with malicious intent, notwithstanding what followed, the killing was murder." McGuflie v. The State, 17 Ga. 497. And see-Keener V. The State, 18 Ga. 194 ; Atkins v. The State, 16 Ark. 568 ; Cotton v. The State, 31 Missis. 504; Lyon v. The State, 22 Ga. 399 ; Balkum v. The State, 40 Ala. 671 ; Aaron v. The State, 31 Ga. 167 ; The State v. Owen, Phillips, 425 ; The State a. Benhara, 23 Iowa, 154; The State V. Ferguson, 9 Nev. lOG. » Ante, § 859, 862. ' The State «. Merrill, 2 Dev. 269. CHAP. LVI.] DEFENCE OF PEESON AND PBOPEETT. § 874 " the person who appeared as a ghost was only guilty of a misde- meanor." 1 A Relative Strength. — In questions of self-defence, the relative \ \ strength of the parties may be taken into the account.^ § 874. Mistake of Pacts. — We have already seen,^ how the doctrine is where one, mistaking the facts, Undertakes self- defence, when really no occasion for it exists. And, — Reasonable Man. — Constituting a part of this question, is a consideration of the reasonableness of an excited fear. Some of the cases appear to maintain that, to justify a self-defence, there must be a reasonable cause for fear,* or the circumstances must be such as to excite the fears of a reasonable man.^ A doctrine like this was formerly held, by some courts, in the law of false pretences ; namely, that a pretence, to be indictable, must be cal- culated to mislead men of ordinary capacity and prudence ; so that a weak man, defrauded by a- pretence which a stronger mind would have resisted, had no protection. But that doctrine is now exploded.^ On the present one, the courts are perhaps divided.' In reason, and in accordance with all the analogies in the crimi- nal law, if a man was careless, and therefore deemed a defence to be necessary when none was in fact, he would commit a crime in making it to the injury of an innocent person ; because, as we have seen,^ carelessness is criminal. But it is not criminal to be born underwitted, or with less intellect than some other person possesses ; therefore, if one of little understanding, acting care- fully, arrives at the conclusion that a defence of himself is neces- sary, the law should protect him in making it, precisely as if he possessed a stronger mind which was misled by graver appear-, ances. If an insane man is misled by an insane delusion, he is pro- tected.® By all the courts, then, the rule of reason is applied to the strongest intellects, and thence downward to the average, and to the intellects so feeble and deranged as to be regarded insane. 1 Rex V. Smith, 1 Russ. Crimes, 3d * Golden v. The State, 25 Ga. 527, Eng. ed. 546. 533 ; People v. Williams, 32 Cal. 280. 2 Hinch 0. The State, 25 Ga. 699 ; « Vol. n. § 433, 434. The State v. Benham, 28 Iowa, 154. ' See the authorities collected ante, ^ Ante, § 305 and note. § 305, note. * Creek v. The State, 24 Ind. 151, IM ; 8 Ante, § 313 et seq. The State v. Collins, 32 Iowa, 36. And » Ante, § 392-394. see The State v. Abarr, 39 Iowa, 186. 489 § 877 INCIDBNTAL EELATIONS. [BOOK Vn. With what show of righteousness or of law, therefore, can a judge refuse to apply it to the rest? VI. Summary showing the Right to defend one^s Property. § 875. Already explained. — The doctrine on this subject is already, perhaps, sufficiently explained. ^ In Brief. — One, in defence of his property, must not commit a forcible detainer, a riot, or any like crime. He must not kill the j aggressor ; but, if the question comes to this, he must iind his / redress in the courts. If the wrongful act is proceeding to a i felony on the property, he may then kill the doer to prevent the ( felony, if there is no other way, otherwise this extreme measure I is not lawful. And the defence may be such, and such only, as necessity requires ; of course, within the limit which forbids the taking of life.^ Therefore — § 876. In Homicide. — A man commits a felonious homicide who inflicts death in opposing an unlawful endeavor to carry away his property .^ There is here the right to resist, but not to the taking of life.* VII. The Right to assist others in Defence of Person and Property. I § 877. General Doctrine. — The doctrine here is, that whatever / one may do for himself he may do for another. The common case, indeed, is where a father, son, brother, husband, servant, or the like, protects by the stronger arm the feebler.^ But a guest 1 Ante, § 853-861. 8 Ante, § 857, 861 ; See People v. 2 See, not as directly announcing the Honshell, 10 Cal. 83. proposition of our text. Wild's Case, 2 * People o. Hubbard, 24 Wend. 369 ; Lewin, 214 ; Harrison o. The State, 24 The State v. Jolinson, 12 Ala. 840 ; Cur- Ala. 67 ; Rex v. Bourne, 5 Car. & P. 120; tis v. Hubbard, 1 Hill, N. Y. 336; ante, Halloway's Case, W. Jones, 198, Cro. § 857. But see The State v. Buchanan, Car. 131 ; The State v. Zellers, 2 Halst. 17 Vt. 573. 220 ; The State v. Baker, 1 Jones, N. C. 5 United States v. Wiltberger, 3 Wash. 267; Commonwealth v. Power, 7 Met. C. C. 615; Rex k. Bourne, 5 Car. & P. 596 ; Reg. v. Sullivan, Car. & M. 209 ; 120 ; Pond v. People, 8 Mich. 150. And The State v. Johnson, 12 Ala. 840; The see Staten v. The State, 30 Missis. 619; State V. Clements, 32 Maine, 279 ; The Sharp v. The State, 19 Ohio, 379 ; Pat- State V. Lazarus, 1 Mill, 33 ; McCoy v. ten u. People, 18 Mich. 314 ; Parker v. The State, 3 Eng. 451 ; Copeland v. The The State, 31 Texas, 132 ; Dupree v. The State, 7 Humph. 479 ; Shorter v. People, State, 33 Ala. 380 ; Reg. v. Harrington, 10 2 Comst. 193 ; 1 East P. C. 402. Cox C. C. 370 ; Stoneman v. Common- 490 CHAP. liVI.] DEFENCE OF PEKSON AND PEOPEETY. § 877 in a house may defend the house ; ^ or the neighbors of the occu- pant may assemble for its defence ; ^ and, on the whole, though distinctions have been taken and doubts expressed, the better view plainly is, that one may do for another whatever the other may do for himself.^ But there may be cases in which combina- tions for defence will be unlawful on other grounds ; as amount- ing to breaches of the peace, or the like. wealth, 25 Grat. 887 ; Bristow v. Com- ' 1 East P. C. 289, 292, 293 ; Rex v. monwealth, 15 Grat. 634. » Adey, 1 Leach, 4th ed. 206, 1 East P. C. 1 Curtis u. Hubbard, 4 Hill, N. Y. 437 ; 329; Commonwealth v. Drew, 4 Mass. Cooper's Case, Cro. Car. 544. 391 ; Reg. ^. Tooley, 11 Mod. 242. See ' Semayne's Case, 5 Co. 91 ; ante, The State v. Shirley, 64 N. C. 610. § 858, note. 491. 880 INCIDENTAL BELATIONS. [BOOK Vn. CHAPTER LVII. THE DOMESTIC RELATIONS. t § 878, 879. Introduction. 880-884. Parent and Cliild. 885. Guardian and Ward. 886. Teaciier and Pupil. 887-889. Master and Servant. 890, 891. Husband and Wife. § 878. Scope of this Chapter. — The domestic relations are more or less treated of in other connections in this volume. The object of this chapter, therefore, is simply to bring together some heads of doctrine, and present such views and authorities as have no appropriate place elsewhere. § 879. How the Chapter divided. — We shall consider, I. Parent and Child; II. Guardian and Ward; III. Teacher and Pupil; IV. Master and Servant ; V. Husband and Wife. I. Parent and Child. § 880. Authority of Parent — (Chastisement). — As the parents, says Chancellor Kent, " are bound to maintain and educate their children, the law has given them a right to such authority, and, in support of that authority, a right to the exercise of such dis- cipline, as may be requisite for the discharge of their sacred trust." ^ Perhaps a better view of the parental right may be drawn from tlie fact, that nature has left the young being help- less in the parents' hands. And this helplessness is not merely physical ; it is mental and moral helplessness also. The effect of parental discipline, rightly understood, is to assist the strivings and aspirations of the better nature of the child. And the child, needing this assistance, is therefore entitled to it. The question of what help of this sort shall be given is better left to the par- 1 2 Kent Com. 203. 492 CHAP. LVn.] DOMESTIC EELATIONS. § 882 ent than to any other person ; because the parental affection prompts more strongly than any other to the exercise of a merci- ful judgment. But as parents are sometimes unmerciful, the law itself casts over the child such protection as it can, and visits them with punishment for any flagrant abuse of this trust. § 881. Extent of Chastisement. — The doctrine, in the general terms in which it is commonly expressed, is, that the parent may inflict moderate chastisement,^ or such as is reasonable under the circumstances.^ And, — Assault and Battery — Felonious Homicide. — If he goes beyond this, he is indictable for assault and battery ; ^ or, if the child dies, for a felonious homicide.* But, — § 882. How far Parent to Judge. — In reason, if the parent acts in good faith, prompted by true parental love, without passion, and inflicts no permanent injury on the child, he should not be punished merely because a jury, reviewing the case, do not deem that it was wise to proceed so far. And something like this appears to have been held in North Carolina.^ So, in a civil cause between master mariner and seaman. Ware, J., observed : " When it is apparent that punishment has been merited, I have never been in the habit of attempting to adjust very accurately the balance between the magnitude of the fault and the quantum of the punishment. Unless unusual or unlawful instruments have been used, or there have appeared clear and unequivocal marks of passion on the part of the captain, or the punishment has been manifestly excessive and disproportionate to the fault, I have not thought myself justified in giving damages." ^ In the class of cases now under consideration, it is for the jury, not the court, to decide as a question of fact, not of law, what is to be deemed a reasonable and proper punishment, and what is excessive.' And in one case, which was that of a teacher standing in loco parentis, it seems to have been deemed that the question of good faith, or of the absence of passion, had not much to do with the transac- 1 2 Kent Com. 204 ; 1 Rues. Crimes, mous, 1 East P. C. 261 ; Kex v. Hazel, 1 3d Eng. ed. 645. • Leach, 4th ed. 368, 1 East P. C. 236 ; 2 1 Hawk. P. C. 6th ed. u. 60, § 23, Eex v. Conner, 7 Car. & P. 438. Bac. Abr. Assault and Battery, C. ^ xhe State v. Alfojd, 68 N. C. 322. 8 3 Greenl. Ev. § 63 ; The State v. Bit- <> Butler v. McLellan, 1 Ware, 219, 230. man, 13 Iowa, 485. ' Johnson u. The State, 2 Humph. * Grey's Case, J. Kel. 64 ; Rex v. 283 ; Commonwealth v. Randall, 4 Gray, Cheeseman, 7 Car. & P. 455; Anony- 36. 493 § INCIDENTAl, EELATIONS. [book vn. jtion ; but the jury was simply to determine whether, under all /the facts, the punishment was reasonable and proper.^ § 883. Criminal Neglect. — Another branch of this general doc- trine is, that, if a parent under legal obligation ^ to maintain his child refuses or neglects to furnish it with needful food or cloth- ing,3 and by reason of this it either dies or suffers a less physical injury, — or, in like manner and with like results, exposes it to the physical elements, or imprisons or abandons it, — the law visits the act or neglect as a crime, constituting either an assault and battery or a felonious homicide.* In these cases, unlike those of chastisement inflicted for faults, there is no right in the parent to proceed in a moderate way ; and no inquiry presents itself, whether the fault of the child justified the act. The doctrines on this subject are developed in various other places in these volumes and in " Criminal Procedure." But, to illustrate, — § 884. Abandonment an Assault. — In One case it was ruled, that an indictment for abandoning a child should aver an as- sault.5 ^ Commonwealth v, Bandall, supra. Improper Correction in Homicide. — In North Carolina, it appearing in a murder case that the prisoner, who stood in loco parentis to the deceased, a boy eighteen years of age, punished him for lying, by keeping him naked on his back, with his feet tied up, from morning to dinner every day for a week, and repeatedly whipped him each day while in that posi- tion, the first day severely, the instru- ments used being a heavy leather strap, a knotted cord four double, and an iron ramrod, it was . held not to be error for the court to refuse to instruct the jury, that, in the absence of express malice, the crime would be only manslaughter. The acts detailed manifest " a heart to- tally regardless of social duty and fatally bent on mischief." The State v. Harris, 63 N. C. 1. See Vol. II, § 663, 683-686. SxcessiTe Imprisonment, &c. — Where, on an indictment for false imprisonment, it appeared that the defendant had im- prisoned his blind and helpless boy in a cold and damp cellar, without fire, dur- ing several days in midwinter, under the excuse that the latter was covered with vermin and had to be anointed with kerosene, this was held to be tmjustifi- 494 able cruelty, sustaining the allegation. Fletcher v. People, 52 111. 395. Con- trolling Conscience of Child. — See, as to forcing child out of church, &c., (/om- monwealth v. Sigman, 2 Pa. Law Jour. Eep. 36. 2 Vol. II. § 659 et seq. 8 Reg. V. Troy, 1 Crawf. & Dix C. C. 556 ; Reg. o. Waters, Temp. & M. 67, 1 Den. C. C. 356, 13 Jur. 130, 18 Law J. N. 8. M. C. 53 ; Reg. v. Phillpot, Dears. 179, 20 Eng. L. & Eq. 591 ; Rex v. Saun ders, 7 Car. & P. 277. * Gibson's Case, 2 Broun, 366 ; Beal's Case, 1 Leon. .327 ; Reg. v. Pelham, 8 Q. B. 969, 15 Law J. n. s. M. C. 106, 10 Jur. 659 ; Rex v. Ridley, 1 Russ. Crimes, 3d Eng. ed. 752, 2 Camp. 650, 653 ; Rex v. Squire, 1 Russ. Crimes, 3d Eng. ed. 490 ; Reg. V. Renshaw, 2 Cox C. C. 285, 11 Jur. 615, 20 Eng. L. & Eq. 693 ; Reg. v. Morris, 2 Crawf. & Dix C. C. 91 ; Reg. v. Hogan, 2 Den. C. C. 277, 15 Jur. 806, 20 Law J. N. B. M. C. 219, 5 Eng. L. & Eq. 553 ; Reg. u. Mulroy, 3 Crawf. & Dix C. C. 318; Reg. v. Chandler, Dears. 453, 24 Law J. N. s, M. C. 109, 1 Jur. n. s. 429, 29 Eng. L. & Eq. 551. 6 Reg. V. Mulroy, 8 Crawf. & Dix C. C. 818. But see, as to this, Vol. II. § 29. CHAP. LVn.J DOMESTIC eelations. § 886 Ability. — If the charge is of a lack of sustenance, ability to maintain the child must be shown.^ And, — Injury. — In some of these cases, the child must have suffered an injury .2 Again, — To charge Parish. — An indictment alleged that the prisoner left a child, a month old, of which she had the care, in the high- way in a certain parish, with the intent to burden the parish with its maintenance. And the allegation was held to be insufficient, because it did not negative the settlement of the child in- the parish, or charge any injury done to the child.^ statutes — ("Abandonment"). — There are statutes making it indictable to " abandon or expose " a child,* and the like. II. Guardian and Ward. § 885. General Views. — The guardian does not always have the custody of the person of the ward ; and, when he has not, no legal reason appears why he should possess the right to chastise. Sometimes, however, he has such custody ; and, when he has, the rule of reason places him in the position of a parent. But the subject is not illustrated in the books ; therefore we must leave it as it stands, simply on the general principles of the law.^ Be- sides, the relation of guardian and ward differs greatly under the statutes of the several States, and under the diverse circumstances of cases. III. Teacher and Pupil. § 886. As to Chastisement. — The relation of teacher to pupil is commonly assumed in the books to be the same, in respect of chastisement, with that of parent to child.^ Substantially it is so ; yet reasons will occur to the reader, why, under many cir- 1 Eeg. V. Pelham, 8 Q. B. 959 ; Reg. « Reg. v. White, Law Rep. 1 C. C. V. Hogan, 2 Den. C. C. 277, 5 Eng. L. & 811, 12 Cox C. C. 83; Shannon v. People, Eq. 553; Reg. w. Ryland, Law Rep. 1 C. 5 Mich. 71. C. 99, 10 Cox C. C. 569; Eeg. v. Rugg, » See also Pulton de Pace, 7 6; Rex 12 Cox C. C. 16. V. Cheeseman, 7 Car. & P. 455; Arm- 2 Vol. II. § 29 ; Eeg. v. Pelham, supra ; strong v. Walkup, 12 Grat. 608. Reg. V. Phillpot, Dears. 179, 20 Eng. L. ^ i Hawk. P. C. 6th ed. ^. 60, § 23 ; & Eq. 591 ; s. c. nom. Reg. v. Phllpott, 6 Bac. Abr. Assault and Battery, C ; Cox C. C. 140. Pultan de Pace, 6 6. » Reg. V. Cooper, 1 Den. C. C. 469, 8 Cox C. C. 559, 2 Car. & K. 875. 495 § 887 INCIDENTAL RELATIONS. [BOOK Vn. cnmstances, the teacher should not proceed to the same degree of punishment which is lawful for the parent. On this question, however, we have little direct authority.^ The chastisement must not be excessive or cruel, but it should be reasonably pro- portioned to the offence, and within the bounds of moderation.^ Even the father cannot delegate to the teacher a right of chastise- ment which he does" not himself possess.^ IV. Master and Servant. § 887. Different Kinds of Servants. — Servants are of many kinds. Some are simply agents or employees.* And among those of whom we ate now treating, there is a difference. Riglit of Chastisement. — The English books seem in some places to lay down the doctrine broadly, that the master has the right of chastisement.^ But clearly, in the case of a hired servant arrived at years of majority, this cannot be so with us : doubtless the true rule is, that the right adheres only to the masters of appren- tices and other minors to whom they stand in loco parentis. In these cases, it does exist. ^ In Connecticut the court denied that a mere employer might inflict physical correction on his hired laborer, though a minor.'' If a master beats his apprentice im- moderately, he is indictable for the battery.* 1 See Commonwealth v. Eandall, 4 cause for departure and action. But, in Gray, 36 ; Anderson . Morgan, 14 B. Monr. 392. 912. Indeed, the right of the commonwealth's ' Thomas v. Sorrell, Vaugh. 330, 333 ; attorney, which cannot be remitted, does Cooke w. Hall, 5 Co. 51 a ; Pool k. Trum- not accrue till judgment is rendered, bal, 3 Mod. 56 ; Howell v. James, 2 Stra. Commonwealth v. Spraggins, 18 B. Monr. 1272 ; 2 Hawk. P. C. Curw. ed. p. 543, 512. See also Commonwealth v. Dennis- § 34 ; In re Deming, 10 Johns, 232, 483. ton, 9 Watts, 142 ; Haynes v. The State, * Story Const. § 1504 ; Osborn v. 8 Humph. 480 ; Wilkerson u. Allan, 23 United States, 1 Otto, 474 ; United States Grat. 10. V. Harris, 1 Abb. U. S. 110; United ^ jop a discussion of what rights of States V. Thomasson, 4 Bis. 836 ; United property are to be deemed vested, see 2 States V. Athens Armory, 2 Abb. U. S. Bishop Mar. Women, § 38-53. 129; The State o. Timmons, 2 Harring. 6 See Stat. Crimes, § 178, 179; 2 Del. 528 ; The State v. Underwood, 64 Bishop Mar. Women, § 32-34. N. C. 599 ; Libby v. Nicola, 21 Ohio State, ^ Toomea v. Etherington, 1 Saund. 861 ; 414. In Kentucky, " The 10th section of Rex w. Turvil, 2 Mod. 63 ; Rex o. Salo- the 3d article of the constitution," it was way, 3 Mod. 100 ; Rex v. Johnson, 8 Mod. observed, " vests in the governor power 241 ; 2 Hawk. P. C. c. 87, § 54. to remit fines and forfeitures, but prohib- 510 CHAP. LIX.] PAEDON. § 910 are already taxed ; ^ or probably, in our practice, if final judgment is rendered, leaving the taxation a mere ministerial act to be done by the clerk ;2 they are recoverable after pardon. And if the costs are to go into the treasury of the State, not every form of words in a general pardon will remit them after judgment ; and possibly there are courts which will hold that they cannot be re- mitted, being a right vested in the State .^ If the pardon comes ' before sentence, though after conviction, the costs are always remitted, or rather they are never incurred.* Even after sen- tence, it is believed that the general American doctrine holds it to be competent for the pardoning power to remit, if it chooses, such costs as are payable to the State.® Again, — Penalties and Forfeitures. — If, on a judgment against a convicted person, there is a penalty which is payable to a private individual, it cannot be remitted by a pardon.* And, in general, when by judicial process property has become vested in one, it cannot be taken from him.'' But here we come to the distinction, between propertj^ vested in possession, and a vested right of action. It appears to be established doctrine that if, for example, a mere judgment of forfeiture vests specific property in the United States, the President, who has no power to dispose of what belongs to the nation, cannot, by his pardon, divest the nation ^ Cooke V. Hall, 5 Co. 51 a; 2 Hawk. Playford v. Commonwealth, 4 Barr, 144, P. C. Curw. ed. p. 546 ; Anglea v. Cora- seems to lay down the dpctrine, that, monwealth, 10 Grat. 696 ; The State v, when a pardon comes between the rer- McO'Blenis, 21 Misso. 272; Duncan v. diet and the sentence, the payment of Commonwealth, 4 S. & E. 449. See also costs may still be compelled. But the Lyon V, Morris, 15 Ga. 480 ; Routt v. case plainly is misunderstood by the re- Feemster, 7 J. J. Mar. 131 ; Edwards v. porter. The judges decided whatever The State, 7 Eng. 122 ; The State v. Far- they did decide in it on the strength of ley, 8 Blackf. 229 ; Schuylkill v. Eeif- Duncan o. Commonwealth, supra, which Snyder, 10 Wright, Pa. 44B. expressly holds the contrary; namely, 2 Dunqan v. Commonwealth, 4 S. & that costs do not follow finder such cir- E. 449 ; Ex parte McDonald, 2 Whart. cumstances. And so are the later Penn- 440. sylvania cases aboye cited. ' Libby v. Nicola, 21 Ohio State, 414 ; " Libby v, Nicola, supra ; post, § 916. Schuylkill v. Eeifsnyder, 10 Wright, Pa. * Frazier v. Commonwealth, 12 B. 446 ; Estep v. Lacy, 85 Iowa, 419. See Monr. 369 ; Eowe v. The State, 2 Bay, Parrott v. Wilson, 51 Ga. 255. 565 ; The State v. Williams, 1 Nott & * Harris P.White, Palmer, 412 ;Watt8's McC. 26; Eucker v. Bosworth, 7 J. J. Case, Cro. Jac. 336; Commonwealth v. Mar. 645; Shoop ». Commonwealth, 3 Hitchman, 10 Wright, Pa. 357 ; White v. Barr, 126. See Rankin v. Beaird, Breese, The State, 42 Missis. 635 ; The State v. 123. Underwood, 64 N. C. 599 ; Commonwealth ' Osborn v. United States, 1 Otto, V. Ahl, 7 Wright, Pa. 53. The case of 474. 511 §911 rtrCIDENTAL EELATIONS. [book vn. of it, and give it back to its former owner.^ And it is the same with the governor of a State.^ A judgment of fine and costs is, as already intimated, distinguished from a judgment of forfeiture of specific property in this, that the latter vests the property itself in the state, while the former vests in it a mere chose in action. At all events, the accepted doctrine appears to be, that it is competent for a pardon to remit the fine and costs yet unpaid to the State.^ Even — County. — There is authority that a county is liable to have penalties, which have vested in it, divested by the executive par- don.* And — Revenue Forfeiture. — The Supreme Court of the United States has decided, that the authority given to the Secretary of the Treasury by the act of March 3, 1797, c. 361, to remit forfeitures under the revenue laws, may be exercised at any time before pay- ment of the money to the collector.^ § 911. Qui Tarn, &c. — If the proceeding is by penal action in the civil form, and the penaltj' is to accrue in part to the prose- 1 The Confiscation Cases, 20 Wal. 92, 112 ; United States ». Six Lois of Ground, 1 Woods, 234 ; Bragg v. Lorio, 1 Woods, 209; Knote v. United States, 10 Ct. CI. 397. But see Brown v. United States, Mc- Calion, 229; United States u. Harris, 1 Abb. U. S. 110. 2 Aldrich v. Jessup, 3 Grant, Pa. 158. » See post, § 911, 916. Tlie State w. Timmons, 2 Harring. Del. 528 ; United States V. Harris, 1 Abb. U. S. 110 ; United States V. Tliomasson, 4 Bis. 336. Inform- er's Share. —7 In United States v. Har- ris, it was held that after judgment the President may by pardon remit the part of a fine, penalty, or forfeiture which ac- crues to the United States, but not the informer's share In United States v. Tliomasson, the latter clause of this doe- trine was disapproved, and it was held that both the informer's moiety and the other may be remitted by pardon even after judgment. The court deemed, that the English doctrine is not applica- ble as a rule to ascertain the President's power under our National Constitution. I simply state these cases, not undertak- ing to say how far either is sound. * HoUiday u. People, 5 Oilman, 214, 512 But see Shoop v. Commonwealth, 8 Barr, 126. And see The State v. Simpson, 1 Bailey, 378. In the Pennsylvania case of Cope V. Commonwealth, 4 Casey, 297, it was held, that a pardon of one con- victed of conspiracy, even after sentence, will operate as a release of all fines im- posed for the offence, though due, not to the commonwealth, but to the county. In another Pennsylvania case it was ob- served : " Sometimes the sentence of the court is, that the party in default be fined, as well as imprisoned ; and it would be a distinction the reason of which would not be very obvious, to give pow- er to the governor to remit the imprison- ment, but deny him the right to remit the fine, upon the pretence that the right to the money was vested in the county. In the ease of costs, private persons are inter- ested in them ; but, as to fines and for- feitures, they are imposed upon principles of public policy." Rogers, J., in Com- monwealth V. Denniston, 9 Watts, 142, 143. 6 United States v. Morris, 10 Wheat. 246. See The Hollen, 1 Mason, 431, 484, 486. CHAP. LIX.] PAEDON. § 913 cutor and the residue to the State, still the pardoning power extends to such a case.-' But, according to the English doctrine, to bar the action, so as to defeat the claim of the private person, the pardon must transpire before suit commenced ; for the commence- ment of it vests the right.^ Where a forfeiture is to be enforced by a seizure and condemnation in rem, the private interest vests, certainly on the condemnation, probably on the seizure.^ But' — Proceeding by Indictment, &c. — If the proceeding is in the name of the king or state, by indictment or criminal information, the rule, we have seen,* is different ; and the private interest does not vest, even on the verdict of the jury, but only on the final judgment of the court.^ Yet, subject to any doubt suggested by some of the foregoing paragraphs, though the pardon cannot take away the individual claim, it can that of the state ;^ even, it appears, so far as to require, under special circumstances, the remission of money which has already passed out of the hands of the convict.'^ § 912. Impeachments. — The Constitution of the United States expressly excepts out of the pardoning power cases of impeach- ment,^ and the like exception exists in most of the State consti- tutions. It is the same also in England by act of parliament.^ § 913. Legislative Contempts. — Of legislative contempts. Story says : " The Constitution [of the United States] is sUent in re- spect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication ; and, to make it effectual, the former is excluded by implication."^" But — Contempts of Court. — Contempts of court are public offences, pardonable like any other.^^ 1 Ante, § 909. ' In re Floumoy, 1 Kelly, 606. See 2 2 Hawk. P. C. Curw. ed. p. 543, § 33, post, § 916 ; Parrott v. Wilson, 51 Ga. 34; Grosset v. Ogilvie, 5 Bro. P. C. 527. 255. ' United States v. Lancaster, 4 Wash. ^ Ante, § 899. C. C. 64; McLane v. United States, 6 » Reg. v. Boyes, 1 B. & S. 311. Pet. 404. See The Hollen, 1 Mason, 431, l° Story Const. § 1803. It is the same 434, 435. in England by Stat. 12 & 13 Will. 3, e. 4 Ante, § 910. 2. 4 Bl. Com. 261. "But after the Im- s Duncan o. Commonwealth, 4 S. & peachment is solemnly heard and deter- E. 449 ; The State o. Youmans, 5 Ind. mined, it is not understood that the 280. And see Greonvelt's Case, 1 Ld. king's royal grace is further restrained or Kaym. 213, 214. abridged." 2 Hawk. P. C. Curw. ed. p. « Rowe V. The State, 2 Bay, 565 ; The 547, § 44. State V. Williams, 1 Nott & McC. 26; The " Hawk, ut sup, p. 540, § 26; Trol- State V. Timmons, 2 Hairing. Del. 528. lop's Case, 8 Co. 68 a ; Keg. v. Watson, VOL. I. 33 513 ■ w § 915 INCIDBN'TAL RELATIONS. [BOOK VII. §914. Pull — Partial — Conditional. — A pardon may, by i}ie English law, be full, partial, or conditional. It may be condi- tional, if the pardoning power please, by the constitutions of some of our States.^ And where, as in other States, and under the Constitution of the United States, the power of pardon is granted simply in general terms, the pardon may still be partial or conditional, as well as full, the same as in England ; for the greater includes the less.^ Where the pardon is full, its collateral and consequential effects cannot be abridged by its language ; for they depend on the law of the land.^ Conditional. — A conditional pardon may be on condition either precedent or subsequent ; if precedent, — that is, if by its terms some event is to transpire before it takes effect, — its operation is deferred until the event occurs.* If the condition is subsequent, the pardon goes into operation immediately, yet becomes void whenever the condition is broken.^ § 915. Nature of the Condition. — It is said that the condition must not be impossible, criminal, or illegal.^ But, within this limit, the approved conditions are quite diverse. One is, that the prisoner shall leave, permanently or for a time, the State or country.'^ Another is, that he shall submit to a pimishment men- 2 Ld. Eaym. 817, 818 ; Ex parte Hickey, In whole or in part, either one of the two i Sm. & M. 751 ; The State v. Sauvinet, kinds, without, in any manner, impairing 24 La. An. 119; In re Mullee, 7 Blatch. the legal validity of the other kind, or of 23. any portion of either kind, not pardoned 1 Ex parte Hunt, 5 Eng. 284; Libby or remitted." E. S. of U. S. § 5330. V. Nicola, 21 Ohio State, 414, 418. « People v. Pease, 3 Johns. Cas. 333 ; 2 Flarell's Case, 8 Watts & S. 197 ; Cook v. Middlesex, 8 Putcher, 637 ; Cook The State v. Addington, 2 Bailey, 516; v. Middlesex, 2 Dutcher, 326. The State v. Twitty, 4 Hawks, 193 ; Per- * Haym v. United States, 7 Ct. CI. kins V. Stevens, 24 Pick. 277; People, v. 443; Waring v. United States, 7 Ct. CI. Potter, 1 Parker, C. C. 47 ; Ex parte 501 ; Scott v. United States, 8 Ct. CI. 457 ; Wells, 18 How. U. S. 307; Osborn u. Commonwealth v. Haggerty, 4 Brews. United States, 1 Otto, 474 ; United States 326. V. Six Lots of Ground, 1 Woods, 234; o Flavell's Case, 8 Watts & S. 197; People V. Potter, Edm. Sel. Cas. 235. Con- Eeg. v. Foxworthy, Holt, 621. tra, as to conditional pardons, Common- * Lee v. Murphy, 22 Grat. 789 ; Peo- wealth ». Fowler, 4 Call, 35. The stat- pie v. Potter, Edm. Sel. Cas. 235. utes of the United States provide, that, ' The State v. Smith, 1 Bailey, 283 ; " whenever, by the judgment of any People v. Potter, 1 Parker, C. C. 47 ; Reg. court or judicial officer of the United u. Foxworthy, 7 Mod. 153 ; Common- States, in any criminal proceeding, any wealth v. Philadelphia County Prison, 4 person is sentenced to two kinds of pun- Brews. 320 ; Commonwealth v. Haggerty, ishment, the one pecuniary and the other 4 Brews. 326. But see Commonwealth ». corporal, the President shall have full Hatsfield, 1 Pa. Law Jour. Eep. 177. discretionary power to pardon or remit, 514 CHAP. LIX.] PAHDOK. §916 tioned, not originally pronounced.' If the condition is of a sort not allowable, it is void, and the pardon is absolute.^ Breach of Condition. — If the condition is violated, — as if, it being that the party shall leave the country and not return, yet either he declines to go,^ or goes and conies back,* — the original sentence may be enforced.^ But — How Condition construed. — A condition in a pardon, as in a grant, is construed strictly. Therefore, if the words are " depart without delay " from the State, it is not broken, says the Arkansas court, by the prisoner's return to the State after he has left it.® And when the condition was, that the pardoned person should leave the State within a specified time, the court deducted a period when he was sick and deranged.^ § 916. Effect of Pardon. — Though a pardon is not conditional, it may be partial, in which case it is to be construed according to its special terms.^ A full pardon absolves the party from aU the 1 The State v. Addington, 2 Bailey, 516 ; The State v. Smith, 1 Bailey, 283 ; liee 0. Murphy, supra. But see The State V. Twitty, 4 Hawks, 198. 2 Commonwealth v. Hatsfield, supra ; People o. Potter, supra. See United States V. Six Lots of Ground, 1 Woods, 234. » The State v. Fuller, 1 McCord, 178 ; The State v. Addington, 2 Bailey, 516; The State v. Smith, 1 Bailey, 283; Rex V. Madan, 1 Leach, 4th ed. 223 ; Boherts u. The State, 14 Misso. 138. * The State v. Smith, 1 Bailey, 283 ; The State v. Chancellor, 1 Strob. 347; People V. Potter, 1 Parker, C. C. 47. And see Rex v. Aickles, 1 Leach, 4th ed. 390; Rex v. Thorpe, 1 Leach, 4th ed. 896, note. 5 Flavell's Case, 8 Watts & S. 197 ; Commonwealth v. Philadelphia County Prison, 4 Brews. 320 ; Commonwealth v. Haggerty, 4 Brews. 826. See West's Case, 111 Mass. 448. » Ex parte Hunt, 5 Eng. 284. Yet see, on this general question, Bex v. Miller, 1 Leach, 4th ed. 74, 2 W. Bl. 797 ; Reg. v. Foxworthy, 7 Mod. 153. '' People V. James, 2 Caines, 57. And see Rex v. Madan, 1 Leach, 4th ed. 223; Rex V. Badcock, Russ. & Ry. 248. Mort>- gage to secure Condition. — A mortgage given to secure to a county a sum of money payable as the condition of a par- don was held to he Talid, — not void as executed under duress. " The money, for which the mortgage was given," said the judge, " was a fine imposed by the circuit court of the county, and which, when paid, was to pass into the county treasury, to be distributed among the school districts in the county, for the sup- port of school libraries." Rood v. Wins- low, 2 Doug. Mich. 68. Beleaae of Sam- ages by Prisoner to obtain Pardon. — A release, by one imprisoned for unlawfully selling liquors which have been destroyed under a statute the constitutionality of which is doubted, of all claims for dam- ages against the official persons who ordered and executed the destruction, in consideration that a third person agrees fairly to bring before the governor and council an application for his pardon, to be delivered to the releasees when the pardon arrives, cannot be revoked ; but upon the performance of the agreement, and the arrival of the pardon, takes effect as from the first delivery; and is not contrary to public policy. Timothy v. Wright, 8 Gray, 522. 8 Ante, § 910, 914 ; Libby v. Nicola, 21 515 § 917 INCIDBNTAIi RELATIONS. [BOOK VD. legal consequences of his crime, and of his conviction, direct and collateral ; ^ including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided.^ Yet, we have seen,^ it cannot divest rights vested in individuals, or always those vested in the State ; and, if a fine coming to the government has been already paid over, or if property has vested on an attainder, it will not be restored unless by. express words in the instrument of pardon.* And even should there be such express words, the better doctrine under our constitutions is, that the pardon cannot undo what has been done, so as to entitle the recipient to have again the money which he has paid in the way of fine, or have compensation for his services rendered the State while a prisoner under sentence.^ Still, if a fine has not been paid, the pardoned person, according, at least, to the common opinion, can no more be made to pay it, after pardon, than to serve out his term of imprisonment.^ Neither will the pardon of one offence operate as a discharge from any other.'^ Nor will it defeat a suit by an individual for damages, founded on the same , transaction.^ § 917. Capacity to be Witness. — Among the collateral conse- quences of an attainder, or final sentence against the prisoner, .removed by pardon, is the incapacity to be a witness.^ Yet only Ohio State, 414 ; Franklin's Case, 5 Co. Commonwealth v. Roby, 12 Pick. 496, 46 6. 508 ; Anonymous, Sir F. Moore, 756, pi. 1 Rex V. Greenvelt, 12 Mod. 119; 1044 ; The State w. McCarty, 1 Bay, 334 ; Strickland v. Thorpe, Yelv. 126 ; Perte Reg. v. Harrod, 2 Car. & K. 294. V. Cambridge, 3 Lev. 332 ; In re Dem- ' Hedges v. Price, 2 W. Va. 192. ing, 10 Johns. 232, 483; Carlisle v. » Hoffman v. Coster, 2 Whart. 453; United States, 16 Wal. 147; Wood v. Jones v. Harris, 1 Strob. 160; Rex v. Fitzgerald, 3 Oregon, 568. Eeilly, 1 Leach, 4th ed. 454 ; Rex v. Cros- 2 Thomas v. Sorrell, Vangh. 330, 333; by, 1 Ld. Eaym. 39, 5 Mod. 15; Rex v. Hall V. Vaughan, 5 Co. 49 a ; Tombes v. Celier, T. Raym. 369 ; Rex v. Castle- Ethrington, 1 Lev. 120 ; Foxley's Case, main, T. Raym. 379 ; People .,■. Pease, 3 5 Co. 109 a. Johns. Cas. 383. The State v. Blaisdell, 8 Ante, § 910, 911. 33 N. H. 888. In New York a statute * Tombes v. Ethrington, 1 Lev. 120; provides, that a person convicted of per- In re Church's Will, 11 Eng. L. & Eq. 240. jury " shall not thereafter be received as And see ante, § 911. a witness to be sworn In any matter or 5 Cook V. Middlesex, 3 Dutcher, 637 ; cause whatsoever, until the judgment Cook V. Middlesex, 2 Dutcher, 326 ; ante, against him be reversed," — the effect of § 910. which statute is to prevent the pardon ' Baldwin b. Scoggin, 15 Ark. 427; from restoring the competency of the HoUiday v. People, 5 Oilman, 214 ; ante, witness. Houghtaling v. Kelderhouse, 1 §910. Parker, C. C. 241. And see Blanc ». ' Hawkins v. The State, 1 Port. 475; Eodgers, 49 Cal. 15. 516 CHAP. UX.] PAEDON. § 920 a ftill pardon has this effect.^ Even then the conviction may be shown as impairing the witness's credit.^ Also, as explained in a note,^ one sued for the slander of calling another a thief, or the like, cannot defend himself by proving the charge, if the offence has been pardoned, — a proposition possibly, but not probably, limited in a manner to take away most of its practical operation for this country ; namely, limited to cases wherein the pardon precedes the conviction.* Again, — Criminate Self. — After pardon, a witness cannot object to an- swering a question on the ground that the answer will criminate himself.^ § 918. Corruption of Blood. — Under the English common law, corruption of blood is not restored by a pardon from the Crown.® And — Statutory Disability. — There seems to be a doctrine, not well defined, and especially not satisfactory in itself, namely, that a disability imposed expressly by statute as a consequence of the offence is not thus taken away.^ Right to Vote. — In Rhode Island, a pardon does not restore the forfeited right to vote.^ And, — § 919. Second Ofience. — According to a Kentucky decision, if a second offence is more heavily punishable than the first, a par- don of the first does not prevent the infliction of the heavier pun- ishment on the second. " The pardon," observed Robertson, J., " relieved the convict of the entire penalty incurred by the offence pardoned, and nothing else or more. It neither did nor could relieve from any penal consequence resulting from a different offence, committed after the pardon, and never pardoned." ^ § 920. United States. — A pardon by the President of the United States does not remove disabilities imposed by State laws.w 1 Perkins w.- Stevens, 24 Pick. 277. Anonymous, 3 Salk. 155; Commonwealth a Baum v. Clause, 5 HUl, N. Y. 196. v. Fugate, 2 Leigh, 724 ; 1 Greenl. Ev. 8 Ante, § 898, note. § 378 and note. See Rex v. Crosby, 2 * Cuddington u. Wilkins, Hob. 81; 2 Salk. 689; Stat. Crimes, § 139, 140; ante, Hawk. P. C. Curw. ed. p. 547, § 48 ; 1 § 917, note. Stark. Slander, 287, 238. » Opinion of Judges, 4 R. I. 583. 6 Reg. V. Boyes, 1 B. & S. 311, 9 Cox 9 Mount v. Commonwealth, 2 Duvall, C. C. 32, 2 Fost. & F. 157. 93, 95. « Co. Lit. 391 b; Walsingham's Case, " Ridley v. Sherbrok, 3 Coldw. 569; 2 Plow. 547, 558. Ex parte Hunter, 2 W. Va. 122. And 7 Rex V. Castlemain, T. Raym. 379 ; see Armstrong's Foundry, 6 "Wal. 766. 51T § 924 ESrCIDENTAL RELATIONS. [BOOK Vn. § 921. Practical Views on Granting Pardons : — Important. — Of practical importance not exceeded by- any questions ordinarily discussed in law books, are some, heretofore neglected by legal authors, relating to the principles which should guide the executive power in granting and withholding pardons. Let us look at some of these. § 922. Public Motives, not Private. — No official person, what- ever his station or the nature of his office, is justified in perform- ing any official acts from private motives, or in pursuance of mere private views. An executive officer, asked to gi-ant a pardon, should neither comply nor refuse merely because he would per- sonally be pleased to see the prisoner suffer or to see him go free. He is bound to act upon public considerations. For example, — Appeal from Legislature. — He does not sit as a court of appeal from the legislature. If he believes the law under which a pris- oner is sufPering to be unwise or unjust, still this opinion cannot properly incline him to grant the pardon; because the power which makes and unmakes laws is not in him, and officially he is required to look upon the law as just and wise, however his private opinion may revolt.^ Again, — § 923. Appeal from Judicial Decision. — The executive officer, in whom is the power of pardon, is not, therefore, a judicial functionary to whom lies an appeal from the ordinary courts. Consequently it would be unlawful for the President, or for the governor of. a State, to grant a pardon simply because he differed from the judges in the construction to be put upon a law.^ If the court was divided in opinion, but the majority was against the prisoner, that might, under some circumstances, furnish ground for leaning to mercy by issuing a pardon. Likewise, — § 924. Appeal from Jury. — An appeal does not lie from the verdict of a jury to the governor or President on a mere question of fact. Still there may be circumstances in which it is both the right and the duty of the pardoning officer to look below the verdict into what appears, at the time of the application for the pardon, to have been the real facts. And facts unknown at the time of the trial, or within the period allowed by law for 1 And see Stat. Crimes, § 285. tion, for another somewhat differing one, * See, in connection with this ques- Crim. Prooed. II. § 690, note, par. 9, 10. 518 CHAP. LIX.] PABDON. § 926 applications for a new trial, may properly be considered by the pardoning officer. § 925. Proceed by Rule. — The pardoning officer, therefore, should proceed by rule, as do the judges in the exercise of judi- cial functions. Technically, the power of pardon is termed dis- cretionary ; so are a large part of the powers exercised by the courts. With a court, for instance, it is discretionary whether to try a cause when it is reached on the calendar, or to continue it. Yet this discretion should be exercised on public considerations, and according to rule, not from mere private impulses or views. And a judge who should continue causes, or bring them on for trial, as personal motives impelled, to the injury of suitors, would commit thereby a high misdemeanor in office, for which he ought to be impeached. And the same would follow if the President or a governor should act thus on private views in granting or withholding pardons. §926. Practical Restraint — (impeachment). — These sugges- tions are important, because lawyers are apt to sympathize with public sentiment, and accept, without reflection, the legal exposi- tions of newspapers and politicians however erroneous. And nothing is more absolutely a perversion of all just doctrine than the opinion which assigns to the President, or to a governor, the power to pardon without limit; and denies to the impeaching power the right to interfere. The pardoning power is necessarily discretionary in its nature ; therefore it is necessarily the more open to control by the impeaching power. If it comes to be understood that a single man, intrusted with the high function of pardon, can, because he is so intrusted, open all the prisons of the country, and let every guilty person go free, thus at a blow striking down the law itself, and not be himself punished for the high misdemeanor, the most disastrous consequences to liberty and law will sooner or later follow. Such a conclusion is itself the annihilation of law, and only upon law can liberty repose. 519 CONSEQUENCES. [BOOK VTH. BOOK VIII. CONSEQUENCES OF CRIME AND ITS PROSECUTION. CHAPTER LX. THE PUNISHMENT BY SENTENCE OF COUBT.^ § 927-929. Introduction. 930-932. Erroneous Sentences. 933-953. What Punishment should be awarded. 954-958. What Punishment in-Joint Convictions. § 927. Consequences proceed from Sentence, not Crime. — There are strictly no consequences of crime, except that a person really guilty is more likely to be troubled with a prosecution, and found guilty by the jury, than one who is not. The consequences which in a sort of general way are said to follow crime, come, not from it, but from the proceedings in court, or the sentence.^ § 928. Scope of this Chapter. — This chapter is in matter closely related to those in " Criminal Procedure," entitled " The Sen- tence," ~" The Execution of the Sentence," " The Record," and some others. Yet nothing which is there considered is treated of here. In that work, the formal proceedings are discussed ; in the present chapter, we are to look at the substance of the judgment to be pronounced against a conyicted. wrong-doer. § 929. Order of the Chapter. — We shall consider, I. Erroneous Sentences ; II. What Punishment should be awarded ; III. What Punishment in Joint Convictions. I. Erroneous Sentences. § 930. Erroneous Sentence defined. — An erroneoiis sentence is one to which the defendant is not, by the record, liable. 1 For the procedure as concerns the 2 Crim. Proced. I. § 89 et seq. punishment, see Grim. Proced. I. § 1114 et seq., and other places. 520 CHAP. LX.] PUNISHMENT BY SENTENCE OF COURT. § 931 Subjebt to Reversal. — The general doctrine is, that such a sen- tence will, on due application to the court, be reversed.^ But — Error in Defendant's Favor. — Some of the American courts hold, that one cannot take advantage of an error in his favor, as where the punishment is less than the law prescribes.^ According to which view, if the sentence is, for. example, to two years' impris- onment, where the minimum allowed by the statute is three years, this error is not available to him on an application to have the proceedings reversed.^ Other American courts* and the Eng- lish ® hold, that, since it violates the law to inflict a less severe punishment than the minimum set down in the statute, one may assign this sort of mistake in his favor for error. Yet, — § 931. Continued. — Harmoniously with the latter view it is held, that, if the judgment is divisible, and the one part is lawful and the other unlawful, the lawful part may be affirmed and the unlawful reversed. Thus, — Unlawful Fine and Lawful Order to Abate Nuisance. — In Connec- ticut, where the fine for a nuisance was by statute to be not less than five dollars, yet in a sentence it was four, together with an order of abatement, the court reversed this, as to the fine, but affirmed it as to the abatement.^ And, — Lawful Fine, omitting Order to repair Way. — In a New York case, " the objection," said Chancellor Walworth in the Court of Errors, " that the defendant was fined only, and that he was not also com- pelled to repair the road, is one which cannot be urged by the plaintiff in error, even if a judgment to repair could have been given on this conviction. The defendant may, on a writ of error, object that the punishment inflicted upon him is too great in its 1 Eex V. Ellis, 5 B. & C. 895, 8 D. & that a party cannot assign for error that E. 173 ; Bourne v. Eex, 2 Nev. & P. 248, which is for his own advantage applies 7 Ad. & E. 58, 1 Jur. 542 ; Silversides v. as well to criminal as to civil proceed- Eeg., 2 Gale & D. 617 ; TuUy v. Common- ings." p. 65. And see Hoskins v. The wealth, 4 Met. 357 ; Daniels v. Common- State, 27 Ind. 470 ; Behler v. The State, 22 wealth, 7 Barr, 371 ; Wilde v. Common- Ind. 845. wealth, 2 Met. 408 ; The State v. Gray, 8 * Eice v. Commonwealth, 12 Met. 246 ; Vroom, 368. TafE v. The State, 39 Conn. 82. 2 Ooton V. The State, 5 Ala. 468 ; 6 Whitehead v. Eeg., 7 Q. B. 582, 9 Jur. Commonwealth v. Shanks, 10 B. Monr. 594, 1 Cox C. C. 199 ; Bourne v. Rex, 2 304 ; Barada v. The State, 13 Misso. 94. Nev. & P. 248, 7 Ad. & E. 58. And see Jones v. The State, 13 Ala. 153; e Taff v. The State, 39 Conn. 82, on Camphell v. The State, 16 Ala. 144. the authority of In re Sweatman, 1 Cow. 8 Wattingham v. The State, 5 Sneed, 144, and The State i>. James, 87 Conn. 64; McKinney, J. observing: "The rule 355. 521 § 934 CONSEQUENCES. [BOOK VIH. extent, or that it is different in form from what the law has pre- scribed ; but, where a party is subject to two distinct and inde- pendent punishments for the same offence, if one of them is inflicted upon him by the sentence of the court, he cannot object that the court has not gone further and inflicted the other pen- alty also." ^ Again, — § 932. Error unimportant to Prisoner. — According to a Mary- land case, if the statute makes a flue payable one half to the informer and the other half to the State, yet the whole is adjudged to the State, this judgment will not be reversed on prayer of the defendant ; since he has no interest in the disposition of the fine.^ II. What Punishment should he awarded. § 933. Both statutory and at Common Law. — The common law provides punishments for all its offences. But, with us, it is the general course for legislation, while creating statutory offences, to fix the penalties for those at common law as well. Yet some- times a common-law punishment remains. And often questions arise under the statutes, making a knowledge of the common law of the subject essential to their interpretation. § 934. By whom Punishment assessed. — Under the COmmon- law procedure, it is for the court, not the jury, to determine what, within the limits of the law, shall be the punishment in each case. The question is for the judicial discretion.^ But, in some of our States, the statutes direct that the jury shall assess the punishment in their verdict.* In some others, there is, relating to it, a sort of division of responsibility between judge and jury.6 1 Kane v. People, 8 Wend. 203,211, 594; Cook v. United States, 1 Greene, s. p. McQuoid V. People, 3 Oilman, 76; Iowa, 56; Commonwealth v. Erye, 1 Va. Dodge V. The State, 4 Zab. 455. See Cas. 19; Dias v. The State, 7 Blackf. Barth v. The State, 18 Conn. 432. 20 ; Doty v. The State, 6 Blackf. 529 ; The 2 Rawlinge v. The State, 2 Md. 201. State v. Douglass, 1 Greene, Iowa, 550; See further, on this subject. Nemo v. Nemo v. Commonwealth, 2 Grat. 558; Commonwealth, 2 Grat. 558; Sword v. Ervine v. Commonwealth, 5 Dana, 216; The State, 5 Humph. 102; Daniels v. Hawkins «. The State, 3 Stew. & P. 63; Commonwealth, 7 Barr, 371 ; Logan's Chesley «. Brown, 2 Fairf . 143, 147 ; Blev- Case, 5 Grat. 692. ings v. People, 1 Scam. 172 ; O'Herrin v. » United States v. Mundel, 6 Call, 245, The State, 14 Ind. 420 ; The State v. 248. Bean, 21 Misso. 269 ; Morton v. Prince- * As to which see Fooxe v. The State, ton, 18 111. 383 ; Leech v. Waugli, 24 111. 228. 7 Misso. 502 ; Mc Whirl's Case, 3 Grat. 6 Cook v.. United States, 1 Greene, 522 CHAP. LX.] PUNISHMENT BY SENTENCE OP COTJBT. § 937 Constitutional. — Legislation, putting the question of punish- ment into the hands of the jury, has been held in Indiana not to be unconstitutional.^ § 935. Common-la'w Punishment for Felony — (Rape — Petit Lar- ceny — Mayhem). — The ordinary common-law punishment for felonies is, as before shown,^ death by hanging ; the exceptions being, it is said, petit larceny,^ rape, and mayhem.* Therefore death is the award of the law for any statutory felony, unless the statute specifically directs otherwise.^ But, — § 986. Benefit of Clergy. — As felonies, statutory and by com- mon law, comprehend a large part of the crimes, the uniform infliction of this highest penal consequence would be too bloody. Accordingly the legislation and judicial wisdom of our father- land found for the evil a remedy in the plea of clergy, or benefit of clergy ; or, as it was sometimes termed after the passage of various acts of Parliament on the subject, the benefit of the stat- utes. A word explanatory of this benefit of clergy, by way of memento of departed piety, humanity, and genius, may not be inappropriate. § 937. Continued. — Lord Coke observes, that the privilege of clergy " took its roots from a constitution of the pope, that no man should accuse the priests of holy church before a secular judge." ® The English clergy, therefore, demanded to be exempt from the jurisdiction of the lay tribunals ; and, to an extent not quite certain, the demand was yielded to by the ancient common law and by acts of Parliament as early as Edw. 1 or earlier. It seems that, generally, when a priest in orders ^ was brought before a temporal judge on a charge of felony,* his case was transferred, either with or without trial, to the ecclesiastics.^ Yet the clergy frequently complained that their privilege was violated, and ac- cordingly acts of Parliament were passed from time to time to remove the difficulty ; till this indulgence became the right, not Iowa, 56 ; The State v. McQuaig, 22 * 4 Bl. Com. 98 ; The State v. Scott, Misso. 319; Behler v. The State, 22 Ind. 1 Hawks, 24, 34. And see ante, § G22. 345; Moss v. The State, 42 Ala. 546; » 2 Inst. 636. See also 1 Bum, Ec. Melton V. The State, 45 Al^ 56. Law, Phillim. ed. 185. » Eice V. The State, 7 Ind. 332. 1 Searle v. Williams, Hob. 288. 2 Ante, § 615. « 2 Inst. 636. 8 Rex V. Ellis, 5 B. & C. 395, 8 D. & » 2 Hawk. P. C. Cnrw. ed. p. 498, E. 173 ; Gray v. Reg., 6 Ir. Law, 482, 502. § 110 ; 4 Bl. Com. 333 ; 2 Inst. 633. * 2 Hawk. P. C. Curw. ed. p. 472, § 7. 523 § 938 CONSEQUENCES. [BOOK Vm. only of clerks in orders, but of all persons capable of becoming such; namely, of all males, without canonical impediment, able to read.i At a later period, the canonical impediments were de- clared to be no longer barriers, women also were admitted into the happy circle,^ and the disqualification of ignorance was abolished.^ Finally, the privilege became pleadable only after conviction,* and the offender was not to be delivered to the eccle- siastics.* During almost the entire period in which this plea was allowed, the convict was burned in the hand before being dis- charged ; and, for a short time, for larceny, he was burned on the left cheek, near the nose.® Yet to prevent a general immunity from punishment for felony, statutes were also passed, taking away the benefit of clergy from specific felonies ; and sometimes the same act which created a felony provided that it be punished with death without benefit of clergy.^ The plea was abolished in England, in 1827, by 7 & 8 Geo. 4, c. 28, § 6 ; and, in the fol- lowing year, for Ireland by 9 Geo. 4, c. 54.^ This outline the reader can fill up by consulting the older English books on the criminal law.^ § 938. Benefit of Clergy with us. — In this country, the plea of benefit of clergy has been usually acknowledged as belonging to our common law,^" and the books contain some cases in which it was pleaded. The Indiana ^^ and Minnesota ^^ courts have rejected it. In North Carolina, the privilege has been conceded to women, the court observing : " No reason can at this day exist, why females shall not be entitled to the benefit of clergy, as well as males." ^* 1 2 Hawk. p. C. Curw. ed. p. 471, Term E. 44; The State v. Kearney, 1 § 4, 5. Hawks, 53 ; The State v. Scott, 1 Hawks, 2 lb. p. 472, § 6, 8. 24; The State v. leham, 8 Hawks, 185; 8 lb. p. 501, § 116. The State v. Boon, Taylor, 246 ; The * lb. p. 498, § 110. State v. Seaborn, 4 Dev. 805 ; The State " 4 Bl. Com. 369. v. Henderson, 2 Dev. & Bat. 543 ; The 6 2 Hawk. P. C. Curw. ed. p. 502-607, State v. Carroll, 2 Ire. 257 ; The State v. §121-185. Sutcliffe, 4 Strob. 372; Commonwealth ' 2 Hawk. P. C. Curw. ed. p. 488 et v. Posey, 4 Call, 109 ; Commonwealth u. seq. Miller, 2 Ashm. 61; Commonwealth v. 8 Gray v. Reg., 6 Ir. Law, 482, 504. Gable, 7 S. & E. 423 ; Maes. Stat. 1784, ' And see Duchess of Kingston's Case, c. 56. 1 Leach, 4th ed. 146; Armstrong v. L'Isle, " Fuller v. The State, 1 Blackf. 68. 12 Mod. 109, 110; Bex v. Mouncer, 2 " The State «. Bilansky, 3 Minn. 246. Leach, 4th ed. 567, 2 East P. C. 639 ; Eex w The State v. Gray, 1 Murph. 147. V. Byford, Russ. & Ry. 521. Also, in this State, it seems that the stat- 10 The State v. Jernigan, 8 Murph. 12; utory pardon, which is an incident to the s. 0. nom. The State v. Jernagan, N. C. benefit of clergy, does not take effect un- 524 CHAP. LX.J PUNISHMENT BY SENTENCE OP COURT. § 941 Yet, witli ns, as in England and Ireland, it has generally been abolished by statutes. How it is in two or three States, such as North Carolina and South Carolina,^ where it was in force at dates comparatively recent, the author is not informed. § 939. Common-laiw Punishment for Felony, continued. — Hang- ing, therefore, which is the original punishment for felony, is, ' with us, nearly done away with ; the usual penalty being impris- onment in the State prison.^ Transportation. — The modem English transportation is un- known at the common law,^ while neither is it among the legis- lative penalties imposed in this country.* § 940. Common-law Punishment for Misdemeanor. — The ordi- nary and appropriate common-law punishment for misdemeanor is fine and imprisonment, or either of them, at the discretion of the court.^ It extends to all cases in which the law has not pro- vided some other specific penalty. For example, when a statute forbids or commands an act of a public nature," but is silent as to the punishment, the common law imposes, for disobedience, fine and imprisonment.'^ A majority of the Connecticut court held, that the fine must be for a limited sum, not for all the defendant's property ; and the imprisonment, for a stated num- ber of years, not for life.^ But this distinction is doubtful, as one of principle. § 941. statutory Fine "and" Imprisonment — "Or." — If a stat-1 ute provides a fine and imprisonment, both must be inflicted ; ® but if, instead of the word and, it uses the disjunctive or, only one of them can be imposed.^" til the party is burned in the hand and Northampton's Case, 12 Co. 132, 134. To delivered. If the record accidentally these, other inflictions, such as are men- omits to set out such execution of the tioned in the next section, may, under sentence, it may he shown by a witness, the common law of England, sometimes Keith V. Goodwin, 6 Jones, N. C. 398. be added. 2 East P. C. 838. 1 The State v. Bosse, 8 Rich. 276 ; « Ante, § 237. The State v. Sutcliffe, 4 Strob. 372. 7 United States i;. Coolidge, 1 GaUis. 2 See ante, § 616, 933. 488, 493. 8 Archb. New Crim. Proced. 182 ; 2 « The State v. Danforth, 3 Conn. 112. Hawk. P. C. Curw. ed. p. 507 et seq ; Rex And see Respublica v. De Longchamps, «. Lewis, 1 Moody, 372; Rex v. Hope, 1 1 Dall. Ill ; The State v. Myhand, 12 La. Moody, 396; Bullock v. Dodds, 2 B. & An. 504; Shuttleworth v. The State, 35 Aid. 258. Ala. 415. 1 The State v. Bosse, 8 Rich. 276. » United States v. Vickery, 1 Har. & But see Aldridge v. Commonwealth, 2 J. 427. Va. Cas. 447. i" The State v. Kearney, 1 Hawkg^53. 6 The State v. Roberts, 1 Hayw. 176; And see, further, Wilder. Commonwealth, 625 § 943 CONSEQUENCES. [BOOK VIII. § 942. Other Common-law Punishments for Misdemeanor. — There are other common-law punishments, used chiefly in particular cases of misdemeanor. Among these are, — Pillory — Whipping — Ducking — Slitting Nostrils — and perhaps some other of the like disgraceful kind.^ Said an American judge : " The general rule of the common law was, that the pun- ishment of all infamous crimes should be disgraceful : as the pillory for every species of crimen falsi,^ as forgery, perjury, and other offences of the same kind. Whipping was more peculiarly appropriated to petit larceny, and to crimes which betray a mean- ness of disposition, and a deep taint of moral depravity." ^ § 943. Whipping and Pillory with us. — But though whipping* and the pillory have been sometimes employed in this country, we may doubt whether any of our courts would now inflict either, merely on the strength of English common-law authority. Under the national government, they were abolished by act of Congress in 1839.6 Ducking with us — (Common Scold). — The Common-law pun- ishment of a common scold is ducking,^ by being " placed in a certain engine of correction called the trebucket, castigatory, or cucking-stool, which in the Saxon language is said to signify the scolding-stool ; though now it is frequently corrupted into ducking- stool, because the residue of the judgment is, that, when she is so 2 Met. 408. That a fine is not a debt, peace, or hinderance of the justice of the Bee Dixon v. The State, 2 Texas, 481. realme than the former doe ; as he that 1 4 Bl. Com. 877. And see Rex v. committeth forgerie in some eases, shall Bland, 2 Leach, 4th ed. 595, 2 East P. C. be set on the pillorie, loose his eares, have 760 ; Rex v. Thanet, 1 East P. C. 408 ; his nostrels slit, and pay to the partie Oldfleld's Case, 12 Co. 71 ; Rex v. How- grieved his double costs and damages : ell, Russ. & Ry. 253. and in some cases, shal be hanged as a 2 8. p., Lewis V. Commonwealth, 2 S. felon: he that committeth perjurie, shall & R. 551. in some cases be one yeare imprisoned, ' Taylor, C. J., in The State v. Kear- be set upon the pillorie, and never after ney, 1 Hawks, 53, 54. Pulton observes : be allowed as a witnesse : and he that " Our lawes do chastise those that breake maintayneth other men's suits, shall in the peace by fraies, assault, batteries, some cases be three yeres imprisoned, riots, or routs, with imprisonment of and further punished at the king's pleas- their bodies, until their hot bloods be ure : and some other cases sustaine other cooled, and their distemperat humors be disgraces." Pulton de Pace, ed. of 1615, qualified : but they do impose sharper 42 6. and more durable punishments upon such * Commonwealth v. Wyatt, 6 Rand, as do forge deeds, commit or procure 694 ; The State v. Kearney, 1 Hawks, 53. perjurie, or be maintainors of other mens » 5 U. S. Stats, at Large, c. 86, § 6; suits or quarrels : accounting these last R. S. of U. S. § 5827. offences to tend more and for a longer • Eeg. v. Foxby, 6 Mod. 11. time to the breach or blemish of the 626 CHAP. LX.] PUNISHMENT BY SENTENCE OE COUBT. § 945 placed therein, she shall be plunged in the water for her punish- ment." ^ But our courts hold, that fine and imprisonment with us take the place of ducking.^ § 944. Forfeitures of Specific Articles. — We have no precedents for a general practice of sentencing prisoners to forfeit particular articles of property, instead of, or in addition to, a fine of a speci- fied sum of money. But such forfeitures are sometimes required by statutes ; ^ and they rest on the same reasons as fines. Forfeitures of Office, &c. — Sometimes, also, statutes impose as a punishment the forfeiture of an office,* or of the capacity to hold office.^ Distinguished. — We have elsewhere distinguished this class of forfeitures from another.* § 945. Bonds for Peace and Good Behavior. — In all cases of misdemeanor, the court has, from the common law, authority, to be exercised or not, as a sound discretion may dictate, to require, as a part of the sentence, that the defendant give bonds to keep the peace and be of good behavior.'' As to when the discretion will be exercised, — In Gross Misdemeanor — (^Gaming — Bawdy-house — Liquor-selling — Libel). — In Tennessee, it was deemed that sureties should not be required on conviction for a single act of gaming, under circumstances not aggravating ; the misdemeanor must be gross. And Green, J., enforced" the doctrine, and drew the distinction, as follows : " The offence of keeping a bawdy-house is, in its nat- ure, a gross misdemeanor ; so also of a gaming-house, or disorderly house. But the gelling of a single half-pint of whiskey, unac- companied by any other fact, although against law, and a misde- meanor, would not be a gross misdemeanor. But if it were to appear in evidence, that the party selling was surrounded with drunken, noisy, obscene men, to the great annoyance of the pub- lic, this state of things, produced by this practice, and in part by 1 4 Bl. Com. 169. Barker v. People, 3 Cow. 686, 20 Johns. 2 James v. Commonwealth, 12 S. & R. 457. 220 ; United States v. Royall, 8 Cranch, 6 Ante, § 816 et seq. C. C. 620. 7 Dunn v. Reg., 12 Q. B. 1031 ; O'Con- 5 Boles V. Lynde, 1 Root, 195. nell v. Reg., 11 CI. & E. 155; Rex v. Hart, 4 Commonwealth v. Fugate, 2 Leigh, 30 Howell St. Tr. 1131, 1194, 1344, 12 Q. 724. • B. 1041, note; Reg. v. Dunn, 12 Jur. 99; 6 DotjB. The State, 6 Blackf. 529; Rex v. Rainer, 1 Sid. 214; Territory w. Nugent, 1 Mart. La. 103. 527 § 948 CONSEQUENCES. [BOOK VIH. the very whiskey he might be convicted of selling, would consti- tute such violation of the law a gross misdemeanor. So a libel might, or might not, be a gross offence, according as the circum- stances of the publication, and its character, might mitigate or aggravate it. So a game of cards might be played against law, but under circumstances that would not justify, in this legal view of the subject, the denomination of a gross misdemeanor. But, if played in connection with common gamblers associated at a gaming-house, or, as is sometimes the case, by the road-side on Sunday, with negroes, it would be a gross misdemeanor. These illustrations are only intended to indicate the general character of offence to which, we think, this power of requiring sureties for good behavior pertains." ^ § 946. "Cruel and Unusual Punishment" — (^Unconstitutional). — The infliction of " cruel and unusual punishment " is forbidden by the Constitution of the United States.^ This clause restrains the national government only, not the States.^ But there is a like provision in some of the State constitutions. § 947. What is such Punishment — (Fine — Imprisonment — Stripes — Disfranchisement). — It is not possible to derive, from the few decisions in the books, any distinct rule as to what is a " cruel and unusual punishment." * Fine and imprisonment are not.* And stripes, inflicted at the discretion of the court, have been held not to be.® Neither are disfranchisement, and the for- feiture of citizenship.^ Evidently, in reason, the punishments commonly inflicted at the time when the Constitution was adopted, could not be deemed "unusual," and no punishment is " cruel " simply because it is severe, or " cruel and unusual " because it is disgraceful. But mere torture, however slight, would be within the prohibition. § 948. Aggravation and Mitigation. — The entire criminal trans- action, in a particular case, may embrace more of wickedness than the indictment charges ; or there may be other circumstances 1 Eetes ». The State, 2 Humph, 496, v. Adams, 1 Brev. 279 ; Turnipseed o. 499. The State, 6 Ala. 664. 2 Const. U. S. Amendm. art. 8. 5 Ligan v. The State, 3 Heisk. 159. ' Story Const. § 1904 ; Pervear v. Com- 6 Commonwealth v. Wyatt, 6 Band, monwealth, 5 Wal. 475 ; James v. Com- 694. See Aldridge v. Commonwealth, 2 monwealth, 12 S. & K. 220; Barker i^. Va. Cas. 447. People, 3 Cow. 686, 20 Johns. 457. 1 Huber v. Eeily, 3 Smith, Pa. 112. 4 See Story Const. § 1908 ; The State See Wilson i-. The State, 28 Ind. 893. 628 CHAP. LX.] PUNTSHMBlirT BY SENTENCE OP COTJBT. § 949 of aggravation, on the one hand, or of mitigation, on the other. So when the court pronounces sentence, if the law has given it a discretion, it looks at any evidence proper to influence a judicious magistrate to make the punishment heavier or lighter,^ yet not to exceed the limits fixed for what of crime is within the allega- tion and the verdict.^ It is the doctrine in Alabama, where the jury assess the punishment, that, to aggravate an offence, evi- dence is not admissible of what amounts to a crime separate from the one charged in the indictment.^ If the discretion is to be exercised by the judge after the trial is ended, there does not seem to be any sound reason for restricting him by a techni- cal rule of this sort, though the point has not probably been adjudged. Guilt, on this issue, is not to be denied, the verdict being conclusive ; therefore testimony will not be heard tending to prove that no crime iu law was committed.* Yet, — On Nolo Contendere. — If the defendant merely enters, by per- mission, a plea of nolo contendere," he seems to be allowed to show under this plea his innocence.^ § 949. Aggravation and Mitigation in Felony. — The English rule seems to be, that the evidence we are considering is receivable only in misdemeanor, not in felony.'' And such is doubtless the true 1 The State v. Townsend, 2 Harring. be shown ; but, if it is a distinct crime, Del. 543; Robbins y. The State, 20 Ala. not necessarily connected with the offence 36 ; Rex v. Mahon, 4 A. & £. 575 ; Rex charged in the indictment, it cannot be V. Lynn, 2 T. E. 733 ; Rex o. Grey, 2 received.^ Baker v. The State, 4 Pike, Keny. 307 ; Wilson v. The Mary, Gilpin, 56, 61. The decision in Skains o. The 31 ; Rex v. Turner, 1 Stra. 139 ; Rex o. State, 21 Ala. 218, 222, is express to the Burdett, 4 B. & Aid. 314 ; The State v. point, that evidence of distinct ofEences, Smith, 2 Bay, 62 ; Rex r. Sharpness, 1 not charged in the indictment, cannot be T. R. 228 ; Rex i>. "Withers, 3 T. R. 428 ; looked to in aggravation of the fine." Rex 0. Williams, Loflt, 759; Rex ». Pink- * The State v. Brinyea, 5 Ala. 241 ; 2 erton, 2 East, 857 ; Rex v. Mawbey, 6 T. Gab. Crim. Law, 540. R. 619, 627 ; Morton v. Princeton, 18 IU. 5 Crim. Proced, I. § 802-804. 383; Sarah v. The State, 18 Ark. 114. « Reg. <^. Templeman, 1 Salk. 55, in See Rex v. Cox, 4 Car. & P. 538 ; Rex v. which case it is said, that Lord Holt, C. Esop, 7 Car. & P. 456 ; People v. Cochran, J. " took a difference where a man con- 2 Johns. Cas. 73. fesses an indictment, and where he is 2 Rex V. Withers, 3 T. R. 428, 432 ; found guilty ; in the first case a man may Leech v. Waugh, 24 111. 228, ante, § 930. produce aflSdavits to prove [this was for ' Ingram v. The State, 39 Ala. 247, assault and battery] son assault, upon the 253, 264 ; E. W. Walker, J., observed ; prosecutor in mitigation of fine ; other- "It is said that, 'in giving evidence of wise, when the defendant is found guilty." matter in aggravation, the distinction is, See also Rex v. Minify, 1 Stra. 642. that, where the aggravating matter is the ' Rex v, Ellis, 9 D. & E. 174, 6 B. & immediate consequence of the offence for C. 145. which the defendant is on trial, it may VOL. I. 34 529 § 953 CONSEQUENCES. ' [BOOK VIH. view, when the felony is punished by hanging ; for of hanging there can be no mitigation. But if the court has a discretion, the practice ought, on principle, to be the same in the higher crimes as in the lower ; and so it is in Massachusetts, and prob- ably elsewhere generally in the United States. § 950. Form of the Evidence. — Evidence addressed to the dis- cretion of the judge, in mitigation or aggravation of punishment, need not be attended by the formalities required before the jury, on the trial of the main issue. The court will now, if it sees no reason to order otherwise, listen to mere ex parte affidavits.^ And even hearsay evidence, wholly inadmissible on general principles, has, under special circumstances, been suffered to be brought before the court on this issue.^ A witness may be compelled, by subpoena, to attend the court on this issue, the same as on any other.^ And counsel will be heard.* § 951. Day of executing Sentence. — The day on which death or other corporal pain is to be inflicted need not be inserted in the judgment.^ If it is not, it may be in the warrant ; ^ or, if it is in the judgment, and execution fails to be done on that day, — as where the sheriff dies,'^ or the prisoner escapes, being after- ward retaken,^ — the court may direct it to be done on a subse- quent day. And — § 952. statutory Time as to Punishment. — A statute defining the time after conviction, or after any other period, within which sentence shall be executed, is to be construed as merely directory to the court,^ and the execution may be on a later day ; ^^ though, if it is not to be until after a period named, the prisoner may claim the space thus allowed him.^^ § 953. Judgment for Two or more Offences. — When a prisoner, 1 Reg. V. Templeman, 1 Salk. 55 ; Rex 407 ; Rex v. Hartnett, Jebb, 302 ; Crira. V. Morgan, 11 East, 457 ; Rex v. Pinker- Proced. I. § 1140. And see People v. ton, 2 East, 357 ; Reg. v. Wilson, 4 T. R. Murphy, 45 Cal. 137. 487 ; Rex v. Williams, 26 Howell St. Tr. « Rex v. Doyle, 1 Leach, 4th ed. 67. 654, 709 ; Rex v. Thanet, 27 Howell St. ^ The State u. Kitchens, 2 Hill, S. C. Tr. 821, 943. 612. 2 Rex V. Archer, 2 T. R. 203, note. « Bland v. The State, 2 Ind. 608. 8 The State v. Smith, 2 Bay, 62. » Stat. Crimes, § 255, 256. See Bright- < Rex V. Equitable Gas Co., 3 Nev. & well v. The State, 41 Ga. 482. M. 759; Rex v. Bunts, 2 T. R. 683. lo Seaborn v. The State, 20 Ala. 15 j 6 Atkinson v. Rex, 3 Bro. P. C. 517 ; Rex v. Wyatt, Ruse. & Ry. 230 ; Stat. Rex V. Wyatt, Russ. & Ry. 230 ; Rex v. Crimes, § 255. Doyle, 1 Leach, 4th ed. 67. And see " John v. The State, 2 Ala. 290. But Webster v. Commonwealth, 5 Cush. 386, see Rex v. Wyatt, Russ. & Ry. 280. 630 CHAP. LX.J PUNISHMENT BY SENTENCE OF COURT. § 953 tinder an unexpired sentence of imprisonment, is convicted of a second offence ; or when there are two or more convictions on which sentence remains to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall com- mence on the termination of the period next preceding,^ — a doctrine, however, which has been, it is believed without due consideration, denied in Indiana.^ And, — Pardon of one Offence — Reversal on Error, &c. — If, in such a case, the earlier period is afterward shortened in consequence of good conduct, or by a pardon of the offence, or a reversal of the sentence on writ of error, the next following one commences immediately, the same as if the earlier were ended by lapse of time.^ 1 Commonwealth v. Leath, 1 Va. Cas. 151 ; Mills V. Commonwealth, 1 Harris, Pa. 631, 634; The State v. Smith, 5 Day, 175 ; Wilkes v. Rex, 4 Bro. P. C. 360, 367 ; Kite v. Commonwealth, 11 Met. 581 ; People D. Forbes, 22 Cal. 135; Ex parte Dalton, 49 Cal. 468; Williams ,:. The State, 18 Ohio State, 46. And see Rex V. Bath, 1 Leach, 4th ed. 441 ; Cole v. The State, 5 Eng. 318 ; People v. Forbes, 22 Cal. 135. Reg. v. Cutbush, Law Rep. 2 Q. B. 379, 10 Cox C. C. 489 ; Ex parte Meyers, 44 Misso. 279 ; Ex parte Turner, 45 Misso. 331. As to the rule where there are convictions on several counts of one indictment, compare Rex v. Rob- inson, 1 Moody, 413, and Gregory v. Reg. 15 Jur. 79, 19 Law J. n s. Q. B. 366, with Carlton v. Commonwealth, 5 Met. 632, and Booth v. Commonwealth, 5 Met. 535 ; and see Baker v. The State, 4 Pike, 56 ; Barnes v. The State, 19 Conn. 398; Rex V. Tandy, 2 Leach, 4th ed. 883, 1 East P. C. 182; Crowley v. Commonwealth, 11 Met. 575; Kite i'. Commonwealth, 11 Met. 581 ; Josslyn v. Commonwealth, 6> Met. 236; Commonwealth v. Kirk, 9 Leigh, 627 ; The Statg v. Turner, 2 Mc- Mullan, 399; Townsend v. People, 3 Scam. 326 ; The State v. Davidson, 12 Vt. 300; The State v. Lassley, 7 Port. 626 ; Friar v. The State, 3 How. Missis. 422; The State o. Hood, 51 Maine, 863. But this question is more particularly for "Crim. Proced." 2 Miller v. Allen, 11 Ind. 389. In this case, a prisoner, having heen sentenced to two years' imprisonment on each of two separate iiidictments, the one sen- tence'to commence on the expiration of the other, applied, after serving in prison two years, for his discharge on habeas corpus ; on the ground, that, in the ab- sence of any statutory direction, the court could not postpone the time at which cither sentence should begin to run, therefore that the two sentences did in matter of law run concurrently. And the discharge was granted. The judges were not aware that the question had been elsewhere decided the other way, and said : " We have been furnished with no authorities on the question involved ; and, in the absence of authority to the contrary, it seems to us that the dis- charge of the petitioner was correct." p. 391. And see James v. Ward, 2 Met. Ky. 271. Cases like this should admon- ish prosecuting officers of their dutj' to study the criminal law, and furnish the courts with needed authorities. 8 Opinion of Justices, 13 Gray, 618 Kite V. Commonwealth, 11 Met. 581 Brown v. Commonwealth, 4 Rawle, 269 Ex parte Roberts, 9 Nev. 44. 531 955 CONSEQUENCES. [BOOK VHI. III. What Punishment in Joint Conviction. § 954. How in Principle. — The law as the earlier discussions of this volume disclose, deems a man who participates with oth- ers in an offence, just as culpable as if he did the whole alone. The same is the rule also in morals. Therefore, in legal rea- son, if more persons than one are jointly convicted of a crime, or if one has already been convicted and punished and the others are convicted afterward, each should receive a several sentence, \ and the same in extent of punishment, as if he had done the whole alone and had been alone convicted. And we are about to see that this is so likewise in authority. § 955. Distinguished from Civil Suit. — Looking, then, at this subject in the light of the decisions, we have seen, that the object of a civil suit is to recover damages for what an individual has suffered ; while a criminal prosecution is for punishment, and the cure of a public wrong ; and we have observed some distinctions growing out of this diversity.^ Consequently, in the civil suit, the plaintiff is to be compensated but once, however many the persons against whom he proceeds. But, in crime, each man whose will contributes to what another executes, is guilty of it the same as though done by his own hand ; and he is to be pun- ished accordingly.^ Even, in some cases, the mere combining with others will make a man indictable, when he would not be if he had undertaken, and even performed, the same wrong singly. But, aside from this doctrine of conspiracy, — The Rule. — Where two or more are convicted together of the same offence, the sentence against them is several, each to pay the whole forfeiture, or suffer the whole of whatever other penalty or punishment the law provides, precisely as if he were the only person who had participated in the act.^ 1 Ante, § 208, 221, 235, 256-263, 264, 11 Co. 42 a, 1 Rol. 32, 35; The State v. 265, 301. Smith, 1 Nott & McC. 13; United States 2 2 East P. C. 740; Reg. B.King,! w.Babson, 1 Ware, 450; The State w. Hop- Salk. 182; Commonwealth v. McAtee, 8 kins, 7 Blackf. 494; The State v. Berry, Dana, 28 ; The State v. Smith, 1 Nott & 21 Misso. 604. MoCord, 13; Reg. v. Atkinson, 2 Ld. ' Caldwell w. Commonwealth, 7 Dana, Baym. 1248, 1 Salk. 382, 11 Mod. 79, as 229; The State v. Gay, 10 Misso. 440; to which see the report in Mod. wiiere Jones v. Commonwealth, 1 Call, 555 ; Holt, C. J., said, "hut they shall serer- Rex v. Morris, 2 Leaoh, 4th ed. 1096; ally have judgment;" Godfrey's Case, Commonwealth v. Harris, 7 Grat. 600; 632 CHAP. LX.] PUNISHMENT BY SENTENCE OB COURT. § 957 § 956. How in Penal Actions. — The doctrine is different where a penalty is to be recovered in a proceeding civil in form, — as, in a qui tarn action, — though the thing done is in its nature criminal. For the law does not regard the act as being properly a crime ; or, if it does, still the rules which regulate civil pro- ceedings must be applied. If the thing complained of is a single act, joint in its nature, the participants may be sued jointly ; and the judgment must be joint, for one damage, contrary to the rule which would prevail if the proceeding were by indictment.^ And when the full penalty has been adjudged against one, and by him paid, no suit can afterward be carried on against others who' offended jointly with him.^ For illustration, — § 957. In Liquor-selling — (By Action or Indictment). — Where a statute provides a pecuniary penalty for a sale of intoxicating liquor without license, all who participate in it may be proceeded against jointly, whether by action or indictment.^ But, if by indictment, the judgment is several against each for the whole penalty ; * while, if by action, it is joint, and the penalty can be collected only once out of all.^ Yet, — Form Civil where Act is Several. — In another class of cases, the acts of the participants are in nature several ; and, if the pro- ceeding is civil in form, there must be a separate action against eachy and the whole penalty wUl be adjudged to each.^ Calico V. The State, 4 Pike, 430 ; The " Boutelle v. Nourse, 4 Mass. 431 ; State V. Smith, 1 Nott & McC. 13 ; The Frost v. Rowse, 2 Greenl. 130. State V Hunter, 33 Iowa, 361; Rex v. » Commonwealth ji. Sloan, 4 Gush. 52; Manning, 2 Corayns, 616; McLeod v. Commonwealth v. Tower, 8 Met. 527; The State, 35 Ala. 395 ; Waltzer v. The And see Stephens v. The State, 14 Ohio, State, 3 Wis. 785, 786, where Smith, J., 386 ; Rex v. Crofts, 7 Mod. 397. Auo- remarked ; " The guilt of one is neither tioneer without License. — In Vaughn iij mitigated nor enhanced from the fact The State, 4 Misso. 530, it was held, that that another may be also guilty ; " Curd two persons could not be jointly indicted V. Commonwealth, 14 B. Monr. 386. Hus- for pursuing the business of auctioneers band and 'Wife. — This is so even where without license. See also The State v. husband and wife are jointly indicted, Coleman, Dudley, S. C. 32. and the punishment is a fine, — each is * Commonwealth v. Harris, 7 Grat. to be sentenced to pay the whole fine 600. severally; and, where the fine was joint, ^ IngersoU o. Skinner, 1 Denio, 540; judgment was arrested. Commonwealth Tracy v. Perry. 5 N. H 504. V. Ray, 1 Va. Cas. 262. Sentence follow- ' Marsh u. Shute, 1 Denio, 230 ; Cur- ing Verdict. — See Cain v. The State, 20 tis v. Hurlbnrt, 2 Conn. 309 ; Arnold u. Texas, 355. Loveless, 6 Rich. 511. The Distinctions 1 See the cases, generally, cited to the further considered — I am sufficiently nextsectionand the last; Warren !>. Doo- clear, that the distinctions set down in little, 5 Cow. 678; People v. Kolb, 3 Abb. the text are sustained alike by legal rea- Ap. Dec. 529. sou and actual adjudication, though they 533 § 958 CONSEQUBNCteS. [book viri. § 958. General Views — Conclusion. — The distinctions thus drawn have not always lain clear in the minds of the judges ; seem not to hare occurred to the judges generally. The case of Rex v. Bleasdale, i T. R. 809, little considered by the court, seems perhaps adverse. In Bara- da u. The State, 13 Misso. 94, this ques- tion was not decided ; but th> case went off on the point (see ante, § 930), that the defendants could not object to a joint fine, it not being to their injury. And possibtij there may be such a thing as the matter being sufficiently civil in nature, while criminal in form, to justify a joint sentence; yet the suggestion should be received cautiously, if at all. The true doctrine was pretty plainly stated by Powell, J., in Reg. v. King, 1 Salk. 182, a case criminal in form. " This penalty," says the report, " is not in the nature of a satisfaction to the party grieved, but a punishment on the offender; and crimes are several, though debts be joint, which, per Powell, distinguishes this from the case of Partridge v. Naior, Cro. Eliz. 480 ; and s. 0. nom. Patridge v. Emson, Noy, 62." Partridge v. Naylor, was an action against three persons, upon Stat. 1 & 2 Phil. & M. c. 12, to recover a penalty for wrongly impounding a distress ; and the court held, that the judgment should be joint for one penalty against all. This case was pressed upon the court in the crimi- nal one of Rex v. Clarke, Cowp. 610, where the defendants sought to avoid an information which alleged that they " had severally forfeited the sum of £40 " for as- saulting and resisting custom-house offi- cers, contrary to 8 Geo. 1, c. 18, § 25. The court sustained the information ; but Lord Mansfield, on the bench, not adverting to the distinction presented in our text, drew another, which may possi- bly be just in a degree when applied to casescivil in form, though probably not even then in full ; while clearly it can have no proper application to cases, like the one before him, in which the proceed- ing is criminal. This will appear when we look at his observations in connection with a few words interspersed in brackets by me. He said; " Where the offence is, in its nature, single, and cannot be severed, there the penalty shall be only single ; be- 534 cause, though several persons may join in committing it, it still continues but one offence. But where the offence is in its nature several, and where every person concerned may be separately guilty of it, there, each offender is separately liable to the penalty ; becaiise the crime of each is distinct from the offe-nce of the others, and each is punishable for his own crime. Por instance : the offence enacte. Riley, 28 Iowa, 547 ; Corn- Pick. 452 ; Ex parte White, 14 Pick. 90. monwealth v. Tuck, 20 Pick. 356 ; Hag- Three Convictions in one Term of Court, gett V. Commonwealth, 3 Met, 457. 540 CHAP. Lxn.] BY OPERATION OF LAW. §967 CHAPTER LXII. C0NSEQTTENC38 OP THE SENTENCE BY OPEEATION OP LAW. § 966. Scope of this Chapter. — The consequences stated in the last two chapters come only when set down in the sentence. In this chapter, we are to contemplate such as result from it by operation of law, though not mentioned therein. § 967. Attainder defined. — Attainder, in the primary meaning of the word, is the status, or, as the law formerly was, the taint of blood, of one condemned by final judgment of the court for treason or felony ; and, in a secondary sense, it is the judgment itself.^ It must be a final judgment, rendered after convic- tion,^ or after outlawry ^ (where outlawry is known, as it is not generally in this country),* and then the offender is said to be attaint or attainted.^ Its Common-law Consequences — (Forfeiture — Corruption of Blood). — The effects of an attainder are, by the ancient common 1 In Tomlins's Law Dictionary, at- tainder is defined to be " the stain or corruption of the blood of a criminal capitally condemned ; the immediate, inseparable consequence, by the common law, on the pronouncing the sentence of death." And most of the other defini- tions, which I have consulted, speak of it as following the death sentence. In Burn's Law Dictionary, however, it is defined to be " where sentence is pro- nounced against a person convicted of treason or felony ; he is thus attinctus, tainted, or stained," &c. It is natural that the old books should define it as following the death sentence, because the penalty of all felony and of treason was anciently deatli. But in actual use in more mod- ern times, it is not limited to capital felonies and to treason. Sometimes it ia even applied, not quite accurately, to one under sentence for a high misde- meanor. In modern language, and in localities where corruption of blood is unknown to the law, the word attainder is not much employed ; still I do not un- derstand its use to be improper in such circumstances, and its meaning is then as defined in my text. 2 Stat. Crimes, § 348. » Rex V. Barbery, Fort. 37. * Outlawry. — Outlawry is or has been practised in Virginia. Common- wealth V. Hale, 2 Va. Cas. 241; Com- monwealth V. Hagerman, 2 Va. Cas. 244 Commonwealth v. Pearce, 6 Grat. 669 Commonwealth v. Anderson, 2 Va. Cas 245. And see Bespublica v. Steele, 2 Ball. 92 ; Dale v. Gunter, 46 Ala. 118, 137. 5 4 Bl. Com. 380, 381 ; 2 Gab. Crim, Law, 566; 3 Inst. 212; Skinner v. Perot, 1 Ashm. 57 ; Wells v. Martin, 2 Bay, 20. See Stat. Crimes, § 348. 541 § 969 CONSEQUENCES. [BOOK VIII. law, Avide and sweeping. Not attempting minute accuracy, all the property of the attainted one, real and personal, is forfeited ; his blood is corrupted, so that nothing can pass by inheritance to, from, or through him ; ' he cannot sue in a court of justice,^ he may simply apply to have his attainder reversed, and he may be sued ; ^ and thus, his wife, children, and collateral relations suf- fering with him, the tree, falling, comes down with aU its branches. § 968. other Forfeitures — (For Flight — Homicide by Accident or in Self-defence — Suicide — Standing IMute — Challenging too Many Jurors). — By the old English law also, if a man, however inno- cent, is indicted for felony, and flies, he forfeits by the ilight his goods. And " he that committeth homicide by misadventure shall forfeit his goods ; and so shall he which doth kill a man in his own defence forfeit his goods ; and likewise he that killeth himself,, and is felo de se, shall forfeit his goods ; and he that being indicted of felony will stand mute, and not answer di- rectly, or challenge- peremptorily above twenty persons, shall forfeit his goods." * § 969. Reasons for these Old Rules. — The doctrine of forfeiture and corruption of blood is not so destitute of foundation in rea- son as sometimes it is assumed to be. When a man has com- mitted such flagrant wrong against the community as to be an unfit member of it, the corruption of blood isolates him, so that 1 Co. Lit. 392; 3 Inst. 211; Toomes Corruption of Blood; 2 Hawk. P. C. V. Etherington, 1 Saund. Wms. ed. .361 Curw. ed. c. 49 ; 1 Hale P. C. .354 et seq. ; and note; Finch's Case, 6 Co. 63 o, 68 6; 2 Gab. Crim. Law, 566 et seq.; 4 Bl. Coombes v. Queen's Proctor, 16 Jur. 820, Com. 380-3y0. And see 2 Kent Com. 385 24 Eng. L. & Eq. 598; s. c. nom. Coombs et seq. ; 4 lb. 426; Bullock v. Dodds, 2 V. Queen's Proctor, 2 Rob. Ec. 547. B. & Aid. 258 ; The Palmyra, 12 Wheat. 2 Co. Lit. 130 a. 1 ; Brown <;. Waite, 2 Mod. 130, 134. « 2 Gab. Crim. Law, 567; 3 Inst. 211. Deodands. — As to deodands, which are * Pulton de Pace, ed. of 1615, 2146- any personal chattels that are the imme- 216 a ; Hales v. Petit, 1 Plow, 253, 262, diate occasion of the death of a human 263. Further of Forfeiture and Cor- being, and are by the English common ruption of Blood. — This subject of for- law forfeited, see 1 Bl. Com. 300; Reg. feiture and corruption of blood has been v. Polwart, 1 Gale & D. 211, 1 Q. B. 818; frequently legislated upon in England, ante, § 827. By the laws of the ancient resulting in a considerable change in the Saxons, " If one in hewing a tree liap- law from what it was anciently. The pened to kill a man, the relations were reader who wishes to become familiar entitled to the tree, provided they took with this considerable title in the juris- it within thirty days ; which was in the prudence of our mother country will do nature, and might perhaps be the origin, best to consult the older English books, of deodands." 1 Reeves Hist. Eng. Law, See Pulton de Pace, titles Forfeiture and 3d ed. 17. 542 CHAP. LXII.] BY OPEBATION OP LAW. § 970 he cannot exercise the rights violated ; and the forfeiture puts back what the community had given him. And, though his kindred suffer with him, they suffer only the necessary conse- quence of his severance from the body of persons standing toward the government as participants of its favor. § 970. Continued — How in United States. — While this view of the doctrine appears to be the true one, it is not the same ■which is sometimes stated. It has been assumed to rest on ancient policy ; adopted to make men cautious against injurious acci- dents, watchful over the conduct of their relatives, and ready, if accused, to give themselves up for trial. At any rate, the doc- trine has received little favor in this country ; ^ where it has seemed unjust to disinherit men because their kindred become felons, and to take away their goods for accidents unavoidable. Indeed, ^s concerns some of the 'ancient forfeitures, they evi- dently rest on no satisfactory reason ; and .the others are unnec- essary, since punishment can best be inflicted by direct sentence of the court. And though strictly no injustice is chargeable to a government that takes away rights because of their violation, even when indirectly ill consequences fall on the innocent, yet, as justice can be as effectually administered in some other way, humanity demands that it be so done. Therefore the Constitu- tion of the United States provides, that " no attainder of treasoh shall work corruption of blood, or forfeiture, except during the life of the person attainted." ^ And, by an act of Congress, all forfeitures and corruptions of blood, whether for treason or fel- ony, are, as to convictions under the United States laws, abol- ished.^ In some of the older States, there are early traces of judicial recognitions of the common-law forfeitures, or early stat- utes creating like forfeitures ; * and, in New York, there are judi- cial decisions acknowledging the incapacity of felons attaint, especially when imprisoned for life, to come as plaintiffs into the courts.^ More recently the constitutions of some of the States 1 Story Const. § 1300. v. Drake, Coxe, 315 ; Ash v. Ashton, 3 2 Const. U. S. art. 3, § 3. Watts & S. 510 ; Wells v. Martin, 2 Bay, 8 1 U. S. Stats, at Large, 117, act of 20; Boyd w. Banta, Coxe, 266; Common- April 30, 1790, c. 9, § 24 ; B. S. of U. S. wealth v. Pennock, 3 S. & E. 199. § 5326; 2 Kent Com. 380; Story Const. « Graham y. Adams, 2 Johns. Cas. 408 ; § 1.300. " Troup V. Wood, 4 Johns. Ch. 228 ; Planter * Dietrick ». Mateer, 10 S. & R. 151 ; a. Sherwood, 6 Johns. Ch. 118, which last Hinchman v. Clark, Coxe, 340; Dunham case, particularly, see. As to Mississippi, 643 § 971 CONSEQUENCES. [BOOK Vm. and the statutes of others have interposed to prevent these for- feitures, while in most of them the courts never followed the English doctrine. As resulting from all this, the proposition becomes now substantially if not universally true, that forfeitui-es and corruptions of blood, consequent upon attainder for treason and felony, and upon accidental homicide and the like, are un- known in this country.^ Yet, — § 971. Exceptional Forfeitures. — Connected with this common- law doctrine of forfeitures, there may be provisions so differing in nature from the rest as not to deserve the disfavor with which the ordinary common-law forfeitures are in this country regarded, and so not to be rejected like them. Thus, — rorfeiture of Office — (Pardon). — It was held in Virginia, that a conviction of a justice of the peace for felony operates, without the help of any statute, as a forfeiture of his office ; of such a nature, too, as for evgr after tp incapacitate him for acting under his commission, notwithstanding he has the governor's pardon.^ Now, this kind of forfeiture, so far from being repugnant to our institutions, is in complete accord with them ; and our courts should allow it when not in conflict with any provision of the written law. see Beck v. Beck, 36 Missis. 72. As to mitted felony, had forfeited said office. Delaware, see Cannon D.Windsor, 1 Hous- 13 Vin. Abr. Forfeiture, H. pi. 2, p. 445." ton, 143. As to California, see Nerac's And he goes on to say, that, in England, Estate, 35 Cal. 392. this question cannot often arise, since 1 White c. Fort, 3 Hawks, 251; 5 Dane felonies are there generally punished capi- Abr. 3, 4, 11 ; 2 Kent Com. 386 ; 4 lb. 426 ; tally. But, what was very important in this ante, § 616. case, the judge considered, that, even if 2 Commonwealth v. Fugate, 2 Leigh, there were no English authorities on the 724. Brockenbrough, J., in delivering question, the forfeiture of judicial office the opinion of the court, said : " In 1 must, on the ordinary principles of the Plow. 381, a case is stated. in which it jurisprudence of the State, follow a con- was decided, that, where a grant had been viction for felony. For neither the peo- made to two persons for the term of their pie nor the legislature could be presumed lives, and for the life of the survivor of to have intended, " that the bench of them, of the sheriffwick of Cheshire, and justice should be contaminated by the one of them was attainted of treason, the presence of a convicted and attainted whole office was forfeited, because the felon." p. 725, 726. The doctrine of tliis office was entire, and could not be sev- case was affirmed and followed in The ered. This decision is founded on the State v. Carson, 27 Ark. 469. In The State postulate, that an attainder of treason v. Pritchard, 7 Vroom, 101, it was held, produces b forfeiture of a freehold office following Page v. Hardin, 8 B. Monr. 648, whicli concerns the administration of that the removal of an officer for mal- justice. In another case it was decided, feasance is a judicial act, not competent that a cestui que trust of a grant for years to the governor. of the license of wines, who had com- 644 CHAP. LXrr.] BY OPBEATION OP LAW. ' § 974 § 972. Incapacity to be a. 'Witness. — Not particularly as flowing from attainder, which concerns merely treason and felony, but as a consequence of the final judgment for treason, or felony, or any misdemeanor of the sort known by the term crimen falsi, whereof all are commonly called infamous crimes, we have the doctrine, that persons convicted of any of these, are not permitted to tes- tify, when objected to, as witnesses in our courts. They are supposed to be so regardless of truth that it would be unjust to compel litigants to suffer from what they might assert, even under oath.i Yet — § 973. The Parties themselves. — The parties themselves, if in this situation, are usually allowed to make the same afiidavits in their causes as other men are ; ^ for such affidavits are always against the general policy of the law, and are permitted only from necessity, or from considerations of convenience in the despatch of business, — ^ reasons which apply as well when the party is infamous as when he is not. § 974. What Crimes disqualify. — Some embarrassment attends the attempt to particularize the crimes which are infamous, within this rule. Larceny is,^ because it is a felony ; so is the knowingly receiving of stolen goods ;* and so, at the common law, is even petit larceny. But the rule as to petit larceny is, in some of our States, changed by the operation of statutes which render it no- longer infamous.^ So forgery,^ perjury,' "subornation of per- jury,^ suppression of testimony by bribery, or a conspiracy ® to 1 1 Greenl. Ev. § 372, 373; People v. penter v. Nixon, 5 Hill, N. Y. 260; Shay Whipple, 9 Cow. 707 ; Commonwealth v. v. People, 4 Parker, C. C. 35-3 ; Pruitt v. Green, 17 Mass. 515, 542 ; United States Miller, 3 Ind. 16. See ante, § 679. And see V. Brockius, 3 Wash. C. C. 99; Eeg. v. Commonwealth w. Keith, 8 Met. 531 ; Uhl Alternun, 1 Gale & D. 261, 10 A. & E. v. Commonwealth, 6 Grat. 706. In New 699; Schuylkill r. Copely, 17 Smith, Pa. Hampshire, a person convicted of petit 386; Reg. v. Webb, 11 Cox C. C. 133. larceny cannot be a witness. Lyford «. See The State v. Harston, 63 N. C. 294. Farrar, 11 Post. N. H. 314. 2 1 Greenl. Ev. § 374. e 2 East P. C. 1008; Bex v. Davis, 5 » The State v. Gardner, 1 Root, 485. Mod. 74 ; Poage v. The State, 3 Ohio But otherwise of horse-stealing in Ten- State, 229; The State v. Candler, 3 nessee, Wilcox u. The State, 3 Heisk. Hawks, 393. 110. " Anonymous, 3 Salk. 155; 1 Greenl. * Commonwealth !!. Rogers, 7 Met. 500. Ev. § 373. See Rex v. Teal, 11 East, But otherwise in Pennsylvania, where 307 ; Heward v. Shipley, 4 East, 180. this ofEence is misdemeanor. Common- * In re Sawyer, 2 Gale & D. 141 ; Ex wealth V. Murphy, 3 Pa. Law Jour. Rep. parte Hannen, 6 Jur. 669. 290. 9 Rex V. Priddle, 1 Leach, 4th ed. 442 ; s Rex V. Davis, 5 Mod. 75, in notes ; Bushel v. Barrett, 1 Ryan & Moody, N. Pendock v. Mackinder, Willes, 665 ; Car- P. 434. VOL. I. 35 545 § 975 CONSEQUENCES. [BOOK VIH. procure the absence of a witness, or .other conspiracy to accuse one of a crime, and barratry," ^ — are offences which disqualify as being infamous. But it seems that the mere attempt, not amounting to a conspiracy, to procure the absence of a witness, is not infamous, though indictable.^ Likewise the keeping of gaming-houses ^ and of bawdy-houses,* the commission of adul- tery,^ common prostitution,^ cutting wood contrary to the New Jersey timber act,' " deceits in the quality of provisions, deceits by false weights and measures, conspiracy ^ to defraud by spread- ing false news," ^ and the like, do not disqualify .i" And probably the test is to inquire, whether the crime shows such depravity in the perpetrator, or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthful- ness under oath, — the difficulty being in the application of this test." § 975. Judgment necessary. — Guilt is ascertainable only on a direct proceeding for its punishment. Therefore, unless the crime of the witness has been established in this way, it works no infamy ; for practically the infamy, like the common-law forfeit- ure,^^ comes neither from the mere crime,^^ nor from the plea or verdict of guilty, nor from the punishment, nor from the infamous ^ 1 Greenl. Ev. § 373; Kex v. Priddle, convict incompetent to testify.'' Com- 1 Leach, 4tli ed. 442. monwealth v. Dame, 8 Gush. 384. Like- * The State v. Keyes, 8 Vt. 57. wise, in this State, the obtaining of goods ' Eex V. Grant, 1 Eyan & Moody, N. by false pretences, is not an offence which P. 270. renders the party an incompetent witness ; < Deer v. The State, 14 Misso. 348. nor can the record of such conviction be 6 Little V. Gibson, 39 N. H. 505. given in evidence as affecting his credi- ' The State v. Randolph, 24 Conn. 363. bility. The court deemed that the ques- ' Holler V. Ffirth, Penning. 2d ed. 531. tion had not been adjudicated, and Wilde, ' Crowther v. Hopwood, 3 Stark, 21. J., said : " On principle, we cannot think " 1 Greenl. Ev. § 373. the offence of obtaining goods" by false IK And see United States v. Brockius, pretences is of so grave and aggravated 8 Wash. C. C. 99 ; Clarke v. Hall, 2 Har. a character as to render a witness un- & McH. 378; Cole v. Cole, 1 Har. &-J. worthy of belief in a court of justice." 672. Utley t>. Merrick, 11 Met. 302, 303. In 11 In Massachusetts, a judgment on Pennsylvania, embezzlement is not infa- conviction for maliciously obstructing mous within this doctrine. Schuylkill v. ears on a raihroad is held not to dis- Copeley, 17 Smith, Pa. 386. See, as to qualify. Metcalf, J., observed : " It is the New York law, People v. Park, 41 N. said in the text-books, that persons con- y. 21, 1 Lans. 263. victed of treason, felony, or the crimen 13 Ante, § 967 ; Wells v. Martin, 2 Bay, falsi, are incompetent to be witnesses. 20 ; Foxley's Case, 5 Co. 109 a. But the offence here was neither of these 13 Free v. The State, 1 McMuUan, 494. three ; and we nowhere find, that a con- And see United States v. Maurice, 2 viction for any other offence renders the Brock. 96. 646 CHAP. LXn.] BY OPERATION OP LAW. § 976 nature of the punishment,^ but from the final judgment of the court.^ Until judgment rendered, the person indicted, or even convicted, is competent to testify.^ But, — Erroneous Judgment, where Jurisdiction. — Though the judgment is erroneous, reversible on writ of error, still it is sufficient until vacated,* if pronounced by a tribunal having jurisdiction,^ to exclude the defendant from being a witness. § 976. Judgment of Foreign Court — Sister State. — Whether the judgment of a foreign tribunal, the same as of a domestic one, disqualifies from being a witness, is a question on which opinions are conflicting. The view best sustained by reason, and probably by authority, is, that it does not ; ^ for laws do not have extra- territorial force.'' Perhaps, in the provisions of the United States Constitution concerning the effect of judgments as between the States, some ground may exist for treating our sister States as not foreign within this rule. Practically we have three variant doctrines, — first, to give a record of conviction in another State the same effect as one in our own ; ^ secondly, to reject it alto- gether ; ^ thirdly, to admit it to impair the credibility, not the competency, of the witness.-'" To determine whether the crime of which the witness was convicted abroad is to be deemed infa- mous, the court looks to the laws of its own State, and not to the 1 Rex V. Crosby, 2 Salk. 689, 690; Rex « 1 Greenl. Ev. § 376. V. Warden of the Fleet, 12 Mod. 837, 341 ; ' Ante, § 109 ; Wheaton International People V. Whipple, 9 Cow. 707 ; Pendock Law, 6th ed. 181. V. Mackinder, Willes, 655 ; s. c. nom. Pen- ' The State v. Candler, 3 Hawks, 393 ; dock V. Mackender, 2 Wils. 18; The State Chase v. Blodgett, 10 N. H. 22. V. Kearney, 1 Hawks, 53, 54 ; Rex v. Jet- ' Uhl v. Commonwealth, 6 Grat. 706 ; fry, 1 Leach, 4th ed. 443, note. Campbell v. The State, 23 Ala. 44. 2 The State v. Valentine, 7 Ire. 225; w Commonwealth v. Knapp, 9 Pick. Skinner v. Perot, 1 Ashm. 57 ; Fitch v. 496 ; Commonwealth t. Green, 17 Mass. Smalbrook, T. Raym. 32; Lee v. Gansel, 515. A North Carolina case holds, that Cowp. 1 ; s. o. nom. Lee v. Gansell, Lofft. a witness may be asked, on cross-exami- 874 ; Rex v. Castell Careinion, 8 East, 77. nation, whether he has not committed So the proof of the crime can only be by pequry in another State, the object be- the record of conviction. Common- ing, to discredit him. Battle, J., observes : wealth V. Quin, 5 Gray, 478. ' " Our courts, in administering justice " United States v. Dickinson, 2 Mo- among their suitors, will not notice the Lean, 325 ; Gibbs v. Osborn, 2 Wend. 555 ; criminal laws of another State or country. People V. Whipple, 9 Cow. 707 ; Barber so far as to protect a witness from being V. Gingell, 8 Esp. 60; Dawley v. The asked whether he had not violated them." State, 4 Ind. 128. The State v. March, 1 Jones, N. C. 526. * Commonwealth v, Keith, 8 Met. 531. And see, as to this State, The State v. 6 Cooke V. Maxwell, 2 Stark. 183. Harston, 63 N. C. 294. 647 § 977 CONSEQUENCES. [BOOK Vni. foreign laws, consequently the transcript of the record should set out the indictment.^ Legislative Changes. — Changes in the law, as to witnesses, have been made in some of our States. Thus, in some, infamy is no longer a ground of exclusion, but it may be shown to impair their credibility.^ § 977. other Consequences. — There are other indirect conse- quences of a judgment against the defendant, not of much im- portance. For example, — Juror. — A 'person infamous, as before described,^ cannot be a juror, if indeed the disqualification of infamy does not extend to more crimes in jurors than in witnesses.* So, — Record as Admission. — When a defendant has pleaded guilty to an indictment, the record may be produced against him in any civil suit wherein he is charged with the same act ; because it contains his admission of what is thus alleged.^ And — statutory Incapacities. — Statutes in some of our States have created stiU other incapacities, consequent on conviction either for crime generally, or for some particular crime.^ 1 Kirschner v. The State, 9 Wia. 140. Dunoomb Trials per Pais, 104 ; Grim. 2 And see Commonwealth v. Hall, 4 Proced. I. § 924. Allen, 305 ; Johnson v. Commonwealth, ' Eeg. v. Fontaine Moreau, 11 Q. B. 2 Grat. 581 ; Curtis v. Cochran, 50 N. H. 1028, 12 Jur. 626, 17 Law J. n. s. Q. B. 242. 187 ; 1 Greenl. Ev. § 527 a; 2 Bishop Mar. 8 Ante, § 972-974. & Dir. § 638, note. » 1 Co. Lit. 6 6; 2 Hale P. C. 115; 1 « Barker v. People, 3 Cow. 680. 548 CHAP. LXin.] NO SECOND PEOSECtJTION. § 980 CHAPTER LXIII. NO SECOND PROSECUTION FOE THE SAME OFFENCE.^ § 978, 979. Introduction. 980-994. General Propositions and Views. 995-1007. Waiver, by Defendants, of their Eights. 1008-1011. Sham Prosecutions procured by Defendants. 1012-1047. Eules to determine when there has been Jeopardy. 1048-1069. As to when the Two Offences are the Same. 1070. The Doctrine of Autrefois Attaint. § 978. Doctrine and Scope of this Chapter. — The purpose of this chapter is to explain and illustrate the doctrine, that, after one has been prosecuted for a particular offence, whether success- fully or not, he is exempt from any fresh prosecution for the same offence. The practice, evidence, and pleading, by which the right to be thus exempt is made available, are for " Criminal Procedure." § 979. How the Chapter divided. — We shall consider, I. Some General Propositions and Views ; II. Waiver, by Defendants, of their Rights ; III. Ineffectual and Sham Prosecutions procured by Defendants ; IV. Rules to determine when there has been a Jeopardy ; V. Rules to determine when the Two Offences are the Same ; VI. The Doctrine of Autrefois Attaint. I. Some General Propositions and Views. § 980. Not Twice adjudicate same Issue. — It is a principle in probably every system of jurisprudence, certainly in ours, that a controversy once conducted to final judgment cannot be renewed in a fresh suit between the same parties ; ^ though, in some cir- cumstances, there may be a retrial of the issue in the original cause. 1 For the procedure relating to the ^ Broom Leg. Max. 2d ed. 241 et seq. subject of this chapter, see Crim. Proced. I. § 805 et seq. 549 I 982 CONSEQUENCES. [BOOK Vin. Not Twice in Jeopardy. — In the criminal law, in England, this doctrine has received form in the maxim " that," as Blackstone expresses it, " no man is to be brought into jeopardy of his life more than once for the same offence." ^ Yet a comparison of the English adjudications, not speaking now of dicta of judges, with this maxim, will probably show that it is not quite supported by them. § 981. How of Twice in Jeopardy with us — (Constitutional Pro- vision). — In this country, we have taken the maxim itself for our unbending rule, superseding thereby the common law as ad- judged, if reaUy differing from it. The Constitution of the United States provides, that "no person shall be . . . subject, for the same offence, to be twice put in jeopardy of life or limb." ^ And though this provision binds only the United States, not ex- tending to the States, — a question on which judicial opinions formerly differed,^ — the constitutions of nearly all the States have the same provision ; and the courts of all, receive it as ex- pressive of the true common-law rule. § 982. Not in mere AiHrmance of Common Law. — Some of OUr judges appear to have assumed, without much consideration, that this provision merely affirms the common law ; to which, there- fore, they have looked to ascertain its interpretation and true application.* But, in England, the maxim is a mere deduction, made by some judge or text-writer, from the adjudications, which must govern if found in conflict with it. With us, the constitu- tional provision is supreme, and it must be the controlling power, though the result shoul^ be to overturn decisions.^ In England, the maxim is, in the language of Cockburn, C. J., " Not one of those principles that lie at the foundation of our law, — such as the maxim that judges shall decide questions of law, and juries , 1 4 Bl. Com. 335. I-ox v. Ohio, 5 How. U. S. 410. In HofE- ^ Const. U. S. amendm. art. 5. man v. The State, 20 Md. 425, a case not ' That it does bind the States, see The well considered, the learned court seem State V. Moor, Walk. Missis. 134 ; People to have assumed, witliout reflection, that u. Goodwin, 18 Johns. 187, 201 ; Common- it was the Constitution of the United wealth V. Purcliase, 2 Picls. 521. That it States, not of Maryland, upon which does not bind the States, see United they were passing. States V. Keen, 1 MeLeanj 429, 437, 438 ; « See United States v. Gibert, 2 Sum- United States V. Gibert, 2 Sumner, 19, ner 19, 38 ; Commonwealth v. Cook, 6 S. 48, 51, 52, 53 ; Wood v. Wood, 2 Cow. . & B. 677 ; Commonwealth v. Olds, 5 Litt. 819, 820, note ; Livingston v. New York, 137. 8 Wend. 85, 100 ; Colt v. Eves, 12 Conn. ' See The State v. Norvell, 2 Yerg. 24. 243; Barker v. People, 3 Cow. 68B, 701; CHAP. LXm.] NO SECOITD PEOSBCTJTION. § 984 questions of fact, or that the verdict of the jury, in order to be binding, must be unanimous ; " but it is " a matter of practice, which has fluctuated at various times, and which, even at the present day, may perhaps not be considered as finally settled." ^ Not thus is the constitutional provision regarded in the United States, where it is fundamental in our criminal jurisprudence.. Nor is it within the rule,^ that words of established legal mean- ing take, in a new law, the signification they bore in the old. And the reason is, that this maxim was never a law in England, or a thing which the English law interpreted ; being itself a mere interpretation of a judicial practice not entirely uniform. StUl the American courts are not quite agreed as to the weight, on this subject, to be given the English decisions ; and, in various re- spects, our own adjudications are in a good deal of confiict. It is,~therefore, over an uneven way that we are to travel in this chapter. Let it be in a direction indicating what, of the discord- ant doctrines, are to be preferred. _ § 983. How as to Jeopardy in a Foreign Country, in another State, and between the United States and the States : — In General of Foreign Jeopardy. — It results from obvious princi- ples,^ that neither the common-law maxim nor our constitutional provision can span country and country, rendering a jeopardy in one country a bar to a trial in another. If such a rule prevails, it must proceed from international law, not from the written con- stitution of one country, or the practice of the courts of an- other. § 984. Eule of International Law. — Not often is the same act an ofPence against the criminal laws of two countries. Yet it may be ; as, for example, where the party in a foreign country is one of our citizens, and our law is extended over him,* while the law of the place contains the same inhibition with our own. Now, though such a case is not within the letter of our constitu- tions, yet, on general principles of international jurisprudence, as , laid down by some writers, if a valid sentence of acquittal or con- viction were " pronounced under the municipal law of the state where the supposed crime was committed, or to which the sup- 1 Winsor v. Eeg., Law Rep. 1 Q. B. z Stat. Crimes, § 242. 289, 303 ; s. c. more fully in all its stages, ' Ante, § 99 et seq. notn. Reg. v. Winsor, 10 Cox C. C. 276 ; * Ante, § 109-123. 8. c. Winsor v. Reg., 7 B. & S. 490. 551 CONSEQUENCES. [BOOK VIH. posed offender owed allegiance," it would, in the language of Wheaton, " be an effectual bar to a prosecution in any other state. If pronounced in any other foreign state than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity." ^ Thus, — § 985. Offences equally against all Nations — (Piracy). — "Rob- bery on the seas is considered as an offence within the criminal jurisdiction of all nations. It is against all, and punished by all ; and there can be no doubt, that the plea of autrefois acquit would be good in any civilized state, though resting on a prosecution instituted in the courts of any other civilized state." ^ This prop- osition results from the same reason as the ordinary common-law doctrine of autrefois' convict and autrefois acquit. If one judicial ( tribunal has brought a person into legal jeopardy for an alleged j crime, no other will afterward entertain the accusation. And, I since the courts of the several nations take cognizance, each of what the other does, in things which concern all, the case must be the same in whatever country the jeopardy arises ; provided it is a real jeopardy, for the identical offence, viewed as the law views it, not merely as it might be viewed by an uninformed per- son. But, — § 986. Same Act a Real Grievance to Two Nations. — While the foregoing doctrine is in reason just in its application to the cases specified, where a citizen abroad has done something which in its essence offends merely the local jurisdiction, or where the crime is no more prejudicial to the peace of one nation than of every other, there are other cases in which, in reason, it is of doubtful applicability. If a man equally offends each of two governmental powers which bind him, and one punishes him for the wrong done to it, no substantial reason appears why the wrong to the other, which is a different thing, should not be redressed also. These are two distinct offences ; and, though both should be committed by the one act, neither is included in the other. Still, though the strict rule would be so, yet, as a sort of merciful dispensation, the courts woiild undoubtedly exercise any discretion favorably to a 1 Wheaton International Law, 6th ed. v. Seay, 3 Stew. 123, 129 ; People v. 184. See, as between our States, and as Burke, U Wend. 129, ante, § 179. creating some doubt about this doctrine, 2 Johnson, J., in tfnited States v. Pi- Tlie State v. Adams, 14 Ala. 486 ; The rates, 5 Wheat. 184, 197. State V. Brown, 1 Hayw. 100; The State 552 CHAP. LXm.] NO SECOND PROSECUTION. defendant who had been punished for the same wrongful volition in a foreign country. Accordingly, — As between the States. — There is authority for |ihe proposition, ' i^hat a trial and conviction in one of our States, for an act violat- ing its laws, does not prevent a prosecution in another State, for the same act, viewed as a violation of the laws of the latter.^ § 987. Acts violating both United States and State Laws. — An act committed within the territorial limits of a State may be con- trary to a statute of the United States ; and, at the same time, contrary to the law, statutory or common, of the State. And the question arises, whether a prosecution under one of these govern- ments will bar proceedings for the same act in the tribunals of the other. This question divides itself into two parts, — first, whether, if the laws so stand apparently, both are valid, or whether the power of the one government, which in the particular thing may be superior, supersedes that of the other. Secondly, assuming both laws to be valid, whether a prosecution in the courts of one of the governments bars a prosecution for the same . act in those of the other. § 988. cdntiuued. — The former branch of the inquiry is con- sidered in other connections.^ And it will be seen that ordinarily both laws may be valid. As to the latter, — In Greneral — Obstructing Officer — Assault — Riot — Homicide — Uttering Counterfeits — Counterfeiting. — Grier, J., sitting in the Supreme Court of the United States, observed : " Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. Thus, ' an* assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liable to punishment ; and the same act may be also a gross breach of the peace of the State, — a riot, assault, or a murder, — and subject the same per- son to a punishment under the state laws for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be Jtruly averred, that the offender has been twice punished for the same offence ; but ■ 1 PhilUps V. People, 55 111. 429, 433. z Ante, § 178, 179. 653 § 990 CONSEQUENCES. [BOOK Vni. only that by one act he has committed two ofPfences, for each of which he is justly punishable. He could not plead the punish- ment by one in bar of a conviction by the other : consequently this court has decided,^ that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens ; and ^ that Congress, in the proper exercise of its au- thority, may punish the same act, as an offence against the United States." ^ Yet, — § 989. Giving Effect to Former Prosecution. — WhUe the law is plainly so, as to the right, the greater number of our tribunals have manifested a disposition, in the absence of any express command of the legislature, to accept a prosecution in one of these jurisdictions as a ground for declining to institute a prose- cution for the same wrongful act in the other, or for suspending the prosecution if instituted, or for permitting the accused person to avail himself in some way of this matter.* At the same time, there is just weight in the consideration, that, if a man, though by one act, has violated the laws of two governmental powers, it is proper both should punish him. § 990. To what Classes of Offences this Rule of Oonstitutional Law applies : — Treason and Felony. — The reader has observed the terms of this constitutional provision ; namely, that there shall be no sec- 1 Fox V. Ohio, 5 How. U. S. 410, 432. ished in the State tribunals, according to 2 United States v. Marigold, 9 How. the laws of the State, without any refer- tr. S. 560. ence to the PostrOffice or the Act of Con- 3 Moore u. Illinois, 14 How. U. S. 13, gress ; because, from the nature of our 20. government, the same act may be an * See Commonwealth v. Fuller, 8 Met. offence against the laws of the United 313 ; Harlan v. People, 1 Doug. Mich. States, and also of a State, and be punish- 207, 212 ; Houston v. Moore, 5 Wheat. 1, able in both. . . . And the punishnleut 31, 35; People v. Westchester, 1 Parker in one soyereignty is no bar to his pun- C. C. 659. But see The State v. Pitman, ishment in the other. Yet in all civilized IBrev. 32; Hendrick w. Commonwealth, countries it is recognized as a funda- 5 Leigh, 707 ; Manley v. People, 3 Seld. mental principle of justice, that a man 295, 302, 303 ; Fox v. Ohio, 5 How. U. S. ought not to be punished twice for the 410, 430; ante, § 179. See also Com- same offence. And if this party had monwealth e. Barry, 116 Mass. 1. In a been punished for the larceny by a State case on circuit, before the late Chief Jus- tribunal, the court would have felt it to tice Taney pf the Supreme Court, where be its duty to suspend sentence, and there was a conviction for robbing the to represent the facts to the President, to United States mail, this learned judge give him an opportunity of ordering a said : " As these letters, with the money nolle prosequi, or granting a pardon." , within them, were stolen in Virginia, the United States v. Amy, 14 Md. 149, note, party might undoubtedly have been pun- 152. 564 CHAP. LXm.] NO SECOND PEOSECUTION. § 992 ond jeopardy of " life or liT/ib." The construction of -which is, ^ that properly the rule extends to treason and all felonies, not to/ misdemeanors.^ Yet, — Misdemeanor — Penal Actions — Sureties of Peace. — Practically \ and wisely, the courts by an equitable interpretation applj^ it to \ all indictable offences, including misdemeanors ; ^ but not to i actions for the recovery of penalties,^ because these are not crim- inal proceedings,* nor to applications for sureties of the peace. ^ Interpretation varying with Offence. — There is, however, an ap- parent tendency in some of the courts to hold the doctrine more strictly in the higher crimes, especially those punishable with death, than in ordinary misdemeanors.^ § 991. Liberally Interpreted — (Misdemeanor, again). — We have seen elsewhere,^ that, while statutes are to be strictly interpreted as against persons charged with crime, provisions introduced in their favor should be construed liberally ; and the same distinc- tion applies to a written constitution. Therefore the constitu- tional provision now under consideration should be liberally iiiterpreted ; extending to cases within its reason, though not within its words. On which principle, plainly the courts should, as we have seen they generally do, hold it applicable to misde- meanor,^ the same as to treason and felony. § 992. Defendants and the Crovernment distinguished as respects this Constitutional Provision : — Defendants waive, not Government. — Under the next sub-title, we shall consider the right of defendants to waive this constitu- tional provision. But the government cannot waive it, or by any act escape its force. To illustrate, — 1 People V. Goodwin, 18 Johns. 187, ball v. Spalding, 1 Root, 86; United 201 ; United States v. Gibert, 2 Sumner, States v. Halberstadt, Gilpin, 262 ; Law- 19, 45. And see The State v. Spear, 6 yer u. Smith, 1 Denio, 207. Misso. 644. ' * Ante, § 32. 2 Commontvealth «. Olds, 5 Litt. 137; ^ The State v. Vankirk, 27 Ind. 121. McCauley v. The State, 26 Ala. 185; Day « People v. Oleott, 2 Johns. Cas. 301 ; V. Commonwealth, 23 Grat. 915; The Commonwealth v. Cook, 6 S. & R. 577; State V. Lee, 10 R. I. 494 ; Jones v. The Williams v. Commonwealth, 2 Grat. 567, State, 15 Ark. 261 ; The State v. Lavinia, compared with Dye v. Commonwealth, 7 25 Ga. 311; Bx Parte Brown, 2 Bailey, Grat. 662; United States v. Morris, 1 323. See Campbell v. The State, 11 Ga. Curt. C. C. 23. And see post, § 1034. 853; The State v. Wearer, 13 Ire. 203; ' stat. Crimes, § 190, 226 et seq. The State v. Rankin, 4 Coldw. 145. ^ And see Winsor v. Reg., Law Rep. s Pruden v. Northrup, 1 Root, 93 ; 1 Q. B. 289, 307 ; s. c. in all its stages, HylUard v. Nickols, 2 Root, 176; Hanna- nom. Reg. v. Winsor, 10 Cox C. C. 276. 555 § 993 CONSBQTJENCES. [book vin. New Trials. — While, as we shall see,-' a defendant, by waiving the protection of this constitutional guaranty, may in proper cir- cumstances have a new trial in a cause, the government cannot. After the jeopardy has attached to the partj^^ it can take no step in the proceedings against him backward. If, through a mis- direction of the judge on a question of law, or a mistake of the jury, or their refusal to obey the instructions of the court, or any other like cause, a verdict of acquittal is improperly rendered, the verdict can never afterward, on the application of the prosecu- tor, in any form of proceeding, be set aside and a new trial granted.^ § 993. Continued — (in Misdemeanor — Penal Action — Civil Right in Criminal). — This doctrine applies as well in misdemeanor as in felony.* It does not apply strictly in penal actions, civil in form ;^ yet new trials are not commonly granted to plaintiffs in such actions.^ But the English law seems to be, that a new trial may be given to the prosecutor in a criminal proceeding where a civil 1 Post, § 1001-1004. "■ Post, § 1012-1016. 8 Rex 0. Praed, 4 Bur. 2257 ; Rex v. Silverton, 1 Wils. 298 ; Anonymous, LoSft, 451 ; Rex v. Fenwick, 1 Sid. 153 ; Rex V. Jackson, 1 Lev. 124 ; Rex v. Mann, 4 M. & S. 337 ; Rex v. Price, 1 Chit. 852; , People V. Mather, 4 Wend. 229, 263, 266, in which case, as in one or two others, a query, shown in other cases to be with- out foundation, is raised, whether a new trial may not be granted the State where the acquittal is through misdirection of the judge in matter of law ; Slaughter v. The State, 6 Humph. 410 ; Common- wealth V. Cummings, 3 Cush. 212 ; The State V. Kittle, 2 Tyler, 471 ; The State V. Jones, 7 Ga. 422 ; The State v. Dark, 8 Blackf . 526 ; The State u. Johnson, 8 Blaokf. 533 ; The State v. Davis, 4 Blackf. 345 ; The State v. Fields, Mart. & Yerg. 137 ; Esmond w. The State, 1 Swan, Tenn. 14; The State v. Taylor, 1 Hawks, 462; The State v. Martin, 3 Hawks, 381 ; The State V. Kanouse, Spencer, 116; Tlie State V. Wright, 3 Brev. 421, 2 Tread. 517; The State v. Hand, 1 Eng. 169; The State v. Denton, 1 Eng. 259; The State V. Spear, 6 Misso. 644; Rex v. Jones, 8 Mod. 201, 208; Reg. v. Challi- 556 combe, 6 Jur. 481 ; Rex v. Cohen, 1 Stark. 516 ; Rex v. Sutton, 5 B. & Ad. 52, 2 Nev. & M. 57; Hex v. Wandsworth, 1 B. & Aid. 63, 2 Chit. 282; Anonymous, LofiEt, 451 ; Rex i>. Reynell, 6 East, 315, 2 Smith, 406; The State v. Reily, 2 Brev. 444; The State v. Burris, 3 Texas, 118 ; The State V. De Hart, 2 Halst. 172; The State V. McKee, 1 Bailey, 651 ; The State u. Brown, 16 Conn. 54 ; The State v. Ander- son, 3 Sm. & M. 751 ; The State v. Rey- nolds, 4 Hayw. 109; People v. Webb, 38 Cal. 467 ; The State v. Phillips, 66 N. C. 646 ; The State v. Freeman, 68 N. C. 647 ; The State . Ward, 2 Hawks, 443; Wesley w. The State, 11 Humph. 502; The State u. Martin, 2 Ire. 101 ; The Crim. Proced. I. § 998. State V. Lamon, 3 Hawks, 175; People v. 6 Smith v. The State, 8 Ohio, 294, 296 ; Griffin, 2 Barb. 427 ; The State o. Sea- Lisle o. The State, 6 Misso. 426 ; The born, 4 Dev. 305, See, for a fuller state- State v. Johnson, Walk. Missis. 392; ment of doctrines, Crim. Proced. I. Loper v. The State, 3 How. Missis. 429. § 871-889. Names ofWitnesses. — So where, under ' Lisle V. The State, 6 Misso. 426 ; The a statute, the names of the witnesses are State V. Underwood, 6 Ire. 96 ; The State to be noted on the indictment, one who V. Duncan, 6 Ire. 98 ; Brown v. The State, suflers the case to be tried without mak- 7 Eng. 623 ; Hallock v. Franklin, 2 Met. ing the objection, is too late afterward 558 ; Barlow v. The State, 2 Blackf. 114 ; Ray v. The State, 1 Greene, Iowa, 316. 658 CHAP. Lxm.] NO SECOND PBOSECUTION. §998 be given to the jury, as shown by his making no objection to it, cannot afterward claim any privilege on account of its admission.^ And, — Matter in Abatement. — As a general proposition, whatever is pleadable in abatement is waived by the plea in bar of not guilty.2 Other Illustrations. — There are other illustrations,^ but these will sufficiently explain the general doctrine. And thus we are prepared to consider, through the remainder of this sub-title, the law of the — § 998. Waiver of the Objection to a Second Jeopardy : — Express or Implied. — The foregoing explanations show, that a waiver may be either express or implied. But, in practice, the waiver of the right to object to a second jeopardy is nearly always implied ; though it may be expressly made,* it seldom is. To illustrate, — Discharge of Jury. — If, during a trial, the jury is discharged with the prisoner's concurrence, this consent to the discharge is, by implication, a waiver of any objection to being tried anew, and he may be so tried.^ Even the consent to the discharge may w 1 Bishop V. The State, 9 Ga. 121. 2 McQuiUin v. The State, 8 Sm. & M. 587. See Grim. Proced. I. § 744 et seq. ' See Commonwealth «.Batti8,l Mass. 95 ; The State v. Cross, 34 Maine, 594 ; Commonwealth v. Andrews, 3 Mass. 126; People w.^cates, 3 Seam. 351 ; Armstrong^ V. The State, Minor, 160; Cravens v. Grant, 2 T. B. Monr. 117 ; s. c. nom. Crav- ins V. Gant, 4 T. B. Monr. 126 ; People v. Rathbun, 21 Wend. 509, 542 ; Hazen v. Commonwealth, 11 Harris, Pa. 355 ; Brooks V. Davis, 17 Pick. 148; Brooks v. Daniels, 22 Pick. 498 ; Gracie v. Palmer, 8 Wheat. 699; Prine v. Commonwealth, 6 Harris, Pa. 103. Promise of Continu- ance. — "In one case, the State, before going to trial, asked for a continuance ; but the prisoner consented to proceed, and let the case be withdrawn from the jury on the happening of a certain con- tingency. The contingency occurred, and the court held that he was bound by his undertaking ; so that, though he objected to fulfilling it, he was liable to be con- victed on a second trial. Hughes v. The State, 35 Ala. 351. * Commonwealth v. Andrews, 3 Mass. 126. * Elijah V. The State, 1 Humph. 102; Williams v. Commonwealth, 2 Grat. 567 ; Dye V. Commonwealth, 7 Grat. 662 ; Fer- rars's Case, T. Raym. 84 ; Kinloch's Case, Foster, 16, 27 ; 8. c. nom. Rex v. Kinlock, 1 Wils. 157 ; Rex «. Stokes, 6 Car. & P. 151; Reg. v. Deane, 5 Cox C. C. 501; The State v. McKee, 1 Bailey, 651, 654 ; Spencer v. The State, 15 Ga. 662 ; Com- monwealth V. Sholes, 13 Allen, 554. And see Commonwealth v. Nix, 11 Leigh, 636. Where a juror, after the panel was full, rose, and stated a fact blowing his own incompetency, and the prisoner objected to proceeding to trial with the jury thus constituted, but said he would not waive any of his legal rights, and the court dis- charged the jury and impanelled a new one, this was held to be an act done at the instance of the defendant, of which he could not afterward take advantage. Stewart ». The State, 15 Ohio State, 155. Contra, Rex a. Perkins, Holt, 403, where Holt, C. J., said : " It was the opinion of all the judges of England, upon debate 559 § 998 CONSEQUENCES. [BOOK Tm. appear by implication from the circumstances, as well as by express words.^ Again, — Verdict Incomplete. — Should the verdict be so imperfect in form that no' judgment can be entered upon it, the consent of both parties to this will be presumed ; because either was entitled to have it perfected when rendered.^ Therefore the prisoner may be tried auew.^ But if the indictment will sustain a sentence, the court must pronounce it instead of ordering a new trial.* And, — Absent at Verdict. — Where a person on trial absents himself from court when he should be present at the rendition of the verdict,^ it is competent for the judge to order the cause to stand for another jury ; what has been done amounting only to a mis- trial.^ He waives, by his absence when his presence is re- quired by law, his right to treat the transaction as a jeopardy. Finally, — Procuring Verdict or Judgment vacated. — Whenever a verdict, whether valid in form or not, has been rendered on an indictment either good or bad, and the defendant moves in arrest of judg- ment, or applies to the court to vacate a judgment already entered, for any cause, as idr many causes he may, he will be presumed to between them, that, in all capital cases, 4 ; The State v. Valentine, 6 Yerg. 533 ; a juror cannot be withdrawn, though the The State v. Town, Wright, 75; Camp- parties consent to it; that, in criminal bell v. Reg., 11 Q. B. 799; The State v. cases not capital, a juror may be with- ~ Spurgin, 1 McCord, 252 ; Marshall v. drawn, if both parties consent, but not .Commonwealth, 5 Grat. 663 ; Common- otherwise." And see Eex v. Kell, 1 wealth v. Hatton, 3 Grat. 623 ; The State Crawf. & Dix C. C. 151. v. Redman, 17 Iowa, 329 ; Turner v. The i Stewart v. The State, 15 Ohio State, State,^ 40 Ala. 21 ; Waller v. The State, 155; Morgan v. The State, 3 Sneed, 40 Ala. 325; Commonwealth v. Gibson, 475. And see Lancton v. The State, 2 Va. Cas. 70; The State w. Walters, 16 La. 14 Ga. 426; Moore v. The State, 3 Heisk. An. 400 ; Murphy v. The State, 7 Coldw. 493 ; and the cases in the last note ; Crim. 516. And see United States v. Bird, 2 Proced. I. § 946. Brev. 85. 2 Crim. Proced. I. § 1004 ; Sargent u. « Page v. Commonwealth, 9 Leigh, The State, 11 Ohio, 472; The State o. 683 ; Commonwealth w. Fischblatt, 4 Met. Underwood, 2 Ala. 744; The State v. 354; The State v. Arrington, 3 Murph. Sutton, 4 Gill, 494. 571. See Morman u. The State, 24 3 'Wright K.-^he State, 5 Ind. 527; Missis. 54. Reg. V. Woodfall, 5 Bur. 2661; Rex v. 6 Crim. Proced. I. § 271-274. Hayes, 2 Ld. Raym. 1518; Rex v. Si- « The State w. Battle, 7 Ala. 259 ; The mons, Say. 34, 36 ; Wilson v. The State, State o. Hughes, 2 Ala. 102. See, for 20 Ohio, 26; Gibson v. Commonwealth, other views on this point, Crim. Proced. 2 Va. Cas. Ill ; Commonwealth u. Smith, I. § 272. 2 Va. Cas, 327 ; The Slate v. Sutton, 4 Gill, 494 ; "Webber v. The State, 10 Misso. 660 CHAP. LXin.] NO SECOND PEOSECTJTION. § 1001 waive any objection to being put a second time in jeopardy ; and so he may ordinarily be tried anew.^ § 999. Wrong Verdict produced by Error of Court. — If the ver- dict against a prisoner is wrong, and it was produced by some error of the court to which he objected, a just view of the consti- tutional guaranty would permit him to have the error corrected without waiving his right to object to a second jeopardy.^ Still the practice in most cases has been otherwise. § 1000. Judgment vrioagly arrested on Good Indictment. — When the indictment is good, yet the court, supposing it not good, erroneously arrests judgment on the defendant's application ; if the prosecutor may have this judgment of arrest reversed for the error, he cannot maintain a new indictment ; because the prisoner is still in jeopardy under the old, which is liable to be revived by a reversal of the judgment of arrest.^ But in States where the erroneous judgment of arrest cannot be called in question, the prisoner's jeopardy has ceased, at his own request, and for his own benefit, therefore he may be proceeded against anew.* § 1001. New Trial on Prayer of Convicted Person. — We have seen,^ that, after the jeopardy of the constitution has attached to the defendant, the government is not permitted to take any step backward ; in consequence of which, a new trial cannot be granted it, should a verdict of acquittal be improperly rendered. But, though the prosecuting power cannot waive this provision, which is for the benefit of defendants, the latter can ; so that new trials may be granted on their prayer. To explain, — English Practice in Felony. — In felony, not in misdemeanor, the practice of the English courts from the earliest times has been 1 Reg. V. Reid, 1 Eng. L. & Eq. 595; McKay, 18 Johns. 212; Epes's Case, 5 Campbell v. Reg., 11 Q. B. 799 ; Monroe Grat. 676 ; Lane d. People, 5 Gilraan, V. The State, 5 Ga. 85; Sutcliffe v. The 305; Joy w. The State, 14 Ind. 139; Coch- State, 18 Ohio, 469 ; Reg. v. Drury, 3 Car. rane v. The State, 6 Md. 400 ; Younger & K. 193, 18 Law J. n. s. M. C. 189 ; Sel- v. The State, 2 W. Va. 579 ; The State lers V. The State, 1 Gilman, 183 ; Hines v. Knouse, 33 Iowa, 365 ; People v. Bar- ». The State, 8 Humph. 597 ; Lane v. ric, 49 Cal. 342. People, 5 Gilman, 305, 308; Allen v. 2 Post, § 1041. Commonwealth, 2 Leigh, 727 ; The State » The State v. Norvell, 2 Terg. 24. V. Hughes, 2 Ala. 102 ; The State v. * People u. Casborus, 13 Johns. 351 ; Thompson, R. M. Charl. 80; The State Gerard w. People, 3 Seam. 362; Common- V. Battle, 7 Ala. 259 ; The State v. Abram, wealth i>. Gould, 12 Gray, 171. See 4 Ala. 272 ; Clark v. The State, 4 Humph. Black v. The State, 36 Ga. 447. 254 : The State v. Phil, 1 Stew. 31 ; Co- ^ Ante, § 992, 993. bia a. The State, 16 Ala. 781 ; People v. VOL. I. 36 561 1003 CONSEQUENCES. [book vin. to recommend the prisoner to a pardon — granted as of course — whenever it appeared that the judge at the trial had committed an error to his prejudice. And concurrently with this practice the doctrine has become established, that a new trial will never be given to one convicted of felony ; the recommendation of par- don being, in all cases of felony, ordered instead.^ But a venire de novo may be awarded for an irregularity in the proceedings, as well in felony as in misdemeanor.^ § 1002. English Practice in Misdemeanor. — In misdemeanor, the English rule has always been to grant to the defendant a new trial, instead of recommending a pardon.^ § 1003. New Trials to Defendants in United States. — One would suppose that, after the constitutional provision now under consid- 1 Eeg. 0. Prost, 2 Moody, 140, 171 ; United States v. Gibert, 2 Sumner, 19, 44-46 ; United States v. Keen, 1 McLean, 429, 432; Eex v. Mawbey, 6 T. R. 619, 638 ; Tinkler's Case, 13 East, 416, note ; Arehb. New Grim. Proced. 177. While this doctrine was generally accepted as undoubted law, a case was decided in the Court of Queen's Bench, which seemed to establish the practice of granting a new trial to the defendant, instead of a recommendation of pardon, when evi- dence had been improperly admitted to the jury. Reg. v. Scaife, 2 Den. C. C. 281, 17 Q. B. 238; Archb. Grim. Plead. & Et. 13th London ed. 154. But in a later case before the Privy Council, on a Colo- nial Appeal, this Queen's Bench decision was shown not to be really an authority for the new doctrine, which was there- upon discarded, and the immemorial usage of the courts was confirmed as law. Reg. V. Bertrand, Law Rep. 1 P. C. 520, 10 Cox C. C. 618. In the subsequent case of Reg. V. Murphy, Law Rep. 2 P. C. 535, the Privy Council followed, w ithout ques- tion, this case of Reg. v. Bertrand. 2 Archb. Grim. Plead. & Ev. 18th ed. 188 et acq. ; 1 Chit. Grim. Law, 654. In a New York case, Sutherland, J., observed as follows : " By the common law, a new trial could be granted in a case of felony, when there had been a mistrial relating to the regularity of tlie organization of the court, or of the impanelling of the jury, or, perhaps, conduct of the jury. 562 Thus, in Arundel's Case, 6 Co. 14, when the defendant had been tried by a jury returned from a certain city instead of a certain parish, and had been convicted, and moved in arrest of judgment on that ground, it was adjudged that the jury ought to have come from the parish, and not the city, and that the trial was insuf- ficient, and a new venire was awarded to try the issue again. So, in the case at The People v. McKay, 18 Johns. 212, where the defendant was indicted, tried, and convicted of murder, and moved in arrest of judgment on the ground that the venire which had been issued was a nullity, and the court adjudged that it was a nullity, and a new trial was or- dered." Shepherd v. People, 25 N. Y. 406, 417. 8 Rex V. Curril, Lofft, 156; Rex v. Simmons, 1 Wils. 329; Rex v. Smith, 2 Show. 165 ; Eex v. Read, 1 Lev. 9 ; Rex V. Bear, 2 Salk. 646 ; Rex v. Mawbey, 6 T. R. 619, 638 ; Rex v. Simons, Say, 34 ; Rex V. Tremaine, 7 D. & R. 684 ; s. c. nom. Rex v. Tremearne, 5 B. & C. 254; Rex V. Gough, 2 Doug. 791 ; Rex v. Askew, 3 M. & S. 9. But see Read v. Dawson, 1 Sid. 49. " A court of oyer and terminer or general jail delivery, however, or the court of quarter-sessions, have no power to grant a new trial ; at least such is gen- erally understood to be the case." Archb. New Grim. Proced. 177. And see Rex o. Fowler, 4 B. & Aid. 273. CHAP. LXin.] NO SECOND PKOSECUTION. § 1004 eration had become universal in this country, our courts would, at least, have made no departures in retrograde from the Eng- lish practice in protecting defendants from a second jeopardy ; and, therefore, when a prisoner was convicted of felony through an erroneous ruling at his trial, they would either have discharged him, or recommended a pardon as in England. But neither prac- tice was ever adopted with us ; and, on the other hand, there was a time when some American judges denied that, in felony, an erroneously convicted person could even have a new trial, by applying for which he waives the protection of the Constitution. \ Yet it is now, and for a long time has been, settled by universal i consent, that with us, new trials may be allowed alike in treason, ^ felony, and misdemeanor.^ As just said, — ■Waiving Protection of Constitution. — The erroneously convicted applicant for a new trial waives, in point of law, his constitutional protection against a second jeopardy, by the act of asking to have his wrongs redressed. And while the imposing of this condition upon him is, in principle, not justifiable where he suffered from a positive violation of law by the judge at his trial, against which he protested ; still, even on principle, there are cases in which a discretionary power might be exercised in favor of defendants, where they could not strictly claim rights ; and, in such cases, the remedy should be a new trial instead of a discharge.^ § 1004. Extent of 'Waiver implied in New Trial. — The waiver of the constitutional right, implied in an application for a new trial, is construed to extend only to the precise thing concerning which relief is sought. Thus, — 1 United States v. Conner, 3 McLean, C. C. 625 ; United States v. Macomb, 5 /573 ; United States v. Keen, 1 McLean, McLean, 286 ; Ball v. Commonwealth, 8 429; Grayson w. Commonwealth, 6 Grat. Leigh, 726; United States w. Harding,! 712; Weinzorpflin w. The State, 7 Blaclsf. Wal. Jr. 127. Contra, United States v. 186; United States w. Fries, 8 Ball. 515; Gibert, 2 Sumner, 19; People v. Com- The State v. Prescott, 7 N. H. 287 ; The stock, 8 Wend. 549 ; The State v. Doug- State V. Slacli, 6 Ala 676 ; Lane v. Peo- lass, 63 N. C. 500 ; United States v. pie, 5 Oilman, 305, 308; The State v. Williams,! Clif. 5. The right to grant Wood, 1 Mill, 29; Tlie State v. Sims, a new trial, howeyer, is not everywhere Dudley, Ga. 213; Allen o. Common- Jield to attach to every inferior court. And wealth, 2 Leigh, 727 ; The State v. La- see People v. Judges of Dutchess Oyer rumbo. Harper, 183 ; The State v. Merrill, and Terminer, 2 Barb. 282 ; People v. 2 Dev. 269 ; Commonwealth v. Green, 17 Stone, 5 Wend. 39 ; McDaniel v. Coleman, Mass. 515 ; Commonwealth v. Roby, 12 14 Ark. 545. •Pick. 496 ; United States v. Halberetadt, ^ Commonwealth v. Green, 17 Mass. Gilpin, 262 ; People v. Morrison, 1 Parker 516. 563 § 1005 CONSEQUENCES. [BOOK Vin. Guilty of Part and not guilty of Residue. — If the verdict is, that the prisoner is guilty of a part of what is charged in the indict- ment, and not guilty of another part,^ — as, guilty on one count, and not guilty on another ; ^ or, there being but one count, guilty of manslaughter, and not guilty of murder ; ^ and a new trial is granted him, — he cannot be convicted, on the second trial, of the matter of which he was acquitted on the iirst.^ But there is some authority contrary, at least in a degree, to this doctrine. For example, — § 1005. Continued. — In Ohio it is held, that, where one offence is in different forms charged in separate counts, and there is a verdict of guilty on a part of the counts and not guilty on the others, then, if a new trial is granted, the entire indictment is opened.^ And, in a /later and much considered case ia the same State, the indictment being in a single count for murder in the first degree, and the finding of the jury being that the defendant is not guilty of murder in the first degree, but is guilty of murder in the second degree, it was held that the effect of an order for a new trial, granted upon his motion, was to set aside the entire verdict, and the cause should be retried on the same issues as before. "If," said White, J., "the finding as to the main fact be set aside, the finding as to the circumstances neces- sarily goes with it." Again : " The principle [that only the part of the verdict which was against the defendant was set aside, while the rest remained undisturbed] contended for on behalf of the defendant, would equally apply to the setting aside of a ver- dict finding a defendant guilty of petit larceny, where the indict- ment is for grand larceny. The effect of the principle would be, 1 Crim. Proced. I. § 1009, 1010. Gilmore, 4 Cal. 376 ; The State v. Smith, 2 Campbell v. The State, 9 Yerg. 333 ; 58 Misao. 139 ; The State v. Mailing, 11 The State v. Kittle, 2 Tyler, 471 ; Esmon Iowa, 239; The State v. Koss, 29 Misso. i;. The State, 1 Swan, Tenn. 14; The 32; Major k. The State, 4 Sneed, 597. State V. Kattlemann, 36 Misso. 105. And ^ Jarvis v. The State, 19 Ohio State, see The State v. Dark, 8 Blaokf. 526. 585; Lesslie v. The State, 18 Ohio State, 8 Slaughter v. The State, 6 Humph. 390. And there are cases in other States 410. See Livingston v. Commonwealth, which hold, that, where a defendant is 14 Grat. 592 ; The State v. Flannigan, 6 acquitted upon one count in an indict- Md. 167 ; The State v. Tweedy, 11 Iowa, ment and convicted on another, at least 350. where the verdict is silent as to the other, * Lithgow V. Commonwealth, 2 Va. if on his motion a uemrerfenouo is awarded, Cas. 297 ; The State v. Martin, 80 Wis. it should be to retry the whole case. The 216; The State v. Belden, 33 Wis. 120; State v. Stanton, 1 Ire. 424; The State The State v. Hill, 80 Wis, 416 ; People v. v. The Commissioners, 3 Hill, S. C. 239. 564 CHAP. LXin.J NO SECOND PKOSECTJTION. § 1006 that, while the fact as to the body of the offence would be open to investigation on the second trial, yet the circumstance as to the value of the property would be res judicata, and conclusively settled by the first verdict." The result was stated as follows : " Upon mature consideration we are of opinion, that the verdict is severable only when there is a conviction or an acquittal on different counts for separate and distinct offences, or where there are several defendants ; but that, where there is but one defend- ant, and, in fact, but one offence, the verdict is entire." ^ In a carefully considered case in Wisconsin, on facts in substance iden- tical with these, the court refused to follow this Ohio decision ; holding, that, on the second trial, there could not be a conviction for murder in the first degree.^ § 1006. Guilty of Part and Silent as to Residue. — Where the verdict is, that the defendant is guilty of a part of the charge, which it specifies, making no mention of the rest, the courts are not agreed as to its effect.^ There is authority for holding, that it is too incomplete to sustain any judgment ; * there is authority for treating it as an acquittal of the part on which it is silent ; ^ authority for allowing the prosecuting officer to nol. pros, the part not responded to ; ^ and still other authority for disregarding such part altogether, and proceeding to judgment for that on which the voice of the jury is distinct.'^ There seems to be no objec- tion, in principle, to permitting the prosecuting officer to claim judgment on so much of the verdict as is distinct ; and, when he does, the defendant, who has been in jeopardy on the whole, is 1 The State v. Behimer, 20 Ohio State, Chambers v. People, 4 Scam. 351 ; Stoltz 572, 578-580. To the like efEect are Bai- v. People, 4 Scam. 168; Brennan v. Peo- ley V. The State, 26 Ga. 579 ; and Mitch- pie 15 111. 511, 517 ; The State v. Twee- ell V. The State, 8 Yerg. 514. dy, 11 Iowa, 360 ; The State v. Lessing, 2 The State v. Belden, 33 Wis. 120; 16 Minn. 75; Commonwealth v. Bennet, following The State v. Martin, 30 Wis. 2 Va. Cas. 235 ; The State v. Payson, 37 216. To the like efEect are The State v. Maine, 361 ; The State v. Hill, 30 Wis. Smith, 53 Misso. 139; and The State v. 416; The State v. Belden, 33 Wis. 120. Boss, 29 Misso. 32. Contra, United States v. Keen, 1 McLean, 8 See Crlm. Proced. I. § 1011 ; 1 Stark, 429. See also Jones v. The State, 13 Crim. Plead. 2d ed. 346-350. Texas, 168; The State w. Smith, 5 Day, * The State <-. Sutton, 4 Gill, 494. 175. Contra, Brooks u. The State, 3 Humph. ^ United States v. Keen, supra ; Com- 25 ; Stoltz V. People, 4 Scam. 168. monwealth v. Stedman, 12 Met. 444. 5 Kirk V. Commonwealth, 9 Leigh, ' The State v. Coleman, 3 Ala. 14; 627 ; Weinzorpflin y. The State, 7 Blackf. Nabors v. The State, 6 Ala. 200 ; Swin- 186 ; Brooks v. The State, 3 Humph. 25 ; ney v. The State, 8 Sm. & M. 576 ; Wein- Morris v. The State, 8 Sm. & M. 762 ; zorpflin v. The State, 7 Blackf. 186. 565 § 1008 CONSEQUENCES. [BOOK VHI. protected by the constitution from any further prosecution for the rest of the charge. But this is where there is no waiver of the constitutional provision by a proceeding for a new trial. If the defendant has a new trial after the imperfect finding and without the nol. pros., he seems in principle to stand, in respect to those parts of the allegation on which the jury were silent, in the same position as if the verdict were too defective in form to sustain any judgment,^ liable to be retried on the whole.^ But the authorities are not uniform to the latter effect : the greater number of cases seem to favor the extending of the new trial only to those parts of the indictment found expressly against the defendant.^ § 1007. How it should be. — In practice, the court and the par- ties ought to require the jury to pass distinctly on the whole indictment where it is possible for them to agree on the whole. But, if this is not done, and even if it is, plainly it is competent for the court which grants a new trial to require the waiver to be express and specific, extending as far as justice in the particular case demands, and then to specify in its order what part of the verdict is set aside, and what stands. Then no question can afterward arise. And, to the writer, it appears always best that the judge who bestows the favor of a new trial should do it in this way. There may be circumstances in which it would be so much a matter of right that terms could not properly be imposed. III. Ineffectual and Sham Prosecutions procured by Defendants. § 1008. Fraud in Judicial Proceedings in General. — The COm- mon-law doctrine is familiar, that fraud vitiates every transaction into which it enters.* It renders null or voidable judicial pro- ceedings ; yet, to set them aside for fraud, one must take the steps required by established rules. Therefore, — False Testimony — Rehearing. — On general principles, without resorting to the doctrine of the criminal law that a man shall not be twice put in jeopardy for the same offence, — if proceedings in a civil suit, for instance, are fair and good up to the time of the 1 Ante, § 998, 1004. « See Crim. Proced. I. § 1011 ; The 2 The majority of the court so held. State v. Belden, 83 Wis. 120; The State in The State v. Commissioners, Eiley, «. Hill, 30 Wis. 416. 273, 3 Hill, S. C. 239. * Bishop First Book, § 66-69, 124, 125. 566 CHAP. LXm.] NO SECOND PROSECUTION. § 1010 hearing, the party beaten cannot, in any other case, have the judgment held void as obtained by false, testimony, or other fraud practised upon him at the trial. His only remedy is to apply for a rehearing, and within the time and according to the rules pre- scribed by law ; for that will give him relief in respect to every part of the transaction into which the fraud has entered.^ §1009. Fraud at Trial of Criminal Cause — (New Trial). — In criminal cases, it is plain, that, if fraud is practised at the trial by the prosecutor, producing a conviction, a new trial will be granted on the defendant's prayer. And there is even direct English authority,^ and there are numerous judicial dicta, Eng- lish and American,^ that, if the defendant's fraud at the hearing brings about his acquittal, the prosecutor may have a new trial. This latter proposition is perhaps not beyond controversy ; but, on principle, it would seem, that, if the defendant's fraud was of such nature or extent as necessarily to prevent a conviction, whatever- the evidence at the prosecutor's command, there was no jeopardy, and so the new trial should be granted to the prose- cutor ; while, on the other hand, if it did not go so far, there was jeopardy. And, since the proceeding which worked the jeopardy was the act of the law, not of the defendant, the rule forbidding a man to rely on his own wrong would not estop him to set up this jeopardy. In other words, looking at this question as one of principle, if the fraud prevented any jeopardy, then the rule forbidding a second jeopardy would not prevent the court from granting to the State a new trial, the same as new trials are granted to plaintiffs in civil causes. But if, notwithstanding the fraud, there was legal danger of a valid conviction, then, as the defendant on being convicted could not rely on his own fraud as ground for a new trial, the jeopardy of the law attached, not- withstanding the fraud ; and he should be protected from a sec- ond jeopardy. § 1010. One procuring own Prosecution. — If one procures him- 1 Greene v. Greene, 2 Gray, 361, 4 ols, 2 Root, 176 ; Hannaball v. Spaulding, Am. Law Reg. 42; Homer «. Fish, 1 Pick. 1 Root, 86. , 435. And see the article in 4 Am. Law ' Rex v. Davis, 12 Mod. 9 ; Rex o. Reg. 1. Bear, 2 Salk. 646 ;" The State v. Jones, 7 2 Rex V. Furser, Say. 90. And it has Ga. 422 ; The State v. Wright, 2 Tread, been held in Connecticut, that in such 517 ; The State v. Brown, 16 Conn. 54 ; cases a new trial will be granted the pros- The State v. Davis, 4 Blackf . 345 ; 1 Chit, ecutor on a penal statute. Pruden v. Crim. Law, 657. Northrup, 1 Root, 93; Hylliard v. Nick- 567 § loll CONSBQtTENCES. [BOOK Vin. self to be prosecuted for an offeijice which he has committed, thinking to get off with a slight punishment and to bar any- future prosecution carried on in good faith, — if the proceeding is really managed by himself, either directly or through the agency of another, — he is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff State is no party in fact, but only sach in name ; the judge is imposed upon indeed, yet in point of law adjudicates nothing ; " all is a mere puppet-show, and every wire moved by the defendant himself." ^ The judg- ment therefore is a nullity, and is no bar to a real prosecution.^ But — Full Penalty inflicted. — It would seem that here, if the legal penalty was an exact one, and the person thus carrying on the cause against himself had borne it in full, not merely in part, the State would have suffered nothing, therefore the judgment would not be deemed in law fraudulent.^ § 1011. Suggestions. — The law of fraud in judicial proceed- ings, civil and criminal, is not well defined ; and, when it is com- plicated with the constitutional rule discussed in this chapter, it presents peculiar difficulties. But, — Part or all Unsound. — In principle, when a proceeding is en- ^ Woodbury, J., in The State v. Little, The State v. Little, 1 N. H. 257 ; Com- 1 N. H. 257. monwealth v. Alderman, 4 Mass. 477 ; 2 The State v. Little, supra ; Common- The State v. Atkinson, 9 Humph. 677. wealth 1/. Jackson, 2 Va. Cas. 501 ; The See Raynham v. Rounseville, 9 Pick. 44 ; State V. Atkinson, 9 Humph. 677 ; The Commonwealth v. Loud, 3 Met. 328 ; post, State V. Lowry, 1 Swan, Tenn. 34 ; The § 1023. In North Carolina, after one was State V. Clenny, 1 Head, 270 ; Common- indicted for assault and battery in the wealth V. Alderman, 4 Mass. 477 ; The Superior Court, he, knowing of the in- State r. Col vin, 11 Humph. 599; The dictment, yet not being arrested, procured State V. Yarborough, 1 Hawks, 78 ; The himself to be indicted for the same of- State V. Green, 16 Iowa, 239; The State fence in the County Court, and there made V. Cole, 48 Misso. 70 ; Commonwealth v. his submission and paid the fine ; and this Dasoom, 111 Mass. 404 ; The State i-. proceeding was held to bar the earlier. Keed, 26 Conn. 202. And see 4 Am. Law " Certainly," said Battle, J., " it is no Reg. 1 ; 2 Bishop, Mar. & Div. § 781. fraud on the law for a man who has vio- Bail through. Fraud. — Where a person lated it, to come forward and voluntarily accused of a criminal offence has, by col- submit to the judgment of a court having lusiou and contrivance of tlie witnesses, full jurisdiction of the offence." The thecomplainant, and justice of the peace. State w. Casey, Busbee, 209. In Texas, been arrested and discharged on bail, he however, where a like proceeding, pend- may be again arrested by a warrant is- ing a prior indictment, was had before a sued by another justice of the peace, and justice of the peace, the pendency of the required to give bail in a larger amount indictment was held to take away the for the same offence. Bulson v. People, justice's jurisdiction, so that what was 81 111. 409. done before him was a nullity. Burdett 8 Hamilton . Bow- Alman, 64 N. C. 864; The State v. Jeffer- man, 6 Car. & P. 101. Contra, United son, 66 N. C. 309. States v. Morris, 1 Curt. C. C. 23 ; O'Brian 1 The State v. McKee, 1 Bailey, 651 ; v. Commonwealth, 9 Bush, 333 ; The United States v. Shoemaker, 2 McLean, State v. Leunig, 42 Ind. 541. See The 114 ; People v. Barrett, 2 Caines, 304 ; State v. Waterhouse, Mart. & Yerg. 278. Ned V. The State, 7 Port. 187 ; Wright 2 Ante, § 1012. V. The State, 5 Ind. 290. And see The 586 CHAP. LXin.] NO SECOND PEOSECTJTION. § 1046 an insufficient indibtment, or some accident or force interposing outside of the court. The court is the power that brings the jeopardy upon him ; and, when the Constitution declares that this power shall not put him in jeopardy ^twice, it is a mockery to say, that it may bring him into as many jeopardies as it will, pro- vided it violates the law each time. The interpretation which makes a violation of the common or statutory law a good answer to a charge of violating the Constitution, has no parallel in any thing else known in our jurisprudence. § 1045. "What, in Principle, is a Jeopardy. — If the power which is to try a man has, by valid steps, brought him to trial, he is, the instant such trial is ready to commence, in jeopardy, unless something, patent or latent, not under control of the power itself, exists, making it impossible any verdict should be rendered against him which he will not be entitled to have ' set aside. This, it is believed, is, in principle, the true test. The valid preparation and instantaneous readiness to begin to receive evi- dence is the jeopardy, — not the verdict, which is the consumma- tion of the proceedings ; for the final judgment is a mere formal utterance of the law's approval of what is already done. Now, if the power which brings a man into and controls the jeopardy — namely, the court — proceeds unlawfully after the jeopardy has thus attached, it is not sound in legal reasoning to say, that this unlawful conduct nullifies the jeopardy. If it did, then the process might be repeated for ever, and the constitutional provi- sion be rendered void. After the case was opened to the jury, or at any time before verdict, if the judge saw that there could be no just conviction, and wished to give the State liberty to retry it, he might discharge them without a verdict, or unlawfully direct them to bring in one of guUty, or do something else unlawful, and thus there might be a second trial, and then a third, and so on without end, to 'the utter overthrow of this con- stitutional protection. And, we may presume, it was to prevent exactly this sort of thing that the constitutional inhibition was established. § 1046. Failure of Evidence. — It is admitted, that, if the evi- dence introduced is inadequate, and the jury render a verdict of not guilty, the prisoner cannot be tried again. There was, by all opinions, a jeopardy. But if, under the same facts, the judge permits the gossip of the neighborhood to be added to the insuf- 587 § 1047 CONSEQUENCES. [BOOK Vm. ficient legal evidence, and the jury convict the prisoner on this, — has he not equally been in jeopardy ? Yes ; it is the doctrine of reason, that he has. But, in this instance, it is said, that, as the court violated the lajv in admitting the gossip, it may be sharp on him, and, to punish him for its own illegal conduct, may compel him either to be hanged for the court's fault, or to waive the right which the Constitution gave him. Happily, in few other things, do the courts thus trifle with constitutional duty. § 1047. Misdirection of Judge protested against by Prisoner. — These views, expressed in general language, indicate the methods by which some important questions connected with our present sub-title may be solved. They are not meant to retrace in full the discussion. If they are correct, they show that the course of the courts, adopted apparently without consideration, of trying anew defendants wrongly convicted by reason of a misdirection against which they protested at the time, instead of suffering them to go free, violates this constitutional guaranty. If, only on the waiving of their constitutional rights, they can have the error corrected, — if they can be permitted to take their due only on paying the price of surrendering what the Constitution secures to them, — if, after they have struggled against a misdirection in the cause, and been borne down, they can be permitted to come up again, only on giving back what the Constitution of the country gave them, — if, having opposed a conviction improperly ordered, while entitled to an acquittal, they can have the convic- tion set aside only on submitting to run their chance of being convicted under a different state of facts appearing, when either they will be unprepared for the trial, or the government will have evidence it had not before, — if the wrong done the prisoner is to be set right only on his submitting to the chance of receiving a fresh wrong, — surely this guaranty of the Constitution is worth but little. Why these Views. — This presentation of the question is made, not because the author supposes, that, in the present condition of legal learning, while a blind reception of mere judicial authority nearly banishes the purer reasonings of the law and true juridical wisdom, many judges will even take the trouble to understand it ; but because the question lay in his path, demanding notice. And the consolation is, that, though the practice we are consider- 688 CHAP. LXm.] NO SECOND PROSECUTION. 1048 ing violates the Constitution, it is not often attended with much substantial injustice.^ V. Rules to determine when the Two Offienees are the Same. § 1048. Decisions Discordant. — ; If, under the last sub-title, we found the decisions to be in a degree conflicting, and not all to be satisfactory, much more shall we under this. Indeed, some of 1 1. The Common Keason. — In an Ohio case, the learned judge, arguing ih support of the common practice, said : "It is not claimed, for the plaintiff in error, that a conviction upon a defective indictment, when the judgment has been afterwards reversed, can be set up as bar to another prosecution. It is con- ceded by his counsel, that, in such a case, the prisoner may be put again upon his trial. In such a case he says, according to the construction of all the courts, the prisoner never was in jeopardy. But he claims, that, by a trial before a lawful jury, upon a good indictment, and a find- ing of a verdict by the jury, the prisoner has been pnt in jeopardy, and cannot therefore be again prosecuted for the same offence. It is not readily perceived how any real distinction can be drawn between the cases. In both, it is but an error in the proceedings ; in the first, the error is found in the indictment ; in the second, the error is committed by the court, it may be in admitting or rejecting testimony, in charging or refusing to charge the jury, or in determining some other one of the various legal questions arising in the progress of the cause. If it be, that, when a party is convicted on a bad indictment for murder, he may be tried again because his life was not in jeopardy, it may with equal truth be said, under our system of laws, and since* the allowance of bills of exceptions and writs of error in criminal prosecutions, he was not in jeopardy in case any other substantial error is found in the proceed- ings." Sutcliffe V. The State, 18 Ohio, 469, 478. This presentation differs from a possible one conducting to the same conclusion, in denying that there is a jeopardy where the judge gives an erro- neous direction at the trial. The jeopardy is sometimes admitted, yet it is alleged that the defendant waives the benefit of it when he asks for a new trial. And see, on the same side, the reasoning in People V. Olwell, 28 Cal. 456. 2. A better View. — There is a New York case, depending, to some extent per- haps, on statutes, yet apparently involv- ing so much of general principle as to show an assimilation of views in the minds of the judges to those stated in the text; though, in this instance, as in some others, the judges seemed not to be aware that their views were contrary to judicial opinions held in other States. The note to the case is : "A prisoner against whom a wrong judgment was pronounced upon a regular trial and con- viction cannot be subjected to another trial." A statute provided, that, " if the superior court should reverse the judg- ment rendered, it shall either direct a new trial or that the defendant be abso- lutely discharged." There was a motion in arrest of judgment and for a new trial ; and, the sentence appearing to have been wrong, the court, as the head-note dis- closes, directed, not a new trial, but a discharge of the prisoner, on the ground that the first trial was a protection against further proceedings for the same offence. Said Sutherland, J. ; " The circumstance, that the counsel of the prisoner, on mov- ing in arrest of judgment, also asked for a new trial, I regard of no consequence. The constitutional provision is, 'No per- son shall be subject to be twice put in jeopardy for the same offence.' This provision may be considered as addressed to the courts ; and, if the prisoner is with- in its protection, he ought to be discharged, although his counsel did formally ask for a new trial." Shepherd v. People, 26 N. Y. 400, 418. 589 § 1051 CONSEQUENCES. [BOOK VIH. these, like a class of those, are founded on principles which, if adopted throughout, would render practically void the constitu- tional inhibition. § 1049. " Same Offence." — The general doctrine is plain, and there are no conflicts of authority upon it, that, in the words of the Constitution itself, to entitle a prisoner to the protection we are consideiing, the second jeopardy must be for the "same offence " as the first. If, therefore, a man has been either con- victed or acquitted of one crime, he may still be prosecuted for another.! And — Convicted by Verdict or Plea. — This doctrine is not limited to convictions and acquittals by the verdict of a jury ; but, if a man has pleaded guilty to a valid indictment, the result is the same. The case need not have proceeded to judgment.^ § 1050. Similarity of Indictments. — Another proposition about which there is no dispute is, that, to make the offences the same, the two indictments need not be, in exact language, alike.^ For, to show the identity of the offences, proof outside the indictments is not altogether excluded.* § 1051. When, in Reasoii, Offences the Same. — Looking further tO see when the offences are the same, we have, in reason, the following propositions : They are not the same, first, when tlie two indict- ments are so diverse as to preclude the same evidence from sustaining both ; or, secondly, when the evidence offered on the first indict- ment, and that intended to be offered on the second, relate to different transactions, whatever be the words of the respective allegations ; or, thirdly, when each indictment sets out an offence differing in all its elements from that in bhe other, though both relate to one transaction, — a proposition bf which the exact limits are difficult to define ; or, fourthly, when some technical 1 Reg. V. Bird, 2 Den. C. C. 94 ; 2 Eng. State, 363 ; The State v. Conlin, 27 Vt. L. & Eq. 439 ; Mi:Quoid v. People, 3 Gil- 318 ; post, § 1070. man, 76; Commonwealth !). Goodenough, 2 people v. Goldstein, 32 Cal. 432; Thacher Crim. Gas. 182; Hite i<. The Shepherd w. People, 25 N. Y. 406. State, 9 Yerg. 357 ; The State v. Ains- s Hite v. The State, 9 Yerg. 357 ; worth, 11 Vt. 91 ; Hawkins v. The State, Thomas v. The State, 40 Texas, 36. 1 Port. 475 ; Commonwealth v. Somer- * Rake v. Pope, 7 Ala. IBl ; The State ville, 1 Va. Cas. 164; Gomraonwealth v. v. De Witt, 2 Hill, S. C. 282; Common- Mott, 21 Pick. 492 ; Rex. u. Phillips, 1 wealth v. Sutherland, 109 Mass. 342 ; Jur. 427; The State v. Herriek, 8 Nev. Hughes v. Jones, 2 Md. Ch. 178; Holt v. 259 ; Methard u. The State, 19 Ohio The State, 38 Ga. 187 ; Crim. Proced. L § 816. 590 CHAP. LXni.] NO SECOND PEOSECUTION. § 1052 variance precludes a conviction on the first indictment, bnt per- mits it on the second. Yet, fifthly, the offences are the same in all other circumstances wherein the evidence to support one of the indictments sustains also the other. And, sixthly, if the two indictments set out offences which are alike, and relate to one transaction, yet, if one contains more of criminal charge than the other, but upon it there could be a conviction for what is embraced in the other, the offences, though of differing names, are, within the constitutional protection from a second jeopardy, the same. Let us now see what doctrines are derivable from the decisions. § 1052. Variance. — An indictment does not always set out the offence which the person drawing it intended ; as, for example, in eases of variance.^ If, then, it alleges the forging of a receipt for the use of Hugh Brison, and tlje instrument in evidence is for the use of Hugh Prison ; ^ or the burning of Josiah Thomp- son's barn, while the true owner was Josias Thompson ; ^ or of the barn of A & B, while it belonged to A & C ; * or an attempt to kill Louisa Loveland, when the attempt was upon William P. Loveland ; ^ or larceny of the property of a person named, the proof showing the owner to be unknown,^ — in these and other like cases,''' the defendant, being acquitted by reason of the vari- ance, is liable to be prosecuted on a new indictment in which the fact is truly alleged. The Test — is, whether, if what is set out in the second indict- ment had been proved under the first, there could have been a conviction ; when there could, the second cannot be maintained ; when there could not, it can be.^ And — 1 Grim. Proced. I. § 485-488, 569 et Standifer, 5 Port. 523 ; Rex v. Eraden, 9 seq. East, 437 ; Rex v. Clark, 1 Brod. & B. 2 Pennsylvania v., Huffman, Addison, 473 ; Martha v. The State, 26 Ala. 72 ; 140. The State v. Dunham, 9 Ala. 76 ; People 8 Commonwealth v. Mortimer, 2 Va. v. McNealy, 17 Cal. 832 ; The State v. Gas. 325. ■ Stebbins, 29 Conn. 463 ; Conway v. The « Commonwealth v. Wade, 17 Pick. State, 4 Ind. 94; Canter v. People, 38 395, 400. How. Pr. 91 ; Commonwealth v. Chesley, s People V. Warren, 1 Parker C. C. 107 Mass. 223 ; Oneil v. The State, 48 338; Vaughan o. Commonwealth, 2 Va. Ga. 66. Gas. 273. 8 Hite v. The State, 9 Yerg. 357 ; Peo- » The State v. Revels, Busbee, 200. pie v. Warren, 1 Parker G. C, 338 ; Peo- ' The State v. Risher, 1 Rich. 219; pie w. Allen, 1 Parker C. C. 445; Durham The State v. Kreps, 8 Ala. 951 ; Rex v. v. People, 4 Scam. 172 ; Commonwealth Googan, 1 Leach, 4th ed. 448 ; The State v. Curtis, Thacher Grim. Cas. 202. V. McCoy, 14 N. H. 364; The State v. 691 § 1053 CONSEQUENCES. [BOOK VIH. § 1053. Applicable in other Cases. — This test is applicable, not alone in these cases of technical variance, but in many others.^ Thus, — Wrong County. — If the acquittal is by reason of the indict- ment being brought in the wrong county, it will not bar fresh proceedings in the right one.^ So, — Another Person Injured. — An acquittal on an indictment for the larceny of goods alleged to be the property of one person will not bar an indictment for the larceny of the same goods charged as belonging to another.^ Again, — Larceny and False Pretences. — If one is acquitted of petit lar- ceny, then a fresh indictment charges him with obtaining the same goods by false pretences, he may be convicted on the latter, under the former evidence, if incompetent in law to produce a conviction on the former indictment.* Also, — Larceny and Conspiracy — Or Receiving. — One acquitted of lar- ceny may be convicted of obtaining the same goods through a conspiracy with third persons,^ or of receiving them as stolen goods.® And — Homicide by Differing Means. — An acquittal on an indictment for a murder committed by shooting with powder and shot from a gun is no bar to an indictment for a murder committed by beating upon the head with a gun.'^ Moreover, — " Overcoats " and " Cloth." — An acquittal of embezzling cloth of which overcoats are made, is no defence to an indictment for embezzling overcoats, though the evidence at both trials is the same ; because overcoats and cloth to make them are different 1 United States v. Niokerson, 17 How. Busbee, 120; Freeland u. People, 16 III U. S. 204, 208; Price v. The State, 19 380 ; The State ». Keogh, 13 La. An. 243 ; Ohio, 423; Burns i'. People, 1 Parker C. Commonwealth t. Bakeman, 105 Mass, C. 182 ; Rex v. Vandercomb, 2 Leach, 4th 53 ; Morey v. Commonwealth, 108 Mass, ed. 708; s. c. nom. Rex v. Vandercom, 2 433; Commonwealths. Farrell, 105 Mass. East, P. C. 619 ; Rex v. Taylor, 5 D. & 189. R. 422, 3 B. & C. 502 ; The State v. Jesse, 2 CommoYiwealth v. Call, 21 Pick. 509 ; 8 Dev. & Bat. 98 ; Reg. .;. Henderson, 2 Methard «. The State, 19 Ohio State, Moody, 192; Rex v. Parry, 7 Car. & P. 863. 886; The State v. McClintock, 1 Greene, = Morgan v. The State, 34 Texas, 677. Iowa, 392; Commonwealth v. McChord, « Dominiok v. The State, 40 Ala. 680. 2 Dana, 242 ; Rex „. Dann, 1 Moody, 6 The State v. Sias, 17 N. H. 558. 424 ; Boutelle o. Nourse, 4 Mass. 431 ; 6 Foster v. The State, 39 Ala. 229, 233. Frost V. Rowse, 2 Grcenl. 130 ; Hughes v. And see Commonwealth v. Tenney, 97 The State, 12 Ala. 458 ; Rex v. Plant, 7 Mass. 50. Car. & P. 575 ; Heikes v. Commonwealth, 1 Guedel v. People, 43 111. 226. 2 Casey, 613; The State v. Birmingham, 692 CHAP. LXm.] NO SECOND PEOSEOFTION. § 1054 things, and proof of the one will not sustain an allegation of the other.^ Limit of the Test. — Probably the test under consideration is always applicable when its effect is to bar proceedings,^ while still the proceedings may be barred by other principles when this one fails.^ § 1054. Crime within Crime. — Where crimes are included within one another, so that a higher comprehends whatever a i lower one does and more, as explained in a previous chapter,* a conviction for any higher one bars a prosecution for any lower ; since, if the defendant is guilty of all, he is necessarily so of each particular part. It is believed that there is no exception to this rule. In general, the same consequence follows an acquittal; because generally there can be a conviction for the lower on an indictment for the higher.^ But the effect of an acquittal is not, like that of a conviction, universally so. Thus, — In Liquor-selling. — If one is indicted for being a " common seller of liquor," contrary to a statute, — an offence which con- sists of specific sales, with other facts,® — and is convicted, he cannot afterward be pursued for making a single sale, at the same time, contrary to the provisions of another statute. " For," said Bennett, J., " if the government see fit to go for the offence of being 'a common seller,' and the respondent is adjudged guilty, it must, in a certain sense, be considered as a merger of all the distinct acts of sale, up to the filing of the complaint, and the respondent can be punished but for one offence."' But where the jury, instead of convicting the defendant, acquit him, he may then be indicted for a single act of selling during the 1 Commonwealth v. Clair, 7 Allen, 625. v. The State, 40 Texas, 36 ; Hamilton v. ^ But see, and query, Reg. v. Gisson, The State, 36 Ind. 280; Keg. v. Smith, 2 Car. & K. 781 ; Reg. v. Henderson, Car. 34 U. C. Q. B. 552 ; Canada v. Common- & M. 328. See Reg. v. Bird, 2 Eng. L. wealth, 22 Grat. 899 ; The State v. Smith, & Eq. 448, 2 Den. C. C. 94, 5 Cox C. C. 43 Vt. 324, 326 ; Reg. v. Webster, 9 L. 20. ' Canada, 196 ; The State v. Pitts, 57 Misso. 3 See post, § 1057 et seq. 85; Fritz w.The State, 40 Ind. 18; Wemyss « Ante, § 780. v. Hopkins, Law Rep. 10 Q. B. 378 ; Mnn- 5 Ante, § 794 ; The State v. Standifer, ford v. The State, 39 Missis. 558 ; The 5 Port. 523 ; Rex v. Heaps, 2 Salk. 693 ; State ». Brannon, 55 Misso. 63 ; Reg. v. Reg. V. Gould, 9 Car. & P. 364 ; Reg. v. Elrington, 9 Cox C. C. 86, 90. Bird, 2 Eng. L. & Eq. 448, 2 Den. C. C. « Stat. Crimes, § 1018, 1035. 94, 5 Cox C. C. 20; Dinkey u. Common- ' The State v. Nutt, 28 Vt. 598, 602, wealth, 5 Harris, Pa. 126 ; Murphy u. 603. Contra, post, § 1005. Commonwealth, 23 Grat. 960; Thomas VOL. I. 38 593 § 1057 CONSEQUENCES. [BOOK Vm. same period ; because, in the words of Dewey, J., " such acquittal is entirely consistent with the fact having been shown of one or two single sales by the defendant, but a failure to show a third sale, or evidence sufficient to convict of the offence of being a common seller." ^ Again, — § 1055. Felony and Misdemeanor. — Form of Allegation. — If, I owing to the form of the allegation,^ or to the lower offence being a misdemeanor while the higher is a felony,-^ there can be no conviction of the former on the indictment for the latter, an ac- quittal of the latter will not bar a prosecution , for the former.* A conviction would bar it, because a necessary part of what the conviction covers. But an acquittal may have been produced by the fact, that the defendant simply committed the lower offence with no aggravations, and for this he was not in jeopardy when on trial for the higher. And, where the rules of the English common law prevail, no acquittal for felony can bar a .prosecu- tion for misdemeanor.^ But, — Robbery and Larceny. — As robbery and larceny are both fel- onies, and the latter is included in the former, an acquittal for robbery will bar an indictment for the larceny of the same property.^ § 1056. Conviction on part of Indictment. — If the indictment covers one of the larger crimes, and there is a conviction of one of the smaller, included in it, the result is a bar to any new pros- ecution for the larger.^ For example, — Murder and Manslaughter. — One indicted for murder, and found guilty of manslaughter, is protected from any further prosecution for the murder.^ § 1057. Indictment covering Part only. — Where the conviction or acquittal is upon an indictment covering no more than one of the smaller crimes, included, as before mentioned, within a larger, — will it bar fresh proceedings for the larger ? If it will not, then 1 Commonwealth v. Hudson, 14 Gray, ^ Ante, § 804 ; People v. Saunders, 4 11. 12. Parker, C. C. 196. 2 Ante, § 794-796, 803. See Severin e People v. McGowan, 17 Wend. 386. V. People, 37 111. 414 ; Wilson «. The And see The State v. Pitts, 57 Misso. 85. State, 24 Conn. 57 ; Dedieu v. People, 22 ' Ante, § 1006 ; People v. Apgar, 35 N- Y. 178. Cal. 389; The State v. Pitts, 57 Misso. 3 Ante, § 804 et seq. 85. * Munford v. The State, 39 Missis. 558. » Brennan v. People, 15 III. 511, 517 ; Hurt V. The State, 26 Missis. 878. 694 CHAP. LXni.] NO SECOND PROSECUTION. § 1058 the prosecutor may begin with the smallest, and obtain successive convictions, ending with the largest ; while, if he had begun with the largest, he must there stop, ^- a conclusion repugnant to good sense. Besides, as a larger includes a smaller, it is impossible one should be convicted of the larger without being also convicted of the smaller ; and thus, if he has been found guilty or not guilty of the smaller, he is, when on trial for the larger, in jfeopardy a second time for the same, namely, the smaller offence. Some apparent authority, therefore, English ^ and American,^ that a jeopardy for the less will not bar an indictment for the greater, must be deemed unsound in principle. And, even in authority, the doctrine which holds it to be a bar is sufficiently established in general ; ^ though possibly it admits some real or apparent exceptions, as by and by we shall see. Thus, — § 1058. In aggravated Arson and Murder. — If a man burns a dwelling-house, in which a human being is consumed, he cannot, after a conviction for the arson, be held to answer for the mur- der.* So, — Murder and Manslaughter. — If, on an indictment for man- slaughter, the judge discharges the jury because the proof shows the offence to have been murder, the defendant cannot be afterward brought into jeopardy for the murder.^ And — Assaults with their Aggravations. — A person convicted of an assault only is protected thereby from prosecution for the bat- tery ; because, said Totten, J., " the one is a necessary part of the other ; and, if he be now punished for the battery, he will thereby be twice punished for the assault."^ And, according to the. gen- eral and better doctrine, a conviction or acquittal of a common assault will bar proceedings for an assault with intent to do great bodily harm, and other assaults aggravated in like manner.^ 1 2 Hawk. P. C. Curw. ed. p. 518, § 5 ; Del. 543 ; Thayer v. Boyle, 30 Maine, Keg. V. Button, 11 Q. B. 929, 947, 948, 12 475; Hickey v. The State, 23 Ind. 21. Jur. 1017 ; 1 Stark. Crim. Plead. 2d ed. « The State v. Cooper, 1 Green, N. J. 227. 361. 2 Scott V. United States, Morris, 142 ; 5 People v. Hunckeller, 48 Cal. 331. Freeland v. People, 16 111. 380 ; post, « The State v. Chaffin, 2 Swan, Tenn. § 1058, note. 493. a Reg. V. Walker, 2 Moody & R. 446 ; ? Reg. v. Elrington, 9 Cox C. C. 86, The State v. Sliepard, 7 Conn. 54 ; Com- 1 B. & S. 688. The State o. Smith, monwealtli v. Squire, 1 Met. 258 ; Com- 43 Vt. 324, 326. " There is," said Pier- monwealtii v. Kinney, 2 Va. Cas. 139 ; pont, C. J., in the case last cited, " con- Lohman v. People, 1 Comet. 379, 2 Barb, siderable conflict in the authorities upon 216; The'State V. Townsend, 2 Harring. this subject, but we think the rule is 695 §1059 CONSEQTJEN-CES. [book vin. No Jurisdiction of Higher Offence. — It has been supposed, that, if the tribunal trying the less offence has no jurisdiction over the higher, the case will be different ; ^ yet there does not seem to be any just foundation for this distinction.^ But, — § 1059. Assault and subsequent Death — (Homicide). — If, after a battery and a conviction for it, the assailed person dies of his wounds, an indictment may be maintained for the homicide ; not, it appears, because the battery is the less offence, but because the blow which had not produced death is, when viewed in the light of its results, a thing different from the blow which had produced death.* now well established, that, when one of- fence is a necessary element in and con- stitutes an essential part of another offence, and both are in fact bat one transaction, a, conviction or acquittal of one is a bar to the prosecution for the other." In exact opposition to the doc- trine of my text and Reg. v. Elrington, supra, is an Iowa case in which a convic- tion for assault and battery is held to be no bar to an indictment for the same with in- tent to commit great bodily injury. Said Beck, C. J.: "Admitting that the of- fences of assault and battery, and assault with intent to commit a great bodily in- jury are degrees of the same offence, it must be conceded that the first named is of a lower degree, and does not include the offence of the higher degree. To tliis proposition there can be no objec- tion. While an assault, with an intent to commit great bodily injury, may in- clude an assault ind battery, it is clear that the assault and battery cannot in- clude the higher assault ; the less cannot include the greater. A conviction or acquittal, in order to be a bar to another prosecution, must be for the same of- fence, or for an offence of a higher de- gree, and necessarily including the oflFence for which the accused stands indicted. It follows that a conviction or acquittal for a minor offence is no bar to a prose- cution for a greater offence; except in the case of acquittal for manslaughter which would bar an indictment for mur- der, for the reason if the defendant was innocent of the liilling, without malice; he could not be guilty of the killing with malice. Scott v. United States, Morris, 696 142; Hurt v. The State, 25 Missis. 378; Burns u. People, 1 Parker C. C. 182. This is substantially the rule of section 4720 of the Revision, which is in the fol- lowing language : ' When the defendant has been convicted or acquitted, upon an indictment for an offence consisting of different degrees, the conviction or ac- quittal shall be a bar to another indict- ment for the offence charged in the for- mer or for any lower degree of that offence, or for an offence necessarily included therein.' " The State v. Foster, 33 Iowa, 525. And see Prine c/. The State, 41 Texas, 300. ^ Commonwealth v. Curtis, 11 Pick. 134. 2 Reg. ». "Walker, 2 Moody & R. 446. ' Commonwealth v. Roby, 12 Pick. 496 ; Commonwealth ». Evans, 101 Mass. 25; Burns v. People, 1 Parker C. C. 182; Reg. V. Salvi, 10 Cox C. C. 481, note. See Wright v. The State, 6 Ind. 527. In an English case, it appeared that the prisoner, after committing assault and battery, had, on complaint of the injured person, been convicted' thereof, and sen- tenced to imprisonment, which sentence he had served out. Then the one beaten died, and the prisoner was indicted for manslaughter from the same beating. The statute of 24 & 25 Vict. o. 100, § 46, provides, that, when, on complaint of the aggrieved party, one shall have suffered an awarded Imprisonment, " he shall be released from all further or other pro- ceedings, civil or criminal, for the sama cause." Thereupon the majority of the judges, Kelly, C. B., dissenting, held that what had taken place was not a bar to CHAP. LXin.] NO SECOND PKOSECUTION. § 1061 § 1060. One Transaction, one Act, one Crime, distinguished. — There may be gleaned from the books passages which seem to indicate, that one act may constitute any number of crimes, for each of which the doer may be prosecuted, and a conviction of one will not bar a prosecution for another.^ And perhaps, in our complicated system of government, one act may be an offence against both the United States and a particular State, and both may punish it.'' But, in principle, and according to the better authority, while one act maj' constitute as many distinct offences as the legislature may choose to direct, for any one of which there may be a conviction without regard to the others,^ " it is," in the language of Coekburn, C. J., "a fundamental rule of law that out of the same facts a series of charges shall not be preferred."* To give our constitutional provision the force evidently meant, and to render it effectual, " the same offence " must be inter- preted as equivalent to the same criminal act. And judicial utterances have even gone apparently to the extent, that there can be only one punishment for one criminal transaction.^ But this is carrying the rule too far the other way.^ To illustrate the views of this paragraph, — § 1061. One Blow wounding Two — Killing Two. — If O^ie blow wounds two men, a conviction for the assault and battery, charged to have been committed on one of them, is a bar to an indictment for it as committed on the other.'^ Or, if it kills two men, a per- son convicted of the homicide of one of them cannot be tried for the indictment for manslaughter. Reg. monwealth v. Trickey, 13 Allen, 559; V. Morris, Law Rep. 1 0. C. 90, 10 Cox The State w. Rankin, 4 Coldw. 145 ; Com- C. C. 480. In a Scotch case, decided in monwealth v. Shea, 14 Gray, 386. See accordance with the doctrine of the text, ante, § 779, 782, 793 ; post, § 1067. Lord Ardmillan said: " There never can ^ The State e. Rankin, supra. See be the crime of murder till the party as- more exactly as to this, ante, § 989. saulted dies ; the crime has no existence ' See, for illustration, Tant v. People, in factor law till the death of the party 45 111. 259; The State v. Crumniey, 17 assaulted. Therefore it cannot be said Minn. 72 ; Crocker v. The State, 47 Ga. that one is tried for the same crime when 568 ; post, § 1068. he is tried for assault during the life, and ^ Reg. v. Elrington, 9 Cox C. C. 86, tried for murder after the death, of the 90, 1 B. & S. 688. injured party. That new element of * Holt ». The State, 38 Ga. 187 ; post, the injured person's death is not merely § 1064. a supervening aggravation, but it creates ' Commonwealth v. Bakeman, 105 a new crime." Stewart's Case, 5 Irvine, Mass. 53. 310, 814. ' The State v. Damon, 2 Tyler, 387. 1 The State v. Inness, 53 Maine, 536 ; And see Crocker v. The State, 47 Ga. The State v. Taylor, 2 Bailey, 49; Com- 568. 697 § 1061 CONSEQUENCES. [BOOK VHI. the homicide of the other. " If the same act of the defendant resulted in the death of both of them, there was but one crime." ^ Again, — Non-repair of Streets. In North Carolina, there being a duty to keep the streets of an incorporated town in repair, several indictments were found on the same day for breaches of this duty in respect of as many streets, and it was held, that a conviction on one would bar proceedings on the others.^ But it is not quite clear that all courts will- decide thus, or even follow the doctrine of the last paragraph.^ Thus, — In Larceny. — An English judge even ruled, that, where a man stole at one time two pigs belonging to the same person, he might first be convicted of the larceny of the one pig, and afterward of the larceny of the other ; * and, if the pigs had different owners, there would be American authority the same way.^ In Kentucky it was held, that an acquittal for the larceny of one article, is a bar to an indictment for the larceny of another, belonging to the same person, taken at the same time, and with the same intent.® And there is plainly a limit to the right of multiplying indict- ments,'^ though we may not findj on authority, exactly what it is. For example, while a complete larceny is committed in every county through which the thief carries his stolen goods, clearly he can be convicted in no more than one county.^ ■» 1 Clem V. The State, 42 Ind. 420, remainder. Said Perkins, J.: "The opinion by Downey, J. And see Ben v. State cannot split up one crime and pros- The State, 22 Ala, 9. eeute it in parts. A prosecution for any 2 The State v. Fayetteville, 2 Murph. part of a single crime bars any further 371. prosecution based upon the whole or a ' The State v. Fife, 1 Bailey, 1 ; Rex part of the same crime." Jackson v. The V. Champneys, 2 Moody & R; 2B, 2 Lewin, State, 14 Ind. 327, 328. See Vol. 11. § 888. 62; Smith v. Commonwealth, 7 Grat. ^ Fisher v. Commonwealth, 1 Bush, 693 ; The State v. Standifer, 5 Port. 523. 211. * Reg. V. Brettel, Car. &. M. 609. 7 Plumbly v. Commonwealth, 2 Met. » The State v. Thurston, 2 McMullan, 413; The State v. Johnson, 12 Ala. 840; 382. And see, on this question. The Hinkle v. Commonwealth, 4 Dana, 518. State V. Williams, 10 Humph. 101 ; Lor- See post, § 1064. ton V. The State, 7 Misso. 55 ; Reg. «. 8 Tippins v. The State, 14 Ga. 422 ; 2 Bleasdale, 2 Car. & K. 765 ; The State v. Hawk. P. C. Curw. ed. p. 517, § 4. And Nelson, 29 Maine, 329 ; Rex v. Birdseye, see Strickland v. Thorpe, Yelv. 126. See 4 Car. & P. 386. Some of these cases further, as illustrating the matter of this would admit of one indictment only, section, The State v. Parish, 8 Rich. 322 ; where the goods were owned by different Freeland v. People, 16 111. 380 ; Fiddler persons. In Indiana, a prosecution for v. The State, 7 Humph. 508 ; Rex v. Car- larceny of a part only of articles is held lile, 3 B. & Aid- 161 ; s. o. nom. Rex v. to bar an indictment for larceny of the Carlisle, 1 Chit. 451 ; Copeuhaven v. The 598 CHAP. LXni.J NO SECOND PEOSECTJTION. §1062 § 1062. Burglary and Larceny. — If a man in the night breaks and enters a dwelling-house, intending to steal therein, and there does steal, he may be punished' for two offences or one, at the election 6i the prosecuting power. If in a single count the indictment charges him with breaking, entering, and stealing, his offence is single, being burglary conimitted in a particular man- ner ; ^ but, if a first count sets out the burglary as perpetrated by breaking and entering with intent to steal, then a second count may allege the larceny as a separate thing, and he may be con- victed and sentenced for both.^ Therefore an acquittal on an indictment charging the burglary as committed by breaking and entering with intent to steal is no bar to a prosecution for the actual theft.^ And a conviction of the latter will not bar an indictment for the former.* Such are the decisions ; yet, on State, 15 Ga. 264; Kex v. Britton, 1 Moody & R. 297 ; Bank Prosecutions, Russ. & Ry. 378 ; The State v. Cameron, 3 Heisk. 78. Act constituting One Of- fence and Part of another. — Some courts maintain that, in the words of Gray, J. : "A single act may be an of- fence against two statutes ; and, if each statute requires proof of an additional fact, which the other does not, an acquits tal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Morey v. Commonwealtli, 108 Mass. 433, 434. And see Commonwealth 17. Bakeman, 105 Mass. 53 ; Common- wealth 0, Shea, 14 Gray, 38t) ; Common- wealth V. McConnell, 11 Gray, 204. But this question has been, in effect, already considered in the text. Ante, § 1054 et seq. By all the authorities, this would not be so if the conviction was for the larger crime. Ante, § 1054. And on the better reason and better authorities it would not be so if the conviction was for the smaller. Ante, § 1057. But the State could choose under which statute the one prosecution should be. 1 The State v. Squires, 11 N. H. 37; The State v. Moore, 12 N. H. 42 ; The State V. Brady, 14 Vt. 353 ; Rex v. Comer, 1 Leach, 4th ed. 36 ; Kex o. Vandercomb, 2 Leach, 4th ed. 708 ; B. c. nom. Rex w. Vandercom, 2 East P. C. 519 ; Common- wealth V. Brown, 3 Rawle, 207 ; Jones v. The State, 11 N. H. 269; Stoops v. Com- monwealth, 7 S. & R. 491; Common- wealth V. Tuck, 20 Pick. 356 ; Common- wealth V. Hope, 22 Pick. 1. Of course, a conviction for burglary, on such a form of the indictment, will bar a prosecution for the larceny. People v. Smith, 57 Barb. 46. 2 Josslyn V. Commonwealth, 6 Met. 236. But see post, § 1064. ■> The State v. Warner, 14 Ind. 572. * Wilson V. The State, 24 Conn. 57. In this case, not of common-law burglary, but of statutory shopbreaking, Storrs, J., observed : " It will be seen, that there is a difference in the two offences, charged in the two informations against the pris- oner, foundted in the very nature and es- sence of the offences themselves. Theft is a common-law crime, and its definition is well understood. Breaking a shop with intent to steal is a statute offence only, and the act thus made criminal is the act of breaking, — its criminality de- pending, as in all cases, upon the intent with whicli it is done, and which, in the present instance, must be a specific intent to steal. The offence is complete, whether the theft is consummated or not." p. 65. Waite, C. J., who dissented from the judgment pronounced by the majority, said : " I take it to be a sound rule of law, founded upon the plainest principles of natural justice, that, where a criminal act has been committeld, every part of 599 § 1064 CONSEQUENCES. [BOOK VHI. principle, we may question whether they do not press more heavily against defendants than the humane policy of our crimi- nal jurisprudence justifies.^ § 1063. Robbery, Larceny, and Burglary. — Other complications have been passed upon in North Carolina and Georgia. In each of these States, a man in the night entered a dwelling-house intending to steal in it, and therein committed the larceny by violence from the person of one found therein. The reader will observe, that the breaking and .entering with the intent may alone constitute burglary, that the stealing with violence from the per- son is robbery, and that the taking away of the property is lar- ceny. In North Carolina, the first indictment was for the burglary, accomplished by the actual commission of the larceny ; and the conviction on it was for the larceny only. The second indictment was for the robbery, and it was held to be barred by the first.2 Here the first indictment covered a part — namely, the larceny — of the second ; so the case falls within a principle stated a few sections back.^ § 1064. Continued. — In the Georgia ease, depending on like facts, the first indictment seems — the report being indistinct — to have been for the burglary, as including only the intent to steal ; the second, for the robbery, which includes the actual stealing. On the trial of the first, evidence of the robbery was introduced to establish the burglary, a conviction was obtained, and it was held to bar proceedings under the second. And the court laid down the broad doctrine, that a jeopardy on one indict- ment will bar a second "whenever the proof shows the second which may be alleged in a single count separate ones. But, in my opinion, the in an indictment, and proved under it, law gives him no power to make two crimes the act cannot be split into several dis- or one out of the same transaction, at tinct crimes, and a separate indictment his pleasure. The law, and not the attor- Bustained upon each. And whenever ney, must determine that matter. He there has been a conviction for one part, may indeed elect to prosecute for the it will operate as a bar to any subsequent whole, or any part, but he can sustain proceedings as to the residue." p. 70. but one information." p. 72. It would Again : " Whenever, in any criminal be a very bold thing to say, that, leaving transaction, a felonious intent is essential out of the account what has been ad- to render it a crime, and without proof of judged by the courts, the weight of rea- which no conviction can be had, two in- son is not clearly with this dissenting formations, founded upon the same intent, opinion by the Cliief Justice, cannot be maintained." p. 71. Once i Compare this with post, § 1064. more : " It has beeh said, that the prose- 2 'phe State v. Lewis, 2 Hawks, 98. outing attorney may elect to join both 8 Ante, § 1057. offences in the same information, or file 600 CHAP. LXrn.] NO SECOND PBOSECUTION. § 1065 case to bte the same transaction with the first." ^ This doctrine, with the decision based upon it, is inconsistent with the proposi- tion — sustained, as the reader has seen, by various other courts ^ — that indictments for burglary and larceny can both be prose- cuted to conviction, when a prisoner breaks into a- dwelling-house and therein steals. § 1065. Same Evidence to Two Offences. — The foregoing doc- trines should not be confounded with questions of evidence. Cases are numerous in which proof of one crime is received to establish another ; but the introduction of such proof does not bar an indictment for the offence not under trial. Thus, — Liquor Laws. — It is SO under the more or less complicated stat- utes regulating the sale of intoxicating liquors. Not to enter much into these questions, some of which have been solved by the application of principles that would prove, if universally adoj)ted, greatly detrimental, we have, in brief, the following. In Maine it is lield,^ contrary to what was laid down some sec- tions back,* that specific sales may be prosecuted under a statute forbidding them, after the party has been convicted, under another statute, for having been at the time of making them a common seller ; ^ though the practice is familiar, that such sales were competent evidence to the charge in the first indictment.^ And it was adjudged in another case, that " to punish ■ a person for keeping a drinking-house and tippling-shop, and also for being a common seller of intoxicating liquors, although the same indi- vidual act contribute to make up each offence, is not a violation " of the law which forbids a prisoner to be put in jeopardy twice for the same offence.'^ So in Massachusetts the statutory nuisance " of keeping a tenement for the sale of intoxicating liquor is held to be a distinct offence from the statutory one of being a common seller of intoxicating liquor ; therefore a conviction of the former is no bar to an indictment for- the latter.* Neither is an acquittal 1 Roberts v. The State, 14 Ga. 8. See « Commonwealth v. Tubbs, 1 Cush. 2. also Copenhaven u. The State, 15 Ga. 264. ^ The State v. Inness, 53 Maine, 536, 2 Ante, § 1062. And see ante, § 1060. 537, opinion by Walton, J. But see The 8 See ante, § 782. State v. Layton, 25 Iowa, 193. * Ante, § 1054. ^ Commonwealth v. Hardiman, 9 Al- 5 The State I). Maher, 85 Maine, 225; len, 487; Commonwealth <,. Bubser, 14 The State v. Coombs, 32 Maine, 529. Gray, 88; Commonwealth u. Cutler, 9 And see Commonwealth v. Keefe, 7 Gray, Allen, 486. And see Commonwealth ». 382; Commonwealth v. Hudson, 14 Gray, Lahy, 8 Gray, 459. U. 601 § 1067 CONSEQUENCES. [BOOK VHI. a bar to a prosecution for keeping the liquor with intent to sell it.i And various other like points have been adjudged under statutes regulating or prohibiting the sale of intoxicating drinks.^ So,— § 1066. Forgery and Uttering. — An acquittal for forging a cer- tificate of deposit on one bank is no bar to a prosecution for obtaining money from another bank, by a forged letter enclosing the same certificate.^ And, in general, an acquittal of forging is no bar to an indictment' for uttering the same instrument.* Like- wise, — Larceny and Conspiracy. — As we have seen,^ an acquittal for larceny will not bar an indictment for a conspiracy to obtain un- lawfully the same goods which were alleged .to have been stolen.® And — other like Cases. — There are numerous cases resting on this principle-' § 1067. Penal Actions and Indictments. — It seems to be the doctrine, on a question not well illumined by the decisions (alluded to elsewhere ^), that, as a civil suit for damages and a criminal prosecution may be carried on together or successively for the same act of wrong ; ^ so also may the latter, and an action f for a penalty, which also is in general a civil proceeding. ^^ Thus ' the New York court held, that, if a statute creates an offence, and imposes a penalty recoverable in an action civil in form, and also declares the offence to be a misdemeanor punishable by fine and imprisonment, there may be both an indictment and a penal action for one violation, neither of which will bar the other.i^ So, — 1 Commonwealth v. McCauley, 105 « Ante, § 1053. Mass. 69 ; Commonwealth v. Sheehan, « The State v. Sias, 17 N. H. 558, Par- 105 Mass. 192; Commonwealth K. Hogan, ker, C. J., observing : "The defendant 97 Mass. 122. could not have been uonvicted of a con- " See The State v. Andrews, 27 Misso. spiracy on the former indictment. He 267 ; Sanders v. The State, 2 Iowa, 230 ; cannot be convicted of larceny on this." The State v. Glasgow, Dudley, S. C. 40 ; p. 559. The State v. Rollins, 12 Rich. 297; The ' Commonwealth v. Chilson, 2 Cush. State V. Conlin, 27 Vt. 318; Common- 15; The State w. Jesse, 3 Dev. & Bat. 98; wealth V. Welch, 97 Mass. 593 ; Common- The State v. Davis, 19 Ala. 13. See Peo- wealth V. Farrell, 105 Mass. 189 ; Com- pie v. Burden, 9 Barb. 467. monwealth v. Connors, 116 Mass. 35. » Stat. Crimes, § 171 and note. 3 People V. Ward, 15 Wend. 231. And » Ante, § 264 et seq. see Commonwealth v. Quann, 2 Va. Cas. w Ante, § 32 and note. 89 ; People v. Allen, 1 Parker, C. C. 445 ; " People v. Stevens, 18 Wend. 841 ; United States v. Miner, 11 Blatoh. 511. Blatehley v. Moser, 15 Wend. 215, * Harrison v. The State, 36 Ala. 248. 602 CHAP. LXni.] NO SECOND PROSECUTION. § 1070 Proceedings for Contempt and Indictment. — It appears that a prosecution for contempt of court will not bar an indictment for the same act.^ And — other Cases. — There are other" cases depending on a like prin- ciple ; but what, exactly, are the limits of the doctrine they do not enable an author to say.^ § 1068. statute and By-law. — "Whether there can be a prose- cution for the same act as violating both a statute and a city ordinance, or whether the one bars the other, is a question on which opinions differ, discussed in " Statutory Crimes."^ § 1069. Civil Suit and Indictment. — Civil proceedings are no \ bar to criminal.* Therefore, — ' Damages for Loss of Life. — It was held in Kentucky, that a statute authorizing the recovery of damages by the representa- tives of one deprived of life through the defendant's neglect, does not conflict with the constitutional provision we are consid- ering ; even though, for the same neglect, an indictment is also provided.^ VI. The Doctrine of Autrefois Attaint. § 1070. General View. — By the English law, when this country was settled, a person attainted of one felony could not be prose- cuted for another,* — a doctrine to which there were some ex- ceptions. But this doctrine, though recognized in one or two American cases,^ is not usually followed in this country.^ In England it was long ago abolished by act of Parliament.^ It probably originated in the idea, that, after a man was condemned to death it would be useless to proceed against hiifl for a second capital offence, since he could die only once. 1 Rex V. Lord Ossulston, 2 Stra. 1107. Ind. 569; Gardner v. People, 20 111. 430; ^ See The State v. Plunkett, 3 Harri- Fant v. People, 45 III. 259. son, 5 ; The State v. Sonnerkalb, 2 Nott < Ante, § 1067. & McC. 280; Hodges v. The State, 8 Ala. 6 Chiles v. Drake, 2 Met. Ky. 146. 55; The State v. Keen, 34 Maine, 500; 64 b1. Com. 336; 3 Inst. 213; 2 Hale Simpson v. The State, 10 Yerg. 525 ; The P. C. 252-254 ; Armstrong w. L'Isle, 12 State V. Tappan, 15 N. H. 91 ; The State Mod. 109. See Rex v. Birkett, Russ. & V. Thompson, 2 Strob. 12; ante, § 1029, Ry. 268. note. '' Crenshaw v. The State, Mart. & ■ 8 Stat. Crimes, § 23 ; The State ». Yerg. 122. Thornton, 87 Misso. 360, 361 ; The State « See ante, § 1049. V. Cowan, 29 Misso. 330 ; Levy v. The ' Stat. 7 & 8 Geo. 4, 0. 28, § 4. State, 6 Ind. 281 ; Waldo v. Wallace, 12 603 § 1073 NtriSANCB. [book IX. BOOK IX. NUISANCE. CHAPTER LXIV. THE GENERAL DOCTRINE OP ITUISANCE.^ § 1071. Course of the Discussion. — In preceding chapters, we have called to mind many doctrines pertaining to nuisance.^ And, in the second volume, where the several offences are treated of in their alphabetical order, will be included some of the minor or secondary nuisances.* Those which are more purely such will be discussed in chapters next following the present one. In this, we are to consider some general doctrines. §1072. Nuisance defined. — A public or common nuisance is any act or neglect the product of which works an annoyance or injury to the entire community ; or, the product itself is termed a nuisance.* Further described. — The evil must be of magnitude requiring judicial interposition, and within the reasons on which the deci- sions of the courts have in times past proceeded ; or, the offence may be created and defined by statute.^ Again, — § 1073. Abatable and Indictable, distinguished. — The reader should carry in his mind the distinctions, illustrated in a previous chapter, between nuisance abatable and nuisance indictable.^ ' See Crim. Proced. II. § 860 et eeq. ; observed in the North Carolina court, and Stat. Crimea, § 20, 21, 156, note, 169, that the act " should, be an offence so in- 214, 257, 544-558, 664, 968, 974-976, convenient and troublesome as to annoy 1059-1070. the whole conimunity, and not merely 2 Ante, § 221, 227, 236, 241-246, 265, particula,r persons." The State v. Bald- 316, 341, 419-422, 433, 490, 491, 531, 686, win, 1 Dev. & Bat. 195, 197. As to which 792, 817-885. see ante, § 243-245 ; post, § 1077, 1078. ' For example, Bahkatbt ; Blasphe- ^ Stat. Crimes, § 552-658 ; McLaughlin MY AND Profaneness ; Libel ; Lord's v. Tlie State, 45 Ind. 838 ; The State i>, Day ; Riot ; SEPULTtrRE ; Threateninq Fisher, 52 Misso. 174 ; Watertown v. Letters ; Way. Mayo, 109 Mass. 816. * See Stat. Crimes, § 544. Gaston, J., « Ante, § 821-885. 604 CHAP. LXIV.J GENERAL DOCTRINE. § 1075 § 1074. Actionable and Indictable, distinguished. — Like any other offence, a nuisance may be actionable, while it is indict- able ; yet, as we have seen,^ an action can be maintained only by one who has suffered a damage special to himself. But, — Intensity of Evil. — To be indictable, a nuisance need be no more intensely evil than is required to render it actionable.^ And — Civil in Essence. — The doctrine, already mentioned,^ that a criminal proceeding may be in substance and effect civil, and be governed in a degree by the rules of civil suits, has its most apt illustrations in this department. Thus, — § 1075. Obstructing River — (intent — Acts of Servants) . — In England, one was indicted for the nuisance of obstructing the navi- gation of a river, in connection with some works which he carried on near the bank. His workmen had deposited rubbish where it had fallen into the river ; but, to excuse himself, he offered to show that this was done, not only without his direction, but in violation of his express orders, while still, however, it was done in the course of the general conduct of his business. This evi- dence, which was of a sort to establish a complete defence in ordinary criminal cases, as showing that there was no criminal intent, the court rejected.* " It is quite true," said Mellor, J., " that this, in point of form, is a proceeding of a criminal nature ; but in substance I think it is in the nature of a civil proceeding, and I can see no reason why a different rule should prevail, with I'cgard to such an act as is charged in this indictment, between proceedings which are civil and proceedings which are criminal. I think there may be nuisances of such a character that the rule I am applying here would not be applicable to them ; but here it is perfectly clear that the only reason for proceeding criminally is, that the nuisance, instead of being merely a nuisance affecting an individual, or one or two individuals, affects the public at large, and no private individual, without receiving some special injury, could have maintained an action. . . . The prosecutor can- not proceed by action, but must proceed by indictment ; and, if this were strictly a criminal proceeding, the prosecution would be met with the objection that there was no mens rea, that the indictment charged the defendant with a criminal offence, when 1 Ante, § 265. » Ante, § 33, 264-267, 531, 713, 954-957. 2 Ante, § 236. * See ante, § 316. 605 § 1078 • NTJISANCB. [book IX. in reality there was no proof that the defendant knew of the act, or that he himself gave orders to his servants to do the particular act he is charged with. . . . Inasmuch as the object of this indict- ment is, not to punish the defendant, but really to prevent the nuisance from being continued, I think that the evidence which would support a civil action would be sufficient to support an indictment." ^ § 1076. CivQ in Essence, oontinued. — The doctrine of this Eng- lish case may almost be deemed new in the criminal law, yet there were before some familiar cases lying near it.^ To what extent this line of adjudication will be followed by our courts, it is not easy to predict. It seems just, if not carried too far, or in improper directions. But if a court were to apply a rule like this where some infamous punishment was to be the consequence of a conviction, or, indeed, where there were to be any conse- quences not in effect civil, it would wander widely from the path of true principle, as well as of precedent. § 1077. Already discussed. — In a previous chapter, under the title ." The Wrong as a Public in distinction from a Private In- jury," several views were presented relating to the present sub- ject.^ And, further on, in successive chapters on the protection which the criminal law affords to the " Public Health," to " Re- ligion, Public Morals, and Education," to the " Public Wealth and to Population," to the " Public Convenience and Safety," and to the " Public Order and Tranquillity," * the leading doc- trines in the law of Nuisance were unfolded. How many annoy. — In a general way, we have seen how many of the public a nuisance must annoy to render it indictable.^ Said a learned judge : " Every nuisance is annoying to only a few of the citizens of the particular place. They are the public of that locality. It is a public nuisance if it annoy such part of the public as necessarily come in contact with it." ® But, — § 1078. In Disorderly House. — The North Carolina court held, that, where the defendant lived remote from any public road, and loud noises and uproar were often kept up in his house by his five sons when drunk, yet he did not encourage them except 1 Keg. V. Stephens, Law Eep. 1 Q. B. * Ante, § 489-543. 702, 708, 709, 710. 5 Ante, § 248-245, 1072 and note. 2 See ante, § 219-221, 316, 817. « Stuart, J., in Hackney v. The State, ^ Ante, § 230 et seq. 8 lud. 494, 495. 606 CHAP. LXIV.] GENEEAL DOCTEINB. § 1079 by getting drunk himself; while, on the other hand, he would sometimes endeavor to quiet them ; and, by the disorder, only two families were disturbed, — the nuisance of keeping a disor- derly house was not, in law, committed. "Admit," said the learned judge, " that, if this disorder had been committed in a town, where all the good people of the State had a right to be, and to pass and repass, or on or near a public highway, it would have amounted to a common, as distinguished from a private, nuisance, so as to be indictable, yet it is clearly not so, having been committed in the country, to the disturbance of only two families residing in the vicinity." ^ § 1078 a. Prescription and Usage. — One by committing an of- fence to-day does not gain the right to commit a like offence to- morrow. And no prescription and no usage can justify crime. In this respect the criminal law does not follow the analogies of the civil. Therefore, as we shall more particularly see by and by ,2 a nuisance is not the less, indictable because it is of long standing.^ § 1079. Misdemeanor. — At the common law, nuisance is misde- meanor, not felony ; punishable, therefore, by fine and imprison- ment. And it is believed that none of our statutes raise it to a higher grade. Consequently, — - Participants. — All participants in a nuisance, whether before or at the fact, present or absent, are principal offenders, and to be dealt with as actual doers.* We shall see, under the title Bawdy- house, more specifically how this is.^ But the doctrine applies also to other nuisances.^ Abatement by Judicial Order. — When the indictment has the necessary allegations, and it is sustained by the proofs, the final judgment of the court may contain an order that the defendant abate the nuisance,'' " at," says Hawkins, " his own costs." * 1 The State v. Wright, 6 Jones, N. C. « The State v. Potter, 30 Iowa, 687 ; 25, 27, opinion by Pearson, C. J. And Edelmath v. McGarren, 4 Daly, 467 j see The State v. Hathcook, 7 Ire. 52. Stevens i^. People, 67 111. 587 ; Dorraan 2 Post, § 1131, 1139-1141. V. Ames, 12 Minn. 451. See United 8 Douglass 0. The State, 4 Wis. 387 ; States v. Chenoweth, 6 McLean, 139. Mills V. Hall, 9 Wend. 315; The State v. ' Crim. Proced. II. § 866, 870-872 Franklin Falls Co., 49 N. H. 240; Taylor Munson v. People, 5 Parker, C. C. 16 V. People, 6 Parker, C. C. 347 ; The State Smith v. The State, 22 Ohio State, 539 V. Rankin, 3 S. C. 438 ; People v. Mallory, Delaware Division Canal v. Common- 4 Thomp. & C. 567. wealth, 10 Smith, Pa. 367. * Ante, § 629-633, 656 et seg., 686-689. « 1 Hawk. P. C. Curw. ed. p. 696, § 14, » Post, § 1090-1096. 15. 607 1080 NUISAJ yig the plaintiff's dog, that it ran violent- 1 ly upon his dog and bit him ; this was ; held not to be sufficient, it should have ' been shown further that he could not otherwise separate the attacking dog from his own. Wright v. Ramscot, 1 Saund. 84 ; s. c. nom. Wright v. Rain- sear. 1 Sid. 336 ; s. c. nom. Wright o. Wrainscott, 1 Lev. 216 ; s. c. nom. Wright V. Wranscot, 2 Keb. 237. And Lord Denman, C. J., once laid it down in a jury case, that " the circumstance of the dog being of a ferocious disposi- tion, and being at large, is not sufficient to justify shooting him ; to justify such a course, the animal must be actually attacking the party at the time." Morris V. Nugent, 7 Car. & P. 572. And see Hartley v. Harriman, 1 B. & Aid. 620; Clark V. Webster, 1 Oar. & P. 104 ; Han- way V. Boultbee, 4 Car. & P. 350, 1 Moody & R. 15 ; Janson v. Brown, 1 Camp. 41. Also, when, after the plaintiff's dog had worried some sheep belonging to the de- fendant, and gone into another field, the latter shot the dog, — Alderson, J., in an action for this killing, directed the jury to find for the plaintiff, saying, " It was clear that the dog was not shot in protec- tion of the defendant's property, as it was after he had left the field in which the sheep were." Wells o. Head, 4 Car. & P. 568. In a North Carolina case, where a, dog was kept on its owner's premises, and there ran at a person going to the owner's house, but was called off by the family, yet he shot the dog going away ; the court held, that a fierce dog, if kept on its owner's prem- ises, is not a nuisance entitling any one to kill him, and that in this instance there was no necessity for the killing, since the dog was driven off. Hence the shooting was not justifiable. Perry v. Phipps, 10 Ire. 259. 4. Some of the before-mentioned cases seem to favor the proposition, that, if a dog is dangerous to go at large, still a person whom or whose property he is not molesting is not justified in killing 609 §1081 NUISANCE. [book IX. authority, is essential to the repose of the community. Without it, one man might put a million in danger, or destroy human lives him. It is submitted, however, that such is not the law, which is directly the con- trary ; namely, though a dog may not lawfully be killed by any one, simply on the ground of possessing some vicious propensities, yet, if so vicious as, going at large, to be dangerous to the commu- nity, any person may lawfully kill such a, dog, whether personally in danger or not, and whether the owner has knowl- edge of the dog's vicious propensities or not. I will state the cases at hand re- lating to this proposition, leaving the reader to decide whether or not it is sustained by them. In New York it was laid down, in an action of trespass for killing a dog, that, where the defence of the ferocious character of tlie animal is set up, if it was in the habit of attack- ing individuals, this is sufficient, and a scienter, on the part of the owner, need not be shown. Said Nelson, C. J. : " If the dog be in fact ferocious, at large, and a terror to the neighborhood, the public should be justified in despatching him at once. It seems to be settled that such proof is not necessary when a dog is in the habit of chasing conies in a warren, or deer in a park, and that he may be killed for the protection of those animals. How much more proper is it, that this should be the rule, and most singular would it be were it otherwise, when the persons and lives of rational beings are in danger ! " Maxwell v. Palmerton, 21 Wend. 407, 408. In a Pennsylvania case, — where, indeed, the matter adjudged was, that a man might kill his neighbor's dog to protect his own property, — the following dictum was laid down by Coul- ter, J. : "A dog may be so ferocious as to become a public nuisance ; and, in such oases, if his owner permits him to run at large, any person may kill him." King V. Kline, 6 Barr, 818. Also we have the following decisions : Trespass, vi et armis, for killing a dog. Held, that the dog, having bitten the defendant, was a nui- sance, and anybody might abate a nui- sance. Aliter, if the dog had been set to guard property, and the defendant had interfered. Bowers v. Ktzrandolph, Ad- 610 dison, 215. If a dog is so ftrocious that, of his own disposition, he will bite men in the street, and is at large, he is a nui- sance, and may be killed by any one. Dunlap V. Snyder, 17 Barb. 561. No actlpn will lie against one for killing a dangerous dog, which is permitted by its owner to run at large, or escapes through negligent keeping, the owner having notice of its vicious disposition ; or for killing a dog bitten by a mad dog. Putnam v. Payne, 13 Johns. 812. If a dog attacks persons, or attacks and kills domestic animals on the owner's land, it may be killed as a common nuLsance. But if it merely chases and worries cat- tle, the owner of the cattle may not kill it ; his remedy is by action against the owner of the dog, upon proof that he knew the dog to be in the habit of doing thus. Hinckley v. Emerson, i Cow. 351. A furious dog, accustomed to bite man- kind, is a common nuisance. In an ac- tion to recover damages for killing' such a dog, the defendant need not prove he was obliged to kill it in self-defence. And Redfield, C. J., observed : " Some animals are common nuisances, if suf- fered to go at large, from their known and uniform instincts and propensities, such as lions and bears, and probably wolves and wild-cats; and domestic ani- mals, from their ferocious and dangerous habits becoming known to their keepers, thus become common nuisances, if not restrained." Brown v. Carpenter, 26 Vt. 638, 643. The inhabitants of a dwelling- house may destroy another's dog, that disturbs their quiet, if the disturbance cannot be otherwise prevented ; Nelson, C. J., observing : " The demurrer admits, that the dog was in the constant habit of coming on the premises, and about the dwelling of the defendan.ts,day and night, barking and howling, to the great annoy- ance and disturbance of the peace and quiet of the family j that the plaintiff was fully advised of this mischievous propensity of the animal, and wilfully neglected to confine him ; and that de- fendants, unable to remove the nuisance in any other way, killed him. No other CHAP. LXIT.] GENEBAL DOOTEIKB. §1081 by thousands, in the presence of another, who, having the power, would not be permitted by the law to interpose. An infernal machine might be hidden where throngs were passing, a bridge about to be packed with human beings might be so weakened that it would fall, or any number of other dangers might 'be created, yet, but for this doctrine, they could not be arrested to prevent the calamity. This doctrine is an expression of the bet- ter instincts of our nature, which lead men to watch over and shield one another from harm.i It is impossible, therefore, to authority than the experience and obser- vation of every man is necessary to en- able him to determine, that the matters set forth in this plea constitute a private nuisance to the inmates of a family, and upon general principles justify all reason- able means to remove it." Brill v. Flag- ler, 28 Wend. 354, 357. In Massachusetts it was held, that the provision in the R. S. c. 58, § 12, permitting any person to kill any dog found without a collar, does not authorize » person to convert the dog to his own use, but trover by the owner will lie for such conversion ; Shaw, C. J., observing : " The object of the statute is, not to confer a benefit on the individual, but to rid society of a nuisance by killing the dog. This object would not be accomplished by a person's taking the dog to himself." Cummings V. Perham, 1 Met. 555, 556. 5. In some of the States, there are statutes regulating the custody and re- straint of dogs, and they are held to be constitutional. Blair o. Porehand, 100 Mass. 136. And see further of these statutes. Commonwealth v. Canada, 107 Mass. 405; Commonwealth v. Gorman, 16 Gray, 601 ; Commonwealth v. Kelliher, 12 Allen, 480 ; Kerr v. Seaver, 11 Allen, 161 ; McAneany v. Jewett, 10 Allen, 151 ; Jones V. Commonwealth, 15 Gray, 193 ; Bishop V, Fahay, 15 Gray, 61 ; Tower v. Tower, 18 Pick. 262 ; Commonwealth u. Dow, 10 Met. 382 ; Campbell v. Brown, 1 Grant, Pa. 82. And see ante, § 832. 1 And see Stat. Crimes, § 1070, note. In a New Jersey case, Vice-Chancellor ' Sodd observed : " At common law, it was always the right of a citizen, without official authority, to abate a public nui- sance, and without waiting to have it adjudged such by a legal tribunal. His right to do so depended upon the fact of its being a nuisance. If he assumed to act upon his own adjudication that it was, and such adjudication was afterwards shown to be wrong, he was liable as a wrong-doer for his error, and appropri- ate damages could be recovered against him. This common-law, right still exists in full force. Any citizen, acting either as an individual, or as a public official un- der the orders of local or municipal au- thorities, whether such orders be or be not in pursuance of special legislation or chartered provisions, may abate what the common law deemed a public nui- sance. In abating it, property may be destroyed, and the owner deprived of it without trial, without notice, and without compensation. Such destruction for the public safety or health is not a taking of private property for public use, without compensation, or due process of law, in the sense of the Constitution. It is sim- ply the prevention of its noxious and unlawful use, and depends upon th: principles that every man must so use| his property as not to injure his neigh bor, and that the safety of the public is the paramount law. These principles are legal maxims or axioms essential to the existence of regulated society. Writ- ten constitutions presuppose them, are subordinate to them, and cannot set them aside. They underlie and justify what is termed the police power of the State. By virtue of that power, numerous and onerous restrictions and burdens are im- posed upon persons and property which, for other purposes or on other grounds, would be prohibited by the constitutional limitations sought to be applied in this 611 § 1081 NUISANCE. [book IX. look upon some late cases, in which it seems to be laid down, in broad terms, that no one is entitled to abate a public nuisance unless personally and specially injured by it, as serious utterances of the courts ; unless we understand them, as probably we should, to refer merely to the special facts in contemplation.^ Not every thing, which one might imagine, can be done under the name of abating a public nuisance. Thus we have seen^ that needless damage should not be done. And it was laid down in Maryland, that " the right to abate a public nuisance belongs to every citi- zen, yet it cannot be lawfully exercised if its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against legally." ^ It will un- doubtedly, in some circumstances, lend strength to the right of abating a public nuisance that the person abating suifers a special injury from it, because this fact will authorize even the abatement of a private nuisance ; * yet, when the nuisance is clearly public, it is not, as a general proposition, essential that the person abat- ing should be a special sufferer from the, thing abated.^ suit." Manhattan Manuf . &o. Co. v. Van Keuren, 8 C. E. Green, 251, 255. But see Miller v. Forman, 8 Vroom, 55. And see Gunter v. Geary, 1 Cal. 462 ; Reg. v. Pat- ton, 13 L. Canada, 311 ; Reg. v. Mathias, 2 Fost. & F. 570; James v. Hay ward, Cro. Car. 184 ; Rufe v. Phillips, 50 Ga. 130. By Municipal Corporatlons.x — As to abatement by municipal corporations, see Yates v. Milwaukee, 10 Wal. 497; Weil V. Ricord, 9 C. E. Green, 169 ; Bab- cock V. Buffalo, 56 N. Y. 268. 1 See Clark v. Lake St. Clair, &c. Ice Co., 24 Mich. 508 ; McGregor v. Boyle, 34 Iowa, 268; Brown t;. Perkins, 12 Gray, 89, 101 ; Miller v. Forman, 8 Vroom, 55 ; Ruff V. Phillips, 50 Ga. 130; The State i;. Parrott, 71 N. C. 311. 2 Ante, § 828; The State v. Paul, 5 R. I. 185 ; The State v. Keeran, 5 R. I. 497 ; Roberts v. Rose, 3 H. & C. 162. 3 Day !). Day, 4 Md. 262, opinion by LeGrand, C. J. So, although an obstruc- tion in the channel of a navigable river is a nuisance, yet it is not to be abated with total disregard of the rights of others. A raft of timber was driven in- to the mouth of Bayou Lafourche, which it obstructed. The next morning, the captain of the raft proposed to hire a 612 steamer bound in to tow it out. This offer was refused ; and, while the cap- tain of the raft was endeavoring to pro- cure other assistance, the steamer's cap- tain cut it to pieces in order to pass. For this act the boat was held liable. Lal- lande v. The Steamboat C. D., 1 Newb. Adm. 501. Perhaps the true view of this latter case is, that the raft was not to be deemed a nuisance under the circum- stances, being driven to the place where it lay by stress of weather, so long as its owner was making all possible exertions to remove it. As to abating a bridge which obstructed navigation, see The State V. Parrott, 71 N. C. 311. * Ante, § 828; Gates v. Blincoe, 2 Dana, 158. The assent of a party to a nuisance will not take away his right to abate it afterward, if he thinks proper. Pilcher v. Hart, 1 Humph. 524. 6 Ante, § 828, 829, 1080 and note; King V. Sanders, 2 Brev. Ill, And see the previous notes to this section and the last. Various statutes having declared the Neuse River between certain points navigable, it is a nuisance to build a bridge across it, between those poiuts, so as to prevent the passage of boats ; and such nuisance may be abated by any one. CHAP. LXIV.J GENERAL DOCTBINB. §1082 § 1082. Municipal Corporation neglecting to abate. — An indict- ment lies against a municipal corporation whicli has, by its char- ter, power to enact ordinances to preserve the public health and remove nuisances, if it does not cause to be abated a public nuisance, like a slaughter-house, kept, to the detriment of the public health, on land of an inhabitant within the corporate limits.^ The State v. Dibble, 4 Jones, N. C. 107. Chancery, on a bill by the attorney-gen- eral, may enjoin and abate a public nui- sance caused by the obstruction of a highway ; and the fact that the authori- ties of the town in which the nuisance is erected are invested with power to abate nuisances within the corporate limits, does not take away the jurisdiction. Hoole V. Attorney-General, 22 Ala, 190. I The State v. Shelbyville, 4 Sneed, 176 ; McKiney, J., observing : " By the act of the General Assembly incorporat- ing the town of Shelbyville, it is express- ly declared, that said corporation shall have full power and authority to enact all such laws and ordinances as may be necessary and proper 'to preserve the health of the town, prevent and remove nuisances,' &c. Session acts of 1819, c. 16, § 2. , Under this provision of the charter, there can be no doubt as to the power of the corporation to 'prevent' or to 'remove' the nuisance charged in the indictment ; nor can there be any more ■doubt as to the positive duty of the cor- poration to exercise this power in all proper cases. The existence of such a power is indispensable to the public health, and welfare of the town ; and the corporation is not at liberty to decline its exercise when demanded by the public interest. An indictment against the cor- poration is the proper mode of redress by the public for a grievance of this nat- ure." 613 § 1084 NUISANCE. [book IX. CHAPTER LXV. BAWDY-HOTJSB.l § 1083. How defined. — A bawdy-house is any place, whether of habitation or temporary sojoutn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes.^ More particularly. — The term house of ill fame is used in the law to signify nearly or exactly the same thing as bawdy-house. It is one form of disorderly house.^ The keeping of it is, there- fore, an indictable misdemeanor.* " For although," says Lord Coke, " adultery and fornication be punishable by the ecclesias- tical law, yet the keeping of a house of bawdry, or stews, or brothel-house, being, as it were, a common nuisance, is punishable by the common law ; and is the cause of many mischiefs, not only to the overthrow of the bodies, and wasting of their liTelihoods, but to the endangering of their souls." ^ §1084. The Keeper — (Husband and "Wife). — The keeper may be a man or a woman. And a married woman may be indicted with her husband, or alone, for the offence. " Keeping the house does not necessarily import property, but may signify that share of government which the wife has in the family, as well as the husband." ^ So, under a statute authorizing wives to own property and caiTy on business separate from their husbands, if a wife who owns a house keeps it for bawdry, and receives the profits to her separate use, still the husband who lives with her, and, knowing this, does not exercise his marital power to restrain 1 Tor the pleading, practice, and evi- * Ante, § 500, 734 ; 4 BI. Com. 168 ; dence relating to this subject, see Grim. 1 Russ. Crimes, 8d Eng. ed. 322. Proced. II. § 104 et seq. 6 3 ingt. 205. 2 In The State v. Evans, 5 Ire. 603, a e Reg. v. Williams, 10 Mod. 63, 1 Salk. bawdy-house is defined to be "a house of 384; The State «. Bentz, 11 Misso. 27 ; ill-fame kept for the resort and commerce Commonwealth v. Lewis, 1 Met. 151 ; of lewd people of both sexes." ante, § 361 ; Crim. Proced. II. § 109. ' Crim. Proced. II. § 106. 614 CHAP. LXV.J BAWDY-HOUSE. § 1088 her, is indictable also as keeper.^ And, in general, a man who j suffers his wife and daughters openly to do the forbidden things, I and does not dissent, becomes thereby guilty of the offence.^ § 1085. The Keeping. — There must be the keeping of a house. For a woman to be a common bawd, or merely to live alone and ; receive one man or many, is not to keep a bawdy-house. And | more women than one must live or resort together to make such / a house.^ Therefore permitting a single act of illicit intercourse ' wUl not alone constitute the offence.* The House. — A single room in a dwelling-house may consti- tute a bawdy-house.^ So may a boat on a river.^ And it is not necessary that the place should be used for habitation.^ § 1086. Lucre. — It was at one time deemed not certain,^ but now it is established, that, to constitute a bawdy-house, there is no necessity for it to be kept for lucre. The offence consists in the public nuisance, and the form of corrupt motive is immate- rial.^ And, — § 1087. Outward Indecency. — To constitute the common-law offence, there need be no indecency, or disorder of any sort, visi- ble from the exterior of the house. ^^ § 1088. How under Statutes. — Statutes, on this subject, have sometimes been drawn in such" terms as to modify the doctriaes of the common law. Thus, — 1 Commonwealth v. Wood, 97 Mass. » xhe State v. Evans, 5 Ire. 603 ; Reg. 225. In this case, Chapman, J., observed : ». Pierson, 1 Salk. 382, s. c. nom. Reg. v. "It is true that the house they lived in Peirson, 2 Ld. Raym. 1197. appears to have been owned by her to * Commonwealth v. Lambert, 12 her sole and separate use, free from the Allen, 177. control of her husband. ... It is also * Reg. v. Pierson, supra; The State true that under our statute she may carry v. Garity, 46 N. H. 61 ; The State v. Main, on a separate trade on her own account. 31 Conn. 572 ; Commonwealth v. Howe, But it has not been decided how far tliis 13 Gray, 26. affects the husband's legal right to con- * The State v. Mullen, 35 Iowa, 199. trol her, nor is it necessary to decide it ' The State v. Powers, 36 Conn. 77. in this case. These provisions of the ^ Jennings v. Commonwealth, 17 statute relate to legitimate business, and Pick. 80. not to the keeping of brothels. They do " Ante, § 500, 734 ; post, § 1112 ; The not take away his power to regulate his State v. Bailey, 1 Post. N. H. 343, 345 ; household so far as to prevent his wife The State v. Nixon, 18 Vt. 70; Common- from committing this offence, or relieve wealth v. Wood, 97 Mass. 225; Crim. him from responsibility if It is com- Proced. II. § 108, 274. mitted." p. 229. '" Beg. v. Rice, Law Rep. 1 C. C. 21 ; 2 Scarborough u. The State, 46 Ga. Sylvester v. The State, 42 Texas, 496 ; 26. Crim. Proced. II. § 116. 615 § 1091 NxrisANCB. [book IX. Reputation of House. — Id Connecticut, " keeping a house of ill fame, resorted to for the purpose of prostitution or lewdness," is a statutory offence ; and the court holds, that the words " ill fame " refer to the reputation of the house, consequently it must not only be a bawdy-house, but must also be reputed such.^ This form of words is employed in the statutes of some of the other States ; and the common and better interpretation is believed to be, that the term " house of ill fame " is a mere synonyme for " bawdy-house," having no reference to the " fame " of the place, but denoting the fact. Yet, in matter of evidence, some courts allow the proof of the fact to be aided by the fame.^ § 1089. By-laws. — The power of municipal corporations to make by-laws is considered in another connection:^ Under it, ordinances not unfrequently provide penalties for the keeping of houses of ill fame.* § 1090. Letting or gelling House for Bawdry : — General Doctrine. — We have seen, that a mere attempt to com- mit an offence is usually indictable ; ^ and that a solicitation is an attempt of a particular kind.^ On this principle, the letting of a house to be used as a brothel is an attempt ; and, as such, the courts have held it to be indictable.'^ Or, on a principle already brought to view,^ if the house is afterward kept for baw- dry, he who let it for the purpose is indictable as keeper.^ § 1091. Iietting as Attempt — As Accessorial Act. — We saw, while discussing Attempt,^'' that there are substantive offences so small, or otherwise of such a nature, that a mere attempt to com- 1 Cadwell v. The State, 17 Conn. 467 ; An. .37 ; McAlister v. Clark, 33 Conn. The State v. Blakesley, 38 Conn. 523. 91 ; Stat. Crimes, § 21. See The State v. Main, 31 Conn. 672 ; * Ante, § 723 et seq. The State v. Morgan, 40 Conn. 44 ; Morris « Ante, § 767, 768. V. The State, 38 Texas, 603 ; O'Brien v. ' Commonwealth v. Harrington, 3 People, 28 Mich. 213. Pick. 26 ; Smith v. The State, 6 Gill, 2 Grim. Proced. II. § 112-115 ; The 425. And see Commonwealth v. Moore, State V. Brunell, 29 Wis. 435 ; The State 11 Cush. 600 ; Fish u. Dodge, 4 Denio, V. Lyon, 39 Iowa, 379; The State v. 311; Commonwealth v. Johnson, 4 Pa. Boardman, 64 Maine, 523 ; United States Law Jour. Rep. 898 ; People v. Saunders, V. Jourdine, 4 Crancli C. C. 338 ; United 29 Mich. 269 ; The State i^. Leach, 50 States V. Nailor, 4 Cranch C. C. 872. As Misso. 535. to the Massachusetts statutes, see Com- 8 Ante, § 1079; Stevens v. People, 67 monwealth v. Davis, 11 Gray, 48. , 111. 687 ; The State „. Potter, 30 Iowa, 8 Stat. Crimes, § 18-26. 587 ; Wilson v. Stewart, 3 B. & S. 918. * Childress v. Nashville, 3 Sneed, ' And see post, § 1091. 847; New Orleans v. Costello, 14 La. "> Ante, § 759, 761, 764, 767, 768. 616 CHAP. LXV.] BAWDY-HOUSE. ' § 1094 mit them, especially when the attempt is only a solicitation, is not indictable. For which reason, or some other, the New York court has held, that a wrongful letting, where nothing evil is done under the lease, is not, as maintained by other authorities just cited, a crime ; ^ but, to be such, the premises must afterward be used for the criminal purpose, in which case the lessor and lessee may be proceeded against jointly for keeping the house.^ And the Kentucky tribunal, while holding to the general doctrine, seems to favor the opinion that the house must actually be put to the improper use.^ § 1092. How in Principle. — There is no conflict between the two propositions, that the letting, though the premises are not used, is indictable as an attempt ; and that, when they are used, the lessor and lessee may both be proceeded against for the sub- stantive offence of keeping the house. Now, in principle, we have seen,* that one is not indictable for making a mere contract to sell spirits, where only the sale is forbidden ; yet he is for pro- curing an obscene print with the intent to publish it. In other words, an attempt to sell intoxicating liquors contrary to a stat- ute is not pursuable criminally, but an attempt to set up public obscenity is. Plainly, an attempt to establish a bawdy-house is of the latter class ; and, consequently, it is indictable. § 1093. Selling House for Bawdry. — The Kentilcky court has seemed to regard the selling of a house for bawdry as no crime.* But, if the vendor knows the use contemplated by the purchaser, why should it not be, at least, an attempt ? It is diificult to draw a distinction in principle between the sale in fee and a sale for a term of years. The disposition is absolute in both instances, car- rying with it the entire present possession. § 1094. Neglect to eject Tenant. — Should a man innocently let a house which afterward the lessee, without his concurrence, converted into a bawdy-house, he would, on principle, be punish- able or not, according as, after ascertaining the fact, he used or not the pQwer of the law, if he had it, to suppress the use. Still there is perhaps some judicial authority, and possibly a shadow of * Brockway v. People, 2 Hill, N. Y. ant who keeps a bawdy-house, see 658. Abrahams v. The State, 4 Iowa, 541. 2 People V. Erwin, 4 Denio, 129. * Ante, § 761. " Eoss V. Commonwealth, 2 B.' Monr. * Ross v. Commonwealth, 2 B. Monr. 417. As to the failure to expel a ten- 417. 617 § 1095 NUISANCE. [book IX. reasoD; for requiring him to go a little further in order to be responsible as keeper of the house. ^ Agent of Owner. — To bring a person within the doctrines we are considering, he need not be the owner of the house ; if he lets it and collects the rents as the owner's agent, he is responsi- ble.2 And — Letting for other Unlawful Purposes. — These vieWS apply also tO the letting of houses for other disorderly purposes, or to become nuisances of any sort, the same as to letting them for bawdry.^ § 1095. Late English Doctrine. — In England, this whole doc- trine, which subjects to indictment one who lets a house for bawdry, or for any other disorderly purpose, has of late received a heavy blow, if indeed it has not been overturned. A man who owned a house let it out in rooms to prostitutes, knowing they intended to use the rooms for bawdry, and directly or indirectly consenting. But he did not reside in the house, or retain the keys. He collected the rents weekly, had the power to eject tlie women but refused, yet received nothing of their earnings other than came from their greater ability to pay the rents. When pressed by complaints of neighbors who were disturbed by noises 1 The State o. Williams, 1 Vroom, ously permitted them to remain,'' &o., 102 ; See Vason v. Augusta, 38 Ga. 542. they should find him guilty. The de- There is an Englisli ease direct against fendant being convicted, the judges, on a any possible Uability of the landlord, ease reserved, held the instructions to the But, as we shall see in subsequent sec- jury, and the consequent conviction, to tions, the English judges have drifted be wrong. Said Pollock, C.B. : " There into what we in this country deem the was no keeping of the house by the de- wrong on this whole subject, tlierefore fendant. He was only the owner of the our tribunals would not be expected to house letting it to another, who used it follow their first move. In this case, the for improper purposes, with which the owner was indicted jointly with the defendant had nothing to do. He de- ostensible keepers of a bawdy-house ; rived no increase of rent from the traific and it appeared that he had let them the there carried on, nor had he any thing to house as weekly tenants, that he had do with the immoral part of the transac- been frequently remonstrated with as to tion, except in knowing that it might or the manner in which the house was con- might not be used as a bawdy-house, ducted, and called upon to interfere, but My brother Williams has well expressed he took no notice of the remonstrances, the ground of our decision in saying, that It was not proved that he obtained any the not giving a notice to quit was not additional rent by reason of the nature of equivalent to keeping a bawdy-house." the occupation. The judge at the trial Reg. v. Barrett, Leigh & C. 263, 268, 269. told the jury, " that, if they were satis- 2 Lowenstein v. People, 54 Barb, fied the defendant well knew the pur- 299. poses for which the house was occupied, » The State v. Williams, supra ; ante, and, having the power of removing the § 1079. tenants by a week's notice, had continu- 618 CHAP. LXV.] BAWDY-HOUSE. § 1096 from the house, he sometimes endeavored to persuade his tenants to be more orderly in behavior. And the judges, on a case re- served, held, that he could not be convicted on an indictment which charged that he " unlawfully did keep and maintain a cer- tain common bawdy-house," &c. Said Pollock, C. B. : " The house was not kept by hiin. He had no power to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper of the house." There was no distinct intimation that the defendant could be held under any other form of the indictment, though the learned judge said, — " Whatever offence against morarlity or law he may have committed, he did not keep a disorderly house." ^ § 1096. Observations on this. — If the English judges were as little informed on the criminal law as are the greater part of those American ones who sit under the shadows of our commer- cial, cities, this eclipse of the judicial understanding would not be a remarkable phenomenon. But it is not easily accounted for in them. "■ He had no power," it was said, " to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper." No, he was satisfied to let the opening and shutting of the door be done by the women ; while he provided the door for them, and the rooms to which the door led, and every week took so much of the money as it was agreed he should have, and concurred in what the women did; only, being clearer-headed, he advised them to be more discreet in their violations of decency and law ! Here, therefore, was a joint operation, where each had his sev- 1 Reg. V. Stannard, Leigh & C. 349, Russell v. Shenton, 3 Q. B. 449 ; Rich v. 354. Perhaps the most pertinent of the Basterfleld, 4 C. B. 783 ; Gandy v. Jub- cases referred to on behalf of the prose- ber, 5 B. & S. 78 ; Todd v. Plight, 9 C. B. cution is Rex v. Pedly, 1 A. & pj._822. n. s. 377. But he is not punishable where See ante, § 1090, 1091. And see, for the the nuisance, like the keeping of a house English doctrine on this subject, 1 Russ. for bawdry, is the entire act of his lessee, Crimes, 6th Eng. ed. by Prentice, 540- whom he could restrain, but will not, un- 542. As there stated, it seems to be, less he receives an increased rent on that, if one creates a permanent nuisance account of the unlawful use. Now, ae- on his land, — as, by the erection of a cording to American doctrine (ante, building which is such, or is likely to § 1086), the motiVe of lucre is unim- become such, — then makes a lease of portant; consequently the question of the land, he is punishable for the nui- what rent was paid, or whether or not sance while in the possession of the the letting was gratuitous, could not lessee. Rex v. Pedly, supra. And see vary the case. 619 § 1096 NUISANCE. [book IX. eral part to perform ^ in carrying out one common object, — the keeping of a bawdy-house. And it is English law, as well as American, that he whose will contributes to an act done by an- other is, if a felony, to be regarded as a joint doer of it, when done in his presence ; ^ or, if, as in this nuisance, it is misde- meanor, he is legally a joint doer whether he is present or absent.^ Thus, a woman, who has less capacity to penetrate another woman than this man had to open the door of the house, can, by joining her will to that of a man who has the capacity, commit rape.* The indictment may, if the pleader chooses, set out the offence according to the legal import of the facts, instead of their outward form.^ In the same way, a man whose part of the criminal transaction does not consist in passing upon the eligi- bility of candidates for admission to the house, with its privi- leges, may, in point of law, keep a bawdy-house. And this doctrine extends through the entire law of crime. But the doc- trine of the case under consideration, carried out into its legiti- mate consequences, would overturn one half of our criminal law. It is impossible, therefore, that it should be accepted in the United States. 1 See ante, § 630, 632, 638, 650. * Ante, § 689. 2 Ante, § 647, 648. 6 Crim. Proced. I. § 332 ; II. § 949. 8 Ante, § 685, 686. 620 CHAP. LXVI.] COMBTJSTIBLB AETICLES. § 1100 CHAPTER LXVI. COMBUSTIBLE ARTICLES. § 1097. Keeping Grunpowder. — The keeping of large quantities of gunpowder in populous places, being calculated to endanger the public safety, is indictable. ^ § 1098. Dangerous. — In New York, the majority of the court were of opinion, that the mere keeping of it near the dwellings of divers citizens, and near a public street, does not come up to the mischief; but, to be a nuisance, it must be in manner and place dangerous.^ The Tennessee court held, that a powder mag- azine, in which large quantities of gunpowder are stored, is, when erected in a populous part of a city, fer se a nuisance.^ § 1099. Kept before Houses built. — In an old case it seems to have been held, in analogy to a rule concerning offensive trades,* that, if the place in which the gunpowder is kept was used for the purpose before dwelling-houses were built in the neighbor- hood, it is not indictable.^ This doctrine is perhaps correct in modern law ; yet it should be considered in connection with other discussions.® § 1100. statutes and By-laws. — There are some statutes and municipal ordinances relating to this subject.'' 1 Ante, § 531 ; Bradley v. People, 56 Cas. 14 ; Wler's Appeal, 24 Smith, Pa. Barb. 72-. And see Wier's Appeal, 24 230., Smith, Pa. 230. * Post, § 1139. 2 People V. Sands, 1 Johns. 78. ^ Anonymous, 12 Mod. 342. " Cheatham «. Shearon, 1 Swan, Tenn. ^ gee further, on this subject, post, 213 See also Williams v. East India § 1139, note. And see ante, § 1078 a. Company, 3 East, 192, 201 ; Trueman v. ^ Williams v. Augusta, 4 Ga. 509. Casks of Gunpowder, Thacher Grim. 621 § 1102 NUISAKCB. [book IX. CHAPTER LXVII. COMMON SCOLD.l § 1101. Nature of Offence. — A common scold is an indictable common-law nuisance.^ This branch of the common law has been received with us.^ The offence is generally treated of as being confined to the female sex,* though perhaps this has not been directly adjudged. § 1102. How Defined. — The adjudications are too few to ena- ble an author to define this offence with entire certainty. It is substantially accurate to say, that a common scold is a woman who, by the practice of frequent scolding, disturbs the repose of the neighborhood. How many Instances. — We shall see, in the next volume,^ that common barratry requires three distinct acts, at least, for its con- stitution ; whether this rule applies to a common scold is uncer- tain on the authorities. On principle, the sp,me reason seems applicable, with perhaps this small difference, that, ^s a single act of barratry is more injurious than one of scolding, possibly there might be required a greater number of repetitions of the scolding than of the barratry. Yet almost the only light we have on the question is a dictum by Buller, J., who said: "In the case of a common scold, it is not necessary to prove the particular expres- sions used ; it is sufficient to prove generally that she is always scolding." ^ 1 See, for matter relating to this title, 113. In Commonwealth v. Mohn, supra, ante, § 540, 943. For the pleading, prao- Woodward, C. J., said : "As to the un-^ tice, and evidence, see Crim. Prooed. II. reasonableness of holding women liable § 199 et seq. to punishment for a too free use of their 2 Ante, § 540 ; 4 Bl. Com. 168 ; 1 tongue, it is enough to say that the com- Hawk. P. C. Curw. ed. p. 693, 695 ; 1 mon law, which is the expressed wisdom Kuss. Crimes, 3d Eng. ed. 327. of ages, adjudges that it is not unreason- ' James v. Commonwealth, 12 S. & able." p. 246. R. 220 ; United States v. Royall, 3 Cranch 4 4 b1. Com. 169 ; 1 Russ. Crimes, 5th C. C. 620; Commonwealths. Mohn, 2 Eng. ed. by Prentice, 438. Smith, Pa. 243. Contra, as to Pennsyl- ' Vol. II. § 65. vania, but since overruled. Common- » J' Anson v. Stuart, 1 T. R. 748, 754, wealth ci. Hutchinson, 3 Am. Law Reg. And see Reg. v. Foxbi, 6 Mod. 11. 622 CHAP. LXVn.] COMMON SCOLD. § 1105 § 1103. Anger. — The element of anger does not necessarily enter into this offence.^ But — " Common Scold." — The indictment charges that the woman is a common scold ; and no other words, as that she is a common slanderer, will dov^ § 1104. Misdemeanor — Punishment. — This offence is misde- meanor. The punishment, under the English common law, is by the ducking-stool ; ^ for which our courts substitute fine and im- prisonment.* § 1105. statutes. — In some of our States, statutes have been enacted affirming this common-law offence, or creating a new one of a like kind. Thus, — Common Railers and Brawlers. — A statute in Massachusetts makes " common railers and brawlers " punishable.^ And con- duct in the defendant's own house, in altercations and loud out- cries, repeated several times each week, attracting to the house crowds and disturbing the neighborhood, was held to justify a conviction. In this instance, the offender was a man.^ 1 United States v, Koyall, 8 Cranch betrayed into violent expressions in the 0. C. 620. heat of an altercation suddenly arising ^ Reg. V. Foxby, 6 Mod. 11. with persons with whom he came in ^ Ante, § 943 ; 1 Hawk. P. C. Curw. contact, and these expressions aimed at ed. p. 695, § 14 ; Reg. v. Koxby, 6 Mod. the party with whom he was in alteroa- 11. tion,' were properly regarded as furnish- * Ante, § 943 ; James v. Common- ing evidence against him, if they were wealth, 12 S. & R. 220 ; United States frequent and habitual, and the language V. Royall, 3 Cranch C. C. 620. so immoderate and vituperative, and ' Gen. Stats, c. 165, § 28. uttered so freely, publicly, and contin- ^ Commonwealth v. Foley, 99 Mass, uously, as to disturb the peace of the 497, Hoar, J., observing : " If the defend- neighborhood. The evidence tended ant, in his own dwelling-house, was in the to show that he had no control over habit of using loud and violent language, his temper or his tongue, and thereby consisting of opprobrious epithets and made himself a nuisance. The merits exclamations, in such a manner as to of his quarrels had little to do with the attract crowds of persons passing and question before the jury, which chiefly living in the neighborhood, on Sundays concerned his manner of conducting as well as other days, and in the night them." p. 499. By how much less the as well as in the daytime, he was a dis- defendant might have incurred guilt, the turber of the public peace by railing and opinion cautiously does not attempt to brawling. And ' occasions when he was show. 623 § 1107 NUISANCE. [book IX. CHAPTER LXVIII. DISOKDEELY HOUSE.^ § 1106. What Includes. — The term disorderly house ^ has a wide meaning. It includes bawdy-houses,^ common gaming- houses,* and places of a like character, to which people promis- cuously resort for purposes injurious to the public morals,^ or health,^ or convenience, or safety ; '' 'all of which are indictable as public nuisances. But evidently the term does not cover every sort of nuisance indicated by the word house. It cannot include a house kept in so filthy a condition as to be therefore indictable.^ Consequently, , — Restricted Meaning. — It is better restricted in meaning, and it sometimes is, to denote a house or other like place in which people abide, or to which they resort, disturbing the repose of the neighborhood. In this sense, it is a violation of what is called, in a previous chapter, the public order and tran- quillity.^ Still, in strict law, mere bawdry, for example, is disorder. Thus, — § 1107. Bawdry Disorder. — An indictment charging the de- fendant with keeping " a certain common, ill-governed, and disorderly house," specifying acts which show it to be a bawdy- house, is good, and is sustained bj'' proof of bawdry committed within the house, though nothing disorderly appears from with- out.i" And, as we have seen,^^ — Single Room. — It is sufficient that the disorder extends to a single room.^^ So, — 1 See, for matter relating to this title, ^ Ante, § 489 et seq. ante, § 316, 361, 504. For the pleading, ^ Ante, § 630 et seq. practice, and evidence, see Crim. Prooed. ^ xhe State «. Purse, 4 MoCord, 472. II. § 272 et seq. 9 Ante, § 533 et seq. 2 Ante, § 504. lo Reg. v. Rice, Law Rep. 1 C. C. 21 ; 8 Ante, § 1083 et seq. ; United States Crim. Proced. II. § 106 ; ante, § 1087. V. Gray, 2 Crancli C. C. 675 ; Common- And see post, § 1109, 1111. wealth V. Stewart, 1 S. & R. 342. » Ante, § 1085. * Post, § 1135 et seq. " The State v. Garity, 46 N. H. 61. ' Ante, § 495 et seq. 624 CHAP. LXVm.] DISORDERLY HOUSE. § 1112 Disorder Outside. — It may be adequate, though not within the walls of the house, but around it outside.^ § 1108. Reputation or Fact. — Nor is it essential that the house \ \ be reputed disorderly ; it must be so in fact, and no more is re- 1 \ quired.^ § 1109. Injure Others than Inmates. — Though the disturbance need not be perceptible to the eye or hearing from without,^ yet a house so kept that only its inmates are liable to be disturbed by it, or corrupted in their morals, or the like,* is not in law a disorderly house.^ It is subject in this to the same rules as other nuisances.^ Therefore a verdict, " that the defendant kept a dis- orderly house, and disturbed his neighbors," is insufficient.'' And the indictment must in some way show that the public was affected by the disorder.^ But — § 1110. Disorderly Inns, &o. — An inn, or other house of like character, differs from a private one in this, — that, " as all have a right to go there and be entertained, they are not to be an- noyed there by disorder. And if the innkeeper permits it, he is subject to be indicted for a nuisance." ^ So that such a place may be a disorderly house, though persons outside are not dis- turbed, corrupted in their morals, or otherwise injured. More- over, — § 1111. Open House. — If the doors of a house are practically open to the public, alluring the young and the unwary into it, to indulge in or witness any thing corrupting to their virtue or sobriety or general good morals, the keeper cannot excuse him- self by alleging that the public are not disturbed. To avail him- self of such an excuse, he must see that the doors are shut to the outer world while the corrupting practices are carried on.^" § 1112. Lucre. — The keeping, to constitute the offence, need not be for lucre.-'-' 1 The State v. Webb, 25 Iowa, 235. ' Hunter v. Commonwealth, supra. 2 The State k.. Foley, 45 N. H. 466. » Mains v. The State, 42 Ind. 327. The State u. Maxwell, 33 Conn. 259 ; » The State v. Mathews, 2 Dev. & ante, § 1088. Bat. 424. See United States v. Colum- « Ante, § 1107. bus, 5 Cranch C. C. 304. « Ante, § 1077. "• See ante, § 1106, 1107. « Hunter v. Commonwealth, 2 S. & R. " The State v. Bailey, 1 Fost. N. H. 298 ; The State v. Mathews, 2 Dev. & 343 ; The State v. Williams, 1 Vroom, Bat. 424. See United States w. Jourdine, 102; ante, § 1086. See The State v. 4 Cranch C. C. 338; ante, § 1106, 1107. Bertheol, 6 Blackf. 474. 6 Ante, § 1077. vol,. I. 40 625 § 1114 NUISANCE. [book IX. \ § 1113. Tippling Shops : — General Doctrine. — Aside from statutory inhibitions, it is not a crime to sell intoxicating liquor.^ But if one keeps a house or shop, open to the pablic, and there sells such liquor to persons generally, who come together, and, stimulated by it, or otherwise, make disturbance, or commit acts of immorality, or in any man- ner violate public decency and decorum, his place is a disorderly house, for which he is indictable.^ And though he has a license to make the sales, it will not protect him on this charge.^ § 1114. Extent and Nature of Disorder. — What degree of dis- order the seller of liquor must permit to render himself indict- able, or what conduct is within this principle, the cases do not clearly show. But — Lord's Day. — Conduct allowed on Sundays may make the place disorderly, while the same conduct on other days would not ; ^ because the Sabbath is set apart for religious observances, for quiet, and for repose. And, — Slaves formerly. — During slavery, it was particularly reprehen- sible to draw together in this way congregations of slaves.^ So — 1 Ante, § 505. 2 The State b. Thornton, Busbee, 252 BloomhufE v. The State, 8 Blackf. 205 Smith V. Commonwealth, 6 B. Monr. 21 Wilson V. Commonwealth, 12 B. Monr. 2 The State v. MuUikin, 8 Blackf. 260.; The State V. Bertheol, 6 Blackf. 474 ; United States V. Coulter,.! Cranch C. C. 203; United States u. Front, 1 Cranch C. C. 203 ; United States v. Lindsay, 1 Cranch C. C. 245 ; United States v. Columbus, 5 Cranch C. C. 304 ; United States v. Bede, 5 Cranch C. C. 305, note ; United States V. Benner, 5 Cranch C. C. 347 ; United States V. Elder, 4 Cranch C. C. 607; Stephens v. Watson, 1 Salk. 45 ; The State V. Burchinal, 4 Barring. Del. 672 ; ante, § 818. See the civU case of Walker V. Brewster, Law Rep. 5 Eq. 26. And see post § 1146, note. s United States v. Elder, 4 Cranch C. C. 507, in which Cranch, C. J., ob- served : " If the defendant had the most favorable license which the law allows, it could not have justified him in suf- fering idle, disorderly, suspicious, and drunken persons to meet together in and frequent his house ; nor to suffer inhabi- 626 tants of this city, not being lodgers or boarders in his house, to remain there drinking and tippling, for his lucre and gain, at any time ; and especially on Sundays." s. e. The State v. Mullikin, 8 Blackf. 260, the court saying : " The license to retail is not, in the eye of the law, a license to keep a nuisance." And in a Delaware case it was laid down, that, if one keeping a store and selling liquor, whether lawfully or unlawfully, permits persons to collect in his store or on the sidewalk, in crowds, and, under the in- fluence of the liquor sold, to be noisy and riotous, and cursing and swearing, to the annoyance of the neighborhood, he is guilty of keeping a disorderly house. The State o. Buckley, 5 Har- ring. Del. 508. * United States v. Columbus, 5 Cranch C. C. 304 ; United States v. Prout, 1 Cranch C. C. 203 ; United States v. Elder, 4 Cranch C. C. 507; Hall ... The State, 4 Barring. Del. 132, 146. And see The State v. Williams, 1 Vroom, 102. ' United States v. Prout, 1 Cranch C. C. 203; Smith v. Commonwealth, 6 CHAP. LXVin.J DISOEDEKLY HOUSE. § 1118 § 1115. Dissolute Persons. — A liquor-shop, around and within whicli dissolute persons are permitted, at night and in the day, to be drinking, tippling, carousing, swearing, hallooing, and the like, has been held to be, in a town, an indictable disorderly- house at the common law.^ And it is the same, though the pro- prietor of the shop has a license to sell the liquor.^ Likewise, — Outside Disturbances. — The keeper of a liquor shop who allows the promiscuous assembling about it of persons disturbing the quiet by loud noises, quarrelling, and swearing, as a consequence -which he might know would probably follow his acts, is indict- able.^ § 1116. Place Populous — On Highway — Other Circumstances. — It is also to be considered whether many or few people reside near, whether the house is on or off a highway, and the like.* In fact, the legal result may depend upon complications of cir- cumstances, such as cannot be analyzed in advance, whUe yet the skilful practitioner will have no difficulty in dealing with them.5 § 1117. statutes. ^ There are statutory tippling-shops, discussed in another connection.^ Nor is the legislature prohibited by the constitutions of our States to make it an indictable nuisance to keep a shop for the selling of intoxicating drinks contrary to law.^ But to discuss the statutes here would be a repeating of what is said elsewhere.^ § 1118. Disorderly Inns : — In General. — A common form of disorderly house is a disorderly B. Monr. 21; Wilson k. Commonwealth, lumbus, 6 Cranoh C. C. 304; United 12 B. Monr. 2. See also The State v. States v. Bede, 5 Craneh C. C. 805, note ; Boyce, 10 Ire. 536. United States ». Benner, 5 Craneh C. C. 1 The State v. Bertheol, 6 Blackf. 474. 347. It is perceived that this is an early Indi- * Ante, § 1077, 1078, and the sections ana case ; at present, there are no com- there referred to, and the cases there mon-law offences in this State. Ante, cited; also, ante, § 1109-1111. § 35. , 6 And see post, § lll»-1121. 2 The State v. Mullikin, 8 Blackf. 260; « Stat. Crimes, § 1064-1070. BloomhufE v. The State, 8 Blackf. 205. ' McLaughlin v. The State, 45 Ind. ' The State v. Thornton, Busbee, 252. 338 ; Commonwealth v. Howe, 13 Gray, And see a series of cases decided in the 26; The State v. Paul, 6 E. X 185; The District of Columbia ; namely. United State ». Keeran, 5 R. I. 497. States V. Prout, 1 Craneh C. C. 203; * And see Commonwealth v. Galla- United State v. Coulter, 1 Craneh C. C. gher, 1 Allen, 592 ; Wallace v. The State, 208 ; United States v. Lindsay, 1 Craneh 5 Ind. 555 ; Robinson v. Commonwealth, C. C. 245; United States v. Elder, 4 6 Dana, 287; The State v. Hopkins, 5 Craneh C. C. 807; United States v. Co- R. I. 53; The State v. Knott, 5 R. I. 298. 627 § 1120 NTJiSAiircE, [book IX. inn.^ Said a learned judge : " The keeper of an inn, tavern, or house of entertainment, who conducts himself in such a manner — either in the entertainment of travellers or other persons, or in permitting improper assemblages in or about his house on Sunday — as profanes the Lord's day, or violates public order and deco- rum, or shocks the religious sense or feelings of the neighborhood, is guilty of a nuisance at common law ; and may be indicted, fined, imprisoned, and his house suppressed ; according to the aggravated nature or enormity of his offence." ^ A peculiarity relating to disorderly houses of this class is noticed in a preceding section.^ § 1119. House in which Offences are committed : — Doctrine Stated. — A doctrine, first developed, it appears, in the Kentucky court, is the following. Whenever a house becomes a common place for the commission of petty offences, such as those punishable by fine, this renders it disorderly, however well it may be otherwise conducted. The original case was an indictment against the keeper of an establishment whetein liquor was habitu- ally sold to slaves, the particular sales being forbidden by law. " The habitual perpetration," said Ewing, C. J., " of the pro- hibited offences, in a house kept for the purpose, constitutes the house a public nuisance, as it tends in a greater degree to the spread of the evil which was intended to be prohibited' by these enactments. There is a specific penalty for fornication and adul- tery ; yet it is an offence, and a much higher grade of offence, to keep a bawdy-house, or a house where those practices are in- dulged. And, though the single offence may be punished by a specific fine, the keeping of a house where those offences are ha- bitually encouraged and indulged, is an offence of a much higher grade, and is punishable, as such, by an indictment at common law." * § 1120. The Principle. — This doctrine, apparently new, is truly as old as the law itself. If one draws together persons to commit petty offences with him, and renders his house the place of the common commission of them by congregated numbers, surely 1 Ante, § 504, 505. As to what is an State w. Mathews, 2 Dev. & Bat. 424 ; inn, see Stat. Crimes, § 297. As to an BloomhufE v. The State, 8 Blackf. 205. innkeeper's refusing to entertain travel- ' Ante, § 1110. lers, see ante, § 532. * Smith v. Commonwealth, 6 B. Monr. 2 Booth, C. J., in Hall v. The State, 4 21, 23 ; Wilson v. Commonwealth, 12 B. Barring. Del. 132, 145. And see The Monr. 2. 628 CHAP. LXVni.] DISOEDEELY HOUSE. § 1121 this is to make a " disorderly " use of it, and it becomes a " dis- orderly house." Such a house disturbs the neighborhood, cor- rupts the morals of the young, obstructs governmental order, and in other respects is an evil of the same sort with the more fami- liar forms of disorderly house. And whether the people assemble in a mass, or come one after another, only a single one or two presenting themselves at a time, the effect is the same, the offend- er's guilt is the same. On this principle proceed many determi- nations in our books. ■* And — Judicially Affirmed. — This doctrine, with this application of it, has been expressly affirmed in New Jersey.^ But, — § 1121. The Individual Acts. — To bring a case within this prin- ciple, the acts done in the house must be either indictable, or, in some sense, unlawful. Therefore, — Delivery of Pregnant Viromen. — In England, an indictment was quashed which alleged, that the defendant converted a house into a hospital for taking in and delivering lewd, idle, and disorderly unmarried women, " who, after their delivery, went away, and deserted their children, whereby the children became chargeable to the parish." " By what law," asked Lord Mansfield, " is it criminal to deliver a woman when she is with child ? " ^ 1 And see particularly Vol. II. § 965. » Rex v. McDonald, 3 Bur. 1645. 2 The State v. Williams, 1 Vroom, 102, 110. 629 § 1124 NinSANCB. [book IX. CHAPTER LXIX. EAVESDROPPING.^ § 1122. At Common Law. — Eavesdropping is indictable at the common law, not only in England but in our States.^ It is seldom brought to the attention of the courts, and our books con- tain too few decisions upon it to enable an author to define it with confidence. But with, at least, proximate accuracy, — How defined. — It may be said to be the common nuisance of hanging about the dwelling-house of another, hearing tattle, and repeating it to the disturbance of the neighborhood. More fully described. — Our books contain nothing on this sub- ject more full than Blackstone's short exposition ; namely, that " eavesdroppers, or such as listen under waUs or windows, or the eaves of houses, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and punishable at the court leet ; or are indictable at the sessions, and punishable by fine and finding sureties for their good behav- ior." ^ And it has been said in one of our courts, that the offence consists, not in peeping or looking, which is not indictable, but in hearking.* § 1123. Listening about Grand Jury Room. — The Tennessee court has held, that one who secretly and stealthily comes near the room of the grand jury, while in the performance of their duties, to overhear what they say and do, commits thereby this offence of eavesdropping.^ § 1124. Conclusion. — It is impossible to discuss this offence fur- ther, with special profit ; because we have not the necessary deci- sions. It never occupied much space in the law, and it has nearly faded from the legal horizon. 1 For the pleading, practice, and evi- Eng. ed. 327 ; 1 Gab. Grim. Law, 319. dence, see Grim. Proced. II. § 312, 813. And see ante, § 944-949. 2 Ante, § 540 ; The State v. Williams, * Gommonwealth v. Lovett, 4 Pa. Law 2 Tenn. 108. Jour. Eep. 5, 6. 8 4 Bl. Gom. 168 ; 1 Hawk. P. C. ' The State v. Pennington, 8 Head, Curw. ed. p. 696; 1 Buss. Crimes, 3d 299. 630 CHAP. LXX.j EXPOSURE OF PERSON. § 1127 CHAPTER LXX. EXPOSUr.E OF PERSON.! § 1125. How defined. — Exposure of the person is any such intentional exhibition, in a public place, of the naked human body, as is calculated to shock the feelings of chastity in those who witness it, or to corrupt their morals. Viewed as Public Show. — As judicially observed : " Every public show and exhibition which outrages decency, shocks hu- manity, or is contrary to good morals, is punishable at common law." ^ Of which sort is exposure of the person.^ § 1126. Distinguished from other Nuisances. — This nuisance dif- fers from others in the particular, that, while others are of a nature to create a permanent inconvenience, or other permanent general injury, in the place where they are established, this one is of temporary operation, coming and going at once. There- fore, — Must be seen. — Though other nuisances — ■ for example, an obstruction in a highway — need not be seen to be indictable, this one must be. The authorities are not quite distinct or har- monious as to the extent to which it must be witnessed, or how liable to meet the public eye. They are as follows : — § 1127. Continued. — The Irish Court of Criminal Appeal has held it not to be indictable for a man to expose his person to one woman, though in a public way, unless there were other persons in a situation to see him ; but the latter circumstance would com- plete the offence, even though they did not in fact witness what i For matter relating to this title, see of the statute, that the act of public in- ante, § 244, 500. For the pleading, prac- decency was open and notorious, and is tice, and evidence, see Crim. Proced. II. therefore not good under the statute ; § 351 et seq. but the offence charged is indictable at 2 Knowles v. The State, 3 Day, 103, common law, for whatever outrages de- 108. cency and is injurious to the public mor- ^ In The State v. Rose, 32 Misso. 560, als is a misdemeanor at common law, 561, Bay, J., observed : " The indictment and punishable as such." in this case does not allege, in the words 631 § 1128 NUISANCE. [book IX. was done.^ Yet, in an English case, where a man and woman openly committed fornication together, on a common beside a public way, and one passer-by saw them, and others could have seen, but there was no evidence whether or not there were others in situations to see, the court was divided on the question whether the offence was complete, and no judgment was given. ^ Where the proof is simply, that the exhibition was privately made to one person, there is, the authorities concur, no offence.^ The case of an exposure in the presence of multitudes of people, yet no one seeing it, could not arise ; because there would be no witnesses to bring the facts before a court. In North Carolina, an indict- ment was held to be sufi&cient which simply alleged, that the defendant exposed his person in " public view in a public place ; " the court observing : " It is not necessary to the constitution of. the criminal act, that the disgusting exhibition should have been actually seen by the public ; it is, enough if the circumstances under which it was obtruded were such as to render it probable that it would be publicly seen ; thereby endangering a shock to modest feeling, and manifesting a contempt for the laws of de- cency." * Still this case could not have arisen if the fact had not been seen. Moreover, — § 1128. Public Place. — A strictly private exhibition is not indictable ; it must be, certainly according to the English doc- trine, in a public place.^ What is a " public place " under our statutes against gaming, we saw in " Statutory Crimes." ^ In the offence now under consideration, the English courts have held that a public omnibus is such a place, an exposure in which is indictable.'^ So may be a urinal, on a public foot-path, exposed to sight from the windows of dwelling-houses fourteen and a half feet away.^ And where a man exposed himself from the roof of 1 Eeg. V. Farrell, 9 Cox C. C. 446. Dears. 207, 3 Car. & K. 360, 20 Eng. L. And see ante, § 244. & Eq. 597, 22 Law J. n. b. M. C. 122, 17 2 Eeg. ■/. Elliot, Leigh & C. 103. Jur. 662 ; Reg. u. Thallman, Leigh & C. ' See, among other cases, Eeg. v. 326. Webb,. 1 Den. C. C. 388, 2 Car. & K. « stat. Crimes, § 298, 878. 933, Temp-. & M. 23, 13 Jur, 42, 18 Law ' Eeg. v. Holmes, supra. J. N. s. M. C. 39 ; Reg. v. Watson, 20 « Reg. v. Harris, Law Rep. 1 C. C. 282. Eng. L. & Eq. 599, 2 Cox C. C. 376. Said Bovill, C. J., in an opinion in which * The State v. Roper, 1 Dev. & Bat. theother judges concurred: "If tlie judge 208, opinion by Gaston, J. See also The was bound to tell the jury that a urinal State V. Millard, 18 Vt. 574. could not be such a place, of course the 6 Eeg. V. Orchard, 3 Cox C. C. 248, 20 conviction was wrong and must be set Eng. L. & Eq. 598 ; Reg. v. Holmes, aside, but not otherwise. Now, it appears 632 CHAP. LXX.] EXPOStJEE OP PEESON. § 1129 a house, so situated that he could be seen and was seen by per- sons at the back windows of several other houses, yet he was not visible from the street, the place was held to be public within the import of this branch of the law, and the conviction was sus- tained.i § 1129. Continued. — In New York, where six women made an indecent exposure of their persons for hire, in the presence of five men, in a room in a house of prostitution, the doors, win- dows, and shutters being closed, the place was held to be public, subjecting the women to punishment for the exposure.^ But, — Continued — (To how Many). — There are American cases in which it appears not to have been deemed always necessary that the place should be public, or that the exposure should be to more than one. In Vermont, a statute provided a punishment " if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior;" and thereupon an indecent exposure, by a man, of his person to a woman whom he solicited to acts of sexual intercourse, persisting in the solicitation in spite of her denial and remonstrance, was held to be within the statute. The learned judge who delivered the opinion said : " I am not prepared to say, that the conduct of the respondent would not have been indictable at common law, notwithstanding the intimation to the contrary in the case of Fowler v. The State.^ There is a precedent of an indictment against one Bennett, in 2 Chitty, 41, on which he was convicted, that the urinal was open to the public ; the public, was deemed not to be a public that it was in Hyde Park, upon a public place, at which this offence could be com- foot-path; and that the entrance to it mitted; but this ruling seemed not to was from that foot-path. I think it was meet with favor in Beg. v. Harris, before just as much a public place, with respect the Court of Criminal Appeal, to that portion of the public who use it, ' Eeg. v. Thallman, supra. The as a public highway. Every place must reporter observes: "This case some- be more pr less screened from view on what resembles Rex v. Crunden, 2 some side, and the size of an enclosure Camp. 89, in which it was held that it does not necessarily affect the question is an indictable offence for a man to whether it is a public place or not. We undress himself on the beach, and to are only bound to decide whether this bathe in the sea, near inhabited houses, could be a public place. But I think it from which he may be distinctly seen." clearly was so; and just the sort of pub- p. 329, note. Of a like sort with Rex v. lie place to which the law ought to be Crunden, is Reg. v. Reed, 12 Cox C. C. applied." p. 283. In Reg. v. Orchard, 1, 2 Eng. Rep. 157. And see post, supra, before the Central Criminal Court, § 1131. a urinal situated in an open market, with ^ People v. Bixby, 4 Hun, 636. boxes or divisions for the convenience of ' Fowler v. The State, 5 Day, 81. 633 § 1131 NTJISANCB. [book IX. which would have been sustained by the same evidence produced against this respondent. Of the soundness of the decision in Commonwealth v. Catlin,^ we have nothing to say, — and only remark, that, in that case, the ■lewdness was designed to be pri- vate, and it was rather accidental that the offenders were dis- covered; and, in this particular, the case is essentially different from the one before us." ^ And in Pennsylvania it was decided, that the exhibition of an obscene print need not be public to be indictable ; for " an offence may be punishable, if, in its nature and by its example, it tends to the corruption of morals, although it be not committed in public." ^ § 1130. How in Principle. — In principle, the offence being a nuisance, punishable because injurious to the public, the place should, as a general rule, be public, or the act will be only a pri- vate nuisance. Yet a place not permanently public may be so for the occasion.* No reasons are apparent rendering it univer- sally necessary that the exhibition should be seen ; provided it was publicly made, in the presence of people who could see it, and was meant for their observation. Still the intent to have it seen could not, as before observed, be shown where no per- son was present to see. And one might innocently do, in a very public place, having ascertained to his satisfaction that no persons were actually present, what he would never do in any place before the eyes of a crowd. When a man puts into the public way or other public place some nuisance without intelli- gence, and leaves it there, the evil intent springs up in proof out of the fact itself; not so, in respect of the misdemeanor now under discussion. § 1131. Custom of Exposure. — We have seen,^ that the right to carry on a public nuisance cannot be prescribed for, or estab- lished by usage. If the place has always been used for bathing, yet it is upon a public footway frequented by females, men can- not innocently make there the exposure of their nude bodies necessary for the bath, unprotected by screen or covering.^ And, where one was indicted for an exposure by bathing in the sea, 1 Commonwealth v. Catlin, 1 Ma8B. 8. * Stat. Crimes, § 298. 2 The State v. Millard, 18 Vt. 574, 6 Ante, § 1078 a. opiniop by Williams, C. J. ' o Reg. v. Reed, 12 Cox C. C. 1, 2 ' Commonwealth v. Sharpless, 2 S. Eng. Rep. 157. & R. 91. 634 CHAP. LXX.] EXPOSUBB OF PBESOHT, § 1134 observable from windows of dwelling-houses, he was not per- mitted the defence, that, before the houses were built, it was a bathing-place for whole regiments of soldiers. "Whatever place," said McDonald, C. B., "becomes the habitation of civil- ized man, there the laws of decency must be enforced." ^ § 1132. How Much and what Part Exposed. — How large a part, and what part, other than the privates of the person, must be exposed to constitute the oifence, the cases do not disclose. Ordinarily the exposure is merely of the private member, and this is sufficient. The same follows, where the exposure is of the entire naked body.^ In an old case, an indictment, says the report, "for running in the common way, naked down to the waist, the defendant being a woman," was quashed ; the recorded observation of the court being, that " nothing appears immodest or unlawful." ^ But we should hesitate to say, that a common woman could go thus through a principal street in one of our cities, without subjecting herself to this prosecution.* § 1138. Intent. — The exposvire must plainly be other than acci-^ dental, as already observed ;5 and a New York case holds, that the evil purpose must be alleged' in the indictment, and proved/ as a fact to the jury.^ § 1134. " Public Indecency." — A statute in Indiana having made indictable " notorious lewdness or other public indecency," it was observed: "The term public indecency has no fixed legal meaning, is vague and indefinite, and cannot in itself imply a definite offence. And hence, the courts, by a kind of judicial 1 Eex V. Crunden, 2 Camp. 89, 1 Russ. not hare ordered that men shall be Crimes, 3d Eng. ed. 326 ; s. c. nom. Eex whipped in that manner, as they have V. Cranden, 1 Gab. Crim. Law, 744, 745. done by several acts of Parliament. The ^ Eex V. Sedley, 17 Howell St. Tr. court was of the same opinion,'" and 155, note ; s. c. nom. Eex v. Sidley, 1 quashed the indictment, s. c. nom. Rex Sid. 168; s. c. nom. Sydlyes Case, 1 Keb. v. Gallard, 1 Sess. Cas. 231. I appre- 620 ; Eex v. Crunden, 2 Camp. 89. hend, that, at the present day, a court 3 Eex V. Gallard, W. Kel. 163. should apply, not the outward shell of * So it seems that, according to the the old rule to subvert the modem man- old books, a man is not punishable ners, but its inner substance for sustain- for passing through a thronged public ing and perfecting the new. Such, in way, stripped merely to the waist. Eex many instances, is the proper use to be V. Tallard, 2 Barn. 328, 345. The counsel made of cases from the old books, de- fer the defendant argued in this case, cided when modes and fashions of life " that a man's being stripped from the now antiquated prevailed. middle upwards could be no indecent ^ Ante, § 1126, 1130. sight. If it was so, the legislature would " Miller v. People, 5 Barb. 203. 635 § 1134 NUISANCE. [book IX. legislation, in England and the United States, have usually limited the operation of the term to public displays of the naked person ; the publication, sale, or exhibition of obscene books and prints ; or the exhibition of a monster, — acts which have a di- rect bearing on public morals, and affect the body of society." ^ ^ McJunkins v. The State, 10 iDd. 140, 145 ; opinion by Hanna, J. 636 CHAP. LXXI.j GAMrSfG-HOUSB. §1135 CHAPTER LXXI. GAMING-HOUSB.' § 1135. Indictable and why. — Simple gaming, and no more, is not generally, at the common law, indictable ; though, in most of our States, it is, in some circumstances, by statutes.^ But, even at the common law, a common gaming-house may be a public nuisance, and the keeper punishable, it being deemed a disorderly house. ^ And the reason is, that persons attracted to it, especially youths, are there lured to vice.* 1 For matter relating to this title, see ante, § 504, 974, 975. For the plead- ing, practice, and evidence, see Crim. Proced. II. §487etseii. s Stat. Crimes, § 846 et seq. 3 Ante, § 504 ; BloomhufE v. The State, 8 Blackf. 205; The State v. Haines, 30 Maine, 65; United States 1). Dixon, 4 Cranch C. C. 107 ; The State V. Doon, E. M. Charl. 1 ; Barada V. The State, 13 Misso. 94; Vander- worker v. The State, 8 Eng. 700 ; Eex V. Medlor, 2 Show. 36; The State v. Savannah, T. U. P. Charl. 235 ; Eex v. Dixon, 10 Mod. 335, 336; People u. Jackson, 3 Denio, 101 ; West v. Com- monwealth, 3 J. J. Mar. 641 ; People V. Sergeant, 8 Cow. 139; Common- wealth V. Tilton, 8 Met. 232, 285 ; People !). Eaynes, 3 Cal. 366. The same has been held, on great consideration, in Scotland. Greenhufi's Case, 2 Swinton, 236. * 1 Hawk. P. C. Curw. ed. p. 693, § 6; Vanderworker v. The State, 8 Eng. 700; The State v. Doon, E. M. Charl. 1 ; United States a. Dixon, 4 Cranch C. C. 107 ; Commonwealth v. Stahl, 7 Allen, 304 ; Lord r. The State, 16 N. H. 325. In an old case, we read : " It is a public nuisance, not for the un- lawfulness of the thing itself, but for keeping houses to decoy idle persons and apprentices, and consequently it becomes a means of debauching the youth of the nation ; it must be done for lucre's sake [no, post, § 1187] ; it must be done often, and not once only." Eex V. Medlor, 2 Show. 36. "It draws to- gether evil disposed persons ; encourages excessive gaming, idleness, cheating, and other corrupt practices ; and tends to public disorder." Bronson, C. J., in People 0. Jackson, 3 Denio, 101. " The hurt or injury to the community, which has occasioned bowling-alleys kept for gain and common use to be regarded as common nuisances, arises from their ten- dency to withdraw the young and incon- siderate from any useful employment of their time, and to subject them to vari- ous temptations ; from their affording to the idle and dissolute encouragement to continue in their destructive courses. Clerks, apprentices, and others are in- duced, not only to appropriate to them hours which should be employed to in- crease their knowledge and reform their hearts, but too often to violate higher moral duties to obtain means to pay for the Indulgence. Other bad habits are in such places often introduced or con- firmed. The moral sense, the correct principles, the temperate, regular,\and in- dustrious habits, which are the basis of a prosperous and happy community, are 63T ' §1137 NUISANCE. [book IX. § 1136. Quiet Billiard-room and Bowling-alley. — In a New York case it seems to have been laid down, that keeping a billiard- room, without noise disturbing the neighborhood, does not come within this description of offence.^ But the reader need only consult the authorities cited to the last section to see, that this is not the general doctrine ; for youth may be as effectually lured to vice by a noiseless process as by any other. -A bowliug-alley is as harmless as a billiard-table ; yet the doctrine appears to be, that even a common bowling-alley is a nuisance indictable.^ § 1137. How Public. — To constitute a common gaming-house, not all persons need have access to it ; if it is open to people generally, that is sufficient.^ Lucre. — The language of some of the cases implies, that the house must be kept for lucre ;* but we have seen,^ that, by the better doctrine, the motive of lucre is not a necessary ingredient in this class of offences. And — Ownership. — It is iramaterial whether the keeper of the house is the owner of the building or not.^ frequently impaired or destroyed. Bowl- ing-alleys, without doubt, may be re- sorted to by many p^sons without such injurious results. The inquiry is, not what may be done at such places without injury to persons of iixed habits and principles, but what has been, in the ex- perience of man, their general tendency and result. The law notices the usual effect, the ordinary result of a pursuit or course of conduct, and by that decides upon its character." Shepley, C. J., in The State v. Haines, 30 Maine, 65. " Such a house is an encouragement to idleness, cheating, and other corrupt practices ; tends to produce public dis- order by congregating many people ; and to draw the young and unwary from the paths of virtue. A disorderly house is a nuisance, if the persons there assem- bled annoy the neighborhood by loud noises, cursing, or swearing ; a gaming- house is also a nuisance, if it bold out inducements and attractions to bring together persons in such numbers, or BO often, as to make it injurious to the public, and dangerous to the neighbor- hood, by drawing the sober and indus- trious into habits of idleness and vice, and corrupting the young and unwary." 638 Harrington, J., in The State v. Layman, 5 Harring. Del. 510. 1 People .;. Sergeant, 8 Cow. 139. But see the State v. Layman, 5 Har- ring. Del. 510. 2 The State v. Haines, .30 Maine, 65. But there seems to have been a statute on the subject. The State v. Currier, 23 Maine, 43. In New Jersey, a ten-pin alley, kept for gain in a populous village, and open to public use, is not deemed per se a disorderly house, or public nuisance. Nor does the fact of its being kept in con- nection with a lager-beer saloon make it such. The State v. Hall, 3 Vroom, 168. And see, as to billiards, 3 Chit. Crim. Law, 677. 8 Rice u. The State, 10 Texas, 545 ; Lookhart a. The State, 10 Texas, 275. * Rex T>. Medlor, 2 Show. 36 ; ante, § 1135, note; The State v. Layman, 5 Harring. Del. 510. See The State v. Leighton, 3 Fost. N. H. 167 ; BloomhufE V. The State, 8 Blackf. 205 ; The State V. Haines, 80 Maine, 65 ; Commonwealth i>. Tilton, 8 Met. 232, 235. 6 Ante, § 1086, 1112. « The State u. Haines, SO Maine, 65. See The State v. Currier, 23 Maine, 43. CHAP. LXXI.] GAMING-HOUSE. §1137 Extent of Gaming. — What extent of gaming is requisite depends perhaps on familiar principles, but they are not much illustrated by decisions.^ Misdemeanor. — This offence is misdemeanor.^ ^ According to an Indiana case, the jury are to determine whether the fact of the defendant's permitting, in a single instance, a game of roulette in his house, is sufficient evidence that he kept a gam- ing-house. Said the court : " The ques- tion before the jury was, whether the de- fendant occupied the room for gambling. That was purely a question of fact. If the defendant did so occupy his room, then the law said he should be fined." Armstrong v. The State, 4 Blackf. 247. 2 Ante, § 1079 ; The State v. Crum- mey, 17 Minn. 72; People u, Kayues, 3 Cal. 366 ; Buford v. Commonwealth, 14 B. Monr. 24. 639 § 1139 NUISANCE. [book IX. CHAPTER LXXII. OFFENSIVE TEADES.^ § 1138. Indictable and Why. — The carrying on of offensive trades, in populous places, is indictable as injuring tlie public health,^ also as a disturbance to the public convenience.^ Both of these grounds need not exist together '; but, — Noise — Smell — Health. — If the senses, for instance, are offended by the smell,* or by the noise,^ this is sufficient. There is no need the offensiveness should produce disease.^ How many injured. — How many persons must be put to incon- venience, or be injured, to render the nuisance indictable, is a question already discussed.'' ■ § 1139. Useful Trades and Pleasant Homes. — The community is as much benefited by its members carrying on useful trades, as by their having pleasant homes. And from this proposition comes another, generally but not universally accepted ; namely, that, — Business established before Houses. — Whenever a man has es- I tablished himself, remote from habitations, in a business which is lawful, and is useful to the community, those who afterward set- tle near him are not entitled to complain of its offensiveness, and he is not indictable for continuing it.^ Even if, after the 1 For the pleading, practice, and evi- 6 Aahbrook w. Commonwealth, 1 Bush, dence, see Crim. Proced. II. § 875-877. 139. Livery Stable. —In a Texas civil 2 Ante, § 489 et seq. case, it was laid down that a liyery stable ' Ante, § 530 et seq. in a town is not necessarily a nuisance ; * Rex V. Neil, 2 Car. & P. 485 ; Rex but it may be feo located, constructed, V. White, 1 Bur. 333 ; Rex v. Pierce, 2 or kept, as to be such. And Wheeler, J., Show. 327 ; Commonwealth v. Brown, said ; " What constitutes » nuisance is 13 Met. 365; The State v. Wetherall, well defined. The word means, literally, 6 Barring. Del. 487. And see Aldred's annoyance ; in law, it signifies, according Case, 9 Co. 57 b; People v. Cunningham, to Blackstone, 'any thing that worketh 1 Denio; 524 ; Rex v, Davey, 5 Esp. 217. hurt, inconvenience, or damage.' " Bur- 6 Anonymous, stated 2 Show. 327. See ditt v. Swenson, 17 Texas, 489, 502. The State v. Riggs, 22 Vt. 321 ; Common- ^ Ante, § 243-246,^1077, 1078. wealth V. Smith, 6 Cush. 80 ; Rex v. « Ellis o. The State, 7 Blaokf. 584, Smith, 1 Stra. 704 ; ante, § 531, 537. Rex v. Cross, 2 Car. & P. 483. Gun- 640 CHAP. LXXn.] OFFENSIVE TRADES. § 1141 coming of inhabitants, he makes in the form of it slight changes, so as to vary a little its noxious character but not increase it in degree, he may still, it seems, rely on his prior occupancy of the place. And his acquired rights will pass to his successors.^ According to an English nisi prius ruling, a man may set up a new manufactory in the neighborhood of old ones, if the new, though noxious, does not materially enhance the discomfort of persons dwelling near.^ Where it increases the mischief, the re- sult is otherwise.^ But without a prior occupancy, the right to carry on an offensive trade cannot be acquired by prescription,* — a proposition a little weakened by some English cases. ^ And — §1140. Limited to Useful Trades. — This doctrine is limited to useful trades ; for, as we have seen,^ it is, in general, no excuse for one who commits a nuisance to-day that he did the same thing yesterday. Even, as we have also seen,^ nude bathing in the sea, after inhabitants come to the place, is not justified by a custom of bathing there before. The distinction rests on the difference between a necessary trade and a mere innocent recreation. And it suggests another ; namely, between such trade and an imr&oral business, — the latter clearly not being protected by any prior occupancy of the ground. But, — § 1141. Business before Houses, continued. — In some American cases, it is even denied that a man may carry on any trade, how- ever useful, and however long established, after the coming of inhabitants to the locality, if it is such as would otherwise be an powder. — Where one was indicted for it be kept in such a place as it is danger- the nuisance of keeping several barrels ous to the inhabitants or passengers, it of gunpowder in a house in a village, will be a nuisance." Anonymous, 12 sometimes for two days, sometimes a Mod. 342. week, till they could be conveniently l I do not see any case exactly cover- sent to London, " Holt, C. J., resolved .- ing the points in the last two sentences ; First, that, to support this indictment, but they are within the doctrine of the there must be apparent danger, or mis- cases cited in the next two notes, chief already done. Secondly, though it ^ Rex v, Neville, Peake, 91. had been done for fifty or sixty years, ' Rex v. Watts, Moody & M. 281. yet, if it be a nuisance, time will not * People v.' Cunningham, 1 Denio, make it lawful. Thirdly, if, at the time 524 ; Wright v. Moore, 38 Ala. 693. of setting up this house in which the See Ashbrook v. Commonwealth, 1 powder was kept, there had been no Bush, 139. houses near enough to be prejudiced by s jjex o. Watts, Moody & M. 281 ; it, but some were built since, it would be Rex v. Neville, Peake, 91, 93. at the peril of the builder. Fourthly, 6 Ante, § 1078 a. though gunpowder be a necessary thing, 1 Ante, § 1131. and for defence of the kingdom, yet, if VOL. I. 41 641 § 1141 NUISANCE. [book IX. indictable nuisance. Thus, in Massachusetts, one was held to be rightly convicted of the nuisance of a slalughter-house, origi- nally erected remote fi-om the public way and from habitations ; but afterward inhabitants settled in the place, and a public high- way was laid out by the slaughter-house. It is submitted, that, on principle, the coming of inhabitants would not alone have justified the declaring of the slaughter-house a nuisance. The reason is, that men must eat, as well as breathe and exercise the sense of smell ; and, after one has made lawful and proper arrange- ments to supply his fellow-beings with food, others cannot justly say to him, " We will set ourselves down by your side, and you shall no more carry on your business of supplying our wants." Yet clearly, proceeding to another point in the case, the legisla- ture has authority so to control public industry as to prevent any one man's interfering with the industry of others, or with their comfort.! And if the legislature, or a subordinate power acting under legislative authority, causes a highway to be laid out, the result implies a legislative direction for the removal of all nui- sances along the way. The judge, delivering the opinion of the court in this case, held the following language : " The public health, the welfare, and safety of the community, are matters of paramount importance, to which all the pursuits, occupations, and employments of individuals, inconsistent with'their preservation, must yield. It is therefore immaterial, so far as the government is concerned in the administration of the law for the general wel- fare, how long a noxious practice may have prevailed, or illegal acts been persisted in. [This is true ; but the doctrine which permits the continuance of the business, correctly viewed, does not rest on the idea of a prescription, or on any supposed right of a man to do for the one hundredth or one millionth time an ille- gal act, because permitted to go unpunished before.] Easements may be created in lands, and the rights of individuals may be wholly changed by adverse use and enjoyment, if it is sufficiently protracted ; but lapse of time does not equally affect the rights of the State." ^ In harmony with this doctrine, it is held in Ken- tucky, that the carrying on of an offensive business for more than thirty years, in a place remote from dwellings and public roads, 1 And see post, § 1144. also Brady v. Weeks, 8 Barb. 157 i 2 Commonwealth v. Upton, 6 Gray, Howell v. McCoy, 3 Eawle, 256. 473, 476, opinion by Merrick, J. See 642 CHAP. LXXII.] OFFENSIVE TRADES. § 1143 does not authorize the owner to continue it after houses have been built and roads laid out in the vicinity, if it is then found to be a nuisance to those dwelling in the neighborhood and to passers-by.^ And there are some other American cases to the like effect.^ § 1142. ■What Trades are Nuisauces. We Sometimes read in the books, that such a trade is, or is not, a nuisance per se.^ Now, in reason, no useful trade can be a nuisance per se ; because every such trade must be carried on somewhere, and it is a nuisance or not according to the manner in which it is conducted, and its proximity to habitations and public ways. And no one can fore- tell what means may yet be found to conduct a business now offensive in a manner not to be so. But let us look at some views supplied by the books. Thus, — Brewer — Chandler. — Hawkins says : " It hath been holden, that it is no common nuisance to make candles in a town,* because the needfulness of them shall dispense with the noisomeness of the smell. But the reasonableness of this opinion seems justly to be questionable, because, whatever necbssity there may be that candles be made, it cannot be pretended to be necessary to make them in a town : and surely the trade of a brewer is as necessary as that of a chandler ; and yet it seems to be agreed, that a brew- house, ejected in such an inconvenient place wherein the business cannot be carried on without greatly incommoding the neighbor- hood, may be indicted as a common nuisance ; and so, in the like case, may a glass-house, or swine-yard." ° § 1143. other Specific Nuisances. — Among other nuisances, or things wliich may be such, are a lime-kiln,® a manufactory of acid 1 Ashbrook u. Commonwealth, 1 « 1 Hawk. P. C. Curw. ed. p. 694, § 10. Bush, 139. In a civil case it was lield, that the erec- ■■^ Taylor v. People, 6 Parker C. C. tion of a tallow furnace, by a chandler, 347 ; Commonwealth v. Van Sickle, to the, annoyance of an innkeeper and Brightly, 69. his guests, is a nuisance for which an 3 As, see, Huckenstine's Appeal, 20 action will lie. " And so," added the Smith, Pa. 102 ; The State v. Trenton, 7 court, " in Taohyles's Case, who erected Vroom, 283 ; Wier's Appeal, 24 Smith, a tallow furnace across tlie street of Den- Pa. 230 ; Commonwealth v.. Van Sickle, mark-house in the Strand, it was found a Brightly, 69; Fairbanks v. Kerr, 20 nuisance upon the indictment, and ad- Smith, Pa. 86 ; Waupun v. Moore, 34 judged to be removed." Morley v. Wig. 450. Pragnell, Cro. Car. 510. < 8. p. Allen V. The State, 34 Texas, . » Aldred's Case, 9 Co. 57 4. 230. 643 § 1144 NtrisANCE. [book IX. spirit of sulphur,^ a soap-boiling establishment,^ one for the ren- dering of petroleum,^ a livery stable,* a pig-sty,^ a slaughter- house,^ a tannery,^ brick-burning,* and keeping a dairy.® Yet the criterion is not, what business is carried on ; but what is its effect, as creating a nuisance or otherwise. § 1144. Legislation. — It is competent, as already intimated, for a legislative act to regulate, directly or indirectly, whatever per- tains to indictable nuisances.'" For example, it may prohibit the use of any building, in a town of a specified population, as a slaughter-house, without permission from the town officers.^^ And where it has authorized a citizen to establish a dam of a specified height, at a place named, he is not liable to an indict- ment for any nuisance thereby created.^'^ So works of internal improvement, erected under legislative act by the State, do not become public nuisances in law, whatever may be their character or consequences in fact; nor is it otherwise though they are transferred to a private corporation, obligated to keep the works up for the purposes of their creation!^^ 1 Eex V. White, 1 Bur. 333. 62 Misso. 174 ; Blydenburgh ■/. Miles, 39 2 Eex V. Pierce, '2 Show. 327. As to Conn. 484 ; Commonwealth v. Kidder, a blacksmith's shop in a village, see Ray 107 Mass. 388. V. Lynes, 10 Ala. 63. n Watertown v. Mayo, 109 Mass. 315. ' Commonwealth v. Kidder, 107 Mass. And see Taylor v. The State, 35 Wis. 188. 298. * Ante, § 1138, note. 12 Stoughton v. The State, 5 Wis. 291 ; ' Commonwealth v. Van Sickle, one judge dissenting, on the ground that Brightly, 69. the statute should not be construed to au- 8 Ante, § 1141 ; post, § 1144. thorize the nuisance, but merely the ' The State v. Trenton, 7 Vroom, 283. erection of the dam as far as possible 8 Huckenstine's Appeal, 20 Smith, Pa. without becoming such. 102. 1^ Commonwealth 0. Reed, 10 Casey, 9 The State v. Boll, 59 Misso. 321. 275. See Delaware Division Canal v. i» Ante, § 1141 ; The State v. Fisher, Commonwealth, 10 Smith, Pa. 367. 644 CHAP. Lxxm.] PUBLIC SHOWS. §1146 CHAPTER LXXIIL PUBLIC SHOWS.l § 1145. ■What, and Indictable. — It already sufficiently appears, that any public exhibition tending to corrupt the morals, or to disturb the peace, or to crea,te any breach of the good order of the community, is, if adequate in magnitude, indictable at the common law.^ Thus, — § 1146. Collecting Crowd — (Effigies or Pictures at Windows). — It has been laid down in England, that, if one having a house on a street exhibits effigies at his windows, attracting a crowd, and thereby causing the footway to be obstructed, he commits an indictable nuisance, even though the effigies should not be libel- lous.8 If the exhibition is libellous as being obscene, offensive, or 1 For the procedure relating to this title, see Crim. Proced. II. § 865. 2 Ante, § 600, 504 ; Eex v. Bradford, Comb. 304; Hall's Case, 1 Mod. 76. 8 Rex V. Carlile, 6 Car. & P. 636. The general doctrine is well discussed in a civil case, which, according to the re- porter's head-note, is as follows : " The collection of a crowd of noisy and disor- derly people, to the annoyance of the neighborhood, outside grounds in which entertainments with music and fireworks are being given for profit, is a nuisance for which the giver is liable to an injunc- tion ; even though he has excluded all improper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police." Walk- er V. Brewster, Law Kep. 5 Eq. 25. As I understand it, the doctrin^ is, also, that an indictment would lie in a case like this. And see ante, § 1074-1076. Said Sir W. Page Wood, V. C. ; " Common sense must be used with reference to transactions of this kind. If persons use their houses for the enjoyment of life, and one of the ordinary enjoyments of life is supposed to be the occasional entertainment of one's friends at a rout, it would be very difficult for any one complaining of the noise and inconven- ience caused by a rout to obtain an in- dictment at law, still more so, I appre- hend, to persuade this court to interfere. At all events, that differs altogether from acase like this, where the defendant makes a business and a profit by giving enter- tainments, which are carried on so as to induce this crowd of idle people to col- lect in large numbers to the annoyance of the plaintiff. In this respect, the lan- guage of Lord Tenterden in Rex v. Moore, 3 B. & Ad. 184, is applicable to the present case : ' The defendant asks us to allow him to make a profit to the annoyance of all his neighbors. ... If a person collects together a crowd of peo- 645 § 1149 NTJISANCB. [book IX. disgusting, — for example, the picture of a man naked to the waist and covered with eruptive sores, — it is punishable without regard to the collecting of any crowd.^ Thus, — Obscene Pictures. — The exhibition of obscene pictures is a common-law nuisance.^ In General. — The entire doctrine of this cliapter is closely- related to the subject of obscene libel. It is not very important to preserve the distinction. These illustrations cover only a frag- ment of what might be treated of under this title. § 1147. Statutory Provisions : — Puppet Shows, &o. — In aid of the common law, it is provided by statute in New York, that " no person shall exhibit or per- form for gain or profit any puppet show, any wire or rope dance, or any other idle shows, acts, or feats, which common showmen, mountebanks, or jugglers usually practise or perform," &c. ; and it was held by the majority of one of the courts, that this statute is violated by white persons appearing in public, dressed as ne- groes, singing negro songs, and doing pretended feats as physi- ologists and mesmerizers and the like.^ § 1148. Shows, Amusements, &c. ■ — - Dancing-school. — A statute in Massachusetts made it indictable to set up, without license, " public shows, public amusements, and exhibitions of every description, to which admission is obtained upon payment of money, or the delivery of any valuable thing, or by any ticket, or voucher obtained for money or any valuable thing." * And the court deemed it not applicable to a school for teaching danc- ing, admission to which was obtained by a payment of money for each evening.^ § 1149. Theatrical Exhibitions. — It being provided in Vermont, that, " if any company of players or persons whatever shall ex- ple, to the annoyance of his neighbors, ^ Willis v. Warren, 1 Hilton, 590. that is a nuisance for which he is an- ^ Thurber ti. Sharp, 13 Barb. 627. swerable.' There the nuisance com- * Stat. 1849, c. 131. plained of was the trampling of grass ^ Commonwealth v. Gee, 6 Cush. 174. and destruction of fences." p. 33. Mak- See also as to this sort of statute, Com- ing Speech. — The making of a speech monwealth v. Twitchell, 4 Cush. 74 ; Pike in the street is not per se a nuisance. Fair- v. The State, 85 Ala. 419 ; The State «. banks v. Kerr, 20 Smith, Pa. 86. Bowers, 14 Ind. 195; Cate v. The State, 1 Reg. V. Grey, 4 Fost. &. F. 73. And 3 Sneed, 120. see Reg. o, Saunders^ 1 Q. B. D. 15, 19, 13 Cox C. C. 116. 646 CHAP. liXXIII.] PUBLIC SHOWS. § 1149 Libit any tragedies, &c., in any public theatre or elsewhere, for money, &c., each person, so exhibiting, shall forfeit," &c. ; the court has held, that the offence, whatever it may be, cannot be committed by a single individual. Therefore an indictment against one person, not alleging any connection with others, cannot be sustained.^ ' The State v. Fox, 15 Vt. 22. In ccnsee, exhibits therein feats of legerde- Alabama, by construction of the statutes, main or sleight of hand. Jacko v. The a license to keep a, theatre will not pro- State, 22 Ala. 73. tect one who, by contract with the li- 647 § 1151 NUISANCE. [book IX. CHAPTER LXXIV. WOODEN BUILDINGS AND THE LIKE. § 1150. Protection against Fire. — There are statutes and or- dinances for the protection of populous places against fire ; for- bidding, under various qualifications, the erection of wooden buildings. These provisions differ somewhat ; therefore we need only refer to the work on Statutory Crimes, in which some points of interpretation are stated,^ and to the cases.^ § 1151. Buildings for Particular Purposes. — Likewise there are enactments against the erection of buildings, in particular locali- ties, and for particular purposes.^ 1 Stat. Crimes, § 208, 292. v. Commonwealth, 2 Rawle, 262 ; The 2 Stewart u. Commonwealth, 10 Watts, State u. Brown, 16 Conn. 54; Rex v. 806 ; Tuttle v. The State, 4 Conn. 68 ; Gregory, 2 Nev. & M. 478, 5 B. & Ad. Booth V. The State, 4 Conn. 65; Dag- 655; Waupun v. Moore, 34 Wis. 450. gett V. The State, 4 Conn. 60; Douglass s Eex v. Watts, 2 Car. & P. 486. 648 INDEX TO THE CASES CITED JN" BOTH VOLUMES. In the following Index, where the plaintiff is the King or Queen (Rex or Reg.), the State, Commonwealth, People, United States, or the like, the defendant's name is put first ; in the other cases, the plaintiff's is first. The cases in Italics are those which are cited in one or more of the other current English and American text-books; namely, Archbold, one volume, 18th Eng. cd., 1875; Eosco^, one volume, 8th Eng. ed., 1874; Kussell, three volumes, 5th Eng. ed., by Prentice, 1877; Wharton, three volumes, 7th ed., 1874. The other cases, standing in Roman, are in this work cited, it is believed, for the first time, having by no other author been reduced to text- law. Those in Italics and those in Roman were alike drawn, by the present author, directly from the reports, where all were personally examined by him, not to any degree from other text-books. And see " Preface to the Sixth Edition." Section A. V. B. (E. M. Charl. 228) i. 617 J ii. 1054 Aaron y. State (39 Ala. 684) i. 893 V. State (31 Ga. 167) i. 849, 850, 853, 872 , State V. (1 Southard, 231) i. 370 Abarr, State v. (39 Iowa, 186) i. 865, 874 Abbot, People v. (19 Wend. 192) i. 811 Abbott v. Mills (3 Vt. 521) i. 265 Abbott, Reg. v. (1 Den. C. C. 273 ; 2 Car. & K. 630) ii. 449, 483 Abbott V. Rose (62 Maine, 194) ii. 533 AbhoU, State V. {20 Yt.ba7) ii. 986 Abby, The (5 Rob. Adm. 251) i. 441 Abingdon, Bex v. (1 Esp. 226; Pealie, 236) ii..917 Able V. Com'th, (5 Bush, 698) i. 670 AUeman v. Booth (21 How. U. S; 506) i. 63 Abney, Commonwealth v. (4 T. B. Monr. 477) ' ii. 1267 Abraham, Reg. y. (1 Cox C. C. 208) ii. 741 Abrahams «. State (4 Iowa, 541) i. 1091 Abrahat, Rex v. (2 Leach, 824; 2 East P. C. 569) ii. 365, 758, 832 Abram, State v. (4 Ala. 272) i. 998 . State V. (10 Ala. 928) i. 428 ; ii. 1004, 1006, 1007 Absence, State, v. (4 Port. 397) i. 342, 635, 636 ; ii. 1004, 1008 Absolon, Reg. v. ( 1 Fost. & F. 498) ii. 209 Actions against Foreigners (lOpin. Att. Gen. 81) i. 132 Section Adams, Ex parte (25 Missis. 883) ii. 243, 268 V. Barrett (5 Ga. 404) i. 271, 615 ; ii. 1004, 1008 Adams v. Beach (6 Hill, N. Y. 271) i. 828 ; ii. 1273 V. Buford (6 Dana, 406) ii. 140 , Com'th V. (3 Met. Ky. 6) i. 468 «. Gay (19 Vt. 358) ii. 968 — - V. Haskell (6 Cal. 316) h. 268 Adams V. People (1 Comst. 173) i. 120, 134, 310,631, 651 ; ii. 1061 V. People (47 111. 376) i. 305, 844 , People V. (8 Denio, 190) i. 110, HI , Reg. V. (Car. & M. 299) i. 729; ii. 994 , Reg. V. (1 Den. C. C. 38) i. 583 ; ii. 812, 813 , Reg. V. (1 Fost. &. F. 86) ii. 1138 , Rex V. (Russ. & Ry. 225) v i. 683 ; ii. 809, 812, 813, 823 , State T. (14 Ala. 486) i. 141, 984 , State V. (4 Blackf. 146) i. 178 ; ii. 1022, 1023 Adams, State v. (1 Brev. 279) i. 947 V. Tertenants of Savage (Holt, 179) i. 459 ; ii. 392 Adamson, Reg. v. (1 Car. & K. 192 ; 2 Moody, 286) ii. 437, 444, 483 Addinqton, State v. (2 Bailey, 516) i. 914, 915 Addis, Rex v. (6 Car. & P. 388) i. 868 Aden, Reg. -v. (12 Cox C. C. 512, 6 Eng. Rep. 337) ii. 867 649 ALB INDEX TO THE CASES CITED. ALL Sectiow ^dey, ifJef/. V. (19 Law. J. N. 8. M. C. 149 ; Archb. New Crim. Proced. 463) ii. 354 , Eex T. (1 Leach, 206 ; 1 East P. C. 329) 1. 877 Adgate, People v. (2 Cow. 504) ii. 255 Adler, People v. (3 Parker C. C. 249) i. 679 Adolph, The (1 Curt. C. C. 87) i. 129 Adwards, People t. (5 Mich. 22) i. 339, 191 ; ii. 740 Adi/, Rex V. (7 Car. & P. 140) i. 262, 441 ; ii. 463 Agar's Case (Sir F. Moore, 627) ii. 1031 Agitone v. State (41 Texas, 501) ii. 82 Aheante, Reg. t. (6 Cox C. C. 0) ii. 188 Ah Eat, People w. (48 Cal. 61) i. 648 ; ii. 638 Ahl, Cbm'th. T. (7 Wright, Pa. 53) i. 910 Ah Ping, People v. (27 Cal. 489) i. 633 Ah Sam, People v. (41 Cal. 645) Ii. 605 Ahsee, Eex t. (2 Am. Law Ker. 794) ii. 1187 Ah Ying, People v. (42 Cal. 18) i. 896 Aichles, Rex v. (1 Leach, 294; 2 East P. C. 675) i. 583 ; ii. 785, 812, 817 , Rex V. (1 Leach, 390) i. 915 , Rex V. (1 Leach, 438 ; 2 East P. C. 968) i. 572 ; ii. 583 Aikenhead's Case (13 Howell St. Tr. 918) ii. 76 Aikens, State t. (32 Iowa, 403) ii. 1030 Ainsworth, State v. (11 Vt. 91) i. 1049 Airey, Rex v. (2 East P. C. 831) ii. 446 Ake V. State (30 Texas, 466) ii. 723 , 728 Ake V. State (31 Texas, 416) ii. 728 Alabama v. Georgia (23 How. U. S. 505) ' i. 150 Albany, People v. (11 Wend. 539) i. 419 Albany, &c.. Railroad, People v. (55 Barb. 344) i. 464 Albricht V. State (6 Wis. 74) ii. 686 Alburger, Com'th v. (1 Whart. 469) ii. 1267 Alburgh, State v. (23 Vt. 262) ii. 1267 Alden v. Fitts (25 Maine, 488) i. 44 Alderman, Commonwealth v. (4 Mass. 477) i. 1010, 1028 V. People, (4 Mich. 414) ii. 175 Alderson v. Waistell (1 Car. & K. 858) ii. 37 Aldred's Case (9 Co 57) i. 1138, 1143 Aldrich v. Jessup (3 Grant, Pa. 158) i.910 Aldrich y. Press Printing Co. (9 Miim. 133) ii. 935, 937 Aldridge v. Commonwealth (2 Va. Cas. 447) i. 939, 947 V. Kincaid (2 Litt. 390) ii. 140 Alexander's Case (1 Broun, 28) ii. 51 Alexander, The (1 Gallis. 532) 1. 821 Alexander v. Blodgett (44 Vt. 476) ii. 1136 «. Card (3 R. I. 145) i. 460 650 Sectioit Alexander, Commonwealth v. (4 Hen. & Munf. 622 ; 1 Va. Cas. 166) i. 462 Alexander v. Polk (39 Missis. 737) ii. 136, 138 V. State (12 Texas, 540) i. 262,-263 ; ii. 758 Alexander, State v. (4 Hawks, 182) ii. 1020 Alexander, State v. (56 Misso. 131) i. 796 Alexander, State v. (7 Rich. 5) ii. 1148, 1152 Alexander, State v. (14 Rich. 247) i. 429 Alford, State u. (68 N. C. 322) i. 882 . Alfred v. State (33 Ga. 303) ii. 694 Alger, Commonwealth v. (7 Cush. 53) i. 145, 174, 531, 819 ; ii. 1271 Alibez, People v. (49 Cal. 452) i. 777 Alison, Reg. v. (8 Car. & P. 418) i. 259, 510, 652 ; ii. 744, 1187 Allan, Reg. v. (Car. & M. 295; 5 Jur. 296) i. 466, 466, 467, 697, 707 ; ii. 1072 Allday, Reg. v. (8 Car & P. 136) i. 287, 303, 345 Allen's Case (3 City H. Rec. 118) ii. 474 Allen V. Colby (47 N. H. 644) i. 65 Allen V. Commonwealth, (2 Leigh, 727) i. 998, 1003 , Com'th V. (ILMet. 403) ii. 1277 V. Crofoot (5 Wend. 606) i. 208 V. Hawks (13 Pick. 79) ii. 132 V. Lyon (2 Root, 213) i. 265 ; ii. 1273 V. Monmouth (2 Beaslev, 68) i.-266 Allen, People v. (5 Denio, 76) ii. 327, 842 Allen, People v. (1 Parker C. C. 446) i. 1052, 1066 Allen, Reg. v. (9 Car.& P. 31) ii. 1129 , Reg. -v. (1 Den. C. C. 864; Temp. & M. 65 ; 2 Car. & K. 869 ; 13 Jur. 108 ; 18 Law J. n. s. M. C. 72) ii. 1193 , Rfg. V. (2 Moody, 179) i. 788 ; ii. 66 ,Rex V. (7 Car. & P. 163) i. 217, 314 ; ii. 667, 669 , Rex V. (7 Car. & P. 664'; 1 Moody, 494) i. 117 , Rex V. (Russ. & Ry. 513) i. 961 Allen V. Smith (6 Blackf. 627) ii. 137 V. Smith (1 Leigh, 231) ii. 139 Allen V. State (40 Ala. 334) ii. 91 y. State (28 Ga. 395) i. 750 ; ii. 41 Allen t). State (61 Ga 264) i. 516 Allen V. State (10 Ohio State, 287) i. 35; ii. 13, 17 y. State (34 Texas) i. 1142 y. State (5 Yerg. 453) ii. 701 , State V. (4 Hawks, 356) i. 686, 795, 800 ; ii. 3 Allen, State v. (2 Humph. 258) i. 135 , State !'. (2 McCord, 56) i. 831 Allen, State v. IR. M. Charl. 518) ' i. 678 ; ii. 767, 786, 786 Ailing, State v. (12 Ohio, 16) i. 464 ASD INDEX TO THE CASES CITED. ANO Section AlUngton, Eex v. (1 Stra. 678) i. 460, 462 ; ii. 973 Allison V. Farmers' Bank (6 Eand. 204) i. 271 V. State (42 Ind, 354) i. 531 Allison, State v. (3 Yerg. 428) i. 800 ; ii. 1144 Alman, State v. (64 N. C. 364) i. 1033, 1034, 1041 Ahion, Rex v. (5 Bur. 2686) i, 219 Alsop, Reg. v. (U CoxC. C. 264) ii. 1030 Alston's Case (1 Swinton, 433) i. 41 Alternum, Reg, v. ( 1 Gale & D. 261 ; 10 A. & E. 699) i. 972 Amarro, Rex v. (Russ. & Ry. 286) i. 117 Arabs, State v. (20 Misso. 214) ii. 951 Amedy, U. S. v. (11 Wheat. 392) i. 670 American Print Works v, Lawrence (3 Zab. 9.) i. 830 Ames's Case (2 Greenl. 365) i. 572 ; ii. 529, 535 Ames, State v. (64 Maine, 386) i. 468 Amistad, The, U. S. v. (15 Pet. 518) i. 564 Amnions, State v. (3 Murph. 123) ii. 1031 Amory v. Flyn (10 Johns. 102) ii. 779 V. McGregor (15 Johns. 24) i. 821, 822 Amy, V. S. v. (14 Md. 149, note) i. 989 Anders, State v. (8 Ire. 15) ii. 501, 514 Anderson v. Anderson (4 Wend. 474) i. 541 ; ii. 139 Anderson v. Commonwealth (5 Rand. 627) i. 239, 501, 592; ii. 226, 235 Anderson, Commonwealth v. (2 Va. Cas. 245) i. 967 Anderson v. Dunn (6 Wheat. 204) i. 461 ; ii. 247 Anderson, People v. (44 Cal. 65) i. 303, 305 Anderson, People v. (14 Johns. 294) i. 207 ; ii. 758, 838 V. Radcliffe (Ellis, B. & E. 806) ii. 133 , Reg. V. (Law Rep. 1 C. C. 161 ; 11 Cox C. C. 198) i. 112, 117 , Reg. V. (2 Moody & R. 469) i. 815; ii. 660, 612 , Rex V. (2 East P. C. 772) 1. 141 Anderson v. Solon, The (Crabbe, 17) i. 351 Anderson v. State (3 Head, 455) i. 886 Anderson I). State (3 Heisk. 86) V. State (10 Humph. 119) I'. State (39 Ind. 563) Anderson v. State (22 Ohio State, 305) V. State (5 Pike, 444) V. State (31 Texas, 440) , State V. (1 Hill, S. C. 327) , State V. ( 2 Tenn. 6) Anderson, State v. (3 Sm. & M. 751) i. 992 Andrew v. New York Bible and Common Prayer Book Society (4 Sandf. 156) ii. 74 ii 681 ii. 1267 i 317 e, i 317 i 429 ii 723 ii 647 ii 695 Seotiok Andrews, Ex parte (18 Cal. 678) ii. 951 Andrews, Commonwealth v. (2 Mass. 14) i. 141, 700 , Commonwealths. (3 Mass. 126) i. 667, 997, 998 Andrews v. People (60111. 354) ii. 11.38 State B. (27 Misso. 267) i. 1065 Angell, Rex v. (Cas. temp. Hardw. 124) i. 459, 462 V. Smith (36 Texas, 542) i. 328 Anglea v. Commonwealth (10 Grat. 696) i. 910 Ann, The (1 Gallis. 62) i. 104, 296 Ann, The v. State (11 Humph. 159) i. 314 ; ii. 641, 691, 693 Anna, The (5 Rob. Adm. 373) i. 104 Annis, Commonwealth v. (15 Gray, 197) ii. 901 Anone, State v. (2 Nott & McC. 27) i. 263, 686 Anonymous (4 A. & E. 576, n.) i. 247, 266 Anonymous (1 Anderson, 101) ii. 573 (1 Anderson, 115) ii. 92 Anonymous (1 B. & Ad. 382) ii. 1195 Anonymous (4 Co. 48 a) ii. 495 (Comb. 10) i. 829 Comb. 16) ii. 160 (Comb. 46) i. 235, 470 ; ii. 946 Anonymous (1 Cox C. C. 250) i. 257; ii. 605, 607 Anonymous (Dalison, 1) ii. 1090 (Dalison, 16) i. 681 (Dalison, 22) i. 342, 437 ; ii. 92, 110 Anonymous (1 Dy. 99 a, pi. 58) ii. 105 (1 Dy. 99, pi. 60) i. 466, 697; ii. 1070 Anonymous (2 Dy. 122, pi. 24) ii. 495, 614 (3 Dy. 296, pi. 19) i. 512 Anonymous (1 East P. C. 261) i. 881 ; ii. 663, 685 (1 East P. C. 305) i. 548 ; ii. 39 (2 East P. C. 566; 1 Leach, 321, n.) ii. 758, 795 Anonymous (2 East P. C. 559) i. 362 Anonymous (2 East P. C. 662) ii. 1181 Anonymous (14 Eng. L. & Eq. 151 ; 16 Jur. 996) i. 299, 460, 462 ; ii. 972 (lExch. 453) ii. 270 (Foster, 265) i. 303 (Gouldsb. 96) i. 18 1 Hale P. C. 553) ii. 92 1 Hale P. C. 554; J. Kel. 67) ii. 92, 97, 100 (J. Kel. 19; Dalison, 14) i. 681 ; ii. 1213, 1231 (J. Kel. 28) i. 905 Anonymous (J. Kel. 36, 81, 82, 83, 84) i. 683; ii. 106,811,8-33,834 Anonymous (J. Kel. 83) i. 310, 661 (J. Kel. 56) ii. 711 (J. Kel. 58) i. 850, 870; ii. 702 J. Kel. 64) ii. 683 (2 Keny. 372) ii. 255 651 ANT INDBX TO THE CASES CITED. ASH Sbotion Anonymous (1 Leach, 430) i. 1037 (2 Lewin, 48) ii. 41 Anonymous (Lofft, 44) ii. 973 (LofEt, 146) i. 571 (LoHt, 185) i. 235, 459 ; ii. 973 (Lofet, 272) i. 247, 256 LofEt, 314) i. 256 (Loffl;, 321) ii. 256 (Loffi, 451) i. 992; ii. 2.56, 269 (Lofft, 462) i. 468; ii. 936 (LofEt, 544, 780) 1.221 (31 Maine, 592) i. 796, 1017 (March, 6, pi. 12) ii. 514 (March, 81, pi. 132) i. 468 (March, 83, pi. 136) i. 226 (1 Mod. 55) ii. 1025 (3 Mod. 97) i 541 ; ii. 66 (6 Mod. 43) i. 534. 634, 642 ; ii . 1147, 1150 (6 Mod. 88) ii. 993 Anonymous (6 Mod. 96) i.459 (6 Mod. 105) i. 571, 582 ; U. 145, 157 Anonymous (6 Mod. 115) ii. 514 (6 Mod. 137) ii. 255 Anonymous (7 Mod. 10) 1.468 Anonymous (7 Mod. 40) i. 571 ; ii. 157 1 11 Mod. 3) i. 515 11 Mod. 132) 1.246 12 Mod. 342) i. 531 1099, 1139 12 Mod. 559) 1.417 Anonymous (2 Moody, 40) i. 429 Anonymous (cited 1 Pick. 41 i. 997 Anonymous (2 Buss. Crimes, 3d Eng. ed. 14) ii. 882 (2Salk. 586; Holt, 628) ii. 1090 Anonymous (3 Salk. 155) i. 918, 974 (3 Salk. 182) ii. 1283 3 Salk. 248) ii. 1019 (2 Show. 155) i. 508 2 Show. 327) i. 1138 1 Sid. 69) 1.266 (1 Sid. 454) ii. 1025 Sir F. Moore, 8) i. 267, 710 (Sir F. Moore, 756, pi. 1044) i. 916 Anonymous (1 Stra. 384) ii. 555 Anonymous (cited 6 T. E. 628) ii. 216 (T. Raym. 97) i. 827 3 Tyrw. stated 692) ii. 334 (1 Vent. 31) ii. 927 Anonymous (1 Vent. 256) ii. 28 Anonymous (1 Vent. 349) 1. 903 (1 Wash. C. C. 84) i. 199; ii. 1023 (2 W. Bl. 1324) i. 63 (23 Wend. 102) ii. 255 (1 Wheeler Grim. Cas. 881, n.) ii. 1122 (W. Jones, 444) ii. 28 Antelope, The (10 Wheat. 66) i, 564 ; li. 1061 Anthony, Commonwealth v. (2 Met. Ky. 399) i, 1024; ii. 740, 744 V. State (29 Ala. 27) ii. 740 Anthony v. State (Meigs, 265) ii. 728 662 Anthony v. State (13 Sm. & M. 263) 1. 429 Anthony, State v. (7 Ire. 234) ii. 1182 — , State V. (1 McCord. 285) i. 648 Antonio, State v. (3 Brev. 562; 2 Tread. 776) i. 178 Apel, State v. (14 Texas, 428) ii. 881 Apgar, People v. (35 Cal. 389) i. 1056 Apollon, The (9 Wheat. 362) i. 106, 115, 121, 831 Applegate, State v. (2 McCord, 110) ii. 244, 263 Appling, State o. (25 Misso. 315) ii. 943, 946 Arceneaux v. Benoit (21 La. An. 673) i. 14 Archer, Reg. v. (Dears. 449 ; 1 Jur. N. s. 479 ; 33 Eng. L. & Eq. 528 ; 6 Cox C. C. 515) , Reg. V. (1 Fost. & F. 361) , Rex T. (1 Moody, 143) Archer, Rex. v. (2 T. R. 203) , State V. (54 N. H. 465) ii. 438 i. 857 ; ii. 706 i. 362 i. 950 i. 772, 791 Arden v. Patterson (5 Johns. Ch. 44) ii. 121, 135 Arden r. State (11 Conn. 408) ii. 1026 , State V. (1 Bay, 487) i. 648, 795, 800; ii. 746 Ardley, Reg. v. (Law Eep. 1 C. C. 301) ii. 456 Argo, The (1 Gallis. 150) i. 352 ArUn, State v. (7 Fost. N. H. 116) i. 799, 811 Armnn, Reg. t. (Dears. 575) ii. 353 Armfield, State v. (5 Ire. 207) i. 536, 538 ; ii. 505, 519 Armstrong's Foundry (6 Wal. 766) i. 920 Armstrong v. L'Isle (12 Mod. 109) i. 937, 1070 Armstrong, Rex v. (1 Vent. 304) i. 591, 592 ; ii. 145, 217 Armstrong v. State (4 Blackf. 247) i. 1137 V. State (Minor, 160) i. 997 Armstrong v. United States (13 Wal. 154) i. 904, 907 Armstrong v. Walkup (12 Grat. 608) i. 885 Arnold's Case (16 Howell St. Tr. 695) i. 378 Arnold v. Com'th (8 B. Monr. 109) i. 459 w. Loveless (6 Rich. 511) i. 957 Arnold, State v. (13 Ire. 184) i. 368 Arnold, State v. (8 Rich. 39) i. 266 Aro, People y. (6 Cal. 207) ii. 678 a Arrest, Who Privileged from (1 Opin. Att. Gen. 26) i. 120 Amvgton, State v. (3 Mnrph. 571) i. 998 Arscdtt, Rex v. (6 Car. & P. 408) ii. 564, 570 a, 582 Arundel's Case (6 Co. 14) i. 1001 Arundel v. McCulloch (10 Mass. 70) i. 828 Ash V. Ashton (8 Watts & S. 510) i. 822, 970 ATT INDEX TO THE CASES CITED. BAB Section AMrooh T. Commonwealth (1 Bush, 139) i. 1138, 1139, 1141 Ashhurn v. State (15 Ga. 246) ii. 1018 , Rex V. (8 Car. & P. 50) i. 266 Ashby V. White (2 Ld. Eaym. 938 ; 6 Mod. 45) i. 237, 265 Ashley's Case (12 Co. 90) i. 468; ii. 220 Ashley's Case (1 Rol. 109) ii. 1147 Ashley, Reg. v. (1 Car. & K. 198) i. 567 ; ii. 826 Ashley, State v. (Dudley, Ga. 188) i. 237 Ashton's Case (12 Mod. 256) i. 636 ; ii. 663 Ashton, Reg. v. (16 Eng. L. & Eq. 346; 1 Ellis &B. 286) 1. 504 Ashton, United States v. (2 Sumner, 13) i. 564 Askew, Rex v. ( 3 M. & S. 9) i. 1002 Aslett, Rex V. (1 New Kep. 1; 2 Leach, 954; Russ. & Ry. 67) ii. 359, 785 Asterley, Rex v. (7 Car. & P. 191) ii. 423 Astley, Rex v. (2 East P. C. 729) i. 553; ii. 1171 Astm, Req. t. (2 Car. & K. 413) ii. 361, 370 Athay, Rex v. (2 Bur. 653) ii. 973 Athens Armory, United States v. (2 Abb. U. S. 129 ; 35 Ga. 344) i. 904, 909 Atherton v. Johnson (2 N. H. 31) i. 821, 831 Atkins T. State (16 Ark. 568) i. 844, 872, 1034; ii. 716 , State Y. (42 Vt. 252) ii. 929, 932 Atkins, United States v. (1 Sprague, 558) i. 820 ; ii. 1047 Atkinson, Reg. r. (11 Cox C. C. 330) i. 633 ; ii. 1153 , Reg. V. (2 Ld. Rayra. 1248 ; 1 Salk. 382 ; 11 Mod. 79) i. 364, 955 , Reg. V. (2 Moody, 215) ii. 565 , Reg. V. (2 Moody, 278 ; Car. & M. 525) ii. 337, 370 Atkinson v. Rex (3 Bro. P. C. 517) i. 951 Atkinson, Rex v. (7 Car. & P. 669) ii. 580, 600 , Rex v. (2 East P. C. 673) i. 585; ii. 812, 813 Atkinson v. Sellers (5 C. B. u. s. 442) ii. 964 Atkinson v. State (20 Texas, 522) ii. 728 Atkinson, State v. (9 Humph. 677) i. 1010, 1028 , State V. (24 Vt. 448) i. 245 ; ii. 1266, 1267, 1269 Atkyns, Rex v. (3 Bur. 1706) i. 638 ; ii. 985 Atlee V. Packet Co. (21 Wal. 389) ii. 1271, 1272 Attorney-General, Matter of (Mart. & Yerg. 285) i. 32 V. Hudson River Railroad (1 Stock. 626) ii. 1269 Suction Attorney-General v. Kwok-a-Sing (Law Rep. 5 P. C. 179 ; 8 Eng. Rep. 143) i. 112, 120; ii. 1058, 1059 V. Municipal Court (103 Mass. 456) i. 825 Attorney- General ' v. Radloff (10 Excii. 84 ; 23 Law J. N. s. Exeh. 240 ; 18 Jur. 555 ; 26 Eng. L. & Eq. 413) i. 32 Attornev-General u. Read (2 Mod. 299) ' i. 246, 468 Attorney-General y. Ridell (2 Tyrw. 523) i. 219 V. Riddle (2 Cromp. & J. 493) 1. 219 Attorney-General v. Shield (11 Beav. 441) ii. 270 Attorney- General V. Siddon (1 Cromp. & J. 220; 1 Tyrw. 41) i. 219 V. Sillem (3 Fost. & F. 646) 1. 482 V. Sillim (2 H. & C. 431) i. 482 Attorney-General v. Stevens (Sax- ton, 369) i. 174 Audley's Case (3 Howell St. Tr. 401) ii. 1132, 1135 Aulanier v. Governor (1 Texas, 653) i. 464 Aulger v. People (34 111. 486) ii. 314 Austen, Rex v. (Russ. & Ry. 490) i. 595 ; ii. 986, 990 Austin, People v. (1 Parker C. C. 154) i. 305 ; ii. 721 , Rex V. (7 Car. & P. 796) i. 699 Avtpy, Reg. v. (Dears. & B. 294; 7 Cox C: C. 329) ii. 560 Averitt c;. Murrell (4 Jones, N. C. 322) ii. 987 Avery v. Fox (1 Abb. U. S. 246) i. 174 ; ii. 1272 Avery, Reg. v. (Bell C. C. 150 ; 8 Cox C. C. 184) ii. 873 , Reg. V. (8 Car. & P. 596) i. 572 Avery v. State (26 Ga. 233) i. 1033 Avery, State v. (7 Conn. 266) i. 501, 759, 767, 768; ii. 927, 938 , State V. (64 N. C. 608) ii. 708 , State V. (44 N. H. 392) i. 402 ; ii. 12 Avila, People v. (48 Cal. 196) ii. 1138 Axtell's Case (J. Kel. 13) ii. 1213 Ayer, Commonwealth v. (3 Cush. 150) i. 672; ii. 529, 557 , State V. (3 Fost. N. H. 301) ii. 116 Ayres v. Lawrence (63 Barb. 454) i. 265 Ayes, Rex v. (Russ & Ey. 166) i. 400, 401 ; ii. 699, 701 Aylett, Rex v. (1 T. R. 63) i. 468 ; ii. 1031 Azzopardi, Reg. v. (1 Car. & K. 203 ; 2 Moody, 288) i. 121 Baal M. Baggerley (Cro. Car. &26) ii. 531 Babb, Rex v. (3 T. R. 579) ii. 256 Babcock v. Buffalo (56 N. T. 268) i. 1080 653 BAK INDEX TO THE CASES CITED. ban- Section Babcock, People v. (7 Johns. 201) i. 671, 582, 585, 592; ii. 145, 204 Babcock, People v. (11 Wend. 586) 1. 143; ii. 1269 , State V. (1 Vroora, 29) i. 150 Babcock, United States v. (4 McLean, 113) i. 199, 320; ii. 1021, 1046 Babson, United States v. (Ware, 450) i. 955 Backus V. Byron (4 Mich. 535) ii. 132 Bacon's Case (1 Lev. 146) i. 327 Bacon, Rcq. T. (11 Cox C.C. 540) ii. 1020 Badcock, 'Rex v. (Russ. & Ry. 248) i. 915 , Rex Y. (Russ. & Ry. 249) i. 649, 676 ; il. 609 Badger, Reg. v. (6 Ellis & B. 137 ; 34 Eng. L. & Eq. 326) ii. 403 Badgei; Reg. t. (6 Jur. 994) i. 299, 460 ; ii. 972, 973 , Reg. \. (7 Jur. 216 ; 12 Law J. v. 8. M. C. 66) ii. 972 Bagley, Com'th v. (7 Pick. 279) i. 294, 573 ; ii. 392, 395, 399, 404 Bailey's Case (1 Va. Cas. 258) Bailey v. Buck (11 Vt. 252) V, Philadelphia Railroad Harring, Del. 389) i. 174; Bailey, Reg. v. (12 Cox C. C. 56) 1014 i. 714 (4 ii. 1271 ii. 341, 370 , Reg. V. (Law Rep. 1 C. C. 347) ii. 846 , , Rex V. (1 Moody, 23) i. 559 , Rex V. (Russ. & Ry. 1) i. 296, 341, 736 , iJar V. (Russ. & Ry. 341) i. 559 ; ii. 92, 95, 120 Bailey v. State (26 Ga. 579) i. 1005 Bailey v. State (26 Ind. 422) i. 406 , Slate v. (1 Post. N. H. 186) i. 239; ii. 982 , State V. (1 Tost. N. H. 343) i. 600, 504, 1086, 1112 , State V. (21 Maine, 62) i. 471 Bailey, U. S. v. (1 McLean, 234) i. 154 Bailei/, U. 5. v. (9 Pet. 238) i. 177 ; ii. 1028 Baily v. Milner, (35 Ga. 330) i. 14 , Rex !). (Comb. 10) i. 553; ii. 755 Bain, Rei,. v. (Leigh & C. 129; 9 Cox C.' C. 98) ii. 119 a Baines, Rex v. (6 Mod. 192; W. Jones, 65) i. 573 ; ii. 390, 392, 393, 395 Bains v. The James (Bald. 544) i. 194 Baird, Com'th v. (1 Aslim. 267) i. 8S7 Bake, Rex v. (3 Bur. 1731) i. 538; ii. 490, 505 Bakeman, Com'th v. (105 Mass. 53) 1. 1060, 1061 Baker v. Greenhill (2 Gale & D. 436 ; 6 Jur. 710) ii. 1281 , i?eg. V. (3 Cox C. C. 581) ii. 105 , Rex T. (1 Leach, 112; 1 East P. C. 323) ii. 652 , Rex V. (1 Leach, 290; 2 East P. C. 702) ii. 1167 654 Baker, Rex v. (1 Mod. 35) Section ii. 931, 934, 946 V. State (12 Ohio State, 214) i. 686, 1016 Baker v. State (4 Pike, 56) i. 948, 953 , State V. (1 Jones, N. C. 267) i. 872, 876 ; ii. 638 Baker, State v. (66 N. C. 332) ■ ii. 25 Baker v. Townsend (7 Taunt. 422) i. 713, 714 Bakewell, Rex v. (2 Leach, 943 ; Russ. & Ry. 35) ii. 359, 365 Baldwin, Commonwealth v. (11 Gray, 197) ii. 543, 583, 585 Baldwin v. Hayden (6 Conn. 453) ii. 37 I). People (1 Scam. 304) ii. 806 Baldwin, Rex v. (3 Camp. 266 ; Russ. & Ry. 241 ; 2 Leach, 928) i. 668 Baldwin v. Scoggin (15 Ark. 427) i. 899, 916 Baldwin, State v. (1 Dev. & Bat. 195) i. 1072 Baldwin, State v. (39 Texas, 75) i. 462 , State V. (39 Texas, 155) i. 462 Bales v. State (3 W. Va. 686) ii. 781 Baley v. Deakins (5 B. Monr. 159) ii. 123, 140 Balkum «. State (40 Ala. 671) i. 872 Ball V. Baggarly (1 Rol. Abr. 68) ii. 531 Ball V. Com'th (8 Leigh, 726) i. 1003 Ball r. Gilbert (12 Met. 397) i. 504 Ball, Reg. t. (Car. & M. 249) ii. 430, 464, 488 , Reg. T. (6 Cox C. C. S ii. 1026, 1030 ii. 106 ii. 652 ii. 652 , Rex V. (1 Moody, 30) , Rex V. (1 Moody, 330) , Rex V. (1 Moody, 333) Ballew V. Alexander (6 Humph. 433) i. 271, 272 Balliet v. Commonwealth (6 Harris, Pa. 509) ii. 1267 Baltimore & Ohio Railroad v. Wheeling (13 Grat. 40) ii. 268 Baltimore Steam Co., State v. (13 Md. 181) i. 307 Bamber, Reg. v. (13 Law J. n. 8. M. C. 13 ; 8 Jur. 309) ii. 1267 , Reg. V. (5 Q. B. 279 ; Dav. & M. 367) i. 346; ii. 1281 Bamjield, Rex v. (1 Moody, 4l'6) ii. 560 Bancroft v. Blizzard (13 Ohio, 30) i. 480 V. Mitchell (Law Rep. 2 Q. B. 549) i. 82 Bancroft, State v. (10 N. H. 105) i. 559 ; ii. 101 Bank of Hamilton v. Dudley (2 Pet. 492) i. 194 Bank Prosecutions (Russ. & Ry. 378) i. 812, 1061 Bank of Rome v. Mott (17 Wend. 554) i. 237 Bank of Salina v. Henry (2 Denio, 156) il. 1262 BAE INDEX TO THE CASES CITED. BAE ' Section Banks, Reg. v. (8 Car. & P. 674) i. 260, 261 , Rex T. (Russ. & Ry. 441) ii. 833, 864 Bank, State v. (Phillips, 577) ii. 891 Bankus V. -Stoic (4 Ind. 114) ii. 114.3, 1148 Barmen, Reg. v. (2 Moody, .309 ; 1 Car. & K. 295) i. 810 ; ii. 299, 609 Baptiste v. De Volunbrun (5 Har. & J. 86) i. 351 , State V. (26 La. An. 134) i. 908 Barada v. State (13 Misso. 94) ' i. 930, 957, 11. S5 Barber v. Gingell (3 Esp. 60) i. 975 BarbeT, Reg. v. (1 Car. & K. 434) ii. 538, 544 , Reg. V. (1 Car. & K. 442) ii. 609 Barber v. State (34 Ala. 213) ii. 1137 Barbour, State v. (17 Ind. 526) i. 1014 Barclay b. Breckinridge (4 Met. Ky. 374) ii. 367 a Barclay r. Commonwealth (1 Casey, 503) i. 490, 828, 1079 Barcus v. State (49 Missis. 17) i. 328' Barden v. Crocker (10 Pick. 383) i. 237, 265 Barden, State v. (1 Dev. 518) i. 679, 680 Bare ». Rhine (2 Yeates, 286) i. 821 Barefield v. State (14 Ala. 603) i. 468, 734 ; ii. 89 Barfield v. State (29 Ga. 127) ii. 587 , State V. (7 Ire. 299) i. 872 Barfield, State v. (8 Ire. 344) ii. 704 Barker v. Commonwealth (7 Harris, Pa 412) ii. 943, 946, 1275 V. People (8 Cow. 686; 20 Johns. 457) i. 944, 946, 977, 981 ; ii.317 , Rex V. (3 Car. & P. 589) ii. 1119 , i?e«v.(D.&R.N.P. 19) ii. 340,342 Barker, U. S. v. (5 Mason, 404) i. 564 V. Wilford (Kirby, 232J ii. 253 Barkhamsted «. Parsons (3 Conn. 1) . i. 110, 673 Barkman, State v. (2 Eng. 387) i. 1014 B^ksdale, State v. (5 Humph. 154) i. 419, 424 ; ii. 1282 Barlee.ji. Barlee (1 Add. Ec. 301) ii. 271 Barlett, Rex v. (2 Deae. Crlm. Law, 1687) ii. 986 Barlow, Commonwealth v. (4 Mass. 439) i. 622, 705, 759, 772 ; ii. 55, 743 Barlow v. Lambert (28 Ala. 704) i. 35 V. State (2 Blackf. 114) i. 997 Barna, State v. (N. C. Term R. 44) i. 263 Barnard, Rex v. (7 Car. & P. 784) ii. 430, 438 Barnard, Rex v. (Comb. 416) i. 246 Barnes, Reg. r. (10 Cox C. C. 539) ii. 1026 , Reg. V. (1 Eng. L. & Eq. 579; 2 Den. C. C. 59; Temp. & M. 387) i. 583 ; ii. 812 • T. State (19 Conn. 398 i. 219, 953 Seotiou Barnes v. Strong (1 Jones Eq. 100) ii. 131 Barnett v. Allen (3 H. & N. 376) ii. 925 Barnett v. People (54 111. 325)' i. 792 Barnett, Reg. v. (2 Car. & K. 594) i. 809 V. State (36 Maine, 198) i. 833 Barnett, Stale v. (3 Kan. 250) ii. 1156 Barney, Com'th v. (10 Gush. 478) ii. 11 , Rex V. (Comb. 405) i. 567 Barney, U. S. v. (5 Blatch. 294) i. 159 Barnicoat v. Six Quarter Casks of Gunpowder (Thacher Crim. Cas. 596) i. 830 Bamoldswick, -Req. v. (12 Law J. n. s. M. C. 44) ■ ii. 1281 Barnum v. State (15 Ohio, 717) i. 572, 748 Baron v. People (1 Parker, C. C. 246) i. 667 Barrat, Rex v. (2 Doug. 465) i. 299 ; ii. 982 Barratt, Reg. v. (9 Car. & P. 387) i. 809 , Reg. V. (Law Rep. 2 C. C. 81, 12 Cox C. C. 498) ii. 1121, 1123 Barrels of Distilled Oil, United States V. (6 Blatch. 174) i. 835 Barrels of Spirits, United States «. (1 Dillon, 49 ; 2 Abb. U. S. 305) i. 822 Barrels of Whiskey, United States V. (1 Abb. U. S. 93) i. 822 , United States K. (1 Bond, 587) i 821 825 Barretry, Case of (8 Co. 36 b) ' i. 541; ii. 64, 65, 69 Barrett, Commonwealth k. (108 Mass 302) i. 260 ' Barrett, People v. (2 Caines, 304) i. 1016, 1037, 1041 , People V. (1 Johns. 66) i. 1021 , Reg. V. (2 Car. & K, 343) i. 217, 314 ; ii. 665 Barrett, Reg. v. (Ir. Rep. 4. C. L. 285) i. 1033 Barrett, Reg. v. (Leigh & C. 263) i. 1094 Barrett, Rex v. (Jebb, 103) i. 1032 V. State (35 Ala. 406) i. 1033 Barric, People v. (49 Cal. 342) i. 998 Barrington v. Turner (3 Lev. 28) i. 1080 Banonet, Reg. v. (Dears. 51) i. 294, 654 ; ii. 311 Barrow v. Page f5 Hayw. 97) i. 349 Barrow, Reg. v. (Law Rep. 1 C. C. 156) ii. 1122 Barry, Commonwealth v. ("Hardin, 237) ii. 270 , Com'th V. (115 Mass. 146) i. 363 , Commonwealth w. (116 Mass. 1) i. 178,989; ii. 8.30 Bany, People v. (31 Cal. 357) i. 842 ; ii. 676 Barter v. Martin (5 Greenl. 76) ii. 978 Barth v. State (18 Conn. 432) i. 931 Barthelemy v. People (2 Hill, N. Y. 248) i. 591 ; ii. 920 655 BEA INBEX TO THE CASES CITED. BEH SECTIOlf Barthelow v. State (26 Texas, 176) ii. 1106 Bartlett v. Churchill (24 Vt. 218) ii. 38, 41 V. Draper (23 Misso. 407) ii. 490 Bartlett, Reg. v. (2 Moody & E. 362) ii. 562 , State V. (30 Maine, 132) i. 287 ; ii. 178, 193 , State V. (11 Vt. 650) i. 141 Barton, Reg. v. (3 Cox C. C. 275) i. 387 , United States v. (Gilpin, 489) i. 177 ; ii. 102-3 Bartow, People v. (1 Wheeler Crim. Cas. 378) ii. 1122 Bass «. Irvin (49Ga. 436) ii. 968 Bass, Rex v. (1 Leach, 251 ; 2 East P. C. 566) ii. 365, 824, 836, 855 Bassett v. Spofford (45 N. Y. 387) ii. 812 Batchelder, People v. (27 Cal. 69) i. 857 , State V. (5 N. H. 549) i. 537 ; ii. 504, 1148 Batchelder v. Tenny (27 Vt. 578) ii. 376 Bateman, Reg. v. (1 Cox C. C. 186) ii. 580 Baten's Case (9 Co. 53) i. 821 Bates, Reg. v. (3 Cox C. C. 201) ii. 424 Bates, State v. (23 Iowa, 96) ii. 1106 Bath !•• Pinch (4 Scott, 499) ii. 266 , Rex V. (1 Leach, 441) i. 953 Bait, Rex T. (6 Car. & P. 329) i. 339, 340 ; ii. 994 Batting, People v. (49 How. Pr. 392) i. 409 Battis, Com'lhv. (1 Mass. 95) i. 997 Battiste, U. S. V. (2 Sumner, 240) i. 664 Battle, State v. (7 Ala. 259) i. 998, 1031, 1041 Batty, Reg v. (2 Moody, 257) ii. 341, 345 Baura V. Clause (5 Hill, N. Y. 196) i. 917 Bauson v. Offley (3 Salk. 38) i. 648 Bawcom v. State (41 Texas, 189) ii. 1018 Baxter's Ca.se (3 Mod. 69) ii. 925 Baxter v. People (3 Gilman, 368) i. 670 Baxter v. Winooski Turnpike (22 Vt. 114) i. 265 Bayard v. Passraore (3 Yeates, 438) ii. 259 BayKs, Rex v. (3 Bur. 1318) i. 462 ; ii. 972 ii. 830 ii. 830 Bazehy, Rex v. (2 Leach, 835) Bazely's Case (2 East P. C. 571) Beacall, Rex v. (1 Car. & P. 310) i. 257 ; ii. 853, 376 , Rex V. (1 Car. & P. 454, 457) ii. 339, 340, 364 , Rex V. (1 Moody, 15) ii. 384 Beach v. Hancock (7 Post. N. H. 223) ii. .32 Beach v. People (11. Mich. 106) ii. 1272 !). Woodhull (Pet. C. C. 2) 1.821 Seal's Case (1 Leon. 327) i. 883; ii.641 Seal V. State (16 Ind. 378) i. 86, 141 Beale, Rex v. (1 East, cited 188) ii, 85, 86 Bealoba, People v. (17 Cal. 389) ii. 728 656 Section Beals V. Thurlow (68 Maine, 9) i. 32 Bearnan, Com'th v. (8 Gray, 497) ii. 774 , Rex V. (Car. & M. 695) ii. 365, 813, 836 Bean v. Bean (12 Mass. 20) i. 692 ; ii. 198, 206 , Com'th V. (117 Mass. 141) ii. 1138 Bean, State v. (21 Misso. 269) i. 934 Bear, Rex v. (Carth. 407) ii. 948 , Rex r. (2 Salk. 417) i. 666, 681 ; ii. 918, 927, 946 Bear, Bex v. (2, Salk. 646) i. 993, 1002, 1009 Beare, Rex v. (1 Ld. Eaym. 414) i. 681 ; ii. 946 Beard, Reg. v. (8 Car. & P. 143) i. 672 ; ii. 679, 598 , Rex V. (Jebb, 9) ii. 758, 882 Bearss, People v. (10 Cal. 68) i. 670 Beatty v. Gilmore (4 Harris, Pa. 463) i. 244 ; ii. 1273 Beaubieu, People v. (2 Doug. Mich. 256) ii. 1267 Beauchamp v. Morris ( 4 Bibb, 312) i. 536 ; ii. 501 Beauchamp v. State (6 Blackf. 299) i. 429 ; ii. 675, 677, 704, 713 Beauclerk, Ex parte (7 Jur. 373) i. 247, 256 Beaudien v. State (8 Ohio State, 634) ii. 728 Beaumont, Reg. v. (12 Cox C. C. 183) i. 672 a , Reg. V. ( Dears. 270 ; 24 Eng. L. & Eq. 558) ii. 340, 346 Beaver, State v, (5 Harring. Del. 508) i. 736 ; ii. 741 Beck V. Beck (36 Missis. 72) i. 970 Beck, Stale v. (1 Hill, S. C. 363) i. 260 Beckford v. Hood (7 T. B. 620) i. 237 Beckham v. Naeke (66 Misso 546) i. 304 Becomb, Pennsylvania v. (Addison, 386) ii. 768, 804 Bede, United States v. (5 Craneh C. C. 305, n.) i. 1113, 1115 Bee, The (1 Ware, 332) ii. 876 Beebees, Ex parte (2 Wal, Jr. 127) ii. 269 Beecham, Reg. v. (5 Cox C. C. 181) ii. 841 a B'eechey, Rex v. (Buss. & Ry. 319) ii. 861 Beekrnan, State v. (3 Dutcher, 124) ii. 992 Beeler, State v. (1 Brev. 482) i. 766 ; ii. 288 Beeley v. Wivgfield (11 East, 46) i. 713, 714 Beeman, State v. (85 Maine, 242) ii. 1267 Beere, Reg. v. (2 Moody & R. 472) i. 1032 Beeson, Com'th v. (3 I-eigh, 821) ii. 1267 , Rex u. (7 Car. & P. 142) ii. 713 Beets V. Stale (Meigs, 106) i. 642 Begbie v. Levi (1 Cromp. & J. 180) ii. 964 Behler v. State (22 Ind. 345) i. 980, 984 BEN INDEX TO THE CASES CITED. BET Skotioit Behimer, State y. (20 Ohio State, 672) i. 1005 Belcher v. Johnson (1 Met. 148) i. 32 Belden, People T. (87 Cal. 61) ii. 824 Belden, State v. (33 Wis. 120) i. 1004, 1005, 1006 Belding, Commonwealth v. (13 Met. 10) i. 341 ; ii. 1267 Behncia, People v. (21 Cal. 644) i. 409 Belknap v. Milliken (23 Maine, 381) i. 267, 271 BeU V. Graham (1 Nott & McC. 278) i. 542 V. Mallory (61 III. 167) ii. 1143, 1144, 1149 V. Miller (5 Ohio, 250) i. 686 , People V. (49 Cal. 485) i. 387, 406, Bell, Rex v. (1 East P. C. 169; Foster, 430) ii. 288 Bell V. State (44 Ala. 393) i. 1013, 1014, 1015, 1016 V. State (48 Ala. 684) i. 796 V. State (42 Ind. 335) ii. 888 BeU V. State (1 Swan. Tenn. 42) • i. 500 ; ii. 943, 946 , State V. (29 Iowa, 316) i. 411 ; ii. 110 , State v. (5 Port.' 365) i. 355, 1079 Bell «. Tooley (11 Ire. 605) 1.44, 464 V. Troy (35 Ala. 184) i. 271 V. Wood (1 Bay, 249) i. 267, 714 BelUngham's Case (1 Collinson Lun. 636 ; Shelford Lun. 462) 1. 384 Bello Corrunes, The (6 Wheat. 152) i. 824 Beloit, State v. (21 Wis. 280) i. 464 Belwood, Reg. v. (11 Mod. 80) i. 218 Bembridge, Rex v. (cited 6 East, 136 ; 3 Doug. 327) ii. 163, 982 Ben V. State (22 Ala. 9) i. 1061 Ben, State v. (1 Har. & J. 99) ii. 744 Benedict, State v. (11 Vt, 236) ii. 27 Benedict v. Stuart (23 Barb. 420) ii. 132 Benesech, Rex v. (Peake, Ad. Cas. 93) ii. 1038 Benfidd, Rex v. (2 Bur. 980) ii. 929, 946, 948 Benge, Reg. y. (4 Eost. & F. 504) ii. 662 a Beriham v. State (1 Iowa, 542) i. 798 Benham, State v. (7 Conn. 414) i. 793, 994, 1041 ; ii. 605 , State y. (23 Iowa, 154 i. 842, 850, 865, 872, 873 Benjamin, State v. (2 Oregon, 125) ii. 961 Benjamin v. Storr (Law Rep. 9 C. P. 400) ^ i. 265 Benner, United States v. (Bald. 234) i. 127, 128 ; ii. 26, 51 Benner, United States v. (6 Cranoh C. C. 347) i. 1113, 1116 Bennet, Commonwealth y. (2 Va. Cas. 235) i. 1006 ; ii. 1133 Bennet v. Montgomery (3 Halst. 48) ii. 501 Bennet, State y. (3 Brev. 515 ; 2 Tread. 693) i. 679, 799, 801 VOL. I. 42 i. 194. i. 320 ii. 270 i. 317 i. 993 406 (9 i. 420 ii. 499 ii. 1213 i. 471 Section Bennett v. Brooks (9 Alien, 118) ii. 956, 957 Bennett v. Com'th (8 Leigh, 745) ii. 728 Bennett v. Butterworth (11 How. U. S. 669) V. Judson (21 N. Y. 238) Bennett, People y. (4 Paige, 282) , Reg. y. (Bell C. C. 1) Bennett, Rex v. (1 Stra. 101) Bennett v. State (Mart. & Yerg. 133) , State y. (4 Dev. & Bat. 43) i. 636 ; ii. 501, 505 , State y. (14 Iowa, 479) i. 140, 141 Benson v. Manufacturing Co. Met. 562) V. Strode (2 Show. 150) Bensted's Case (Cro. Car. 583) i. 701 Bent, Rex y. (1 Den. C. C. 157) Bentinck v. Franklin (38 Texas, 458) ii. 131 Bentley v. Ely (2 Stra. 912) i. 909 V. Roan (4 Call, 153) i. 821 Bentz, State v. (11 Misso. 27) i. 361, 363, 1084 Berkshire, State v. (2 Ind. 207) i. 218,240,287; ii. 978 Bernard, Reg. v. (1 Fost. & F. 240) i. 112, 636 , Rex y. (Holt, 162) i. 246 Berne v. Bank of England (9 Ves. 347) i. 119 Berry v. Commonwealth (10 Bush, 16) i. 306, 865 Bemy, Com'th y. (6 Gray, 93) i. 1014 , Commonwealth y. (99 Mass. 428) ii. 367, 373 , Ra/. y. (Bell C. C. 46 ; 8 Cox C. C. 121) ii. 1026, 1030 , Reg. y. (BeU C. C. 95; 8 Cox C. C. 117) ii. 873 V. S(a(e (10 Ga. 611) i. 652, 796 Berry, State v. (21 Misso. 504) i. 955 V. Williams (1 Zab. 423) ii. 505 Berryman, State v. (8 Nev. 262) ii. 765, 766 Bertheol, State v. (6 Blackf. 474) i. 504, 1112, 1113, 1115 Bertrand, Reg. v. (Law Rep. 1 P. C. 520 ; 10 Cox C. C. 618) i. 1001 , State V. (3 Oregon, 61) i. 865 Bescker y. State{Z2 Ind. 480) i. 1032 Bessell v. Wilson (1 Ellis & B. 489; 22 Law J. N. s. M. C. 94 ; 17 Jur. 664; 18 Eng. L. & Eq. 294) i. 460 Best, People v. (39 Cal. 690) i. 876, 384 Best, Reg. y. (2 Ld. Raym. 1167; 1 Salk. 174; 6 Mod. 137; 8 Mod. 321 ; Holt, 151) i. 264, 591, 592 ; ii. 192, 217, 219 , Reg. y. (2 Moody, 124 ; 9 Car. &P. 3'68) i. 573, 712; ii, 393 Bettilini, United States w. (1 Woods, 654) i. 488 657 BIB INDEX TO THE CASES CITED. BLA Section Bettison,In re (12 Eng. Rep. 664) ii. 1190 Betts, Bm. V. (Bell C. C. 90; 8 Cox C. C. 140) ii. 876, 855 , Reg. V. (16 Q. B. 1022 ; 22 Eng. L. & Eq. 240) i. 341 ; ii. 1271, 1272 BettBworth, Rex v. ('2 Show. 75) i. 246 Bevans, State v. (37 Iowa, 178) ii. 978 Bevans, United States v. (3 Wheat. 336) i. 145, 147, 159, 176, 201 Beverley's Case (4 Co. 128 b) i. 875, 400, 401 Bevington t. State (2 Ohio State, 160) ii. 606, 60S Bibithe's Case (4 Co. 43) i. 664. 668, 678 Bickerstaff, Reg. v. (2 Car. & K. 761) ii. 904 Bickerton, Hex ». (1 Stra. 498) i. 266 ; ii. 918 Bicicley v. Commonwealth (2 J. J. Mar. 572) ii. 268 Bieber v. State (45 Ga. 569) i. 700 ; ii. 1187 Bielschofsky v. People, (5 Thomp. & C. 277) ii. 418 Bigelow, State v. (34 Maine, 248) ii. 1267 Bigg, Rex v. (1 Stra. 18 ; 2 East P. C. 882 ; 3 P. Wms. 419) ii. 570 a, 573 Biggs V. People (8 Barb. 547) ii. 1200 — T. State (29 Ga. 723) ii. 708 Bigley, Rex v. (1 Crawf. & Dix C. C. 202) i. 262 Bilansky, State v. (3 Minn. 246) i. 938 Biles V. Commonwealth (8 CaseT, 529) ■ ii. 629, 686 Billingham, Rex v. (2 Car. & P. 234) i. 632; ii. 36 Billis V. State (2 McCord, 12) i. 997 Bingham, In re (32 Vt. 329) ii. 244 Einghampton Bridge, The (3 Wal. 51) ii. 1269 Bingley, Rex v. (5 Car. & P. 602) i. 224; ii. 767, 1162 , Rexv. (Russ. & Ry. 446) i. 660; ii. 609 Binney's Case (2 Bland, 99) i. 150 Biruh, Ex parte (3 Oilman, 184) i. 899, 903 Birch, Reg. v. (2 Car. & K. 193 ; 1 Den. C. C. 185) i. 809 Birchnll, Reg. v. (4 Fost. & E. 1087) ii. 662 a Bircham, People v. (12 Cal. 50) i. 900 Bird, Ex parte (19 Cal. 130) ii. 951 V. Breedlove (24 Ga. 628) i. 900, 906 Bird V. Commonwealth (21 Grat. 800) i. 203 V. Holbi-oolc (4 Bing. 628) i. 865 V. Jones (7 Q. B. 742) ii. 26, 748 , Reg. V. (9 Car. & P. 44) ii, 92, 758, 789 , Reg. V. (12 Cox C. C. 267 ; 4 Eng. Rep. 533) ii. 812 658 Sectiok Bird, Rea. v. (2 Eng. L. & Eq. 448 ; 2 Den." C. C. 94 ; 5 Cox C. C. 20) i. 785, 809, 1049, 1053, 1054 Bird, United States v. (2 Brev. 85) i. 998 Birdsall v. Pixley (4 Wend. 196) ii. 266 Birdseye, Rex v. (4 Car. & P. 386) i. 793, 1061 ; ii. 889 Birkett, Rex v. (Bayley Bills, 6th ed. 686) ii. 603 , Rex V. (Russ. & Ry, 86) ii. 529, 598 ,Rexy. (Russ. &Ry. 261) ii. 562,574 Birkett, Rex v. (Buss. & Ry. 268) i. 1070 Birmingham, State v. (Busbee, 120) i. 1063 Birmingham and Gloucester Rail- way, Reg. a. (1 Gale & D. 467; 5 Jur. 40) i. 419 Birmingham and Gloucester Railway, Reg.'v. (2 Gale & D. 236 ; 9 Car. 6 P. 469 ; 6 Jur. 804 ; 3 Q. B. 223) i. 419, 422 Biron, Com'th v. (4 Dall. 125) ii. 701 Birt, Rex v. (5 Car. & P. 154) i. 534; ii. 1151,1258 Bishop V. Falvay (15 Gray, 61) i. 1080 , People!). (5 Wend. Ill) • i. 713 Bishop, Reg. v. (Car. &M. 302) ii. 1028 , Rex V. (5 B. & Aid, 612) i. 247, 462 Bishop V. State (9 Ga. 121) i. 997 Bitman, State v. (13 Iowa, 485) i. 881 Bii-ens v. State (6 Eng. 455) ii. 720, 723, 728 Bixby, People v. (4 Hun, 636) i. 500, 1129 Bjornsen, Reg. v. (Leigh & C. 545) i. 112, 117 Black V. State (36 Ga. 447) i. 1000, 1021, 1026 V. State (2 Md. 376) i. 569, 805, 810; ii. 1000 Blackbourne,Rexv. (Trem.P.C.lOl)ii. 152 Blackburn, Com'th v. (1 Duvall, 4) i. 814 Blackburn v. State (22 Ohio State, 102) ii. 1118, 1131, 1136 V. State (23 Ohio State, 146) ii. 1187 Blacket, Reg. v. (7 Mod. 39) i. 592 ; ii. 160, 235 Blackham, Rex v. (2 East P. C. 711) i. 329, 682; ii. 807 Blackman v. State (12 Ind. 666) i. 464 Blackmore v. Brider (2Pliillim. 359, n.) i. 38 Blackson, Rex v. (8 Car. & P. 48) i. 664 Blackivell, State v. (9 Ala. 79) i. 548, 1014; ii. 82, 34 Bladen, United States ti. (1 Cranch C. C. 548) i. 115 Blair v. Com'th (25 Grat. 850) i. 899, 903 V. Forehand (100 Mass. 136) i. 832, 1080 Blair, State v. (13 Rich. 93) ii. 1149 Blaisdell, Com'th v. (107 Mass. 234) ii. 1273 , State V. (83 N. H. 388) i. 917 Blake v. Allen (Sir F. Moore, 619) i. 672 ; ii. 574, 600 V. Barnard (9 Car. & P. 626) i. 548; ii. 28, 82, 84 BOB INDEX TO THE CASES CITED. BOR Section Blake, People v. (1 Wheeler Grim. Gas. 490) i. 749 , Reg. V. (6 Q. B. 126) ii. 225 Blakeley, People v. (4 Parker C. G. 176) i. 895 Blalcemore, Reg. v. (2 Den. C. C. 410; 5 Gox C. G. 513 ; 9 Eng. L. & Eq. 541) ii. 1267 Blakesley, State v. (38 Gonn. 628) i. 1088 Blalock, State v. (Phillips, 242) i. 898, 900, 907 Blanc V. Rodgers (49 Cal. 15) i. 917 Blanchard, Ex parte (9 Nev. 101) i. 35 Bland, Rex v. (2 Leach, 595; 2 East P. C. 760) i. 942 Bland V. State (2 Ind. 608) 1. 951 Bland v. Whitfield (1 Jones, N. G. 122) ii. 968 Blanding, Commonwealth v. (3 Pick. 304) i. 110, 591 ; ii. 915, 918, 922 Blassingame v. Glaves (6 B. Monr. 38) i. 264 Blatchley v. Moser (15 Wend. 215) i. 1067 Bleasdale, Reg. v. (2 Gar. & K. 765) i. 310, 793, 1061 ; ii. 888, 889 Bleasdale, Rex v. (4 T. R. 809) 1. 957 Bledsoe v. Little (4 How. Missis. 13) ii. 136, 137 Blenkinsop, Reg. v. (1 Den. G. G. 276 ; 2 Gar. & K.'531) i. 672 ; ii. 576, 588, 591 Blevings v. People (1 Scam. 172) i. 934 Blight V. Fisher (Pet. G. G. 41) ii. 252 Blimm V. Com'th (7 Bush, 320) i. 401 Bliss, Com'th V. (1 Mass. 32) 1. 264, 266 Bliss V. Connecticut and Pass. Rail- road (24 Vt. 424) i. 406 Blisset, Rex v. (1 Mod, 13) i. 534; ii. 1268 Blocker, State a. (14 Ala. 450) ii. 273 Blodget V. Royalton (14 Vt. 288) ii. 1267 Blodgett, Common wealth v. (12 Met. 56) i. 45, 132, 153,355; ii. 753 Blood I). Bates (31 Vt. 147) ii. 968 Bloom V. Richards (2 Ohio State, 387) i. 35; ii. 954, 968 Bloomer v. State (3 Sneed, 66) ii. 27 Bloomfield v. Blake (6 Gar. & P. 75) ii. 211, 212, 221 , Rex V. (Gar. & M. 537) ii. 439, 537 Bloomliuff V. Stole (8 Blackf. 205) i. 504,800, 1113, 1115, 1118, 1135, 1137 Bloss V. Tobey (2 Pick. 320) i. 559, 576 ; ii. 12 Blunt's Case (1 Howell St. Tr. 1409) 1. 638 Blunt V. Commonwealth (4 Leigh, 689) ii. 801, 840 Blydenburgh v. Miles (39 Gonn. 484) i. 1144 BIyth, State v. (1 Bay, 166) i. 266 Blythe v. Wright (2 Ashm. 428) ii. 493 Boardman v. Gore (15 Mass. 331) i. 271 ■ , State V. (64 Maine, 623) i. 1088 Boat Swallow (1 Ware, 21) i. 821 Bob V. Respublica (4 Dall. 145) ii. 728 Section Bob V. State (29 Ala. 20) i. 764 BodweU V. Osgood (3 Pick. 379) 1. 308 ; ii. 914 Bohannon v. Commonwealth (8 Bush, 481) i. 842, 844 Bohannon, State v. (21 Misso. 490) ii. 1004 Bohles, State v. (Rice, 145) i. 287 Boies, State v. (34 Maine, 235) i. 464 ; ii. 1149 Boles V. Lynde ( 1 Root, 195) i. 831, 944 V. Pinkerton (7 Dana, 453) ii. 38 Bi^es V. State (9 Sm. & M. 284) ii. 720 Boling V. Luther (N. G. Term R. 202) ii. 1020 Boll, State v. (59 Misso. 321) i. 1143 Bo/land, Rex v. ( 1 Leaoh, 83; 2 East, P. G. 958) i. 572, 748 Bollman, Ex parte (4 Granch, 76) i. 201, 226, 456, 684; ii. 1202, 1228, 1231, 1232 , United States v. (1 Granch G. G. 373) ii. 1202 Bolster v. Gushman (34 Maine, 428) ii. 13 Bond, Commonwealth u. (1 Gray, 564) ii. 298 V. Padelford (13 Mass. 394) ii. 791 , State V. (8 Iowa, 540) i. 297 Bonds V. State (Mart. & Yerg. 143) i. 396 , State V. (2 Nev. 265) ii. 704 Bone V. State (18 Ark. 109) i. 713 Bonfanti v. Stale (2 Minn. 123) i. 736; ii. 742 Bonner, Commonwealth v. (9 Met. 410) i. 429, 591 ; ii. 920, 922 , State V. (2 Head, 135) i. 658 Bonsall V. State (35 Ind. 460) i. 777, 792 ; ii. 1167 Bonsell v. United States (1 Greene, Iowa, 111) i. 670 Bontien, Rex v. (Buss. & Ry. 260) i. 572 ; u. 583 Boober,Reg. v. (4 Gox C. C. 272) i. 363 Boody V. Keating (4 Greenl. 164) i. 271 , State V. (53 N. H. 610) ii. 349 Boom V. Utica (2 Barb. 104) i. 490 Boon, State v. (Taylor, 246) i. 938 Booth V. Com'th (4 Grat. 525) ii. 801 Booth V. Com'th (6 Met. 635) i. 953 Booth V. Hodgson (6 T. R. 405) i. 267 Booth, Rex V. (Russ. & Ry. 47) i. 557, 888 ; ii. 29 Booth B. Shepherd (8 Ohio State, 243) i. 160 V. State (4 Conn. 66) i. 1150 Bootie, Rex t. (2 Bur. 864) i. 459, 707 ; ii. 1104 Booty, Rex v. (2 Keny. 575) i. 459, 707 ; ii. 1104 Bordeaux, State v. (2 Jones, N. G. 241) i. 588; u. 499, 505 Borden, United States v. (1 Sprague, 374) i. 664 Boreham, Reg. v. (2 Cox C. C. 189) u. 560 659 BOW INDEX TO THE CASES CITED. BEA ' Section Borgman, State v. (2 Nott & McC. 34, n.) i. 686 Borland v. Dean (4 Mason, 174) i. 821 Barrett, Rex v. (6 Car. & P. 124) i. 464 ; ii. 376, 392 Borron, Rex v. (8 B. & Aid. 432) i. 462, 972 Borthwick, Rex v. (1 Doug. 207) i. 653 Bosley v. McAllister (13 Ind. 565) ii. 968 Bosse, State v. (8 Rich. 276) i. 35, 938, 939 ; ii. 18 Bostick, State V. (4 Harring. Del. 563) i. 370 Boston, The (1 Sumner, 328) ii. 876 Boston & Worcester Bailroad v. Dana (1 Gray, 83) 1. 271 Bostwiok V. Lewis (2 Day, 447) 1. 264 Bosivetl V. Com'th (20 Grat. 860) i. 406 Bathe's Case (Sir P. Moore, 666) ii. 609 Bothwel! V. Brown (51 111. 234) i. 710 Bottomley v. United States (1 Story, 135) i. 821 Botwright, Rex v. (Say. 147) i. 582 ; ii. 145 Boucher, Rex v. (4 Car. &P. 562) ii. 1200 Boulo v. State (49 Ala. 22) i. 516 Bault, Reg. v. (2 Car. & K. 604) i. 572 ; ii. 606 Boulton, Reg. v. (1 Den. C. C. 508 ; 2 Car. & K. 917; 19 Law J. n. s. M. C. 67 ; 13 Jur. 1034) ii. 477 Baume \. Rex (2 Ner. & P. 248 ; 7 A. & E. 58 ; 1 Jur. 542) i. 980 , Rex V. (5 Car. & P. 120) i.-876,877 Boutelle v. Nourse (4 Mass. 431) i. 956, 1053 Bavard v. Slate (30 Missis. 600) i. 384, 393 Bowden, Com'th v. (14 Gray, 103) ii.108 , Com'th V. (9 Mass. 494) i. 1033 Bowen, CommanwecUth v. (13 Mass. 356) i. 510, 662 ; ii. 1187 Bowen v. Hunter (45 How. Pr. 193) ii. 244 , People !>. (43 Cal. 439) i. 902 Bowen, Reg. \. (Car. & M. 149) i. 340 ; ii. 53 , Reg. V. (13 Q. B. 790; 13 Jur. 1046) ii. 471 Bower, Rex v. (Cowp. 323) i. 582 ; ii. 145, 163 Bowers v. Ktzrandolph (Addison, 215) i. 1080 V. Jewell (2 N. H. 543) - ii. 575 Bowers, Reg. v. (Law Rep. 1 C. C. 41) u. 341, 348 Bowers, State v. (14 Ind, 195) i. 1148 Bowery Savings Bank v. Richards (6 Thomp. & C. 69 ; 3 Hun, 366) ii. 269 Bowler's Case (1 Collinson Lun. 673; Shelford Lun. 461) i. 384 Bowler V. State (41 Missis. 570) ii. 416, 471, 486 Bowling, State v. (10 Humph. 52) i. 808 Bowman v. Bli/th (7 Ellis & B. 26) ii. 400 660 SECTIOlf Bowman, Commonwealth v. (3 Barr, 202) ii. 1269 Bowman, Rex v. (6 Car. & P. 101) i. 1041 , Rex V. (6 Car. & P. 337) i. 1028 Bowman, State v. (6 Vt. 594) ii. 288 Boviray, Reg. v. (10 Jur. 211) i. 531 Box, Reg. v. (9 Car. & P. 126) ii. 801, 816 Bayall, Rex v. (2 Bur. 832; 2 Keny. 549) i. 240 Boyce, Rex v. (1 Moody, 29) i. 341, 729 Boyce, State u. (10 Ire. 536) i. 1114 V. Tabb (18 Wal. 546) i. 194 Boyd V. Banta (Coxe, 266) i. 869, 821, 970 V. Commonwealth (1 Rob. Va. 691) i. 578;ii. 769 V. State (7 Coldw. 69) i. 893 Boyd V. State (2 Humph. 39) ii. 995 Boyden, State v. (13 Ire. 6061 i. 735, 759,772; ii. 743 , United States v. (1 Lowell, 266) i. 488 Boyes, Reg. v. (1 B. & S. 311 ; 9 Cox C. C. 32; 2Fost.& F. 167) i. 912, 917 Boi/ett, State v. (10 Ire. 386) i. 296, 298 Boyle, In re (9 Wis. 264) i. 464 — — , State V. (28 Iowa, 522) i. 810 Boynton, Commonwealth V. (2 Mass. 77) i. 671 ; ii. 148, 594 Boynton, Commonwealth v. (116 Mass. 348) i. 658 Boys, Rex V. (Say. 143) i. 240 Brabham o. State (18 Ohio State, 485) ii. 1200 Brackett, Reg. v. (4 Cox C. C. 274) ii. 812 Bradcat v. Tower (1 Mod. 89) ii. 766 Braddee v. Com'th (6 Watts, 530) i. 805 Braden, State v. (2 Tenn. 68) i. 207 ; ii. 768, 786, 799 Bradford, Commonwealth v. (9 Met. 268) i. 298, 428 Bradford v. McKibben (4 Bush, 545) i. 832 Bradford, People y. (1 Wheeler Crim. Cas. 219) ii. 212 , Reg. T. (Bell C. C. 268 ; 8 Cox C. C. 309) i. 531 Reg. V. (2 Crawf. & Dix C. C. 41) ii. 290 i. 504, 1145 Bradford, Rex v. (Comb. 304) Bradford, Rex v. (1 Ld. Raym. ! i. 582 ; ii. 419 Bradley v. Fisher (13 Wal. 335) i. 460, 462 Bradley v. Heath (12 Pick. 163) i. 808 ; ii. 914 V. People (56 Barb. 72) i. 531, 1097 V. State (31 Ind. 492) i. 383, 387,406 V. State (10 Sm. & M. 618) 1. 786 Bradley v. State (Walk. Missis. 156) i. 891 Bradway a. Le Worthy (9 Johns. 261) i. 713 BBI INDEX TO THE CASES CITED. BRO Section Brady, Commonwealth v. (5 Gray, 78) i. 320 , People !). (56 N. Y. 182) ii. 198 , Keg. V. (26 U. C. Q. B. 13) il. 481, 483 , State V. (9 Humph. 74) i. 226, 659 Brady, State v. (14 Vt. 353) * i. 793, 796, 1062; il. 116 Brady v. Weeks (3 Barb. 157) i. 1141 Bragg V. Lorlo (1 Woods, 209) i. 904, 910 Brain, Eex v. (6 Car. & P. 849) 11. 632 Braman, People v. (30 Mich. 460) il. 1200 Bramlei/, Bex v. (Russ. & Ry. 478) 11. 758, 793 Branch Bank of Mobile v. Murphy (8 Ala. 1191 i. 296 Brandon, Eex\. (stated Cas. temp. Hardw. 372) 1. 204 . State V. (8 Jones, N. C. 463) 1. 384, 387, 849, 857 Brandreth's Case (32 Howell St. Tr. 755) 11. 1213 Brannon, State v. (55 Misso. 68) i. 1054; 11.1182 Branny, Rex v. (2 East P. C. 704 ; 1 Leach, 241, n.) 11. 897 Bransba, People v. (32 N. Y. 525) 11. 25, 35 Branworth, Reg. v. (6 Mod. 240) 1. 515 Brasier, Bex v. (1 Leach, 199) 11. 1118 Brattan v. State (10 Humph. 103) il. 723, 728 Bray v. State (41 Texas, 560) 11. 1018 Braynard, Commonwealth y. (Thacher Crlm. Cas. 146) 11. 258 Brazier, Bex v. (Russ. & Ry. 337) 11. 834, 870 Breck v. Blanchard (2 Fost. N. H. 303) i. 553 Breeme, Bex v. (1 Leach, 220; 2 East P. C. 1026) 1. 559, 577 ; 11. 13 Breen, Beg. v. (3 Crawf. & Dlx C. C. 30) 11. 758, 882 Breese v. State (12 Ohio State, 146) 1. 650, 653 Bren, Beg. v. (Lei^h & C. 346) ii. 343 Brennan v. People (15 111. 511) 1. 635, 636, 648, 670, 1006, 1056 Brennan, People v. (45 Barb. 344) 11. 256 Brennan, Beg. v. (1 Crawf. & Dix C. C. 560) 11. 802 Brennon v. State (25 Ind. 403) Ii. 1159, 1168 Brery v. Levy (1 W. Bl. 443) 1. 713 Brettel, Beg. v. (Car. & M. 609) 1. 778, 793, 1061 ; 11. 888 Brewer, State v. (7 Blackf. 45) 1. 899 Brewster v. Gelston (11 Johns. 390) 1. 821 Brewster, State v. (7 Vt. 118) i. 135 Brewster, U. S. v. (7 Pet. 164) il. 594 Brice, Bex v. (1 Chit. 352) i. 992 , Bex V. (Russ. & Ry. 450) 11. 91,95 Bridges, State v. (1 Murph. 134) 1. 805, 810 ,822 .564 153 Section Brig Alexander (3 Mason, 175) i. 564 Brig Caroline (1 Brock. 884) i. 564 Brig James Wells, United States v. (3 Day, 296; 7 Cranch, 22) i. 351, 352, 821, 824 Brig Neurea, United States v. (19 How. U. S. 92) 1, Brig Trypheriia v. Harrison (1 Wash. C. C. 522) i. Brig Wilson v. United States (1 Brock. 423) i. 173 Brigantine Mars, United States v. (8 Cranch, 417) 1. 822 Brigys, Commonwealth v. (5 Met. 559) 11, 1084 , Commonwealth v. (5 Pick. 420; 7 Pick. 177) 1.961,1017 Briggs, State u. (3 Ire. 357) i. 536, 861 ; il. 37 Brigham, People v. (2 Mich. 550) 1. 618 Bright, State v. (2 Car. Law Repos. 634) 11. 396 , United States v. (1 Whart. Pa. Dig. 506) 1 Brightside Bierlow, Beg. v. (4 New Sess. Cas. 47 ; 14 Jur. 174) 1. 791 Brlghtwell ». State (41 Ga. 482) 1. 952 Brigslock, Bex v. (6 Car. & P. 184) Ii, 986 Briley, State v. (8 Port. 472) il. 1004, 1005 Brill V. Flagler (23 Wend. 354) 1. 1080 Brimilow, Beg. v. (9 Car. & P. 366 ; 2 Moody, 122) i. 373, 809; 11. 1117 Brlnley o. Whiting (5 Pick. 348) 1.307, 541; ii. 136,137,138 Brinyea, State v. (5 Ala. 241) 1. 396, 948 Brisby, Beg. v. (8 New Sess, Cas. 591 ; Temp. & M. 109 ; 1 Den. C. C. 416; 13 Jur, 520) 1. 240 Bristol V. Dann (12 Wend. 142) 11. 128 Bristol, People v. (23 Mich. 118} 1. 789 Bristow V. Commonwealth (16 Grat. 684) 1. 877 Britain v. State (8 Humph. 203) 1. 500 British Prisoners (1 Woodb. & M. 66) 1. 135 ; 11. 1061 Britt V. State (7 Humph. 45) 1. 553; 11. 1172, 1173 Britt V. State (9 Humph. 31) 11, 472 , State V. (3 Dev. 122) 11. 608 Brittain v. Bank of London (8 Fost. & F. 465) 11, 541 Brittain v. State (7 Humph. 159) i. 808 Brittln;;. State (5 Eng. 299) 1. 343 ; 11. 970 Britton v. Commonwealth (1 Cush. 302) 11. 1000 Britton, Eex V. (1 Moody & R. 297) 1. 572 a, 777, 1061 , United States v. (2 Mason, 464) ii. 611 Brock V. King (2 Jones, N. C. 302) il. 1104 Brockius, United States v. (3 Wash. C. C. 99) 1. 972, 974 Brockway v. People (2 Hill, N. Y. 558) i. 35, 1091 661 BBO INDEX TO THE CASES CITED. BEO Section Broderick, State v. (59 Misso. 318) ■ i. 1167 Brodnax, State v. (Phillips, 41) i. 893 Bromage V. Prosser (4 B. & C. 247) i. 429 Bromley v. Hutchins (8 Vt. 194) i. 135 V. People (7 Mich. 472) i. 114 Bronson's Case (12 Johns. 460) ii. 259 Brook's Case (2 Lewin, 267) ii. 1129 Brooke v. Filer (35 Ind. 402) i. 65 Brooke, Reg. v. (7 Cox C. C. 251) ii. 927 , Rex V. (2 T. R. 190) i. 462; ii. 973, 976 Brooker v. Commonwealth (12 S. & R. 175) ii. 244, 265 Brooks V. Adams (11 Pick. 441) i. 44 V. Commonwealth (2 Rob. Va. 845) i. 963 Brooks V. Commonwealth (11 Smith, Pa. 352) ii. 699 Brooks, Commonwealth o. (1 Du- vall, 150) ii. 1174 , Commonwealth v. (99 Mass. 434) i. 351 V. Daniels (22 Pick. 498) i. 997 V. Davis (17 Pick. 148) i. 997 , People V. (1 Denio, 457) ii. 976 Brooks, Reg. v. (8 Car. & P. 295) i. 207 ; ii. 801, 802, 864 , Req. V. (Dears. 184 ; 14 Eng. L. & Eq. 580) ii. 1142 , Rex T. (4 Car. & P. 131) i. 578 ; u. 779 Brooks V. State (51 Ga. 612) ii. 17 Brooks y. State (3 Humph. 25) 1. 1006 V. Stute (2 Yerg. 482) i. 500 , State V. (4 Conn. 446) ii. 118 , State V. (1 Hill, S. C. 361) i. 534; ii. 1147 , State V. (8 Humph. 70) Brooks, State v. (42 Texas, 62) - V. Warwick (2 Stark. 389) i. 1031, 1041 ii. 349 i. 207 Brooksbank, State v. (6 Ire. 73) i. 499 ; ii. 968 Broome v. Wellington (1 Sandf. 664) ii. 968 Broughton v. Jackson (11 Eng. L. & Eq. 386) ii. 37 Broughton, Rex v. (Trem. P. 0. Ill) ii. 394 V. Singleton (2 Nott & McC. 388) i. 578 ; ii. 776 Brounsall, Ex parte (Cowp. 829) ii. 264 Brown's Case (2 East P. C. 702) ii. 896 Brown's Case (3 Greenl. 177) i. 569; ii. 985 Case (1 Lewin, 42) i. 204 Brown, Ex parte (2 Bailey, 323) i. 990 V. Beauchamp (5 T. B. Monr. 413) i. 541 ; ii. 121, 123, 131 V. Brine (1 Ex. D. 5) ii. 920 V. Carpenter (26 Vt. 638) i. 1080 Brown V. Commonwealth (2 Leigh, 769) ii, 548, 598 V. Commonwealth (8 Mass. 59) ii. 288 662 Sectioit Brown v. Commonwealth (4 Bawle, 259) i. 953 V. Commonwealth (26 Smith, Pa. 319) i. 777 , Commonwealth v. (15 Gray, 189) i. 572 a , Commonwealth v. (i Mass. 580) ii. 824, 834, 8.58, 860 Brown, Commonwealth v. (13 Met. 365) i. 531, 1138 , Commonwealth v. (3 Rawle, 207) i. 793, 796, 1062 ; ii. 116 Brown v. Hoburger (52 Barb. 15) i. 832, 1080 V. Howard (14 Johns. 119) i. 355; ii. 37 V. Kendall (6 Cush. 292) V. Lunt (87 Maine, 423) V. Mobile (23 Ala. 722) V. Padgett (36 Ga. 609) People V. (47 Cal. 447) ■V. Perkins (1 Allen, 89) ^89) Ii. 60 i. 464 i. 32 711, 715 i. 736 i. 658 i. 1081 ii. 1269 V. Perkins (12 Gray V. Preston (38 Conn. 219) Brown, Reg. v. (Car. & M. 314) i. 469, 535 ; ii. 35 , Reg. V. (7 Cox C. C. 442) ii. 209 , Reg. Y. (Dears. 616) ii. 813 Brown, Reg. w. (11 Mod. 86) ii. 918, 926 Brown, Rex v. (2 East P. C. 487 ; 2 Leach, 1016, n.) ii. 96 , Rex V. (2 East P. C. 731) i. 553; ii. 1171 Brown, Rex v. (2 East P. C. 1007) ii. 152 , Rex V. (1 Leach, 148 ; 1 East P. C. 231, 245, 274) i. 328 ; ii. 719 , Rex V. (Russ. & By. 32, n.) ii. 904 Brown, Rex v. (8 T. R. 26) i. 515 , Rex V. (T. Raym. 208) i. 827 V. State (46 Ala. 175) ii. 309, 310 V. State (8 Blackf. 561) i. 1040 V. State (5 Eng. 607) i. 1014, 1039 V. State (7 Eng. 628) i. 997 Brown v. State (28 Ga. 199) i. 634, 642, 648 Brown v. State (35 Ga. 232) i. 893 Brown V. State (18 Ohio State, 496) i. 667 Brown v. State (88 Texas, 482) i. 1082 ; ii. 638 Brown, State v. (16 Conn. 54) i. 992, 1009, 1150 Brown, State v. (1 Hayw. 100) i. 141, 984 Brown, State v. (25 Iowa, 561) ii. 812 Brown, State v. (21 La. An. 347) ii. 53 Brown, State v. (31 Maine, 520) i. 686 , Stale V. (12 Minn. 490) ii. 404 Brown, State «. (2 Oregon, 221) i. 155, 178 ; ii. 611 Brown, State v. (3 Strob. 608) ii. 806, 843 Brown v. Thompson (59 Maine, 872) ii. 540 Brown V. United States (McCahon, 229) i. 904, 910 Brown v. United States (U. S. Cir. Ct. N. Dist. Ga. May 24, 1875) it. 1028 BUD INDEX TO THE CASES CITED. BUK Sectios Brown, United States ». (Deady, 566) 1. 32 e. Wadsworth (15 Vt. 170) i. 1029 V. Waite (2 Mod. 130) i. 968 V. Watson (47 Maine, 161) i. 265 V. Webber (6 Gush. 560) i. 995 V. Wylie (2 W. Va. 502) i. 464 Browne, Reg. v. (Holt, 425) ii. 925 Brownell «. Manchester (1 Pick. 232) ii. 791 Browning v, Morris (Cowp. 790) i. 658 Bruce, Rex v. (Russ. & Ry. 243; 2 Leach, 1093) i. 146, 176 Bruce v. State (9 Ind. 206) i. 1029 Bruce, Utate v. (24 Maine, 71) i. 762, 1017 ; ii. 404, 407, 1181, 1200 Bruce, State v. (1 Tread. 165) i. 32 Brucker v. Fromont (6 T. R. 659) i. 682 BrundL, State v. (29 Wis. 435) i. 1088 Brunson v. Martin (17 Ark. 270) i. 271 Branson, Stale v. (2 Bailey, 149) i. 501 Bryan, Reg. v. (Dears, & B. 265; 7 Cox C. C. 312 ; 40 Eng. L. & Eq. 589) ii. 449, 454 , Reg. V. (2 Fost. & F. 567) ii. 483 , Rex V. (2 Stra. 866) i. 582, 761 ; ii. 145, 168 Bryant v. Biddeford (39 Maine, 193) ii. 968 Bryant v. Ketchum (8 Johns. 479) ii. 140 , State V. ( 14 Misso. 340) i. 355, 658 Bryson, State v. (Winston, No. 2, 86) i. 305, 844 Bubb, Reg. r. (4 Cox C. C. 455) ii. 660 Bubser, Com'th v. (14 Gray, 83) i. 1065 Buchanan v. State (24 Ga. 282) ii. 731 , State V. (5 Har. & .1. 317) i. 432, 692, 1024 ; ii. 174, 175, 176, 192, 195, 198, 204, 217 , State V. (5 Har. & J. 500) ii. 1022 Buchanan, State e. (17 Vt. 573) i. 465, 467, 857, 876 Buck V. Albee (27 Vt. 190) i. 268 , Reg. V. (6 Mod. 306) i. 459 ; ii. 392 - Buckland v. Com'th (8 Leigh, 732) ii. 539 , People V. (13 Wend.'592) i. 710 Buckle, Hex v. (1 Russ. Crimes, 3d Eng-. ed. 408) i. 715 Buckley, State v. (2 Harring. Del. 552) i. 891 Buckley, State v. (5 Harring. Del. 508)' i. 1113 Buckman, State v. (8 N. H. 203) i. 491 Bucknam v. Buggies (15 Mass. 180) i. 464 Bucknell, Reg. v. (Holt, 128 ; 7 Mod. 55) ii. 1281 Buckner v. Beck (Dudley, S. C. 168) i. 266 Buckner, State v. (Phillips, 558) ii. 1274 Bucks, Rex t. (12 East, 192) ii. 1269, 1281 Buckwalter v. United Slates (11 S. & R. 193) i. 32 ; ii. 1022 Budd V. State (3 Humph. 483) ii. 347, 381 i Seotion Buffalo City Bank v. Codd (25 N. Y. 163) i. 658 BufEum's Case (13 N. H. 14) ii. 256, 269 Buford V. Commonwealth (14 B. Monr. 24) i. 618, 1137 Bugbee, State v. (22 Vt. 32) i. 355, 658, 782 Buggery, Case of (12 Co. 36) ii. 1127 Bulkley y. Ormes (Brayt. 124) i. 822 Bull, Reg. V. (9 Car. & P. 22) , Reg. V. (2 Fost. & F. 201) ii. 6i , Rex V. (1 Wils. 93) ii. 982 Bullard v. Copps (2 Humph. 409) ii. 136, 137 Bullock V. Babcock (3 Wend. 391) ii. 60 V. Dodds (2 B. & Aid. 258) i. 939, 963 V. Koon (4 Wend. 531) i. 207 ; ii. 1030 , State V. (13 Ala. 413) i. 400, 401, 409,413,735; ii. 741 , State V. (63 N. C. 570) i. 1033 Bulson T. People (81 111. 409) i. 1010 Bumgardner v. Taylor (28 Ala. 687) ii. 968 Bump V. Com'th (8 Met. 533) i. 960 Bunce, Reg. v. (1 Fost. & F. 523) ii. 429 o Buncombe^ Reg. v. (1 Cox C. C. 183) i. 368 Bunkall, Reg. v. (Leigh & C. 371) ii. 831 Bunn, Reg. v. (12 Cox C. C. 316 ; 4 Eng. Rep. 564) ii. 229, 230 Bunning, Rex v. (1 East P. C. 180 ; 2 Leach, 621) ii. 293 Bunts, Rex v. (2 T. R. 683) i. 950 Burbon, Rex v. (5 M. & S. 392) i. 993 Burchinal, State v. (4 Harring. Del. 672) i. 318, 1113 Burd V. Com'th (6 S. & R. S52) ii. 501 Burden v. People (26 Mich. 162) i. 842 , People V. (9 Barb. 467) i. 1066 ; ii. 1044 Burder, Rex v. (4 T. R. 778) i. 458 Burdet, Rex v. (4 B. & Aid. 95 ; 3 B. & Aid. 717) i. 457, 691, 769, 761 ; ii. 82, 913, 918, 927 , Rex V. (4 B, & Aid. 314) i. 948 ; ii. 918 , Rex V. (1 Ld. Raym. 148) i. 468, 673; ii. 392, 394, 401, 916 V. State (9 Texas, 43) i. 1010, 1014 Burdick, Cometh v. (2 Barr, 163) ii. 437 Burditt V. Swenson (17 Texas, 489) i. 1138 Burford, Rex v. (1 Vent. 16) ii. 946 Burgaine, Rex v. (1 Sid. 409) ii. 146 Burgdorf, State v. (53 Misso. 65) ii. 1122 Burgess v. Burgess (1 Hag. Con. 384) i. 38 Burgess, Reg. v. (Leigh & C. 258; 9 Cox C. C. 247) ii. 1187 , Reg. V. (Leigh & C. 299) ii. 792, 793 Burgess] Rex v. (T. Raym. 84) ii. 514 V. Sugg(2 Stew. & P. 341) i. 1021 Burgon, Reg. v. (Dears. & B. 11 ; 36 Eng. L. & Eq. 615 ; 7 Cox C. C. 131) ii. 419, 426, 444 663 BTJB INDEX TO THE CASES CITED, BUT Seotioit Burhans v. Burhans (2 Barb. Ch. 398) ii. 137 Burk, Com'th v. (11 Gray, 437) 1. 359 Burk V. State (2 Har. & J. 426), i. 805 Burk, State v. (4 Jones, N. C. 7) i. 207 Burke, Com'th v. f 14 Gray, 100) i. 791 Burke, Commonwealth v. (105 Mass. 376) ii. 1114, 1115, 1121 Burke v. Elliott (4 Ire. 355) i. 464 - — V. People (4 Hun, 481) ii. 1006 Burke, People v. (11 Wend. 129) i. 141, 143, 984 , Rex V. (EusB. & Ry. 496) i. 572, 748 ; ii. 538, 539 Burke v. State (47 Ind. 528) ii. 258, 269 Burke, State v. (30 Iowa, 331) i. 842, 865 , State V. (38 Maine, 674) i. 1017 Burket, State v. (2 Mill, 155) i. 1014 Burkholder v. Lapp (7 Casey, 322) ii. 577 Burlington, State u. (36 Vt. 521) i. 420 Burn, Rex «. (7 A. & E. 190 ; 1 Jur. 657) i. 256 Bumby V. Rollitt (11 Jur. 827) i. 491 Burnett, Rex v. (4 M. & S. 272) i. 490 Burnham v.Mmrissey (14 Gray, 226) ii. 247 , State V. (9 N. H. 34) i. 308, 540, 591;.ii. 905,914,918 Burnham, State i>. (15 N. H. 396) i. 592 ; ii. 175, 177, 178, 180, 181, 198, 208 Bums V. Peoph (1 Parker, C. C. 182) i. 1021, 1053, 1059, 1158 Burns, Kespublica «. (1 Yeates, 370) ii. 973 V. State (48 Ala. 195) 1. 893, 894 Bums, U. S.\. (5 McLean, 23) ii. 291 Bumsides, Reg. t. (8 Cox C. C. 370 ; Bell C. C. 282) ii. 424 Buron v. Denman (2 Exch. 167) i. 132 Burr's Trial (Coombs' ed.) ii. 1202, 1224, 1228, 1232 Burr, People v. (41 How. Pr. 293) ii. 369 Burr, United States V. ( Burr's Trial ; 4 Cranch, 469) i. 194, 456, 683, 704 Burraston, Rex v. (Gow, 210) i. 672 a Burrell v. State (18 Texas, 713) i. 633, 718 Burridge, Reg. v. (2 Moody & R. 296) ii. 1200 , Rex V. (3 P. Wms. 439) i. 668, 693, 697 ; ii. 1068 Burris, State v. (3 Texas, 118) i. 992 Burroughs, State v. (2 Halst. 426) i. 569 ; ii. 986 Burrow's Case (1 Lewin, 75) i. 400, 406 Burrow v. State (7 Eng. 65) i. 586 ; ii. 420 Burrows v. Pixley (1 Root, 362) i. 265 Burrows, Rex v. (Buss. & Ry. 519) ii. 1128 , Sta(« V. (11 Ire. 477) ii. 478, 758, 762, 767 Burrows's Liquors, State v. (37 Conn. 425) i. 821, 825, 833 Burt V. Place (6 Cow, 431) ii. 121, 125 V. State (39 Ala. 617) i. 893 664 Sbotion Burt V. Stale (3 Brev. 413; 2 Tread. 489) i. 536 ; ii. 490, 503, 505 , State T. (64 N. C. 619) ii. 763 Burton, Reg. v. (3 Post. & F. 772) i. 384, 387 , Rex V. (1 Moody, 237) ii. 334 , iSexv. (1 Stra. 481) ii. 656 6 Burton, State ». (3 Ind. 93) ii. 392 V. Watkins (2 Hill, S. C. 674) ii. 885 Burwell, State v. (63 N. C. 661) i. 857 ; ii. 706 Bush, Com'th T. (2 Duvall, 264) i. 903 Bush, Com'th v. (112 Mass. 280) i. 850 Bush, People v. (4 Hill, N. Y. 133) i. 767 ; ii. 20 Bush V. Railing (Say. 289) ii. 86 Bushel V. Barrett (1 Ryan & Moody N. P. 434) 1. 974 Buster v. Newkirk (20 Johns. 75) ii. 776 Butcher, Reg. v. (Bell C. C. 6 ; 8 Cox C. C. 77) i. 310 ; ii. 442, 473 Butler's Case (cited 13 Co. 53; 3 Inst. 113) i. 141 Butler V. Com'th (2 Duvall, 436) i. 633 V. Commonwealth (12 S. & R. 237) i. 586; ii. 529, 639 , Commonwealth v. (1 Allen, 4) i. 359 Butler V. McLellan (Ware, 219) i. 319, QQO V. People (4 Denio, 68) ii. 103 Butler, People v. (8 Cal. 435) i. 872 Butler, People v. (3 Cow. 347) i. 960 , People V. (16 Johns. 203) ii. 17 Butler, Reg. v. (2 Car. & K. 340) ii. 365, 813 , iJca; V. (6 Car. & P. 368) i. 759; ii. 62 Butler V. Northumberland (50 N. H. 33) i. 668 Builer V. State (22 Ala. 43) ii. 545, 561 Butler V. State (6 Ind. 165) ii. 1277 ButW V. State (3 AJcCord, 383) i. 700 Butler, State v. (Conference, 331) ii. 501, 614 Butler, State v. (3 McCord, 383) i. 699, 700 Butman, State v. (42 N. H. 490) i. 798 Butterfield, Reg. v. (1 Cox C. C. 39) i. 693 Butterick, Commonwealth' v. (100 Mass. 12) i. 777 ; ii. 373, 523, 662, 670 o Butteris, Rex v. (6 Car. & P. 147) i. 649; ii. 824, 836 Buttencick, Reg. v. (2 Moody & R. 196) ii. 562 Butterworth, Rex v. (Russ. & Ry. 520) ■ i. 800 Butterworth M. Stagg (2 Johns. Cas. 291) ii. 263 Buttery, Rex v. (cited 5 D. & R. 616 ; 3 B. & C. 700) ii. 460 Button, Reg. v. (8 Car. & P. 680) i. 648 ; ii. 28 OAIi INDEX TO THE CASES CITED. CAM Section Button, Beg. v. (11 Q. B. 929 ; 12 Jur. 1017; 18 Law J. n. b. M. C. 19) i. 787, 812, 814, 815, 1057; ii. 198, 239, 240, 612, 855 Butts V. Voorhees (1 Green, N. J. 13.) ii. 490, 505 Buxton, State v. (2 Swan, Tenn. 57) i. 459 Byce, Eex v. (Bott P. L. 324) i. 240 Byford, Rex v. (Russ. & Ry. 521) i. 937 Bykerdike, Eex v. (1 Moody & R. 179) ii. 230 Bynon, Rex v. (2 Show. 304) ■ i. 462 Byrd v. Odem (9 Ala. 755) i. 541 ; 11. 132 Byrne, Reg. v. 10 Cox C. 0. 369) ii. 442 Cabbage, Rex v. (Russ. & Ry. 292) ii. 758, 846 Cabbell v. State (46 Ala. 195) i. 633 Cabot V. Yarborough (27 Ga. 476) ii. 268 Cabrera, Ex parte (1 Wasli. C. C. 232) i. 128 Cadman, Rex v. (1 Moody, 114 ; Car. Crim. Law. 237) ii. 740 Cadwell v. State (17 Conn. 467) i. 1088 Cady, People v. (6 Hill, N. Y. 490) i. 572; ii. 531 Caesar, People v. (1 Parker C. C. 645) i. 143, 960 Cage, Ex parte (45 Cal. 248) i. 1034 ^, People V. (48 Cal. 323) i. 1013, 1015, I 1031, 1033, 1034 Cagle, State v. (2 Humph, 414) i. 501 Cain V. Monroe (23 Ga. 82) ii. 138, 384 Cain, Reg. v. (2 Moody, 204) U. 793 Cain V. State (20 Texas, 355) i. 955 Cairn's Case (1 Swinton, 597) ii. 72 Colder V. Bull (3 Dall. 386) i. 281 , State V. (2 McCord, 462) i. 534 ; 11. 1144 CaldweU v. Com'th (7 Dana, 229) i. 955 ,Respublica v. (1 Dall. 150) 1. 341 ; 11. 1272 Caldwell v. Sacra (Litt. Sel. Cas. 118) i. 219, 631 V. Shepherd (6 T. B. Monr. 389) ii. 132 V. State (1 Stew. & P. 327) i. 154 CaldweU, State v. (2 Jones, N. C. 468) 1. 538 ; ii. 499, 505 Caldwell, State v. (2 Speers, 162) 11. 1277 Caldwell, State v. (2 Tyler, 212) 1. 465, 467, 632 Cah, Rex v. (1 Moody, 11) 1. 622 Caledonian, The (4 Wheat. 100) i. 821, 822 Calfield's Case (1 Rol. 189) ii. 647, 651 Calhoun, People v. (3 Wend. 420) i. 299 ; 11. 399 Calico V. State (4 Pike, 430) 1. 955 Calkins v. State (18 Ohio State, 366) ii. 373 Ccdl, Com'th V. (21 Pick. 509) 1. 1053 Section Call, Commonwealth V. (21 Pick. 515) 1. 327 ; 11. 472, 485 , People V. (1 Denlo, 120) 11. 785, 786, 787, 824, 825, 855 Call V. State (20 Ohio State, 330) ii. 1026 Callaghan, Commonwealth v. (2 Va. Cas. 460) i. 471, 623; ii. 85, 86, 223 Callahan, Reg. v. (8 Car. & P. 154) 11. 340 V. State (21 Ohio State, 306) 11. 53, 741 Callahan v. State (41 Texas, 43) ii. 901 Callan, Rex v. (Russ. & Ry. 157) 11. 99 Callendine, State v. (8 Iowa, 288) i. 1013 Cailland v. Vauglian (1 B. & P. 210) ii. 1029 Callicot, In re (8 Blatch. 89) i. 907 Calvert, Commonwealth v. (1 Va. Cas. 181) ii. 1024 Calvin's Case (7 Co. 1) ii. 623 Calvin v. State (25 Texas, 789) i. 1021 Calvin,.State\. (R. M. Charl. 151) ii. 594 Cambioso u. MafEet (2 Wash. C. C. 98) i. 294 Cameron v. McFarland (2 Car. Law Repos. 415) i. 267, 714 Cameron v. State (13 Ark. 712) i. 805 Cameron, State v. (3 Heisk. 78) 1. 1061 ; ii. 376 , State V. (2 Chand. 172) i. 145, 648 Cameron, State v. (40 Vt. 555) 11. 864, 888 Camfield, Rex v. (1 Moody, 42) ii. 106 Cammaek v. Macy (8 A. K. Mar. 296) ii. 505 Camp V. Forrest (13 Ala. 114) ii. 140 Campbell v. Brown (1 Grant, Pa. 82) 1. 1080 Campbell v. Com'th (9 Smith, Pa. 266) i. 542 , Com'th V. (7 Allen, 541) 1. 634, 637 CampbeU v. Evans (45 N. Y. 356) i. 821, 832 V. Jones (4 Wend. 306) ii. 126 , Pennsylvania v. (Addison 2.32) 11. 758, 799 Campbell v. People (16 111. 17) i. 865 , People V. (30 Cal. 312) i. 305, 865 , People V. (40 Cal. 129) i. 670 Campbell, People v. (Edm. Sel. Cas. 307) ii. 673 a , People V. (4 Parker C. C. 386) ii. 773 V. Phelps (17 Mass. 244) i. 286 Campbell v. Reg. (11 Q. B. 799) i. 998 , Reg. V. (il Cox C. C. 323) ii. 656 6 , RespubUca v. (1 Dall. 3.54) ii. 501 , Rex v. (1 Moody, 179^ 11. 816 Campbell v. State (16 Ala. 144) i. 930, 1079 Campbell v. State (23 Ala. 44) 1. 976 V. State (11 Ga. 353) i. 990 V. State (9 Yerg. 333) i. 994, 1004 , State V. (29 Texas, 44) il. 1191 Campbell, State v. (T. U. P. Charl. 166) ii- 999 , State V. (2 Tyler, 177) i. 462 66& CAE INDEX TO THE CASES CITED. CAS Sbotion CampHn, Reg. y. (1 Den. C. C. 89 ; 1 Cox C. C. 220 ; 1 Car. & K. 746) i. 261, 327, 654 ; ii. 1115, 1124 Canaan u. Greenwoods Turnpike (1 Conn. 1) ii. 1270 Canada v. Commonwealth (22 Grat. 899) i. 789, 805, 1054 ; ii. 1008 Canada, Com'tli <;. (107 Mass. 405) i. 1080 Candler, State v. (3 Hawks, 393) i. 974, 976 Canfleld v. Hunter (30 Texas, 712) i. 14 Canniff, Reg. v. (9 Car. & P. 359) ii. 657 Cannon v. Burris (1 Hill, S. C.372) i. 271 V. Rands (11 Cox C. C. 631) i. 711 Cannon, Rex v. (Russ. & Ry. 146) ii. 1160 Cannon v. Windsor (1 Houston, 143) i. 970 Canter v. People (38 How. Pr. 91) i. 1052 Canterbury, State v. (8 Fost. N. H. 195) ii. 1267, 1268, 1269 , State V. (40 N. H. 307) ii. 1267 Canton v. Nist (9 Oliio State, 439) ii. 951 Canwell.Reg. v. (11 Cox C. C. 263) i. 794 Capp, Commonwealth v. (12 Wright, Pa. 53) ii. 1274 Caradice, Rex v. (Russ. & Ry. 205) i. 616, 810 Carberry V. State (11 Ohio State, 410) ii. 560 Carden v. State (3 Head, 267) i. 808 Cardwell v. Spriggs (7 Dana, 36) ii. 139 , State V. (Busbee, 245) ii. 1267 Carel, Com'th v. (105 Mass. 582) ii. 1018 Careswell, Reg. v. (5 Jur. 251) ii. 768, 843 Carey v. Brooks (1 Hill, S. C. 366) i. 265 Carey, Commonwealth v. (2 Brews. 404) i. 305, 850 , Commonwealth v. (2 Pick. 47) ii. 543 Cargill, State v. (2 Brev. 446) ii. 505 Carico v. Com'th (7 Bush, 124) i. 306 Garland, State v. (3 Dev. 114) i. 287 ; ii. 1046 Carlile, Rex v. (3 B. & Aid. 161) -, Rex V. (3 B. & Aid. 167) -, Rex V. (6 Car. & P. 63 i. 1061 ; ii. 949 ii. 915 iB) i. 244, 531, 1146 , Reg.Y. (1 Cox C. C. 229) ii. 927 Carlisle, Reg. v. (Dears. 387 ; 25 Eng. L. & Eq.' 577 ; 23 Law J. u . s. M. C. 109; 18 Jur. 386) ii. 181, 206, 211 ,Respublica v. (1 Dall. 35) i. 456; ii. 1231, 1256 , Rex V. (1 Chit. 451) i. 1061 ; ii. 949 Carlisle v. United States (16 Wal. 147) i. 904, 916 ; ii. 1202, 1236 Carlton v. Com'th (6 Met. 832) i. 963 Carmichael, People v. (5 Mieh. 10) i. 839, 491 ; ii. 740 Camochan, Ex parte (T. U. P. Charl. 316) ii. 256 Caroline, State v. (20 Ala. 19) i. 177, 564 666 Section Carpenter, Commonwealth v. (108 Mass 16) • ii. 1200 V. Mason (4 Per. &D. 439 ; 12 A. & E. 629) i. 428 Carpenter v. Nixon (5 Hill, N. Y. 260) i. 620, 679, 974 V. People (4 Scam. 197) 1. 803 , Reg. V. (Law Rep. 1 C. C. 29) ii. 336 Carpenter v. Snelling (97 Mass. 452) ii. 540 V. State (4 How. Missis. 163) ii. 1039 Carpenter, State \. (20 Vt. 9) i. 468, 784 Carr v. Jones (3 Spiith, 491) ii. 916 Carr, Rex v. (8 Car. & P. 163) i. 314 ; ii. 665 , Rex T. (Russ. & Ry. 198) ii. 341, 346, 349,370 , Rex V. (Russ. & Ry. 377) i. 758 , State V. (5 N. H. 367) i. 143 ; ii. 692, 694 Carr, State v. (71 N. C. 106) ii. 978 , United States v. (1 Woods, 480) i. 355, 872 Carro, State v. (26 La. An. 377) ii. 1160 Carroll, Rex v. (7 Car. & P. 146) i. 401, 414 V. State (23 Ala. 28) i. 305, 842, 857, .858, 865 ; ii. 706, 707 Carroll, State v. (38 Conn. 449) i. 464 , State V. (2 Ire. 267) i. 938 Carruthers, Reg. v. (1 Cox C. C. 138) ii. 1200 Carson, State v. (27 Ark. 469) i. 971 Carter v. Commonwealth (2 Va. Cas. 354) ii. 1269 Carter, Com'th v. (108 Mass. 17) i. 516 Carter, Reg. v. (1 Car. & K. 741 ; 1 Den. C. C. 65) ii. 643, 560 , Rex T. (7 Car. & P. 134) ii. 472, 598 V. State (36 Ga. 26) ii. 1136 V. State (12 Texas, 600) i. 401, 406 , State V. (3 Dutcher, 499) i. 112 Carter v. Towne (98 Mass. 567) i. 531 Cartwright r. Green (8 Ves. 405 ; 2 Leach, 952) ii. 758, 799, 838, 868 , Rex V. (Rubs. & Ry. 106) i. 759 ; ii. 441 Carwile v. State (36 Ala. 392) ii. 2 Cari/l, People v. (S Parker C. C. 326) ii. 87 Casados, State v, (1 Nott & McC. 91) i, 678; ii. 786, 786 Casborus, People v. (13 Johns. 351) i. 1000 Case, Reg. v. (1 Eng. L. & Eq. 544 ; Temp. & M. 318 ; 1 Den. C. C. 680; 4 New Sess. Cas. 347; 14 Jur. 489 ; 19 Law J. u. s. M. C. 174; 4 Cox C. C. 220) i. 261, 648; ii. 86, 1124 , Rex V. (1 East P. C. 165 ; 1 Leach, 154, n.) ii. 292 Case V. State (26 Ala. 17) ii. 904 CHA INDEX TO THE CASES CITED. CHA Seotioit Cases of Books, United States v. (2 Bond, 271) i. 488 Casey, Reg. v. (Ir. Rep. 8 C. L. 408) ii. 1149 Casey, State v. (Busbee, 209) i. 1010, 1014 Cash V. State (10 Humph. Ill) ii. 758, 880 Cash V. State (2 Tenn. 198) i. 535 ; ii. 3 Cass V. Dillon (2 Ohio State, 607) i. 14 Cassano, Rex v. (5 Esp. 231) ii. 85 Cassedy v. Jackson (46 Missis. 397) ii. 138 Cassedy, United States v. (2 Sumner, 582)' i. 564 Cafesels, People v. (5 Hill, N.Y. 164) ii. 268 Cassels v. State (4 Yerg. 149) i. 437, 698, 700; ii. 1140 Cassey, Rex v. (J. Kel. 62) i. 262 ; ii. 97 Casteel, State v. (53 Misso. 124) ii. 876 Castelt V. Bambridge (2 Stra. 864) i. 314; ii. 666,687 Castell Careinion, Rex v. (8 East, 77) i. 976 Castlemain, Rex v^(T. Raym. 879) i. 903, 917, 918 Castleman v. Combs (7 T. B. Monr. 273) ii. 139, 140 Castro, Reg. v. (Law Rep. 9 Q. B. 350 ; 12 Cox C. C. 454; 6 Eng. Rep. 317) ii. 259, 1026 Catapodi, Rex v. (Russ. & Ry. 65) ii. 538, 544 Cate V. State (3 Sneed, 120) i. 1148 Catherine, U. S. v. (2 Paine, 721 ) i. 564 Catlin, Commonwealth o. (1 Mass. 8) i. 244, 1129 V. Gratz (8 Johns. 620) i. 821 V. Henton (9 Wis. 476) i. 714 Caton, Com'th v. (4 Call, 6) i. 899 ■ , People V. (25 Mich. 388) ii. 605 Caton, Reg. v. (12 Cox C. C. 624; 10 Eng. Rep. 506) i. 636, 637 ; ii. 657 Causee v. Anders (4 Dev. & Bat. 246) ii. 37 Cavis V. Robertson (9 N. H. 524) i. 464 Cawood, State v. (2 Stew. 360) i. 14, 35, 432 ; ii. 175 Cawsey v. Driver (13 Ala. 818) ii. 137 Celier, Rex v. (T. Raym. 369) i. 917 Center, State v. (35 Vt. 378) i. 648 ; ii. 656 o Central Bridge, Commonwealth v. (12 Cush. 242) ii. 1280 Central Railroad v. Collins (40 Ga. 582) i. 14 Chace, Commonwealth v. (9 Pick. 15) ii. 758, 773, 779 Chadwick, Reg. v. (2 Moody & R. 545) i. 584 , Reg. V. (11 Q. B. 205) i. 1024 Chaffee, U. S. v. (2 Bond, 110) i. 488 Chaffin, State v. (2 Swan, Tenn. 4^) i- 1058 Chahoon v. Commonwealth (20 Grat. 733) . i. 895 ; ii. 605 Section Challercomb'a Case (3 Howell St. Tr. 368) ii. 1233 Challicombe, Beg. v. (6 Jur. 481) i. 992 Chalmers, Reg. T. (10 Cox C. C. 450) ii. 1200, 1201 Chamberlain, Ex parte (4 Cow. 49) ii. 268, 269, 272 Chamberlain v. People (23 N. Y. 85) ii. 1019 , Reg. V. (10 Cox C. C. 486) ii. 664 , Rex T. (6 Car. & P. 93) i. 1014 Chambers r. People (4 Scam. 351) i. 1006 , Reg. V. (Law Rep. 1 C. C. 341 ; 1'2 Cox C. C. 109) ii. 570 b Chambers, Statfe v. (6 Ala. 855) i. 260, 567 Champer v. State (14 Ohio State, 437) i. 260 Champneys, Rex v. (2 Moody & U. 26 ; 2 Lewin, 52) i. 778, 782, 793, 1061 Chancellor, State v. (1 Strob. 347) i. 915 Chandler, Commonwealth v. (Thatch- er Crim. Cas. 187) i. 572 ; ii. 528 Chandler «. Johnson (49 Ga. 85) i. 619, 711, 713 Chandler, Reg. v. (Dears. 453 ; 24 Law J. N. s. M. C. 109; 1 Jur. n. B. 429; 29 Eng. L. & Eq. 551) i. 883 , Rex V. (1 Stra. 612; 8 Mod. 336) i. 468 Chandler v. State (2 Texas, 305) i. 35 Chandler, State v. (2 Harring. Del. 553) i. 498 ; ii. 74, 76, 78, 80, 81 , State V. (42 Vt. 446) ii. 1024 Chandois's Case (Cro. Jac. 483) i. 827 Chanet v. Parker (1 Mill, 333) i. 625, 681 Channell, Rex v. (2 Stra. 793) i. 582 ii. 145 i. 488 i. 531 Cliapeau, State v. (4 S. C. 378) Chapin, Com'th v. (5 Pick. 199) , Stafe V. (17 Ark. 561) i. 110, HI Chapman, Ex parte (4 A. & E. 773) i. 470 ; ii. 946 V. Cmn'th (5 Whart. 427) i. 428 — —, Commonwealth \. (13 Met. 68) i. 14,540; ii. 905 V. Gillet (2 Conn. 40) ii. 1026 , People v. (4 Parker C. C. 56) ii.484 ,Reg. V. (1 Car. & K. 119) i. 567; ii. 376, 378 , Reg. V. (12 Cox C. C. 4; 2 Eng. Rep. 160) ii. 652 , Reg. V. (1 Den. C. C. 432; Temp. & M. 90 ; 13 Jur. 885 ; 18 Law J. N. s. M. C. 152) i. 206, 734, 759, 763 ; ii. 1029 Chapman v. State (5 Blackf. Ill) ii.968 Chapman v. State (2 Head, 36) ii. 441, 458 Chapman, State ». (6 Nev. 320) i. 670 Chappie, Reg. v. (9 Car. & P. 355) i. 695 , Rex V. (Russ. & Ry. 77) ii. 986 667 CHI INDEX TO THE CASES CITED. CiA Seotion Charge to the Grand Jury (23 Law Reporter, 597) ii. 1231, 1234 (23 Law Reporter, 705) ii. 1231, 1235 Charge on Law of Treason ( 1 Story, 614) i. 177, 456 (2 Wal. Jr. 134) i. 681, 684 Charles v. State (6 Eng. 389) ii. 1122, 1136 Charleston v. Corleis (2 Bailey, 186) i. 899 V. Feckman (3 Rich. 885) i. 279 Chartewood, Rex v. (1 Leach, 409 ; 2 East P. C. 689) i. 207 ; ii. 801, 834, 864 Charretie, Reg. v. (13 Jur. 450; 18 Law J. N. s. M. C. 100) ii. 85 Chase v. American Steamboat Co. (10 R. L 79) ii. 1271 Chase T. Blodgett (10 N. H. 22) i. 976 , People V. (16 Barb. 495) i. 432 Chater, Hex v. (13 Shaw's J. P. 766) i. 261 Chatfield v. Wilson (28 Vt. 49) i. 430 Chathams, Commonwealth v. (14 Wright, Pa. 181) ii. 863 Cha-to-kah-na-pe-sha, United States V. (Hemp. 27) i. 154 Chaundler, Rex v. (2 Ld. Baym. 1368) i. 468 Chea/or, Reg. v. (8 Eng. L. &Eq. 598 ; 2 Den. C. C. 361 ; 5 Cox C. C. 367 ; 15 Jur. 1065) i. 578 j ii. 758, 773, 779 Cheatham v. Shearon (1 Swan, Tenn. 213) i. 631, 1098 Chedinfold, Rex a. (Cas. temp. Hardw. 159) ii. 1285 Chedwick, Rex v. (1 Keble, 685, pi. 50) i. 363 Cheek v. State (1 Coldw. 172) ii. 430 V. State (35 Ind. 492) ii. 708 , State V. (13 Ire. 114) i. 685, 686 ; ii. 609 Cheeseman, Reg. v. (Leigh & C. 140 ; 9 Cox C. C. 100) ii. 886 , Rex V. (7 Car. & P. 455) i. 881, 885 ; ii. 663, 686 Cheltenham, Sf-c. Railway, In re (Law Eep. 8 Eq. 580) ii. 259 Chenoweth, United States v. (6 McLean, 139) i. 1079 Cherry, Rex v. (1 Leach, 236, n. ; 2 East P. C. 556) ii. 768, 794, 795 Cherry, State v. (11 Ire. 475) , i. 548, 758 ; ii. 32 Chesley v. Brown (2 Fairf. 143) i. 934 Chesley, Com'th v. (107 Mass. 228) i. 1052 Chess V. State (1 Blackf. 198) i. 178 Chew V. Calvert (Walk. Missis. 64) 1. 14 Chews V. Sparks (Coxe, 56) i. 821 Chicago V. McGinn (51 111. 266) i. 174 Chicago, &c. Railroad v. Becker (76 111. 26) i. 372 Chichester's Case (Aleyn, 12) ii. 641, 657, 658, 692 668 Seotion Chichester, Commonwealth v. (1 Va. Cas. 312) i. 1021 V. Lethbridge (Willes, 71) i. 265 Chick V. Ramsdale (1 Curt. Eo. 34) i. 38 Chick V. State (7 Humph. 161) ii. 1001, 1004 Childress v. McGehee (Minor, 131) ii. 490 V. Nashville (3 Sneed, 347) i. 1089 Childs V. State ( 15 Ark. 204) i. 795, 803 Chiles V. Conley (9 Dana, 385) ii. 139 V. Drake (2 Met. Ky. 146) i. 264, 1069 V. Jones (4 Dana, 479) ii. 139 Chilson, Com'th v. (2 Cush. 15) i. 1066 Chinn, State v. (29 Texas, 497) , ii. 1281 Chipchase, Rex v. (2 Leach, 699; 2 East P. C. 567) ii. 366, 830, 836, 856 Chisholm, Rex v. (Russ. & Ry. 297) ii. 539 Chittem, Stale v. (2 Dev. 49) i. 667 Chittenden v. Brady (Ga. Decis. 219) ii. 255 Chitty, State v. (1 Bailey, 379) i. 541 ; ii. 64, 65, 67, 69 Choice V. State (31 Ga. 424) i. 405, 403 Chorley, Reg. v. (12 Q. B. 515) i. 32 ; ii. 1267 Chowne v. Baylis (81 Beav. 351) i. 267 Christian, Rex v. (Car. & M. 388) ii. 1028 , Reg. v. (Law Rep. 2 C. C. 94 ; 12 Cox, 502) ii. 362 Christopher, Reg. v. (Bell C. C. 27 ; 8 Cox C. C. 91) ii. 882 Christopher v. Van Liew (67 Barb. 17) i. 572a Chrystal v. Com'th (9 Bush, 669) ii. 690 , People V. (8 Barb. 545) ii. 1028 Chubb, Rex v. (2 Deac. Crim. Law, 1687) ii. 986 Chuck V. Cremer (1 Cooper temp. Gotten. 205) ii. 270 Chunn, State v. (19 Misso. 233) ii. 444 Church, Commonwealth v. (1 Barr, 105) i. 531 ; ii. 1278 Church V. Hubbart (2 Cranch, 187) i. 106, 117, 135, 821 , People V. (2 Wend. 262) ii. 256 Church, State v. (63 N. C. 15) ii. 31 Church's Will, In re (11 Eng. L. & Eq. 240) i. 918 Cillei/, State v. (cited 1 N. H. 97) ii. 577 Cincinnati v. Rice (16 Ohio, 225) ii. 954 Cincinnati Board of Education . Missouri (4 Wal. 277) i. 281, 282 V. Perham (1 Met. 555) i. 1080 Cummings, State v. (33 Conn. 260) i. 141 ; ii. 882 Cummins v. Latham (4 T. B. Monr. 97) ii. 127, 186 V. Spruance (4 Harring. Del. 316) i. 287, 631, 829 ; ii. 1279 Cundick, Rex v. (D. & R. N. P. 13) i. 606 Cunningham v. Bucklin (8 Cow. 178) i. 460, 462 Cunningham, Commonwealth v. (13 Mass. 245) i. 1029 Cunningham v. People (4 Hun, 455) ii. 538 Cunningham, People v. (1 Denio, 524) i. 631, 1138, 1139 ; ii. 1274; 1275 , Reg. V. (Bell C. C. 72) i. 149 Cunningham, Rex v. (1 Crawf. & Dix C. C. 196) i. 648 V. State (49 Missis. 686) i. 727, 728, 729 , State V. (2 Speers, 246) ii. 315, 816 Curd V. Com'th (14 B. Monr. 386) i. 956 Curl, Rex v. (2 Stra. 788) ii. 943 Curley, Commonwealth ». (101 Mass. 24) ii. 1104 Curlin v. State (4 Yerg. 148) i. 535, 685 Curling, Rex v. (Russ. & Ry. 128) ii. 768, 843, 1061 674 Seotiok Curran's Case (7 Grat. 619) i. 559 ; ii. 17 Curran, Rex v. (3 Car. & P. 397) i. 736, 868 Currier, State v. (23 Maine, 43) i. 1136, 1137 Curril, Rex v. (Lofft, 166) i. 1002 Curry v. Com'th (2 Bush, 67) i. 401 Curry, Reg. v. (2 Moody, 218) ii. 562 Curry, State v. (1 Jones, N. C. 280) ii. 699, 702 Curtis, Com'th v. (11 Pick. 134) i. 1058 , Commonwealth v. (Thacher Crim. Cas. 202) i. 1052 V. Hubbard (1 Hill, N. Y. 336 ; 4 Hill, N. Y. 437) i. 876, 877 Curtis V. Hurlburt (2 Conn. 309) i. 957 Curtis ^v, Knox (2 Denio, 341) i. 355; ii. 1262 Curtis V. Cochran (50 N. H. 242) i. 976 V. Leavitt (15 N. Y. 9) i. 668 , People 1). (50 N. Y. 321) i. 100, 135 CuHis, State v. (4 Dev. & Bat. 222) ii. 106, 601 , State V. (5 Humph. 601) i. 1032 Curtis, State v. (71 N. C. 56) ii. 1162 a Curvan, Rex v. (1 Moody, 132) ii. 699 Cushlan, Rex «. (Jebb, 113) ii. 598 Cushman V. Ryan (1 Story, 91) ii. 40 Custer, State v. (65 N. C. 339) i. 516 Cuthbert, State v. (T. U. P. Charl. 13) i. 465, 466; ii. 1069,1087 Cutbush, Reg. v. (Law Rep. 2 Q. B. 379 ; 10 Cox C. C. 489) i. 953 Cutler, Commonwealth V. (9 Allen, 486) i. 1065 Cutter V. State (7 Vroom, 126) i. 299 ; ii. 892, 899 a, 404 Cutts w. Com'th (2 Mass. 284) 1.821 Daoy V. Gay (16 Ga. 203) i. 271 Dade,. Rex v. (1 Moody, 307) i. 650; ii. 609 Dadson, Reg. v. (2 Den. C. C. 35; Temp. & M. 885 ; 14 Jur. 1051 ; 1 Eng. L. & Eq. 566) i. 441; ii. 647 Daggett V. State (4 Conn. 60) i. 1160 Daimouth v. Bennett (15 Barb. 541) i. 714 Dainese v. Hale (1 MacAr. 86 ; 8 Chic. Leg. News, 97) i. 122 Dains v. -State (2 Humph. 439) i. 735; 11.728,741 Dale, Ex parte (2 Cora. Law, 870; 28 Eng. L. & Eq. 165) ii. 927 V. Gunter {4b Ala. 118) i. 967 DcUe, Reg. v. (6 Cox C. C. 14) i. 749; ii. 740 , Rex V. (7 Car. & P. 362) i. 438, 571 ; ii. 159, 461, 462 V. State (10 Yerg. 651) ii. 723, 728 Daley's Case (Whart. Hom. 466) ii. 727 DaUoway, Reg. v. (2 Cox C. C. 278) * ■^ ii:656J DAY INDEX TO THE CASES CITED. DAV "' Section JSdLrymple y. Dalrymph (2 Hag. Con. 54) Introduction Dalton, Ex parte (49 Cal. 463) i. 953 Dakon, People v. (15 Wend. 581) i. 667 ; ii. 353, 366, 367 Da/y, IJejr. V. (9 Car. &P. 342) i. 715 Dame v. Baldwin (8 Mass. 518) i. 268 ; ii. 868, 860 , Cmn'th V. (8 Cush. 384) i. 974 Damewood v. State (1 How. Missis. 262) i. 578 Dammaree's Case (15 Howell St. Tr. 521) ii. 1213 Damon, Com'th v. (105 Mass. 580) i. 572 a Damon, People v. (13 Wend. 351) i. 1014 , State V. (2 Tyler, 387) i. 778, 792, 793, 1061 i. 331, 831 - (2 ii. 258 Dana, Com'th v. (2 Met. 329) Dandridge, Commonwealth Va. Cas. 408) Danforth v. Durell (8 Allen, 242) ii. 1208 Danforth, State r. (3 Conn. 112) i. 35, 759, 940; ii. 743 Danforth v. Streeter (28 Vt. 490) ii. 131, 134 Danger, Reg. v. (Dears. & B. 307; 7 Cox C' C. 303) ii. 481 Dangerjield, Rex v. (3 Mod. 68) ii. 948 Daniel, Reg. v. (6 Mod. 182 ; 1 Salk. 380 ; 3 6alk. 191) i. 582, 767 Daniel v. State (3 Heisk. 257) i. 468 Daniell, Reg. v. (6 Mod. 99) i. 582, 767 Daniels v. Com'th (7Barr, 371) i.930, 9.32 V. People (21 111. 439) ii. 1267 , State V. (32 Misso. 668) ii. 888 Dann, Rex v. (1 Moody, 424) i. 1063 Dannelly, Rex v. (2 Marshall, 471 ; Russ. & Ry. 310) i. 262, 287, 664 ; ii. 120 Dant, Reg. v. (Leigh & C. 567) ii. 641 Danville, &c. Railroad w. Common- wealth (23 Smith, Pa. 29) ii. 1277 Darby v. Brig FMstern (2 Dall. 34) i. 821 Darby, Reg. v. (7 Mod. 100) i. 468, 734 ; ii. 1056 , Rex V. (8 Mod. 139 ; Comb. 65) i. 470 ; ii. 946 Darcy,, Reg. v. (1 Crawf. & Dix C. C. 33) i. 767 Dark, Req. v. (1 Den. C. C. 276) ii. 483 , State V. (8 Blaekf . 526) i. 992, 1004, 1024, 1027 Darling v. Westmoreland (52 N. H. 401) ii. 1274 Damaud, U. S. v. (8 Wal. Jr. 143) i. 564 Darry v. People (2 Parker C. C. 606 ; 6 Seld. 120) ii. 721 Darst V. People (51 111. 286) i. 833 ; ii. 1149 Dascom, Com'th v. (Ill Mass. 404) i. 1010 Dash V. Van Kleeck (7 Johns. 477) i. 279 Daugherty, State v. (5 Texas, 1) i. 1024 Dave V. State (22^AIa. 23) u. 741 Section Davenport v. Commonwealth (1 Leigh 688) i. 261 ; ii. 753 Davenport v. Lynch (6 Jones, N. C. ' 545) ii. 217 V. State (38 Ga. 184) ii. 1143, 1149 Davey, Rex v. (5 Esp. 217) i. 491, 1138 David, State v. (4 Jones, N. C. 353) i. 633 Davidson, Commonwealth v. (1 Cush. 33) i. 438, 571 ; ii. 159, 437, 461 Davidson v. State (9 Humph 455) i. 735 ; ii. 740, 741 Davidson, State v. (12 Vt. 300) i. 953 Davie, Rex v. (2 Doug. 588) ii. 972 Davies, Reg. v. (Dears. 640 ; 36 Eng. L. & Eq. 607) ii. 802 , Reg. V. (1 Fost. & F. 69) i. 384, 392 , Req. V. (2 Moody, 177) ii. 567 Davies, Rex v. (1 Rol. 11) i. 519 Davis V. Ballard (1 J. J. Mar. 563) i. 279 Davis, Com'th v. (11 Gray, 48) i. 1088 , Com'th V. (9 Mass. 415) ii. 193 , Com'th V. (104 Mass. 648) ii. 824 , Com'th V. (11 Pick. 432) ii. 63, 65 V. Duncan (Law Rep, 9 C. P. 396) ii. 937 Davis V. Fish (1 Greene, Iowa, 406) ii. 968 V. New York (1 Duer, 461) ii. 256 V. Packard (7 Pet. 276) i. 196 Davis, People v. (21 Wend. 309) ii. 543 , People V. (1 Wheeler Crim. Gas. 230) i. 368 , Reg. V. (6 Cox C. C. 369) ii. 100 , Req. V. (11 Cox C. C. 181) a. 438, 441 Davis, Reg. v. (18 U. C. Q. B. 180) ii. 430 Davis, Rex v. (1 Car. & P. 306) i. 339, 735, 791 ii. 1138 i. 868 ; ii. 699 Davis, Rex v. (Lofft, 62) i. 462 ; ii. 973 , Rex v. (5 Mod. 74) i. Q74 Davis, Rex v. (12 Mod. 9) i. 993, 1009 , Rex V. (Russ. & Ry. 113) i. 653, 654 ; ii. 609 , Rex T. (Russ. & Ry. 322) U. 96 , Rex V. Russ. & Ry. 499) i. 559 ; ii. 95 Davis V. Sharron (15 B. Monr. 64) ii. 135 Davis V. State (3 Coldw. 77) ii. 103 Davis V. State (3 Har. & J. 154) i. 503 ; ii. 1195 V. State (30 Md. 355) i. 795, 797 , State V. (19 Ala. 13) i. 1066 Davis v. State (15 Ohio, 72) i. 369 , State V. (4 Blaekf. 345) i. 992, 1009, 1016, 1024, 1027 Davis, State v. (1 HiU, S. C. 46) ii. 72 Davis, State v. (1 Ire. 125) i. 548 ; ii. 23. 30,31 , State V. (2 Ire. 153) i. 735 ; ii. 989 Davis, State ». (22 La. An. 77) j. 37 ; u. 764 675 , Rex V. (6 Car. & P. 177) , /?er V. (7 Car. & P. 785) DEB nsnoEX TO the cases cited. DEN Sbotion Davis, State v. (29 Misso. 391) ii. 55 Davis, State v. (65 N. C. 298) ii. 3 , State V. (69 N. C. 383) il. 1018 , State K. (1 Southard, 311) i. 44, 1029 , U. S. V. (5 Mason, 356) i. 159 , U. S. V. (2 Sumner, 482) i. 110 Davison v. Champlin (7 Conn. 244) ii. 1022 Davison v. Duncan (7 ElUs & B. 229) ii. 914 Davison, Eeg. v. (2 Fost. & P. 250) i. 1031 , Rex V. (4 B. & Aid. 329) ii. 252 Davitt, Reg. v. (11 Cox C. C. 676) ii. 1213 Daw V. Eley (Law Rep. 7 Eq. 49) i. 895 ; ii. 259 Dawht/ V. State (4 Ind. 128) i. 975 Dawson, Rex v. (2 East P. C. 978 ; 1 Stra. 19) i. 572; ii. 573, 574 Dawson, Rex v. (13 Howell St. Tr. 451) ii. 1058, 1059 Dawson, Rex v. (3 Stark. 62) i.^795 Dawson v. Shaver (1 Blackf. 204) i. 194 Dawson v. State (16 Ind. 428) i. 411 Dawson u. State (38 Texas, 491) i. 305, 869 ; ii. 704 Dawson, State v. (2 Bay, 360) i. 219, 317 Day V. Com'th (23 Grat. 915) i. 990 V. Day (4 Md. 262) i. 1081 Day, Reg. v. (9 Car. & P. 722) i. 261 ; ii. 1124, 1125, 1183 Day, State v. (3 Vt. 138) ii. 1270 Daynes, Reg. v. (12 Cox C. C. 514 ;. 6 Eng. Rep. 389) ii. 857 Dayton, State V. (3 Zab. 49) ii 1018, 1026, 1032 Deacon, Com'th m. (10 S. & R. 125) i. 135 Deacon, Rex v. (Ryan & Moody N. P. 27) ii. 505 Deakin v. Praed (4 Taunt. 825) i. 272 Deakins, Rex v. (1 Sid. 142) i. 572 ; ii. 541 Deal, State v. (64 N. C. 270) ii. 825, 842 Dealtry, Reg. v. (1 Den. C. C. 287) i. 572 a Dean v. Chapin (22 Mich. 275) i. 822 , Com'th!). (109 Mass. 349) i. 789, 808 , Com'th u. (1 Pick. 387) i. 689 Dean of St. Asaph, Bex v. (3 T. R. 428) ii. 918 Deane v. Clayton (7 Taunt. 489) i. 855 Deane, Reg. v. (5 Cox C. C. 501) i. 998 Deane, Reg. v. (10 U. C. Q. B. 464) il. 1140 Dearborn, State v. (15 Maine, 402) ii. 1269 Deaves, Reg. v. (Ir. Rep. 3 C. L. 306 ; 11 Cox C. C. 227) ii. 882 DeBeauvoir, Rex v. (7 Car. & P. 17) i. 468 ; ii. 1029, 1046 DeBerenger, Rex v. (3 M. & S. 67 ; 2 Russ. Crimes, 3d Eng. ed. 679) ii. 209 DeBernie v. State (19 Ala. 28) ii. 1054 Deberry, State v. (6 Ire. 371) i. 399 Debolt V. Cincinnati (7 Oliio State, 237) ii. 398, 404 DeBow 0. People (1 Denio, 9) i. 572 ; ii. 643 676 Seotion De Bruhl, State v. (10 Rich. 28) ii. 999 Debruiel, Reg. v. (11 Cox C. C. 207) i. 141 ; ii. 1140 Decklotts, State v. (19 Iowa, 447) ii. 675, 676, 677 Dedieu v. People (22 N. Y. 178) i. 1055 D'Mon, Rex v. (1 W. Bl. 510 ; 3 Bur. 1513) ii..938 Deer v. State (14 Misso. 348) i. 974 Deering, Reg. v. (11 Cox C. C. 298) ii. 840 De Forest v. State (21 Ind. 23) i. 858 Defrese v. State (S Heisk. 53) ii. 863 De Hart, State v. (2 Halst. 172) i. 992 De La Foret, State v. (2 Nott & McC. 217) i. 126, 129, 196 De la Matte's Case (21 Howell St. Tr. 687) ii.'l213 Delamoite, Rex v. (1 East P. C. 53) i. 184 Delaney, Ex parte (43 Cal. 478) ii. 74 V. Regulators (1 Yeates, 403) ii. 256 Delany, Commonwealth v. (1 Grant, Pa. 224) Delany v. Jones (4 Esp. 191) Delany, People v. (49 Cal. 394) , Rex V. (Jebb. 106) V. State (41 Texas, 601) Delavd, Rex v. (3 Bur. 1434) 792, 814 ii. 914 i. 963 i. 1032 ii.l5 i. 502 ; ii. 235 Delaware Division Canal v. Common- wealth (10 Smith, Pa. 367) i. 1079, 1144 Delaware & Hudson Canal v. Law- rence (2 Hun, 163) i. 174 Deleany, Rex v. (Jebb, 88) i. 868, 1039 ; ii. 699 Delegal v. Hiqhley (6 Scott, 154; 3 Bing. N. C. 950) ii. 915 Delegatl v. Highley (8 Car. & P. 444) ii. 915 De Londo's Case (2 East P. C. 1098) i. 570 De Longchamps, Respublica v. (1 Dall. Ill) i. 121, 126, 127, 128, 129, 940; ii. 51, 72 Deloohery v. State (27 Ind. 521) i. 32 Delyon, State v. (1 Bay, 353) i. 582 ; ii. 146, 148 Demarchi, U. S. v. (5 Blatch. 84) i. 120 De Mattos, Rex v. {7 Car. & P. 458) i. 121 Dement v. State (2 Head, 506) ii. 592 Deming, Matter of (10 Johns. 232) i. 909, 916 Dempsey v. People (47 111. 828) i. 670 Denison, Rex v. (2 Keny. 269) i. 246, 458 Deniston, State v. (6 Blackf. 277) i. 469 Dennis, Com'th v. (105 Mass. 162) ii. 1187 Dennis v. State (6 Pike, 230) i. 648 ; ii. 1183, 1134 Dennison, Rex v. (LofCt, 148) i. 256 ; ii. 918 V. State (13 Ind. 510) ii. 676, 677 Denniston, Commonwealth v. (9 Watts, 142) i. 909, 910 Densley, Rex v. (6 Car. & P. 899) ii. 1138 Denton's Case (cited Poster, 108) i. 262; ii. 97, 100 DIL INDEX TO THE CASES CITED. DOI Seotios Denton, People v. (2 Johns. Gas. 275) i. 1034 — -, State V. (1 Eng. 259) i. 992, 1027 Depardo, Rex v. (1 Taunt. 26 ; Uuss. & Ry. 134) i. 117, 121 ; ii. 630 Depew V. Trustees (5 Ind. 8) i. 174 De Puy, In re, (3 Ben. 307) i. 907 Derby, Rex v. (3 B. & Ad. 147) ii. 1269 Derbyshire, Reg. v. (2 Q. B. 745) ; 2 Gale & D. 97 ; 6 Jur. 483) i. 531 ; ii. 1269 Deshler v. Dodge (16 How. 622) ii. 134 Deskins, Com'th v. (4 Leigh, 685) ii. 256 Desmarteau, Commonwealth v. (16 Gray, 1) Devereaux, State v. (41 Texas, i ii. 728 i83) i. 672 a ii. 86 ii. 904 Devlin v. Brady (32 Barb. 518) Devoe v. Com'th (3 Met. 316) Devon Witches' Case, The (8 How* ell St. Tr. 1017) i. 593 Devonshire, Rex v. (2 Nev. & M. 212) ii. 1281, 1283 Dewer, State v. (65 N. C. 572) i. 616, 663 De Witt, State v. (2 Hill, S. C. 282J i 592, 1050 ; ii. 198, 206, 219 , State V. (32 Misso. 571) ii. 791 Dexter v. Nelson (6 Ala. 68) ii. 136, 137 Dexter v. Spear (4 Mason, 115) i. 429 ; ii. 929 Dias V. State (7 Blackf. 20) i. 934 Dibble State v. (4 Jones, N. C. 107) i. 1081 Dick, Ex parte (14 Pick. 86) i. 965 Dick, Rex v. (1 Leach, 68; 2 East P. C. 925) i. 143 Dick, State v. (2 Murph. 388) ii. 1133, 1134 Dickenson v. Watson (T. Jones, 205) ii. 60 Dickerman, U. S. v. (2 Otto, 6201 i. 130 Dickey v, Maine Telegraph (46 Maine, 483) ii. 1273, 1280 Dickei/, U. S. V. (Morris, 412) i. 572 a Dickinson v. Barber (9 Mass. 225) i. 385 V. Burrell (Law Kep. 1 Eq. 337) ii. 139 , Commonwealth v. (3 Pa. Law Jour. Rep. 265) ii. 1028 V. Potter (4 Day, 340) i. 32 Dickinson, Rex v. (Buss. & Ry. 420) i. 342; ii. 758, 841 , U. S. V. (2 McLean, 325) i. 975 Dicks, Rex v. (1 Russ. Crimes, 3d Eng. ed. 19) ■ i. 362 Dietrick v. Mateer (10 S. & R. 161) i. 821, 970 Diggs V. State (49 Ala. 311) i. 464 Diqnowitty v. State (17 Texas, 521) " ii. 825, 847 Dill, People V. (1 Scarp. 257) i. 1024 V. State (25 Ala. 15) i. 842, 849, 865 Dillahunt, State v. (3 Harring. Del. 551) i.406 Dillingham v. State (5 Ohio State, 280) U. 420 Seotion Dilworth, Reg. v. (2 Moody & R. 531) ii. 28 Dimmett v. Eskridge (6 Munf. 808) i. 829 ; ii. 1285 Dimond, Commonwealth v. (3 Cush. 235) ' i. 567 ; ii. 898 Dingley, Rex v. (cited 1 Show. 53 ; Gouldsb. 186 ; 2 Leach, 840) i. 659 ; ii. Ill, 830 Dingman, Reg. v. (22 U. C. Q. B. 283) i. 79 Dinkey v. Commonwealth (5 Harris, Pa. 126) i. 1054 Diprose, Reg. v. (11 Cox C. C. 185) ii. 343 Dishon v. Smith (10 Iowa, 212) ii. 85, 88 Distilled Spirits (2 Ben. 486) i. 835 , U. S. V. (10 Blatch. 428) i. 825 Distillery, U. S. v. (11 Blatch. 255) i. 835 , Com'th V. (Hardin, 459) ii. 1267 Divine, People v. (1 Edm. Sel. Cas. 594) ii. 675 Dixon's Case (2 Lewin, 178) ii. 588 Dixon, Reg. v. (3 Cox C. C. 289) ii. 560 , Reg. V. (36 Eng. L. & Eq. 597, Dears. 580) , Rex V. (1 East P. C. 818) , Rex V. (10 Mod. 835) i. ii. 882 , Rex V. (12 Mod. 198) 361, 604, 1185 i. 531 ; ii. 1282 , Rex V. (8 M. & S. 11; 4 Camp. 12) i. 816, 491, 685 Dixon V. State (2 Texas, 481) i. 941 , United States v. (4 Cranch C. C. 107) i. 504, 1135 Doan V. State (26 Ind. 495) i. 632, 653 Doane, Com'th v. (1 Cush. 5) i. 297 ; ii. 862 Dobbins v. Erie (16 Pet. 435) i. 180 , Bex V. (11 Mod. 317) i. 631 Dobbins v. State (14 Ohio State, 498) i. 1038, 1034 DolAs, Rex v. (2 East P. C. 518) i. 842, 559, 786 Dobkins v. State (2 Humph. 424) i. 761 Dobson, State v. (3 Harring. Del. 563) i. 578 ; ii. 767, 785, 786 Dodd V. Hamilton (N. C. Terra K. 31) i. 260, 263 ; ii. 811 Dodd, Rex v. (9 East, 516) i. 247 , State V. (8 Murph. 226) ii. 1031 Doddridge, Reg. v. (8 Cox C. C. 885) i. 339, 634 Dodge V. Brittain (Meigs, 84) i. 260, 263; ii. 811, 822 Dodge V. State (4 Zab. 455 i. 931 ; ii. 1044, 1054 , U. S. V. (2 Gallis. 313) ii. 269 Dodson V. Mock (4 Dev. & B. 146) ii. 773 Dodwell V. Berford (1 Mod. 24) ii. 28 Dodwell, People v. (1 Mich. 451) i. 348, 797, 842 ; ii. 745 Doherty, State v. (2 Tenn. 80) i. 368 Dohring People v. (69 N. Y. 874) ii. 1122 Doig, State v. (2 Rich. 179) i. 429 ; ii. 996 677 DOT INDEX TO THE CASES CITED. DTJD SaCTioif Dotan, Reg. v. (Dears. 436 ; 1 Jur. N. s. 72 ; 29 Eng. L. & Eq. 533) ii. 1140 Dole V. New England, &c. Ins. Co. (2 Clif . 894) i. 120 Dominick v. Bowdoin (44 Ga. 357) i. 899, 903 Dominick v. State (40 Ala. 680) i. 1053 Donaldson, State v. (3 Vroom, 151) ii. 233 Donall)/, Rex v. (2 East P. C. 713) ii. 1172 Donau, U. S. v. (11 Blatcli. 168) ii. 192 Donlan, U. S. v. (5 Blatch. 284) i. 159 Don Moran o. People (25 Mich. 356) ii. 1122 Donnally, Rex v. (1 Leach, 193) i. 553 ; ii. 1172 Donnell v. State (48 Missis. 061) i. 894 Donnellan v. Com'th (7 Bush, 676) ii. 681 Donnelly v. State (2 Dutcher, 463) ' ii. 728 v. State (2 Dutcher, 601) ii. 695, 728 Donohoo T. State (36 Ala. 281) ii. 91, 95 DonoUy, Rex v. (2 East P. C. 715) ii. 1156 Donovan, Reg. v. (4 Cox C. C. 399) i. 730 Donovan o. Vicksburg (29 Missis. 247) i. 832 Doody, Reg. r. (6 Cox C. C. 468) i. 413 ; ii. 1187 Doon, State v. (R. M. Charl. 1) i. 504, 1135 Dvran, Rex v. {I Esp. 127) ii. 12 Dord V. People (9 Barb. 671) ii. 478 Dorman v. Ames (12 Minn. 451) i. 1079 , State V. (11 Misso. 635) i. 1024 Dorr, State v. (33 Maine, 498) ii. 444 Dorrington's Case (1 East P. C. 181) ii. 293 Dorus, Com'th ii..(108 Mass. 488) ii. 1200 Doty V. Gorham (5 Pick. 487) i. 464 V. State (6 Blackf. 529) i. 934, 944 Doty, State V. (3 Vroom, 403) ii. 258, 269 Dmd, State v. (7 Conn. 384) i. 466 ; ii. 1104, 1105 Dougherty, Commonwealth v. (107 Mass. 243) ii. 38 , Commonwealth v. (7 Smith's Laws, 695 ; Whart. Horn. 362) ii. 728 Dougherty v. People (4 Scam. 179) ii. 1143, 1144 Douglas V. Neil (7 Heisk. 437) i. 464 , Eex V. (7 Car. & P. 644) i. 632, 685, 689 Douglas, Rex v. (1 Moody, 462) ii. 419 Douglass V. Com'th (2 Rawle, 262) i. 1150 Douglass, Com'th v. (6 Met. 241) ii. 1056 Douglass w. Roan (4 Call, 853) i. 821 Douglass v. State (4 Wis. 387) i. 1078 a '- V. State (6 Yerg. 526) ii. 1149 Douglass, State v. (1 Greene, Iowa, 550) i. 934, 1024 Douglcfss, State v. (63 N. C. 500) i. 1003 Douglass, U. S. V. (2 Blateh. 207) i. 194 V. Wood (1 Swan, Tenn. 393 Dourdon, State k. (2 Dev. 443) Douse, Rex v. (1 Ld. Eaym. 672) Dove, Com'th v. (2 Va. Gas. 20) 678 i. 541 ; ii. 181 ii. 543 i. 507 i. 793 Sbotioit Dove i>. State (3 Heisk. 348) i. 384 Dover, State v. (46 N. H. 452) ii. 1273, 1280 Dovey, Reg. v. (2 Den. C. C. 86 ; 2 Eng. L. & Eq. 532) i. 800, 802 Dow, Com'th V. (10 Met. 382) 1080 Dow, State v. (21 Vt. 484) i. 631, 686 Dowd, State v. (19 Conn. 388) i. 797; ii. 727 Dowers, State v. (45 N. H. 543) i. 501 Dowey, Reg. v. (11 Cox C. C. 115) ii. 448, 473 Downer, State v. (8 Vt. 424) i. 466 Downes, Reg. v. (Law Rep. 1 Q. B. D. 25 ; 13 Cox C. C. Ill) i. 305; ii. 686 Downing b. Herrick (47 Maine, 462) i.460 Downing, Reg. v. (11 Cox C. C. 580) ii. 773 Doyetl, People v. (48 Cal. 85) iL 728 Doyle V. Baltimore (12 Gill & J. 484) i. 821, 822 V. Falconer (Law Rep. 1 P. C. 328) ii. 349 , Eex V. (1 Leach, 67) i. 951 Dozier v. State (26 Ga. 156) i. 429 — f. State 0. (Dudley, Ga. 155) ii. 444 , State V. (78 N. C. 117) ii. 104 Drake v. Lowell (13 Met. 292) i. 264 Drake, Reg. v. (Holt, 425) ii. 918, 948 , Reg. V. (11 Mod. 78) ii. 941 Draper, Eex v. (3 Smith, 390) i. 256, 591 ; ii. 918 Drennan v. People (10 Mich. 169) i. 620 Drennan, Territory v. (1 Montana, 41) 1. 861 Drew, Com'th v. (3 Cush. 279) i. 355, 1014 , Commonwealth v. (4 Mass. 391) i. 536, 842, 867, 858, 862, 868, 877 ; ii. 695, 706 , Commonwealth v. (19 Pick. 179) i. 301 ; ii. 152, 416, 420, 430, 440, 460, 461, 471 , U. S. V. (5 Mason, 28) i. 400, 406 Driffield, Rex v. (Say.' 146) i. 582 ; ii. 146 Dring, Ren. V. (Dears. & B. 329) ii. 1142 Driscotl, Reg. f. (Car. & M. 214) i. 867 ; ii. 41 , U. S. V. (1 Lowell, 803) ii. 856, 904 Drue, Rex v. (1 Sid. 274) ii. 1081 Druitt, Reg. v. flO Cox C. C. 592) ii. 280 Dru7n, Com'th v. (19 Pick. 479) i. 808, 869 , Commonwealth v. (8 Smith, Pa. 9) i. 850 ; ii. 675, 681, 714 Drury v. Defontaine (1 T.aunt. 131) ii. 954 Drury, Reg. v. (3 Car. & K. 198; 18 L. J. N. s. M. C. 189) i. 998 Dubois V. Marshall (3 Dana, 336) ii. 139, 140 Ducher v. State (18 Ohio, 808) ii. 118 Dudley's Case (2 Sid. 71) ii. 531 Dudley, Commonwealth v. (10 Mass. 408) ii. 490, 505 Dudley v. WeUs (55 Maine, 146) ii. 640 DUN INDEX TO THE CASES CITED. EAT Seotiou Dudley and West Bromwich Bank- ing Co. V. Spittle (1 Jolins. & H. 14) i. 267 Dudman, Rex v. (2 Glyn & J. 389; 7 D. & R. 324 ; 4' B. & C. 850) ii. 1024 Duell, People v. (8 Johns. 449) i. 466, 697 ; ii. 1084 Duels, Case of (2 Howell St. Tr. 1033) ii. 311, 312 Duffield, Reg. v. (5 Cox C. C. 404) ii. 230 Duffin's Case (1 East V. C. 437) ii. 1127 Ehiffin, Rex v. (Russ. & Ry. 365) i. 7.35; ii.U190 ii. 540 464 DufCy V. Hobson (40 Cal. 240) Dugan, Com'th v. (12 Met. 233) Dugdale v. Reg. (16 Eng. L. & Eq. 380 ; 1. Ellis & B. 435 ; Dears. C. C. 64 ; 22 Law J. n. s. M. C. 50 ; 17 Jur. 546) i. 204, 206, 759, 761 ; ii. 943 Duhammel, State v. (2 Harring. Del. 532) i. 710 Dukes V. State (14 Ela. 499) ii. 673 o Dumas v. Smith (17 Ala. 305) ii. 132 Dummer, Rex v. (Holt, 364) i. 256 Dumphey, State v. (4 Minn. 438) i. 798 Duncan v. Commoniaealth (6 Dana, 295) i. 260, 535 ; ii. 35 V. Commonwealth (4 S. & R. 449) i. 903, 910, 911 Duncan v. State (7 Humph. 148) i. 307 Duncan, State v. (6 Ire. 98) i. 669, 997 , Stale V. (6 Ire. 236) i. 668 Duncan, State v. (1 McCord, 404) i. 531 ; ii. 1267, 1268 Duncan v. Thwaites (3 B. & C. 556) ii. 916 Dungey, Reg. v. (4 Fost. & E. 99) i. 804, 809 ; ii. 28, 1136 Dunham, Commonwealth v. (Thacher Crim. Cas. 513) i. 1014 Dunham v. Drake (Coxe, 315) i. 821, 970 V. State (6 Iowa, 245) ii. 257 , State V. (9 Ala. 76) i. 1052 Dunkley, State v. (3 Ire. 116) i. 121, 279 Dunlap V. Curtis (10 Mass. 210) ii. 404 V. Snyder (17 Barb. 561) i. 1080 Dunlap, State v. (24 Maine, 77) ii. 418 Dunlop V. Munroe (1 Cranch C. C. 536) i. 271 , Reg. 0. (15 U. C. Q. B. 118) ii. 605 Dunman v. Strother (1 Texas, 89) i. 504 Dunn T. Reg. (12 Q. B. 1031) i. 945 , Reg. V. (12 Jur. 99) i. 945 ; ii. 1054 > , Rex T. (1 Leach, 57 ; 2 East P. C. 962) i. 572 ; ii. 561, 572 Dunn V. State (15 Ga. 419) Dunn v. State (2 Pike, 229) , State V. (18 Misso. 419) 713 i. 1028 ii. 713, 723, 728 i. 582 ; ii. 145 Dunnett, Reg. v. (1 Car. & K. 425) . i. 346, 352 Dunning, State V. (9 Ind. 20) i. 899, 900 Dunnage, Rex v. (2 Bur. 1130) Section Dunnington, State v. (12 Md. 340) 1. 463 Dunraven, Beg. v. (W. W. & D. 577) fi. 1285 Dunston, Rex y. (Ryan & Moody N. P. 109) ii. 1038 Dupee, Rex v. (2 Sess. Cas. 11) ii. 154 Duperrier v. Dautrive ( 12 La. An. 664) ii. 647 Dupont V. Pichon (4 Dall. 321) i. 126 Dupont, State v. (2 McCord, 324) ii. 316 Dupree v. State (33 Ala,. 380) i. 872, 877 Dupy V. Wickwire (1 D. Chip. 237) i. 279 Durham v. People (4 Scam. 172) i. 1052 Durham v. State (1 Blackf. 33) i. 794 V. State (9 Ga. 306) i. 1014 , State i». (72 N.C. 447) i. 788, 804 Durkee, U. S. v. (1 McAl. 196) ii. 847 Durr V. Howard (1 Eng. 461) i. 32 Durrah v. State (44 Missis. 789) i. 464 Dutton V. City (9 Philad. 597) ii. 395 Dyce Sombre, In re (1 Mac. & G. 116) ii. 85 Dyches, State v. (28 Texas, 635) i. 903 Dyer. Commonwealth (7 Grat. 662) , i. 298, 990, 998, 1033 Dye, Reg. v. (11 Mod. 174) ii. 1262 Dyer y. Hunnewell (12 Mass. 271) i. 32 Dyer, Reg. v. (6 Mod. 96) ii. 505 , Rex V. (2 East P. C. 767) i. 649 Dyer, State v. (59 Maine, 303) i. 648 Dyott V. Com'th (5 Whart. 67) i. 572 a Dyson, Rex v. (1 Lewin, 64) i. 396 , Rex V. (Russ. & Ry. 523) i. 510, 681, 652 ; ii. 1187 , /JcKT. (1 Stark. 246) ii. 53 Dyson v. State (26 Missis. 862) i. 843, 872 Eagan, Com'th v. (103 Mass. 71) i. 859, 362 Eagle, Reg.x. (2 Fost. & F. 827) ii. 673 a Eagleton, Reg. v. (Dears. 515; 33 Eng. Law & Eq. 540 ; 24 Law J. N. 8. M. C. 158; 1 Jur. n. a. 940) i. 763, 767 ; ii. 461, 475, 480, 483, 488 Earbery, Rex v. (Fort. 37) i. 967 Earl, State v. (41 Ind. 464) ii. 269 Early, State v. (3 Harring. Del. 562) i. 468 ; ii. 264 Eason, State w. (6 Eng. 481) i. 32 Eastern Counties Railway v. Broom (6 Exch. 314 ; 15 Jur. 297 ; 20 Law J. N. s. Exch. 196) i. 420 Eastman, Commonwealth v. (1 Cush. 189) i. 432, 586, 592, 1041 ; ii. 178, 193, 201, 202, 206, 214 East Mark, Reg. v. (11 Q. B. 877) ii. 1267 Eastwood V. People (3 Parker C. C. 25) i. 414 , People V. (4 Kernan, 562) i. 414, 415 Eaton's Case (31 Howell St. Tr. 927) ii. 76 Eaton, Reg. v. (8 Car. & P. 417) i. 804, 809 ; ii. 1195 679 P.T,A INDEX TO THE CASES CITED. EME Sbotion Eaton, State v. (8 Harring. Del. 554) i. 736;ii. 110 Ebner, People v. (23 Cal. 158) ii. 749 Ecdes, Rex v. (1 Leach, 274) ii. 280 Ecdesfield, Rexy. (1 B. & Aid. 348 ; 1 Stark. .393) ii. 1281 Eckels V. State (20 Ohio State, 508) ii. 795 Eckert, Commonwealth v, (2 Browne, Pa. 249) i. 236, 531 ; ii. 1269 Edelmuth o. McGarren (4 Daly, 467) i. 656, 1079 Eden, Rex v. (Lofft, 72) i. 256 Edgcombe v. Bodd (5 East, 294) i. 712, 714 Edge v. Com'th (7 Barr, 275) i. 424 Edge, State v. (1 Strob. 91) ii. 747, 748 Edgerly, Eex v. (March, 131) i. 531; ii. 1276 Edmeads, Rex v. (8 Car. & P. 390) i. 636 ; ii. 661, 744 Edmondson v. State (41 Texas, 496) ii. 1018 Edmonton, Rex v. (1 Moody & R. 24) ii. 1281 Edsall V. Russell (6 Jur. 996) i. 548; ii. 28, 56 Edward, Rex y. {1 Moody & R. 257) i. 553 ; ii. 1178 Edwards, Commonwealth t. (1 Ashm. 46) i. 538, 560; ii. 1144 Edwards, Com'th v. (9 Dana, 447) i. 279 Edwards, Reg. v. (8 Car. & P. 611) i. 217, 314, 888; ii. 660, 686 , Rex V. (5 Car. & P. 518) i. 553 ; ii. 1173 , Rex V. (6 Car. & P. 515) i. 753 , Rex T. (6 Car. & P. 521) i. 748 , Rex V. (8 Mod. 820; 11 Mod. 386 ; 1 Stra. 707) ii. 209, 218 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 597) i 437 , Rex V. (4 Taunt. 309 ; Russ. & Ry. 224; 3 Camp. 207) i. 1032 , Rex V. (Trem. P. C. 103) ii. 150 Edwards v. State (49 Ala. 384) ii. 1018 V. State (27 Ark. 493) i. 358 V. State (7 Eng. 122) 1. 910 V. State (47 Missis. 581) i. 844; ii. 704 , State V. (32 Misso. 548) ii. 303 Edyvean, Rex k. (3 T. R. 352) ii. 256 Egan, In re (5 Blatch. 319) i. 65 Egan, Reg. v. (1 Crawf. & Dix C. C. 338) i. 515 Egerton, Rex t. (Russ. & Ry. 875) i. 553 ; ii. 1172 Eggington, In re (2 Ellis & B. 717 ; 23 Law J. N. 8. M. C. 41 ; 18 Jur. 224; 24 Eng. L. & Bq. 146) Eqgington, Rex v. (2 East P. '494, 666) Egqinton, Rex v. (2 B. & P. 508 ; Leach, 913) Eitel V. State (38 Ind. 201) 680 .32 i. 262 C. i. 262 ii. 954 SEOTIOlf Elai). Smith (5 Gray, 121) i. 61 Elder, State v. (21 La. An. 157) ii. 12 Elder, United States v. (4 Cranch C. C. 507) i. 1113, 1114, 1115 Eldershaw, Rex v. (3 Car. & P. 396) i. 373, 746 Eldred v. Sexton (5 Ohio, 215) i. 464 Eldridge v. Cowell (4 Cal. 80) i. 174 Elick, State v. (7 Jones, N. C. 68) i. 733 Elijah V. State (1 Humph. 102) i. 998 Elisha, Com'th v. (8 Gray, 460) i. 700 Eliza, The (2 Gallis. 4) i. 821 V. State (89 Ala. 693) i. 898 Elizabeth, The (1 Paine, 10) i. 148 Elkin V. People (28 N. Y. 177) i. 814; ii. 216 Elkins V. State (2 Humph. 543) ii. 1267 Ellar, State v. (1 Dev. 267) i. 498; ii. 80, 82 Ellicombe, Rex v. (5 Car. & P. 522 ; 1 Moody & R. 260) ii. 12 Elliot, Reg. v. (1 Leigh & C. 103) i. 1127 , Rex V. (1 Leach, 175) i. 769; ii. 291, 592 , State T. (11 N. H. 540) i. 586; Ii. 37, 502 Elliott, Commonwealth t. (2 Mass. 372) i. 264, 266 Elliott V. McLelland (17 Ala. 206) ii. 182 Elliott, Rex V. (2 East, P. C. 951) i. 769 ; ii. 291, 592 V. State (26 Ala. 78) i. 802 Elliott V. State (46 Ga. 159) ii. 741 Ellis, People T. (15 Wend. 371) i. 1034 , Reg. v. (2 Car. & K. 470) i. 261, 314 ; ii. 36 , Reg. V. (Car. & M. 564) i. 428 Ellis, Reg. V. (8 Car. & P. 654) i. 809 Ellis, Reg. t. (Holt, 636) i. 534, 795, 800; ii. 1144 Ellis, Rex V. (5 B. & C. 395; 8 D. & R. 173) i. 930, 935 Ellis, Rex T. (9 D. & R. 174; 6 B. & C. 145) i. 949 Ellis V. State (42 Ala. 525) i. 894 Ellis V. State (7 Blaekf. 534) i. 244, 1139 , State T. (3 Conn. 185) i. 141 Ellis, State v. (12 La. An. 390) i. 648, 1024 Ellis, State v. (4 Vroom, 102) ii. 85, 88 Ellmore v. Hoffman (2 Ashm. 159) i. 32 Elmendorf v. Taylor (10 Wheat. 152) i. 194 Elmstead, Rex v. (1 Russ. Crimes, 8d Eng. ed. 894) i. 553 ; ii. 1172 Elrington, Reg. v. (9 Cox C. C. 86 ; 1 B. & S. 688) i. 1054, 1058, 1060 Else, Rex v. (Russ. & Ry. 142) i. 654, 676 ; ii. 299 Elsworth, Rex v. (2 East P. C. 986) ii. 574 Ely V. Niagara (86 N. Y. 297) V. 828 V. Peck (7 Conn. 239) i. 564 ; ii. 1022 Ely V. Thompson (3 A. K. Mar. 70) i. 468 Emden, Rex v. (9 East, 487) i. 1052 Emerson, U. S. v. (6 McLean, 406) ii. 904 EVA INDEX TO THE OASES CITED. FAN Section Emerton, Rex v. (2 Show. 20) ii. 266 Emily, The (9 Wheat. 381) i. 564 Emmerson v. Annison (1 Mod. 89 ; 2 Keb. 874) ii. 758, 765, 766 Emmett v. Lyne (1 New Kep. 255) ii. 56, 747 Empson V. Bathurst (Hut. 52) ii. 394 Emulous, The (1 Gallia. 563) i. 132, 821 England, Rex v. (Cas. Temp. Hardw. 158) i. 713 England, State v. (8 Jones, N. C. 899) ii. 883 English, Reg. v. (12 Cox C. C. 171 ; 2 Eng. liep. 224) ii. 461 Enloe, State v. (4 Dev. & Bat. 373) ii.220 Ennis v. State (3 Greene, Iowa, 67) ii. 855 Enoch, PedpU v. (13 Wend. 159) i. 321, 327; ii. 691, 721 , Rex V. (5 Car. & P. 539) ii. 632 Enshw, State v. (10 Iowa, 115) ii. 996 Epes's Case (5 Grat. 676) i. 998 Ephraim, State v. (2 Dev. & Bat. 162) i. 1034, 1035 Epperson, Slate v. (27 Misso. 255) i. 749 Epps, Reg. v. (4 Fost. & F. 81) ii. 576, 587, 588 Equitable Gas Co., Rex v. (3 Ner. &M. 759) i. 950 Erie ^ Northeast Railroad, Common- wealth V. (3 Casey, 339) ii. 1273, 1278 Errickson, State v. (3 Vroom, 421) il 1088 Errington's Case (2 Lewin, 217) i. 314 ; ii. 657,658, 692 Erskine, Commonwealth v. (8 Grat. 624) ii. 13, 17, 986 Ervine v. Com'th (5 Dana, 216) i. 934 Erwin, People v. (4 Denio, 129) i. 500, 1091 Esdaile, Reg. v. (1 Fost. & F. 213) ii. 209 Eskridge v. State (25 Ala. 30) ii. 1004 Eskridge, State v. (1 Swan, Tenn. 418) ii. 961 Esmon v. State (1 Swan, Tenn. 14) i. 992, 1004 Esop, Rex v. (7 Car. & P. 456) i. 294, 948 Essex's Case (1 Howell St. Tr. 1333) ii. 1213 Essex, Reg. v. (Dears. & B. 371 ; 7 Cox C. C. 885) ii. 855 Essex Witches' Case, The (4 Howell St. Tr. 817) i. 593 Estep V. Lacy (35 Iowa, 419) i. 910 Estes V. Carter (10 Iowa, 400) i. 35 ; ii. 1191 i. 945 ii. 457 Estes T. State (2 Humph. 496) , State V. (46 Maine, 150) Etehberry v. Levielle (2 Hilton, 40) i. 314 Etheridge v. Cromwell (8 Wend. 629) i. 307 ; ii. 136 Eiiani, Rex v. (1 Moody, 70) i. 572 a Evans v. Bell (6 Dana, 479) ii. 132 Evans v. Com'th (3 Met. 453) i. 960, 965 , Com'th V. (101 Mass. 25) i. 1059 Evans, Com'th v. (13 S. & R. 426) i. 32 ; ii. 404 Evans v. Eaton (7 Wheat. 356) i. 194 Evans V. People (49 N. Y. 86) ii. 721, 731 , Req. V. (Bell C. C. 187 ; 8 Cox C. C. 257) ii. 417, 430 , Reg. V. (Car. & M. 632) i. 207 ; ii. 365, 813, 836, 858 , Rex V. (5 Car. & P. 553) i. 815 ; ii. 560, 612 , Rex V. (1 Russ. Crimes, 3d Eng. ed. 489) i. 562 V. State (33 Ga. 4) i. 850, 869 Evans v. State (1 Humph. 394) i. 548; ii. 53, 740 V. State (44 Missis. 762) i. 305, 865, 869 ; ii. 680, 704 Evans v. State (8 Ohio State, 196) ii. 560 Evans v. State (24 Ohio State, 458) ii. 12 Evans, State v. (5 Ire. 603) i. 500, 501, 1083, 1085 Evans v. Trenton (4 Zab. 764) ii. 390, 398 Eve, Rex v. (1 Nev.& P. 229; 6 A. & E. 780) ii. 918 Everenden v. Beaumont (7 Mass. 76) i. 307 ; ii. 136 Everett, Rex v. (2 Man. & R. 35 ; 8 B. &C. 114) i. 239;ii. 982 Evers v. People (6 Thomp. & C. 156; 8 Hun, 716) i. 872 , State V. (49 Misso. 542) ii. 415, 419 Evill v. Conwell (2 Blackf. 133) , ii. 490 Ewing V. Savary (4 Bibb, 424) ii. 137 V. Thompson (13 Misso. 132) i. 219, 631 Ewington, Reg. v. (Car. & M. 319) ii. 1028 , Reg. V." (2 Moody, 223) ii. 1020 Eyre, Commonwealth v. (1 S. & R. 347) i. 548 ; ii. 25, 34 Eyres, Rex v. (1 Sid. 307) u. 394 Fahey, Com'th v. (5 Cush. 408) i. 492 Fahnestock v. State (23 Ind. 231) i. 305, 865 ; ii. 728 Fairbanks . Smith (2 Cal. 39) Fowler v. State (5 Day, 81) i. 244, 1129 Fox, Commonwealth v. (7 Barr, 836) i. 46 ; u. 1022 Fox, Commonwealth v. (7 Gray, 685) i. 306; ii. 637,688 Fox, Rex V. (12 Mod. 261) i. 508 Fox V. Ohio (5 How. U. S. 410) i. 141, 178, 179, 981, 988 , State V. (16 Vt. 22) i. 1149 Fox, U. S. V. (1 Lowell, 199) i. 488 Foxby, Reg. v. (6 Mod. 11) i. 540, 943, 1102, 1103, 1104 Foxley's Case (6 Co. 109) i. 267, 615, 916, 975 Foxworlhy, Reg. v. (Holt, 621 ; 7 Mod. 153) i. 914, 915 Foy V. Hynde (Cro. Jac. 697) i. 828 , Rex V. (Vem. & S. 540) i. 688 Foge, United States v. (1 Curt. C. C. 364) i. 262, 440; ii. 904 Fralick, People v. (Hill & D. 68) ii. 97 Frampton, Reg. v. (2 Car. & K. 47) ii. 785, 787, 799 , Reg. V. (Dears. & B. 585) ii. 327, Frances, Rex v. (2 Comyns, 478 ; 2 Stra. 1015) i. 682 ; ii. 1174, 1178 Francis v. Ocean Insurance Co. (6 Cow. 404) i. 120 Francis, Reg. v. (Law Rep. 2 C. C. 128 ; 12 Cox C. C. 612) ii. 488 Francis, Reg. v. (13 U. C. Q. B. 116) " ii. 1122 Francis, Rex v. (Cas. temp. Hardw. 113) i. 582; ii. 1178 , Rex V. (Russ. & By. 209 i. 672 ; ii. 583 Francis v. Sohoellkopf (53 N. Y. 152) i.265 Franco v. State (42 Texas, 276) ii. 92 Frank, People v. (28 Cal. 507) ii. 540 V. State (27 Ala. 37) i. 636, 636 V. State (89 Missis. 706) ii. 91 Frank, XT. S. v. (2 Bis. 268) i. 572 a Franklin v. Low (1 Johns. 396) i. 271 Franklin's Case (6 Co. 46 b) i. 908, 916 Franklin, Beg. v. (6 Mod. 220) i. 791 , State V. (86 Texas, 155) ii. 53 V. U. S. (1 Col. Ter. 35) i. 159 Franklin v. White Water Valley Canal (2 Ind. 162) i. 265 PBI INDEX TO THE CASES CITED. FUB Section Franklin Falls Co., State v. (49 N. H. 240) i. 1078 a Franklin Turnpike v. Crockett (2 Sneed, 263) ii. 127T FranUyn, Rex v. (1 Leach, ^55; Cald. 244) i. 653 Fraser's Case (Arkley, 329) ii. 1122 Frmer, Rex v. (1 Moody, 419) ii. 991 • Frasier v. State (6 Miseo. 195) i. 793 Fray, Rex v. (1 East P. C. 236) i. 314 ; ii. 709 Frazer, State v. (28 Ind. 196) ii. 1266, 1208 Frazier v. Com'th (12B. Monr. 369) i. 910 V. State (39 Texas, 390) ii. 1191 Freake, Eex w. (Comb. 13) ii. 946 Free v. State (1 McMuUan, 494) i. 975 Freel, People v. (48 Cal. 436) ii. 676, 677 V. State (21 Ark. 212) i. 358 Freeland v. People (16 111. 880) i. 1053, 1057, 1061 — — , People T. (6 Cal. 96) ii. 697 Freds, State v. (3 Humph. 228) i. 548 ; ii. 53 Freeman's Case i. 376 Freeman, Matter of (2 Curt. C. C. 491) i. 194 Freeman t. People (4 Denio, 9) i. 380, 384, 385, 396 , Rex T. (6 Car. & P. 534) ii. 346, 365, 368 V. State (6 Port. 372) i. 829 , State V. (66 N. C. 647) i. 992, 1024, 1026 Freeman, State v. (27 Vt. 520) i. 961 Freeman, United States v. (4 Mason, 505) i. 314, 562 ; ii. 641, 657, 686 Freeport, State v. (43 Maine, 198) ii. 1272 Freer, People v. (1 Caines, 485 ii. 259, 269 Freeth, Rex v. (Russ. & Ry. 127) ii. 430, 434, 448, 464 Freind's Case (13 Howell St. Tr. 1) i. 772 ; ii. 1213 French, Commonwealth v. (Thacher Crim. Cas. 163) i. 411 French c. Marstin (4 Fost. N. H. 440) ii. 38 French, Reg. v. (Law Rep. 1 C. C. 217) ii. 565 French v. Rollins (21 Maine, 372) i. 830 Frets V. Frets (1 Cow. 335) ii. 256 FretweU, Reg. v. (Leigh & C. 161 ; 9 Cox C. C. 152j i. 359, 652 , Reg. V. (Leigh & C. 448 ; 9 CoxC. C. 471) i. 729; ii. 53 Fretzw. Bull (12How. TJ. S. 466) i. 173 Friar, Rexy.(\ Chit. 702) i. 287; ii. 972, 982 V. State (3 How. Missis. 422) i. 953 Friend, Rex v. (1 Russ. Crimes, 3d Eng. ed. 46; Russ. & Ey. 20} i. 217, 567,888; ii. 29 Skction Frierson v. Hewett (2 Hill, S. C. 499) ii. 986 Friery v. People (2 Abb. Ap. Dec. 215) ii. 691 V. People (54 Parb. 31«; 2 Keyes, 424) i. 401 Fries, Case of (Carpenter's Rep.) ii. 1202 , U. S. T. (3 Dall. 515) i. 1003 Frink v. Thompson (4 Lans. 489) ii. 540 Fritchler, State v. (54 Misso. 424) ii.«40 Frith, Rex v. (17 Leach, 4th ed. 10) i. 572 a Fritz V. State (40 Ind. 18) i. 1054 Frizzle v. Veach (1 Dana, 211) ii. 139 Frolich v. State (11 Ind. 213) ii. 742 Frost's Case (22 Howell St. Tr. 471) i. 457 ; u. 1233 Frost's Case (1 Townsend St. Tr. 1; 9 Car. & P. 159) ii. 1213 Frost V. Paine (3 Fairf. Ill) ii. 127 Frost, Reg. v. (9 Car. & P. 129) ii. 1226, 1231 , Reg. V. (2 Moody, 140) i. 1001 Frost V. Rowse (2 Greenl. 130) i. 956, 1053 Frost, State v. (1 Brev. 385) i. 266 Frost V. Thomas (24 Wend. 418) ii. 37 Fraud, Rex v. (7 Price, 609 ; 1 Brod. & B. 300 ; Russ. & Ry. 389) ii. 531, 560 Frottde, Rex v. (3 Moore, 645) ii. 531, 560 Fry, Reg. v. (Dears. & B. 449; 7 Cox C. C. 394) ii. 427 Frye, Commonwealth u. (1 Ya. Cas. 19) i. 700, 934 Fugate, Commonwealth v. (2 Leigh, 724) i. 918, 944, 971 V. State (2 Humph. 897) i. 648 Fulford V. State (50 Ga. 591) ii. 740 Fulgham v. State (46 Ala. 143) i. 891 Fulkerson, State v. (Phillips, 233) i. 828, 651 Fuller, Com'th v. (8 Met. 313) i. 178, 989 , People V. (2 Parker C. C. 16) i. 401 ; ii. 657, 671, 692 . Rex V. (2 East P. C. 837) i. 586; ii. 415 , Rex T. (Russ. & Ry. 308) i. 204 ; ii. 286 , Rex T. (Russ. & Ry. 408) i. 488, 553; ii. 1172 V. State (1 Blackf. 63) i. 938 Fuller, State u. (1 Bay, 245) ii. 608 Fuller, State v. (1 McCord, 178) i. 899, 903, 915 Fulton V. Brunk (18 Wend. 509) ii. 256 , Reg. V. ( Jebb, 48) i. 204 ; ii. 286 FuUon V. State (8 Eng. 168) ii. 327, 328, 801 Furlong, State v. (19 Maine, 225) ii. 789 , State T. (26 Maine, 69) ii. 1020 Furly V. Newham (2 Doug. 419) i. 63 Furneaux, Rex v. (Russ. & Ry. 335) ii. 374 Furnell v. St. Paul (20 Minn. 117) u. 1267, 1274 685 GAK INDEX TO THE CASES CITED. GAT Section Furnival, Rex v. (Rubs. & Uy. 445) i. 803 ; ii. 116 Furr V. Moss (7 Jones, N. C. 525) i. 460 Furser, Rex v. (Say. 90) i. 1009 Fursey, Rex v. (6 Car. & P. 81) i. 343, 632,759; ii. 1147, 1153 Gabel v. Houston (29 Texas, 835) ii. 951 Gable, Commonwealtli v. (7 S. & B. 423) i. 796, 804, 805, 938 ; ii. 731, 745 Gade, Rex v. (2 Leaoh, 732; 2 East P.O. 874) i. 572; ii. 529, 544 Gadson v. State (36 Texas, 350) ii. 82^ Gaffney, State v. (Rice, 431) Gage v. Skeltm (3 Rich. 242) Gager, State v. (28 Conn. 232) i. 795 i. 318 ii. 305, 307 Gaines, Commonwealth v. (2 Va. Cas. 172) i. 105, 121, 148, 152, 176 Gaines v. Relf (15 Pet. 9) i. 194 V. State (39 Texas, 606) i. 894 Gaither, State v. (72 N. C. 468) ii. 840 Galizard v. Rigault (2 Salk. 552) i. 501 Gallagher, Com'th v. (1 Allen, 592) i. 1117 , Com'th V. (6 Met. 565) ii. 53 V. Neal (3 Pa. 183) ii. 393, 404 V. State (3 Minn. 270) ii. 41 Gatlard, Rex v. (1 Sess. Cas. 231 ; W. Kel. 163) i. 1132 Gallears, Rei], v. (3 New Sess. Cas. 704; 13 Jur. 1010; 1 Den. C. C. 601) ii. 772 Gallisand v. Rigaud (2 Ld. Rarm. 809) " i. 501 Galloway v. Morris (3 Teates, 445) i. 564 Galloway, People v. (17 Wend. 540) i. 571, 672 ; ii. 460, 484, 541 V. State (29 Ind. 442) ii. 1030 Galloway, State «. (5 Coldw.326) ii.263, 268 Galvin T. State (6 Coldw. 283) ii. 699 Gamble, Reg. y. (10 Cox C. C. 545) i. 749, 768 Gamlen, Reg. v. (1 Fost. & F. 90) i. 400, 414 Gammon, Rex v. (5 Car. & P. 321) ii. 1132 Gandolpho «. State (33 Ind. 439) ii. 1138 Gandy v. Jubber (5 B. & S. 78) i. 1095 GanoK. HallH2N. Y. 67) ii. 1104 Garbutt v. Bell (1 Rol. Abr. 65, 76, pi. 1, 3) ii. 531 Garbutt, People v. (17 Mich. 9) i. 400 Gardenheir v. State (6 Texas, 348) i. 795 Gardiner, Rex v. (J. Kel. 46) ii. 806 Gardiner, Rex v. (1 Russ. Crimes, 3d Eng. cd. 63) i. 536, 538 ; ii. 518 Gardiner v. State (38 Texas, 692) ii. 842 Gardiner, State v. (Wright, 892) i. 396 Gardner, Com'th w. (11 Gray, 4381 ii. 725 V. People (20 111. 430) i. 1068 Gardner, People V. (2 Johns. 477) i. 141 , Reg. V. (1 Car. & K. 628) i. 262, 440; ii. 904 Section Gardner, Reg. v. (1 Dears. & R 40 ; 7 Cox C. C'. 136 ; 36 Eng. L. & Eq. 640; 26 Law Jour. N. s. M. C. 100) ii. 432, 483 , Reg. T. (1 Fost. & F. 669) ii. 657 , Reg. V. (Leigh & C. 243 ; 9 Cox C. C. 253) ii. 819, 882 , Rex V. (1 Car. & P. 479) i. 553 ; ii. 1172 , State V. (2 Misso. 23) i. 428, 460, / 462 ; ii. 972 , State V. (1 Root, 485) Gardner, State v. (5 Nev. 377) , U. S. V. (5 Mason, 402) Gardner, U. S. v. (10 Pet. 618) Garfield v. Douglass (22 111. 100) Garity, Slate v. (46 N. H. 61) i. 974 i. 287 ; ii. 982 i. 564 ii. 29.6 i. 460 i. 1085, 1107 i. 282 ii. 1273 ii. 823 ii. 402 Garland, Ex parte (4 Wal. 333) V. Towne (65 N. H. 55) Garner v. State (36 Texas, 693) Gamer v. State (5 Yerg. 160) Gamett v. Ferrand (6 B. & C. 611 ; 9 D. & R. 667) i. 460 , People V. (29 Cal. 622) i. 796 Gamett, People v. (35 Cal. 470) i. 672 a Garnham, Reg. v. (8 Cox C. C. 451 ; 2 Fost. & F. 347). ii. 779 Garonne, The,U. S. v. (11 Pet. 73) i. 564 Garrett, Reg. v. (8 Cox C. C. 368; 2 Fost. & F. 14) ii. 857 , Reg. V. (Dears. 232 ; 22 Eng. L. & Eq. 607 ; 6 Cox C. C. 260 ; 23 Law J. N. s. M. C. 20; 17 Jur. 1060) i. 110; ii. 474 Garrigues, State v. (1 Hayw. 241) Garris v. State (36 Ga. 247) Garside, Rex v. (4 Ner. & M. 33 ; A.'&E. 266) Garvey v. Com'th (8 Gray, 382) Garvey, State y. (11 Minn. 164) Garvin v. Blocker (2 Brev. 167) Gascoigne, Rex v. (1 Leach, 280 i. 1038 ii. 795 2 i. 908 i. 961 i. 413 ii. 976 2 i. 287 ; ii. 1168 East P. C. 709) i. 287; ii. 1168 Gash, Rexv.{l Stark. 441) i. 240 Gass V. Malony (1 Humph. 452) ii. 136 Gassett v. Gilbert (6 Gray, 94) ii. 914 Gaston, State v. (73 N. C. 93) i. 679, 680 Gates V. Blincoe (2 Dana, 158) i. 828, 1081 V. Lounsbury (20 Johns. 427) i. 206, 208 887 V. McDaniel (3 Port. 866) ii. 243, 266 Gates V. McDaniel (4 Stew. & P. 69) ii.268 , People V. (13 Wend. 311 ) i. 571 ; ii. 146, 150, 167, 416, 448, 460, 484 , People V. (15 Wend. 159) ii. 12, 17 , State V. (17 N. H. 373) ii. 1018, 1048 Gates V. Winslow (1 Wis. 650) ii. 501 Gathercole, Reg. v. (2 Lewin, 237) i. 497, 734; ii. 78, 922 Gatlin v. State (89 Texas, 130) ii. 789 GIB INDEX TO THE CASES CITED. GLA Section Gaul, Rex v. (Holt, 363) ^ i. 235, 424 Gay, Slate v. (10 Misso. 440) 1. 955 Gaylor, Reg. v. (Dfears. & B. 288; 7 Cox C. C. 268 ; 40 Eng. L. & Eq. 556) i Gazell, State v. (80 Misso. 92) Geach, Beg. v. (9 Car. & P. 499 .678 ii. 806 i. 339 ; ii. 598 ii. 1267 i. 1148 i. 146 Q.B. ii. 419, 812 Gedge v. Com'th (9 Bush, 61) Gee, Com'th v. (6 Cush. 174) Gee, Reg. v. (1 Ellis & E. 1068) Gemmell, Reg. w. (26 U. C " 312) Generous, The (2 Dods. 322) i. 346, 351, 352 Genesee Chief v. Fitzhugh (12 How. U. S. 443) i. 173 Genner v. Sparks (6 Mod. 173) il. 28 Genther, Commonwealth v. (17 S. &R. 135) i. 459;,ii. 982 Gentry v. State (3 Terg. 451) ii. 608 Genung, People T. (11 Wend. 18) i. 734 ; ii. 460, 466, 484 George v. State (39 Ala. 675) i. 893 Georgetown v. Alexandria Canal (12 Pet. 91) i. 174 Gerard v. Peoph (3 Scam. 362) i. 1000 Gerke v. California Steam Naviga- tion Co. (9 Cal. 251) ii. 662 a Gerring v. Barjield (16 C. B. N. s. 697) ii. 1267, 1274 Gerrish, Beg. v. (2 Moody & R. 219) i. 630 ; ii. 299 Gertrude, The (3 Story, 68) i. 351, 824 Getohell, Commonwealth v. (16 Pick. 452) i. 960, 965 Getchdl, People v. (6 Mich. 496) u. 466, 471 1.658 i.572; ii. 677 i. 314 Geuing v. State ( 1 McCord, 573) Gherkin, State v. (7 Ire. 206) Gibbon V. Pepper (2 Salk. 637) , Reg. V. (Leigh & C. 109 ; 9 Cox C. C. 105) ii. 1035, 1049 Gibbon's Case (Foster, 107^ ii. 92 Gibbons v. Ogden (9 Wheat. 1) i. 173, 174, 175, 185 Gibbons v. Pepper (1 Ld. Raym. 38) i.-314 Gibbs V. Osborn (2 Wend. 555) i. 975 Gibbs, Beg. v. (Dears. 445 ; 6 Cox C. C. 455 ; 24 Law J. n. s. M. C. 62 ; 1 Jur. N. s. 118 ; 29 Eng. L. & Eq. 638) ii. 342 Gibert, United States v. (2 Sumner, 19) i. 120, 634, 636, 981, 982, 990, 1001, 1003, 1018, 1033 ; ii. 1061 Gibney, Com'th v. (2 Allen, 150) ii. 1144 Gibson's Case (2 Broun, 366) i.- 557, 734, 762, 883 Gibson V. Com'th (2 Va. Cas. Ill) i. 998 , Com'th V. (2 Va. Cas. 70) i. 998 Gibson v. People (5 Hun, 642) i. 963 V. Siiearer (1 Murph. 114) ii. 137 V. State (44 Ala. 17) ii. 1030 Section Gibson v. State (35 Ga. 224) i. 893 , State V. (36 Ind. 389) i. 894 Gibson, State v. (10 Ire. 214) ii. 37, 41, 60 Gibson, State v. (26 La. An. 71) ii. 1030 Gideon, U. S. v. (1 Minn. 292) ii. 985, 996 Gilbert v. Bell (15 Mass. 44) 1. 821 Giibert v. People (1 Denio,41) ii.914, 915 Gilbert, People v. (Anthon, 191) i. 464 Gilbert, Beg. v. (1 Car. & K. 84) ii. 118 Gilbert, Rex v. (1 East, 583) i. 527 GUbert, Rex v. (1 Moody, 185) ii. 816 , State T. (2 Bay, 355) ii. 514 Giles, Reg. v. (Leigh & C. 502; 10 Cox c; C. 44) ii. 429 a, 430 , Rex v. (1 Moody, 166; Car. Crim. Law, 191) i. 310, 651, 677 ; ii. 606, 608, 609 Gilham, Rex v. (Moody & M. 166) ii. 259, 916 Gilkes, Rex v. (3 Car. & P. 62) i. 240 Gill V. Bright (6 T. B. Monr. 130) ii. 365, 824, 865 V. Caldwell (Breese, 28) ii. 1018 , People V. (6 Cal. 637) 1. 113 Gill, Beg.y. (Dears. 289; 24 Eng. L. & Eq. 550; 23 Law J. n. s. M, C. 50; 18 Jur. 70) ii. 365 , Bex V. (2 B. & Aid. 204) ii. 200 , Bex Y. (1 Stra. 190) ii. 60 Gitles, Bex v. (Russ. & Ry. 367, n.) i. 506 Gillespie, Commonwealth v. (7 S. & R. 469) i. 110, 111, 316, 685 Gillespie, Pennsylvania v. (Addison, 235, 237 ii. 1262 i. 804 ii. 137 ii. 777 i. 538 i. 464 ii. 812 1 267) V. State (6 Humph. 164) Gillespie v. State (9 Ind. 380) Gillet V. Hill (6 Wend. 632) Gillet V. Mason (7 Johns. 16) Gillet, Rex u. (3 Bur. 1707) Gilliam o. Reddick (4 Ire. 368) Gillings, Beg. V. (1 Fost. & F. 36) Gillow, Bex V. (1 Moody, 85; Lewin, 67) i. 340, 868 Gilman v. PhUadelphia (3 Wal. 713) i. 173, 174 Gilmanton, State v. (14 N. H. 467) ii. 1267 Gilmore v. Holt (4 Pick. 258) i. 464 Gilmore, People v. (4 Cal. 376) i. 1004 Gimson v. Woodf uU (2 Car. & P. 41) i. 268, 269 Girkin, State v. (1 Ire. 121) ii. 1004, 1006, 1007 Gisson, Reg. v. (2 Car. & K. 781) i. 804, 809, 1053 Gist, Ex parte (26 Ala. 156) ii. 1022 Gittin's Case (1 Plow. 98) i. 667 Givens v. Bradley (3 Bibb, 192) ii. 40 Givens, State v. (5 Ala. 747) i. 542, 748; ii. 636, 543 Glackan v. Com'th (3 Met. Ky. 232) ii. 419 Gladden v. State (12 Fla. 662) i. 306 ; ii. 680 Glasgow, Stale v. (Conference, 38) i. 460 687 GON INDEX TO THE CASES CITED. GOE Section Glasgow, State v. (Dudley, S. C. 40) i. 1065 Glass V. Com'th (6 Bush, 436) ii. 1174 , Reg. T. (1 Den. 0. C. 215; 2 Car. & K. 395) i. 207 ; ii. 801, 802, 813,860 Glass V. State (30 Ala. 629) ii. 1266 Glassie, Reg. v. (7 Cox C. C. 1) ii. 872, 873, 874 Glen V. Hodges (9 Johns. 67) i. 140 Glover, Com'th v. (Ill Mass. 395) i. 677 Glover, Reg. v. (Leigh & C. 466) ii. 342 Glover v. Woolsey (Dudley, Ga. 85) i. 997 Glvde, Reg. v. (Law Eep. 1 C. C. 189) ii. 882 GnosU, Rex v. (1 Car. & P. 304) i. 342 ; ii. 1171 Goadby, Reg. v. (2 Car. & K. 782, n.) i. 804 Goddard's Case (2 Co. 4 b) ii. 567 Goddard, Commonwealth v. (13 Mass. 455) i. 1028, 1029 , Reg. V. (2 Fost. & P. 361) ii. 1039 a Godfrey's Case (11 Co. 42) i. 965 Godfrey v. People (63 N. Y. 207; 6 Hun, 369) ii. 1006, 1007 Godfrey, Reg. v. (8 Car. & P. 663) i. 342; ii. 758, 840, 844 V. State (31 Ala. 323) i. 368, 371 Godsey, State v. (13 Ire. 348) i. 536 ; ii. 503 Goetz V. State (41 Ind. 162) i. 304 Goffy. Byby (Cro. Eliz. 540) i. 668 V. Pnme (26 Ind. 196) i. 678 ; ii. 744 Goff, State v. (20 Ark. 289) i. 349, 993 ; ii. 968 , State V. (Wright, 78) ii. 252, 269 Goforth V. State (8 Humph. 87) i. 298 ; ii. 998 Gogerly, Rex v. (Euss. & Ey. 343) i. 648 Goin, State v. (9 Humph. 175) i. 368 Golahar v. Gates (20 Misso. 236) ii. 1267 Gold V. Bissell (1 Wend. 210) ii. 26 Golden, People v. (3 Parker C. C. 330) i. 962 V. State (25 Ga. 527) i. 400, 416, 874 ; ii. 716 Golden v. State (49 Ind. 424) i. 711 V. State (1 S. C. 292) ii. 38 Goldin^, Com'th v. (14 Gray, 49) i. 1014 Goldsmith, Reg. v. (Law Rep. 2 C. C. 74; iS Cox C. C. 479) ii. 1137 Goldstein, People v. (82 Cal. 432) i. 994, 1049 , Rex V. (7 Moore, 1 ; 3 Brod. & B. 201 ; 10 Price, 88 ; Euss. & Ry. 473) ii. 571 Golightly V. Reynolds (Loflt, 88) i. 267 GolUher v. Commonwealth (2 Duvall, 163) i. 326, 400, 414 ; ii. 656 b Gompertz, Reg. v. (9 Q. B. 824 ; 16 ' Law J. ST. 8. Q. B. 121) i. 592, 801 ; ii. 187, 198, 198, 200, 211 Gonzales v. State (31 Texas, 496) i. 844 Section Gooch, Reg. v. (8 Car. & P. 293) ii. 758, 763, 783 Good, Reg. v. (1 Car. & K. 185) i. 294, 298 ; ii. 744 GoodaU, Reg. v. (2 Cox C. C. 41) i. 741 Goodbody, Reg. v. (8 Car. & P. 665) i. 207 ; ii. 345, 801, 859 Goodchild, Reg. v. (2 Car. & K. 293) i. 741 Goode, Reg. v. (7 A. & E. 536) i. 396 , Reg. V. (Car. & M. 582) ii. 865, 836 Goode, Rex v. (2 Car. & P. 422, n.) ii. 813 Goode, State v. (1 Hawks, 468)' i. 226, 670, 679, 680 Gooden, Reg. v. (11 Cox C. C. 672) ii. 664, 666 Goodenough, Com'th v. (Thacher Crim. Cas. 132) i. 1016, 1049 , Reg. V. (Dears. 210 ; 25 Eng. L. & Eq. 572) ii. 862, 812, 813, 836 Goodenough v, Spencer (46 How. Pr. 347) i. 572 a Goodfellow, Reg. v. (1 Den. C. C. 81 ; 1 Car. & K. 724) i. 656 Goodhall, Reg. v. (1 Den. C. C. 187) i. 741 , Rex V. (Euss. & Ry. 461) i. 586 ; ii. 419 Goodhue, Com'th v. (2 Met. 198) i. 502, 795 Gooding, U. S. V. (12 Wheat. 460) i. 564 Goodman v. Eastman (4 N. H. 455) ii. 574 Goodman, Eeg. o. (22 U. C. C. P. 338) i. 748, 765 Goodnow, Commonwealth v. (117 Mass. 1141 ii. 1278 Goodrich, Commonwealth o. (13 Allen, 646) ii. 1190 Goodrich v. People (8 Parker C. C. 622; 19N. Y. 674) i. 491 Goodspeed v. Fuller (46 Maine, 141) ii. 127 Goodwin, People v. (18 Johns. 187) i. 981, 990, 1018, 1082, 1038 Goose's Case (Sir F. Moore, 461) i. 678 ; ii. 744 Gorbva, Reg. v. (Dears. & B. 166) ii. 827, 328 Gordon's Case (21 Howell St. Tr. 485) ii. 1213 Gordon's Case, Lord George (22 Howell St. Tr. 213) ii. 938 Gordon w. Hostetter (37 N. Y. 99) i. 264 Gordon, Reg. v. (Dears. 586) i. 572 a , Rex V. (2 Doug. 590) i. 487, 772 ; ii. 1226 Gordon, EeX v. (1 East P. 0. 71) i. 847 , Eex B. (1 East P. C. 315) i. 868 ; ii. 51, 664, 699 Gordon, Rex v. (1 Leach, 515; 1 East P. C. 312, 362) i. 464, 663, 808 , Rex V. (1 Euss. Crimes, 8d Eng. ed. 246) i. 484 Gordon v. State (8 Iowa, 410) i. 795 V. State (4 Misso. 375) ii. 314 Gordon, U. S. v. (5 Blatch. 18) i. 117 Gore's Case (9 Co. 81) i. 206, 827, 328 ; ii. 641, 668, 698, 694 GEA INDEX TO THE CASES CITED. GEE Section Gorham v. Luckett (6B. Monr. 638) ii. 243, 256, 271 , State V. (37 Maine, 451) ii. 1282 , State V. (55 N. H. 152) ii. 23, 33, 1156,' 1174 Gorman, Cora'th v. (16 Gray, 601) i. 1080 V. Lowell (117 Mass. 65) ii. 960 Gm-man, State v. (2 Nott & McC. 90) i; 583 ; ii. 813 Goss, Reg. v. (1 Bell C. C. 208 ; 8 Cpx C. C. 262) ii. 449, 455 Goss V. Whitney (27 Vt. 272) ii. 968 Gosselink v. Campbell (4 Iowa, 296) i. 832 GotUy, Hex v. (Russ. & Ry. 84 ; 1 Russ. Crimes, 3d Eng. ed. 133) i. 712 Gough, Rex v. (2 Doug. 791) i. 1002 Gould, Com'th V. (12 Gray, 171)' i. 1000 , Reg. V. (9 Car. & P. 364) i. 1054 ; ii. 745 • — -, Reg. V. (1 Salk. 381) i. 557, 888 Gourley v. Hankins (2 Iowa, 75) i. 464 Govern v. Littlefield (13 Allen, 127) ii. 540 Govers, Rex t. (Say. 206) i. 571 ; ii. 151 Gowen, Commonwealth v. (7 Mass. ■378) i. 245, 531 ; ii. 1267 Gowen v. Nowell (1 Greenl. 292) ii. 127 Gowen, Rex v. (2 East P. C. 1027 ; 1 Leach, 246, n ) i. 559 ; ii. 13 Grable i;. State (2 Greene, Iowa, 559) - i. 1016 Grade v. Palmer (8 Wheat. 699) i. 997 Grafton Bank v. Flanders (4 N. H. 239) i. 267,271, 572; ii. 598 Graham v. Adams (2 Johns. Cas. 408) i. 970 V. Monsergh (22 Vt. 543) i. 110 Graham v. Stale (40 Ala. 659) ii. 10 Graham v. State (1 Pike, 79) i. 32 , State V. (8 Jones, N. C. 397) ii, 517 Graham, State v. ( 1 Pike, 428) i. 1024 , State V. (3 Sneed, 134) ii. 74, 79 Grainger v. State (5 Yerg. 459) i. 305, 842 Grand Trunk Railway, State v. (58 Maine, 176) , State V. (59 Maine, 189) , State V. (60 Maine, 145) , State V. (61 Maine, 114) Granfield, Rex t. (12 Mod. 98) i. 531 i. 531 i. 531 i. 531 i. 246; ii. 931 ii. 1030 N. i. 974 . i. 385 Grant, Com'th v. (116 Mass. 17) Grant, Rex v. (Ryan & Moody P: 270) V. Thompson (4 Conn. 203) Grantham, Rex v. (11 Mod. 222) i. 582; ii. 145 Grasseley, Reg. v. (2 Dyer, 210, pi. 25) i. 307 Gratz V. Catlin (2 Johns. 248) i. 821 Graves v. State (9 Ala. 447) i. 319 ; ii. 916, 918 V. State (12 Wis. 591) i. 140 Graviotte, State v. (22 La. An. 587) i. 387 Gray's Case (Skin. 81) ii. 235 Gray v. Combs (7 J. J. Mar. 478) i. 854 VOL. I. 44 Sbotios Gray v. Finch (23 Conn. 495) ii. 505 Gray v. Mitner (8 Taunt. 739) ii. 562 , People V. (4 Parker C. C. 616) i. 515 , Reg. V. (10 Cox C. C. 184) ii. 264, 916 Gray, Reg. v. (3 Crawf. & Dix C. C. 238) i. 616 Gray, Reg. v. (4 Fost. & F. 1098) ii. 662 a Gray v. Reg. (6 Ir. Law, 482) i. 615, 935 937 Gray, Rex v. (7 Car. & P. 164) ' i.*648 ; ii. 1135 , Rex V. (1 Stra. 481) ii. 97 , State V. (8 Jones, N. C. 170) ii. 1131 Gray, State v. (37 Misso. 463) ii. 758 , State w. (1 Murph. 147) i. 938 Gray, State v. (14 Rich. 174) i. 679 ; ii. 885 Gray, State i: 18 Vroom, 368) i. 930 Gray, United States V. (2 Cranch C. C. 675) i. 1106 Grayson v. Com'th (6 Grat. 712) i. 1003 Great Falls Co. v. Worster (15N. H. 412) i. 828 Great North of England Railway, Reg. V. (9 Q. B. 315; 10 Jur. 755; 16'Law J. N. s. M. C. 16) i. 420, 422, 424 Great Works Milling and Man. Co., Slate V. (20 Maine, 41) i. 420 Greathouse's Case (2 Abb. U. S. 382) i. 900, 904, 907, 908 Greathouse, Commonwealth v. (7 J. J. Mar. 690) i. 564 Greathouse, United States v. (2 Abb. U. S. 364) ii. 1202, 1236 Green v. Chapman (5 Scott, 340; 4 Bing. N. C. 92) ii. 914 , Com'th V. (1 Ashm. 289) i. 406, 429, 857,872; ii. 706,711,718,728 , Commonwealth v. (17 Mass. 515) i. 110, 972, 976. 1003 , Com'th T. (2 Pick. 380) i. 373, 746 V. Goddard (2 Salk. 641) ii. 28 Green ij. Green (1 Cooper temp. Gotten. 206, n.) ii. 270 Green, People v. (13 Wend. 65) i. 1033, 1034, 1041 , Reij. V. (Dears. 323 ; 6 Cox C. C. 296; 18 Jur. 158; 24 Eng. L. & Eq. 555) ii. 768, 769, 830 Green, Reg. v. (8 Cox C. C. 441) ii. 1011 Green, Rex v. (7 Car & P. 156) i. 206, 217, 314 ; ii. Green, Rex v. (1 Keny. 379) V. State (41 Ala. 419) Green v. State (28 Missis. 687) V. State (13 Misso. 382) 667, 690 i. 1079 ii. 1046 i. 865 ; ii. 680 i. 632,653; ii. 677, 695 , State v. (16 Iowa, 239) i. 1010 , State V. (37 Misso. 466) ii. 714 , State V. (Whart. & Stil. Med. Jur. 469) ii. 1126 Greenacre, Rex v. (8 Car. & P. 35) i. 692, 693, 698 689 GEI INDEX TO THE CASES CITED. GUE Section Greene, Com'th v. (Ill Mass. 392) ii. 791 V. Godfrey (44 Maine, 25) ii. 968 t>. Greene (2 Gray, 361 ; 4 Am. Law Reg. 42) i. 1008 , Rex V. (1 Crawf. & Dix C. C. 198) i. 648 Greenhufi's Case (2 Swinton, 236) i. 36, 1138 Greemff, Rex V. (1 Leach, 363) ii. 1106 Greenland, Reg. v. (Law Rep. 1 C. C. 65) ii. 1026 Greenlee, State v. (1 Dev. 523) i. 572; ii.. 542, 585 Greenough, In re (31 Vt. 279) ii. 467, 464 Greenvelt, Rex v. (12Mod. 119) i. 899, 916 Greenwood, Reg. v. (2 Car. & K. 339) 1. 809 Greenwood, Reg. v. (7 Cox C. C. 464) ii. 694 , Reg. V. (2 Den. C. C. 453 ; 9 Eng. L. & Eq. 535) i. 685, 086 ; ii. 299 Greep, Rex T. (Holt, 535; Comb. 459) ii. 1032 Greer v. Emerson (1 Tenn. 12) i. 686 Greeson v. State (5 How. IVIissis. 33) i. 578 Gregg's Case (14 Howell St. Tr. 1371) ii. 1213 Gregg, State v. (2 Hill, S. C. 387) ii. 1267 Gregory v. Com'th (2 Dana, 417) ii. 1273 Gregory v. Onslow (LoHt, 35) li. 255 Gregory, Reg. v. (2 Fost. & F. 153) ii. 662 a v. Reg. (15 Jur. 79 ; 19 Law J. N. s, Q. B. 366) i. 953 , Reg. V. (Law Rep. 1 C. C. 77 ; 10 Cox C. C. 459) i. 670, 767 , Reg. V. (1 Per. & D. 110; 8 A. & E. 907) i. 256 ; ii. 918 , Rex V. (2 Nev. & M. 478 ; 5 B. & Ad. 555) i. 237, 1150 , State V. (2 Murph. 69) ii. 1026 Grell V. Levy (16 C. B. ir. 8. 73) ii. 121 Greonvelt's Case (1 Ld. Raym. 213) i. 558, 899, 911 Greschia v. People (53. III. 295) i. 850 ; ii. 707 Gresser, State v. (19 Misso. 247) ii. 840 Grey, Reg. v. (4 Fost. & F. 73) i. 500 ; 504. 1146 , Rex T. (9 Howell St. Tr. 127 ; 1 East P. C. 460; 1 Gab. Crim. Law, 247) ii. 235 , Rex V. (J. Kel. 64) i. 881 ; ii. 641, 656, 657, 663, 680, 683 Grey, Rex v. (2 Keny. 307) 1. 713, 948, 1079 Gribble, Rex v. (1 Leach, 240; 2 East P. C. 706) ii. 897 Grider, State v. (18 Ark. 297) i. 993 Griepe, Rex v. (1 Ld. Raym. 257 ; 12 Mod. 139) ii. 1032 GrifEen, People v. (Edm. Sel. Cas. 126) i. 876, 384 Griffin u, Chubb (7 Texas, 603) i. 429 , Com'th w. (3 B. Monr. 208) i. 564 690 Seotiok Griffin, Com'th v. (7 J. J. Mar. 588) 1. 564 Griffin, Commonwealth v. (21 Hick. 523) i. 799 ; ii. 288 Griffin v. Dominguez (2 Duer, 656) i. 181, 196 Griffin, People v. (2 Barb. 427) i. 335, 997 ; ii. 1200 Griffin v. Potter (14 Wend. 209) i. 8H0 Griffin, Reg. v. (11 Cox C C. 402) ii. 663 V. State (26 Ga. 493) i. 764 Griffith's Case (1 Plow. 97) i. 648 Griffith D. Cox (1 Tenn. 210) ii. 575 V. Dicken (4 Dana, 561) ii. 140 Griffith, Rex v. (1 Car. & P. 298) i. 769 ; ii. 53 Griffith V. Wells (3 Denio, 226) i. 237 Griffiths «. Reed (1 Hag. Ec. 195) i. 38 Griffiths, Reg. v. (8 Car. & P. 248) i. 429, 735 , Reg. v. (Dears. & B. 548 ; 7 Cox C. C. 501) ii. 573 Grimes v. Coyle (6 B. Monr. 301) 1. 308 Grimwade, Reg. v. (1 Den. C. C. 30 ; 1 Car. & K.' 592) ii. 1200 Grinder v. Nelson (9 Gill, 299) i. 279 V. State (2 Texas, 338) i. 36 Grindley, Rex v. ( I Russ. Crimes, Sd Eng. ed. 8) i. 414 Gripe, Rex v. ( 1 Comyn, 43, n. ) ii. 1032 Gnsham, State t. (1 Hayw. 12) i. 796 GrofE, State v. (1 Murph. 270) i. 670 Grogan v. State (44 Ala. 9) i. 1014 Groombridqe, Rex v. (7 Car. & P. 582) ■ i. 368, ,373; ii. 1117 Grooms, State v. (5 Strob. 158) i. 571 ; ii. 148 Grosset v. Ogilvie (5 Bro. P. C. 527) i. 911 Grosvenor «. St. Augustine (12 East, 244) i. 113 Grosvenor, Rex v. (2 Stark. 511) ii. 1271, 1273 , Rex V. (1 Wils. 18; 2 Stra. 1193) i. 246, 458 Grout, Rex V. (6 Car. & P. 629) i. 314 ; ii. 667, 690 Grove, Rex v. (1 Moody, 447 ; 7 Car. & P. 635) i. 567 ; ii. 375 ' Groves v. State (6 Blackf. 489) ii. 1262 Grubb V. Bullock (44 Ga. 379) i. 899, 903 Gruber v. State (3 W. Va. 699) i. 1013, 1015, 1016 Grumon v. Raymond (1 Conn. 40) i. 460 Gruncell, Reg. v. (9 Car. & P. 365) ii. 768, 843, 1140 Grundy, United States v. (3 Cranch, 837) i. 791, 822 Grush, United States u. (5 Mason, 290) i. 146, 147, 176 Guedel v. People (43 111. 226) i. 1053 . Guelder, Reg. v. (Bell C. C. 284; 8 Cox C. C. 872) ii. 376 Guenther v. Whiteacre (24 Mich. 504) ii. 976 Guernsey, Reg. v. (1 Fost. & F. 394) ii. 841 HAI IKDEX TO THE CASES CITED. HAL. Section Guest, State v. (6 Ala. 778) ii. 748 Guild, State v. (5 Halst. 163) i. 868, 370 Guillem, United States v. (11 How. U. S. 47) i. 824 Guldin V. Com'th (6 S. & R. 554) i. 572 a Gulick, People v. (Hill & D. 229) ii. 37,41 Gunn V. Procurator-Fiscal (2 Broun, 554) i. 464 Gunter v. Geary (1 Cal. 462) i. 1080; ii. 1271 (rumey, Req. v. (10 Cox C. C. 550) ii. 88 , 'Reg. V. (11 Cox C. C. 414) ii. 209 Gurney, State v. (33 Maine, 527) i. 833 Gurneu, State v. (37 Maine, 156) i. 883, 995 Gut, State V. (13 Minn. 341) i. 894, 410 ; ii, 681 Gutch, Rex V. (Moody & M. 433) i. 219, 221 Gutehins v. People (21 111. 642J ii. 539 Gutierrez, Ex parte (45 Cal. 429) 1. 283 Gutridge, State v. (1 Bay, 285) 1. 672 ; ii. 538 Guttridges, Reg. T. (9 Car. & P. 471) i. 809 Guykowskie v. People (1 Scam. 476) i. 997 Gwatkin v. Com'th (9 Leigh, 678) i, 409 Eackett V. Commonwealth (3 Harris, Pa. 95) 1. 772, 805, 810 , Com'th V. (2 Allen, 136) ii. 638, 639 Hackney v. State (8 Ind. 494) 1. 35, 1077 Hadcock, State v. (2 Hayw. 162) i. 1024 Hadden v. People (25 N. Y. 373) ii. 752 Baddix V. Wilson (8 Bush, 523) i. 900, 904 Hadfidd's Case (27 Howell St. Tr. 1281) i. 376, 380, 385, 392, 394, 396 Hadfidd, Reg. v. (Law Rep. 1 C. C. 253 ; 11 Cox C. C. 574) i. 581 Hadtey, Com'th v (11 Met. 66) i 355, 658 Hadley v. Perks (Law Rep. 1 Q. B. 444) ii. 1139 Hagan, Com'th v. (9 Philad. 574) ii. 392 Hagan, Reg. v. (8 Car. & P. 167) ii. 653, ^ 655,1001 Hagan v. State (10 Ohio State, 459) i. 678 ; ii. 728 Hagerman, Commonwealth v. (2 Va. Cas. 244) i. 967 Haggerty, Commonwealth v. (4 Brews. 326) i. 914, 915 , People V. (46 Cal. 354) ii. 10 Haggett V. Com'th (3 Met. 457) i. 965 Hdiqh, Reg. v. (7 Cox C. C. 403) ii. 864 Hai'ght V. Hayt (19 N. Y. 464) ii. 464 V. Lucia (36 Wis. 355) ii. 244, 269 Eaile V. State (11 Humph. 154) i. 400, 401, 409, 412, 414 Haile v. State (1 Swan, Tenn. 248) ii. 697 Hailey, Rex v. (Ryan & Moody N. P. 94 ; 1 Car. & P. 258) ii. 1028 Hailey, State v. (2 Strob. 78) i. 465, 467, 469; ii. 1011 Hailstock, State v. (2 Blaokf. 257) i. 735; ii. 54 Hain's Case (3 Inst. 110) ii. 780 Haines, Reg. v. (2 Car. & K. 368) i. 314, 630; ii. 637,638,659 , State V. (80 Maine, 65) i. 504, 531, 829, 1135, 1136, 1137 , U. S. V. (5 Mason, 272) i. 664 Halberstadt, United States v. (Gilpin, 262) i.317,9H0, 993, 100.3 Hale, Com'th v. (2 Va. Cas. 241) i. 967 Hale V. Lawrence (3 Zab. 590) 'i. 83U Hale, Reg. v. (2 Car. & K. 326) i. 516 Hale V. State (1 Coldw. 167) ii. 660 Hales's Case (17 Howell St. Tr. 161) ii. 529, 612 Hales V. Petit (1 Plow. 253) i. 385, 511, 968; ii. 1187 Haley v. Clark (26 Ala. 489) i. 899, 900 , Cem'th V. (4 Allen, 818) ii. 490 Haley v. McPherson (3 Humph. 104) Halford, Reg. v. (11 Cox C. C. I Haiford, Rex v. (7 Mod. 193) 1019 ii. 851 i. 460; ii. 972 Halifax, State v. (4 Dev. 845) ii. 1282 Hall's Case (1 Mod. 76) i. 504, 828, 1145 Hall V. Ashby (9 Ohio, 96) i. 541 ; ii. 137, 138 Hall, Com'th v. (4 Allen, 305) i. 976 Hall 0. Crantord (5 Jones N. C. 8) ii. 987 V. Eaton (25 Vt. 458) ii. 206 V. Howd (10 Conn. 514) i. 44 HaU, Reg. t. (Temp. & M. 47; 1 Den. C. C. 881 ; 2 Car. & K. 947 ; 3 New Sess. Cas. 407 ; 13 Jur, 87) ii. 758, 841, 855 Hall, Rex v. (3 Bur. 1636) i. 515 Hall, Rex v. (3 Car. & P. 409) i. 297 ; ii. 840, 850, 851 , Rex V. (1 Moody, 474) ii. 387, 889, 840, 369 , Rex V. (Russ. & Ry. 468; 3 Stark. 67) i. 567 ; ii. 370, 376, 877 , Rexy.n T. R. 320) i.'SlO , Rex V. (2 W. Bl. 1110) ii. 252, 255 V. State (4 Harring. Del. 132) i. 504, 582, 1114, 1118; ii. 961 V. State (3 Kelly, 18) ii. 968 , State V. (7 Blaekf. 25) ii. 1028 , State V. (4 Halst. 256) 1. 1033, 1038 Hall, State v. (5 Harring. Del. 492) ii. 763, 766 , State V. (49 Maine, 412) ii. 1028 , State V. (9 Nev. 58) ii. 704 Hall, State v. (3 Vroom, 158) i. 1136 ball V. Vaughan (5 Co. 49) i.^16 V. Young (8 Pick. 80) i. 181 Hallett, Com'th v. (103 Mass. 452) i. 304 Hallett, Reg. v. (9 Car. & P. 748) i. 261, 554; ii. 1119, 1122, 1125 , Reg. V. (2 Den. C. C. 237 ; 4 Eng. L. & Eq. 570 ; 15 Jur. 433 ; 20 Law J. N. s. M. C. 197) ii. 1026 631 HAN INDEX TO THE CASES CITED. hab Seotion Halliwood's Case (stated 5 Co. 125 6) i. 719 Hallook V. Franklin (2 Met. 558) i. 997 V. Jaudin (34 Cal. 167) li. 640 Halloway's Case (Cro. Car. 131) i. 536, 843, 862, 875 Hallmoay, Commonwealth v. (8 Wright, Pa. 2i0) i. 905, 906, 907 Halpin, Rex v. (4 Man. & R. 8; 9 B. & C. 65) i. 591 ; ii. 918 Hall/, Rex V. (1 Crawf. & Dix C. C. 199) 11. 1018 Hamblin, State v. (4 S. C. 1) ii. 885 Hamilton u. Granger (5 H. & N. 40) i. 400 Hamilton v. Reg. (9 Q. B. 271 ; 16 Law J. N. s. M. C. 9) ii. 438 , Reij. T. (1 Car. & K. 212) ii. 1200 , Reff. V. (8 Car. & P. 49) ii. 898, 902 Hamilton v. State (36 Ind. 280) . i. 743, 772, 795, 1054 Hamilton v. State (11 Ohio, 435) i. 141. Hamilton v. State (85 Missis. 214) ii. 847 , State V. (7 Misso. 300) ii. 1019 V. U. S. (7 Ct. CI. 444) i. 904, 907 Hamilton. U. S. T. (1 Mason, 152) i. 117 , United States v. (1 Mason, 443) i. 564 Hamilton v. Williams (26 Ala. 527) i.462 V. Williams ( 1 Tyler, 15) i. 1010 Hammill, People V. (2 Parker C. C. 223) i. 401, 409, 414 ;• ii. 671 Hammon, Rex v. (Buss. & Ry. 221 ; 2 Leach, 1083 ; 4 Taunt. 304) ii. 365, 758, 824, 830, 836 Hammond, Rex V. (2 East P. C. 1119 ; 1 Leach, 444) ii. 1200 , Rex v. (10 Mod. 3821 ii. 1268 T. State (3 Coldw. 129) i. 65; ii. 1255 Hammond, State v. (35 Wis. 315) ii. 78 Hamond u. Howell (2 Mod. 218) i. 462 Hamp, Reg. v. (6 Cox C. C. 167) Hamper's Case (3 Leon. 230) 468 1. 734 ; li. 1028 i. 827 ii. 32 ii. 347 Hampstead's Case (1 Salk. 220) Hampton, State v. (63 N. C. 13) Hamuel v. State (5 Misso. 260) Hanauer v. Doane (12 Wal. 347) il. 1202 Hancock Free Bridge, Common- wealth V. (2 Gray, 58) ii. 1281 Hand. State v. (1 Eng. 169) i. 992, 1027 Hand, State v. (3 Harring. Del. 564) ii. 786 Hand, U. S. v. (6 McLean, 274) ii. 238 Hand, United States v. (2 Wash. C. C. 435) i. 127, 548 ; ii. 23, 51 Handle//, Reg. v. (Car. & M. 547) ii. 758, 848 Handy, State v. (4 Harring. Del. 566) i. 261, 868, 873, 746; ii. 1117 Haney, Rex v. (1 Bur. 316) i. 256 Haney w. Sharp (1 Dana, 442) ii. 1022 Hano), State v. (67 N.. C. 467) i. 904 Hanks, Rex v. (8 Car. & P. 419) ii. 1020 Hanley, State v. (47 Vt. 290) i. 536 692 Sbotioit Hanton, Cam'th v. (3 Brews. 461) ii. 694 Hanlon, Com'th v. (8 Philad. 401) ii. 728 Hann. Rex v. (3 Bur. 1716) ii. 972, 978 Hanna v. People (19 Mich. 816) i. 789, 794, 805, 809 Hannaball v. Spalding (1 Root, 86) i. 990, 993, 1009 Hannen, Ex parte (6 Jur. 669) i. 974 K. Edes (15 Mass. 847) ii. 37, 38 Hannon,Reg.v.(&M.oi.Zn) i. 582; ii. 145 Hannum, Respublica v. (1 Yeates, 71) i. 573 ; ii. 896, 399 Hanscom's Case (2 Hale P. C. 296) i. 1088 Hanson, Reg. v. (2 Car. & K. 912 ; 4 Cox C. C. 188) i. 491 ; ii. 28 , Rex V. (2 Moody, 245 ; 1 Car. & M. 334) ii, 598 Hanson, Rex v. (1 Root, 59) ii. 120 Hanson, Rex v. (Say. 229) ii. 151, 152, 363 Hanson v. State (43 Ind. 550) i. 317 Hanway v. Boultbee (4 Car. & P. 850 ; 1 Moody & R. 15) i. 1080 , United States v. (2 Wal. Jr. 139) i. 456, 681, 684; ii. 1202, 1226, 1231 Hardebeck v. State (10 Ind. 459) ii. 1143, 1146 Hardesty o. Goodenough (7 Mod. 138) ii. 514 Hardiman, Commonwealth v. (9 Allen, 487) i. 1065 Harding's Case (1 Greenl. 22) i. 536 ; ii. 492, 499, 501 Harding v. Butts (18 111. 602) i. 821 Harding T. King (6 Car. & P. 427) i. 266 , Rex V. (Russ. & Ry. 125) i. 649 ; ii. 831 , U. S. V. (1 Wal. Jr. 127) i. 1003 Hardwicke, Rex \. (1 Sid. 282) ii. 65 Hardy's Case (24 Howell St. Tr. 199) ii. 1213 Hardy v. Com'th (17 Grat. 592) i. 789, 791 , Com'th V. (1 Ashm. 410) ii. 79, 80 Hardy, Reg. v. (Law Rep. 1 C. C. 278; 11 Cox C. C. 656) i. 531 , Rex V. (1 East P. C. 60) i. 772 Hardy, State v. (Dudley, S. C. 236) i. 633 Hardyman, U. S. v. (13 Pet. 176) ii. 904 V. Whitaker (2 East, 578) i. 957 Hargett, State v. (65 N. C. 669) ii.699 Hargrave, State v. (65 N. C. 466) ii. 1181, 1132' Barker v. State (8 Blackf. 540) i. 1016, 1037 Harkness, State v. (1 Brer. 276) i. 700 Harlan v. People (1 Doug. Mich. 207) i. 178, 989 Harland, Reg. u. (8 Dowl. P. C. 323) ii. 255 Harley, Commonwealth v. (7 Met. 462) ii. 472, 478, 485 , Reg. v. (1 Car. & K. 89) il. 904 HAE INDEX TO THE CASES CITED. HAE Section Barley, Rex V. {i Car. &V.S69) ii. 740 Harlow, State v. (21 Misso. 446) i. 401 Harman, Rex v. (2 East P. C. 736) ii. 1175 Harman ». State (11 Ind. 311) ii. 966 Harmony v. Mitchell (1 Blateh. 549 ; 13 How. U. S. 115) i. 194, 355, 821 Harmwood, Eex v. (1 East P. C. 411) 1. 787, 788 Harney, Com'th v. (10 Met. 422) i. 794 Harnisse, Rex v. (Holt, 324) ii. 514 Harper, People v. (Edm. Sel. Cas. 180) i. 850 Barrel v. State (89 Missis. 702) i. 693 ; ii. 744 Harrell v. Bunting (3 Hawks, 86) ii. 140 Harnes, Rex v. (13 East, 270) i. 247, 462 Harriet, The (1 Vfare, 343) i. 821 Hairiman v. State (2 Greene, 'Iowa, 270) i. 1014 Harring v. Barwick (24 Ga. 59) ii. 138, 384 Harrington, Commonwealth y. (3 Pick. 26) i. 500, 767, 1090 Harrington v, Jennings (Lofift, 188) ii. 273 Harrington v. People (6 Barb. 607) i. 536, 861 ; ii. 502, 1267 , Reg. V. (5 Cox C. C. 231) i. 636 ; ii. 657 , Reg. T. (10 Cox C. C. 370) i. 877 Harris, Com'th v. (7 Grat. 600) i. 956, 957 Harris, Com'th v. (8 Gray, 470) i. 1014 , Commonwealth v. (1 Leg. Gaz. Rep. 455) ii. 88 V. Morse (49 Maine, 432) ii. 968 Harris v. People (9 Barb. 684) i. 572 ; ii. 529, 598 Harris v. People (6 Thomp. & C. 206; 4 Hun, 1) ii. 1026 Harris, People v. (29 Cal; 678) i. 411 , Reg. V. (Car. & M. 661, n.) i. 632, 772 ; ii. 994 , Reg. T. (Dears. 344 ; 25 Eng. L. & Eq. 579 ; 23 Law J. n. s. M. C. 110 ; 18 Jur. 408) ii. 340, 362 , Reg. V. (1 Den. C. C. 461; 3 Cox C. C. 565) i. 572 a Harris, Eeg. v. (8 Jur. 516) i. 247, 256 Harris, Reg. v. (Law Eep. 1 C. C. 282) i. 1128 Harris, Eeg. v. (11 Mod. 113) i. 536, 537 Harris, Rex v. (5 Car. & P. 159) i. 758 , Rex V. (7 Car. & P. 416) i. 649, 653 ; ii. 609 , Rex V. (7 Car. & P. 428) , Rex V. (Carth. 496; 1 Ld. Eaym. 440) ii. 514 , Rex V. (2 East P. C. 1023 ; Poster, 113) i. 559 ; ii. 13 , Rex V. ( 1 Leach, 135) ii. 292 , Rex V. (2 Leach, 549; 4 T. E. 202) i. 240, 492 , Rex V. (1 Moody, 393 ; 6 Car. &P. 129) i. 672; U. 531, 560 i. 287 ; ii. 601 Harris v. State (47 Missis. 318) ii. 704 Harris, State v. (5 Ire. 287) ii. 594, 606, 608 Harris, State v. (1 Jones N. C. 190) i. 306, 8W Harris, State v. (63 N. C. 1) Harris, U. S. u. (1 Abb. U. S. 110) i. 882 i. 909, 910 910 V. White (Palmer, 412) HarrisburgBank v. Commonwealth (2 Casey, 451) i. 830 Harrison v. Baltimore (1 Gill, 264) i. 492 V. Chiles (3 Litt. 194) i. 264 ; ii. 254 , Com'th V. (11 Gray, 308) ii. 963 Harrison, Com'th v. (2 Va. Cas. 202) i. 1024 Harrison v. Harrison (43 Vt. 417) i. 842, 850 Harrison v. Hodgson (10 B. & C. 445; SMan. &E. 392) ii. 37 Harrison v. People (50 N. Y. 518) ii. 795 Harrison, People v. (8 Barb. 560) i. 572, 748; ii. 535, 638,544,545 Harrison, Eeg. v. (12 Cox C. C. 19 ; 2 Eng. Kep. 174) ii. 873 , Rex V. (lEast P. C. 382) i. 459, 462, 715 ; ii. 394, 978 Harrison, Rex v. ( 1 Leach, 47 ; 2 East P. C. 559) ii. 873 V. Stale (24 Ala. 67) i. 857, 862, 872, 875 Harrison v. State (36 Ala. 248) i. 1066 V. State (37 Ala. 154) i. 428 ; ii. 310 , State V. (5 Jones N. C. 115) ii. 681 V. Sterrett (4 Har. & McH. 540) i. 265 Harrod, Reg. t. (2 Car. & K. 294) i. 916 Harrold, Ex parte (47 Cal. 129) ii. 982 Hanold, Rex t. (2 East P. C. 715) i. 5.53; ii. 1172 Harrow v. State (1 Greene, Iowa, 439) ii. 1267 Harston, State v. (63 N. C. 294) i. 972, 976 Hart V. Basset (T. Jones, 156) 1. 265 , Commonwealth v. (2 Brews. 546) i. 409 Hart V. Gunpach (Law Eep. 4 P. C. 439) i. 123 , Rex V. (6 Cir. & P. 106) ii. 785, 799, 823, 828 , Rex V. (30 Howell St. Tr. 1131 ; 12 Q. B. 1041, n.) i. 945 , Rex V. (1 Moody, 486; 7 Car. & P. 652) ' ii. 580 , Rex V. (1 W. Bl. 386) ii. 914 Hart, State v. (29 Iowa, 268) i. 387, 411 Hart, State v. (4 Ire. 246) i. 343 , State V. (6 Jones, N. C. 389) i. 298 , State V. (34 Maine, 36) i. 531 Hart V. Tallmadge (2 Day, 381) i. 286 Hart, United States v. (Pet. C. C. 390) i. 180, 540 ; ii. 960 Hartall, Rex v. (7 Car. & P. 475) i. 699 693 HAW INDEX TO THE CASES CITED. HEA SSOTIOlf Hartigan, State v. (32 Vt. 607) i. 766 Hartley v. Harriman (1 B. & Aid. 620) i. 1080 V. Hindmarsh (Law Rep. 1 C. P. 553) i. 266 , Rex V. (Russ. & Ry. 139) ii. 341, 349, 370 Hartmann v. Commonwealth (5 Barr, 60) i. 571 ; ii. 145, 198, 201, 206, 240 Hartnett, Commonwealthi v. (3 Grav, 450) ii. 900, 903 , Rex V. (Jebb, 302) i. 951 Harty v. Stale (3 Blacljf. 386) i. 667 Harvard College v. Stearns (15 Gray, 1) i. 265 Harvey v. Com'th (23 Grat. 941) ii. 771 Harvey, Reg. , . (9 Car. & P. 353) ii. S22, 836 , Reg. y. (8 Cox C. C. 99) ii. 1030 , Rex V. (3 D. & R. 464 ; 2 B. & C. 257) i. 457 ; ii. 922, 932 , Rex y. (1 Leach, 467 ; 2 East P. C 669) ii. 758, 816 , State V. (3 N. H. 65) ii. 516 Harwood's Case (1 Mod. 79) ii. 244 Hascnll, State v. (6 N. H. 352) ii. 1046 Haskell, State v. (33 Maine, 127) i. 143 ; ii. 863 Haskell, United States v. (4 "Wash. C. C. 402) i. 1039, 1041 Hassall, Reg. v. (Leigh & C. 68 ; 8 Cox C. (;. 491) ii. 857 ■, Rex v. (2 Car. & P. 434) i. 363 Hassenfrats v Kelly (13 Johns. 466) ii. 136 Hassinger's Case (2 Ashm. 287) ii. 849 Hustle, Reg. v. (1 Leigh & C. 269) ii. 340, 342 Haswe/I, Rex v. (1 Doug. 387) i. 256 , Rex V. (Russ. & By. 458) i. 466, 697 ; ii. 1070, 1081, 1090 Hatch V. Burroughs (1 Woods, 439) i. 65 Hately v. State (15 Ga. 846) i. 648, 663 Hatjield, Com'th v. (107 Mass 227) ii. 1024 Hatheock, State v. (7 Ire. 52) i. 1078 Hatsfield, Commonwealth v. (1 Pa. Law Jour. Rep. 177) i. 915 Hatlaway, State v. (2 Nott & McC. 118) ii. 1031 Halton, Com'th y. (3 Grat. 623) i. 998 Hann, Peoples. (44 Cal. 96) ii. 675, 727 Uause, State v. (71 N. C. 518) i. 304; ii. 998 Haven v. Foster (9 Pick. Il2) i. 294 Hawkes, Reg. v. (2 Moody, 60) ii. 562 Hawkeswood, Rex v, (2 T. R. 606 ; 2 East P. C. 966 ; 1 Leach, 257) ii. 540 Htiiikliis's Case (cited 2 East P. C. 485) i. 649 ; ii. 120 Hawkins, Commonwealth v. (3 Gray, 403) i. 401, 414 , Reg. V. (1 Den. C. C. 584; Temp. & M. 828; 14 Jur. 618,; 1 Eng. L, & Eq. 547) ii. 865, 836, 855 , Rex V. (8 Car. & P. 392) i. 634, 642 694 SEOTiotr Hawkins, Rex v. (2 East P. C. 485) i. 262 , Rex V. (2 East P. C. 601) ii. 106 v. State (13 Ga. 322) i. 635, 658 ; ii. 3 Hawkins v. State (25 Ga. 207) ii. 704 V. State (1 Port. 475) i. 916, 1049 V. State (3 Stew. & P. 63) i. 934 Hawkins, State v. (8 Port. 461) i. 287, 342 ; ii. 758, 806, 840, 843 Hawthorne, United States v. (1 Dil- lon, 422) i. 200 Hawver v. Seldenridge (2 W. Va. 274) i. 464 ffawtin, Rex v. (7 Car. & P. 281) i. 683; ii. 323, 353, 823, 828 Hayden v. State (4 Blackf. 546) i. 257 '-, Stale, v. (15 N. H. 355) ii. 643 Hayden, State v. (32 Wis. 663) i. 32 Hayes, Rex v. (2 Ld. Raym. 1518) i. 998 Haym v. United States (7 Ct. CI. 443) i. 904r 914 Hai/man, Rex v. (Moody & M. 401) ii. 1281 Hdi/nes's Case (12 Co. 113) ii. 768, 780 Haynes, People v. (11 Wend. 557; 14 Wend. 546) i. 586 ; ii. 159, 418, 424, 433, 437, 450, 461, 465 , Reg. T. (1 Post. & F. 666) i. 387 , Rex V. (4 M. & S. 214) i. 491 ; ii. 145 Haynes v. State (17 Ga. 465) i. 857, 858, 869 V. State (3 Humph. 480) i. 909 Haynes v. Slate (15 Ohio State, 455) ii. 574 , State V. (6 Coldw. 550) ii. 540 Hays V. Brijanl (1 H. Bl. 253) i. 888 , Com'th V. (14 Gray, 62) ii. 355 Hays, Commonwealth K. (l Va. Cas. 122) ii. 758, 880 Hays T. People (1 Hill, N. Y. 351) i. 261 ; ii. 1118, 1136 V. State (8 Ind. 425) ii. 1267 V. State (13 Misso. 246) i. 365, 658 Hai/ward, Com'th v (10 Mass. 34) ii. 578 , Reg. V. (1 Car. & K. 618) ii. 366, , Rex V. (6 Car. & P. 157) 758, 831 ii. 699, 711, 718 3rt , Rex V. (1 Russ. Crimes Eng. ed. 729 ; Russ. & By . 78) i. 339, 341 , State V. (1 Nott & McC. 646) ii. 1020, 1081 Haywood, Rex v. (2 East P. C. 1076 ; Russ. & Ry, 16) ii. 986 Haywood, State v. (3 Jones, N. C. 399) ii. 1281 Haywood, State v. (Phillips, 376) i. 384 Hazel V. Clark (3 Harring. Del. 22) ii. 41 Hazell, Reg. v. (11 Cox C. C. 597) ii. 807, 819 Hazel, Rex v. (1 Leach, 368; 1 East P. C. 236) i. 881 ; ii. 680, 683, 709, 732 Hazen v. Commonwealth (11 Harris, Pa. 355) i. 977 ; ii. 192, 229 Head, Reg. v. (1 Post. & F. 350) ii. 773, 779 V. State (44 Missis. 731) i. 865 ; ii. 680 HEN INDEX TO THE CASES CITED. HEB Section Eeadge, Hex v. (2 Leach, 1033; Buss. & Ry. 160) i. 262, 567 ; ii. 328, 365, 830 Heage, Reg. v. (1 Gale & D. 548 ; 2 Q. B. 128; 6 Jur. 367) ii. 1281 Healy, State v. (48 Misso. 531) ii. 367 a Hean, Eex v. (1 Leach, 527) i. 595 ; ii. 996 Heane, Reg. v. (4 B. & S. 947) ii. 1026 Heaps, Rex v. (2 Salk. 593) i.795, 1054 ; ii. 56, 1154 Heard v. Heard (8 Ga. 380) i. 296 V. Pierce (8 Cush. 338) i. 171 Hearsey, Commonwealth v. (1 Mass. 137) i. 582;ii. 145 Heath, Reg. v. (2 Moody, 33) ii. 365, 785, 813, 824, 836 , Bex V. (Russ. & Ry. 184) i. 204, 206, 287 Heatherley, State v. (4 Misso. 478) i. 1024 Hector V. State (2 Misso. 166) i. 1032 Hedgepeth v. Robertson (18 Texas, 858) ii. 1283 Hed^s 0. Price (2 W. Va. 192) i. 14, 264, 904, 916 Hedges, Rex y. (1 Leach, 201 ; 2 East P. C. 590) ii. 758, 763 Hedley, Ex parte (31 Cal. 108) ii. 325, 361, ' 364, 372 Hefelton v. Lister (Cooke, 88) i. 767 HefEren v. Com'th (4 Met. Ky. 6) ii. 316 Heflin, State v. (8 Humph. 84) i. 535 ; ii. 2 Heikes v. Com'th (2 Casey, 513) i. 1053 Heilbonn, In re (1 Parker C. C. 429) i. 135 Hein. State u. (50 Misso. 362) ii. 978 Helgen, State v. (1 Speers, 310) ii. 968 Helle, State v. (2 Hill, S. C. 290) ii. 1019 Heller v. State (23 Ohio State, 582) i. 794 ; ii. 63 Helm V. Slader (1 A. K. Mar. 320) ii. 490 Helmes, State v. (5 Ire, 364) i. 569 ; ii. 985 Helsham, Rex v. (4 Car. & P. 394) i. 121 ; ii. 630 Belvenston, State v. (R. M. Cliarl. 48) ii. 256 Hembree v. State (52 Ga. 242) ii. 1030 Heming, Rex v. (2 East P. C. 1116 ; 1 Leach, 445, n.) ii. 1200 Hemings, Rex v. (2 Show. 93) i. 796 ; ii. 66, 1164 Hemmakeri). State (12 Misso. 463) i. 141 Hemmings, Reg. v. (4 Fost. & F. 50) ii. 849, 1160, 1162 a Hemmings, Eex v. (3 Salk. 187) i. 237, 246, 459 ; ii. 982 Bench, Rex v. (Russ. & Ry. 163) i. 588 ; ii. 809, 813 Henderson v. Commonwealth (8 Grat. 708) i. 538 ; ii. 490, 604, 1149 Henderson, People v. (1 Parker C. C. 560) ii- 12, 14, 17 SEOTIOit Henderson, Reg. v. (Car. & M. 328) i. 1053 ; ii. 415, 420, 437 , Reg. V. (2 Moody, 192) i. 1053; ii. 471 V. State (12 Texas, 525) i. 730 V. State (14 Texas, 503) ii. 643 Henderson, State v. (2 Dev. & Bat. 643) i. 938 ; ii, 744, 745 Henderson, State \. (15 Misso. 486) ii. 1011 , State V. (66 N. C. 627) ii. 804 , State V. (1 Rich. 179) , ii. 929, 930 Henderson's Distilled Spirits (14 Wal. 44) i. 822 Hendon, Rex v. (4 B. & Ad. 628) i. 419, 531 ; ii. 1281 Hendrick v. Commonwealth (6 Leigh, 707) i. 178, 989 ; ii. 529, 539 Hendricks v. Andrews (7 Wend. 152) i. 298 ; ii. 136, 140 , Rex V. (2 Stra. 1234) ii. 1262 Hendrickson v. Hendrickson (3 Harrison, 366) ii. 266 Hendi/, Reg. v. (4 Cox C. C. 243) ii. 1200 Hennessey, People v. (15 Wend. 147) ii. 320, 353, 366, 367, 369, 379 Hennessey, State v. (23 Ohio State, 339) " ii. 888 Henning, State v. (33 Ind. 189) i. 710 Henry, Commonwealth v. (10 Harris, Pa. 253) ii. 416, 420 , Reg.' V. (9 Car. & P. 309 ; 2 Moody, 118) i. 635; ii. 1173 Heiiry v. Richardson (7 Watts, 557) i. 832 V. State (39 Ala. 679) ii. 902 V. State (7 Coldw. 331) i. 141 V. State (18 Ohio, 32) i. 768 ; ii. 991 Henry, State v. (9 Ire. 463) i. 262 ; ii. 118 Henry Ewbank, The (1 Sumner, 400) ii. 876 Hensei/'s Case (19 Howell St. Tr. 1341) ii. 1213 Hevsei/, Rex v. (1 Bur. 642) ii. 1233 Hensiiaw r. Foster (9 Pick. 312) ii. 527 Hensler, Reg. v. ( 11 Cox C. C. 570) ii. 467, 488 Hensley, Com'th v. (2 Va. Cas. 149) i. 143 Henslie v State (3 Heisk. 202) i.400, 411 Henslaw v. Fawcett (1 Har. & W. 125) ii. 85 Henson, Reg. v. (Dears. 24; 18 Eng. L. & Eq. 107) i. 490 Herbei- v. State (7 Texas, 69) ii. 851 Herbert, Rex v. (2 Keny. 466) ii. 209, 218 Hern !'. Nichols (Holt, 4«2) i. 317 Henick, Peajjle v. (13 Wend. 87) ii, 424,4.37,461.402,471,483 Herrick, State v. (3 Ner. 259) i. 1049 Herrin v. State (33 Texas, 638) ii. 728 Herrington, St.ite v. (21 Ark. 195) ii. 40 Harriott v. State (1 McMuUan, 126) ii. 313 Herron v. Hughes (25 Cal. 555) i. 265 695 HIL INDEX TO THE CASES CITED. HIE Sectin Hertford, Kex v. (Holt, 320) li. 1286 Hervey v. Moseley (7 Gray, 479) ii. 235 Hescotfs Case (1 Salk. 330) ii.392, 394, 395 Hess V, State (6 Ohio, 5) ii. 543, 609 Ilessenkamp, State v. (17 Iowa, 25) ii. 1274 Betherinaton, Reg. v. (5 Jar. 529) ii. 77 Heveu, Rex v. (Russ. & Ry. 407, n. ; 2 East P. C. 856 ; 1 Leacli,229)-i. 584 ; ii. 151, 583 Hevice, Eespvblica v. (2 Yeates, 114) ii. 235 Heward v. Shipley (4 East, 180) i. 974 Hewet'a Case, (5 Howell St. Tr. 883) ii. 1213 Eewett, State v. (31 Maine, 396) ii. 286 Hewgill, Reg. v. (Dears. 315; 24 Eng. L. & Eq. 556) ji. 418 Hewitson v. Hunt (8 Rich. 106) ii. 255 Hewitt, Reg. v. (5 Cox C. C. 162) ii. 230 Hewlett, Reg. v. (1 Eost. &F. 91) i. 736, 850, 865 Hext, Reg. i^. (4 Jur. 339) i. 247 Heu, Reg. v. (Temp. & M. 209 ; 1 Den. C. C. 602 ; 2 Car. & K. 983 ; 14 Jur. 154) ii. 859, 862 Heymiinn v. Keg. (Law Rep. 8 Q. B. 10-2 ; 12 Cox C. C. 383) ii. 190, 198 Heys V. Heseltine (2 Camp. 604) i. 682 Hey ward, State v. (2 Nott & McC. 312) i. 632, 653 Heywood, Reg. v. (2 Car. & K. 352) ii. 606, 607 Hibbard o. Hurlburt (10 Vt. 173) ii. 137 f. People (4 Mich. 125) i. 32 Hibbert, Reg. v. (13 Cox C. C. 82) ii. 230 Hickey, Ex parte (4 Sni. & M. 751) i. 899, 913 ; ii. 257 Eichey, Commonwealth v. (IPa. Law Joiir. Rep. 436) ii. 419 V. State (23 Ind. 21) i. 791, 792, 795, 1057 Hicklin, Reg. v. ( Law Rep. 3 Q. B. 360) i. 309 Hicklin, State v. (5 Pike, 190) i. 1024 Hickman v. Littlepage (2 Dana, 344) i. 821, 831 Hickman, Rex v. (1 Leach, 278 ; 2 East P. C. 728) i. 653 ; ii. 1172 , Rex T. (1 Moody, 84) i. 767; ii. 1195 , State T. (3 Halst. 299) ii. 785 Hicks, State v. (27 Misso. 588) ii. 728 Higginbotham v. State (23 Texas, 674) ii. 31 Higgins V. Andrewes (2 Rol. 55) ii. 766 V. Butcher (Yelv. 89) i. 267 ; ii. 61 V. People (1 Hun, 307) li. 1119 Higgins, Rex v. (4 Car. & P. 247) ii. 394 , Rex V. (2 East, 5) i. 759, 767 Higgins V. State (7 Ind. 549) ii. 490, 501 Eigginson, Reg. v. (1 Car. & K. 129) i. 384 Hilbers, Rex v. (2 Chit. 163) i. 592, 801 ; ii. 187, 190 696 Seotiok Hildebrand v. People (56 N. Y. 394 ; 3 Thomp. & C. 82) ii. 812 Hilderbrand v. People (1 Hun, 19) ii. 812 Hildreth, State v. (9 Ire. 429) ii. 695, 715, 717 Hildreth, State v. (9 Ire. 440) 1. 217, 720 ; ii. 744 Hiler, U. S. v. (Morris, 330) i. 502 Hill's Case (1 East P. C. 439) ii. 1128 Hill V. Com'th. (2 Grat. 694) ii. 728 , Commonwealth v. (11 Mass. 136) i. 310, 631, 651 , Com'th y. 14 Mass. 207) i. 395 v. Crandall (Si 111. 70) ii. 263, 266 , Rpg. V. (1 Car. & K. 168) i. 572 a , Reg. V. (8 Car. & P. 274) ii. 598 , Rig. V. (2 Cox C. C. 246) ii. 564 , Reg. V. (2 Moody, 30) i. 839, 341, 572 ; ii. 598 , Reg. T. (3 New Sess. Cas. 648 ; 1 Den. C. C. 453 ; Temp. & M. 150; 13 Jur. 545; 18LawJ.N.s. M. C. 199) i.859; ii. 1139 Hill V. Sellick (21 Barb. 207) i. 460 Hill V. Stale (43 Ala. 835) i. 996 Hill V. State (28 Ga. 604) 1. 648 V. State (4 Sneed, 443) ii. 1281, 1282 V. State (1 Yerg. 76) i. 584 ; ii. 156 , State V. (4 Dev. & Bat. 491) i. 870, 871 ; ii. 695, 697, 702, 704 , State V. (10 Ind. 219) li. 1267 , State V. (72 N. C. 345) i. 648 Hill, State V. (2 Speers, 150) i. 464 , State V. (30 Wis. 416) i. 1004, 1006 HiUam, Reg. v. (2 Cox C. C. 174 ; 2 Eng. Rep. 227) . i. 572 a Hillhouse v. Dunning (6 Conn. 391) ii. 929, 930 Hilliker v. Hathorne (5Bosw.710) ii.256 Hilton's Case (2 Lewin, 214) i. 314 ; ii. 669 Hilton V. Houghton (35 Maine, 143) ii. 968 Hilton, Reg. v. (Bell C. C. 20; 8 Cox C. C. 87) i. 664 , State V. (26 Misso. 199) ii. 1091 Hinch V. State (25 Ga. 699) i. 842, 873; ii. 722 V. State (2 Misso. 158) ii. 1081 Hinchman v. Clark (Coxe, 840) i. 821, 970 Hinckley v. Emerson (4 Cow. 351) i. 1080 Hinckley v. Penobscot (42 Maine, 89) ii. 964 Hines V. State (26 Ga. 614) i. 968 V. State ( 8 Humph. 597) i. 998, 1037 Hines i>. State (24 Ohio State, 134) i. 1013, 1015, 1026, 1034 Hihesburgh v. Sumner (9 Vt. 28) i. 267, 712, 714 Hingle v. State (24 Ind. 85) ii. 966 Hinkle v. Commonwealth (4 Dana, 518) i. 778, 782, 793, 1061 Hinks V. Hinks (46 Maine, 423) ii. 1267 Hinton v. State (24 Texas, 454) i. 843 ; ii. 722 Hipp V. State (5 Blaokf. 149) i. 219, 817 Hirst, In re (9 Philad. 216) il. 267 HOG INDEX TO THE CASES CITED. HOL Section Hiss V. Bartlett (3 Gray, 468) i. 461 V. State (24 Md. 556) ii. 977 Sitchman, Commonwealth v. (10 Wright, Pa. 857) i. 910 Eite V. State (9 Yerg. 198) ii. 758, 797, 799 822 V. State (9 Yerg. 357) i. 1049, 1050, 1052 Hoag, People v. (2 Parker C. C. 36) ii. 529 Hoagland v. Culvert (Spencer, 887) i. 464 Hoare, Beg. V. ( 1 Post. & F. 647) ii. 841 Hoatson, Reg. v. (2 Car. & K. 777) i. 294, 298; ii. 529,543,544 Hobbs V. State (9 Misso. 855) ii. 561 , State V. (40 N. H. 229) ii. 1030 Hobbs, State v. (2 Tyler, 380) ii. 28 Hobert's Case (Cro. Car. 209) ii. 1104 Hobson V. Perry (1 Hill, S. C. 277) i. 822 Hobson, Rex v. (Kuss. & Ry. 66 ; 2 Leach, 975) ii. 376 T. State (44 Ala. 380) ii. 996, 1004 Hoch T. People (3 Mich. 552) ii. 1040 Hodgdon v. Wight (36 Maine, 326) i. 821 Hodges V. State (8 Ala. 65) i. 1067 Hodges v. State (5 Coldw. 7) i. 1028 Hodges V. State (16 Ga. 117) i. 871 ; ii. 53 Hodges v. State (5 Humph. 112) " i. 734 ; ii. 949 Hodgkins v. Eockport (116 Mass. 573) ii. 1280 Hodgkins, State v. (42 N. H. 474) i. 1028 Hodqkiss, Reg. \. (Law Rep. 1 C. C. 212) ii. 1014 Hodgson V. Millward (8 Grant, Pa. 406) i. 822 Hodgson, Reg. v: (Dears. & B. 3 ; 7 Cox C. C. 122 ; 36 Eng. L. & Eq. 626) ii. 529, 596, 598, 699, 601 , Rex V. (3 Car. & P. 422) ii. 376 Hodgson, Rex v. (Gurney's Rep.) ii. 187 Hodgson, Rex v. (1 Leach, 6) i. 634 ; ii. 691, 744 Hodson, U. S. v. (10 Wal. 395) i. 488 Hoffman v. State (20 Md. 425) i. 981 V. Coster (2 Whart. 453) i. 917 Hoffman, People v. (3 Mich. 248) i. 32 Hogan, Com'th v. (97 Mass. 122) i. 1065 Hoqan, Reg. v. (1 Crawf. & Dix C. C. 366) ii. 758, 797 , Reg. T. (5 Eng. L. & Eq. 553 ; 2 Den. C. C. 277; 15 Jur. 805; 20 Law J. N. 8. M. C. 219) i. 657, 883, 884; ii.29 Hogan V. Sharpe (7 Car. & P. 755) i. 1080 V. State (36 Wis. 226) ii. 728 Hogg, Reg. V. (25 U. C. Q. B. 66) i. 471 , State V. (5 Ind. 515) ii. 1282 V. Zanesville Canal & Manuf. Co. (5 Ohio, 410) ii. 1278 Hoggatt V. Bigley (6 Huqiph. 236) i. 299 Hoggins, Rex v. (Russ. & Ry. 145) "^ ' ^ ii. 370,377 Eogue, State v. (,6 Jones, N. C. 381) " ' ii.716 Hoit, State v. (3 Post. N. H. 355) i. 246 Holcome, Ex parte (2 Dillon, 392) ii. 572, 594 V. Cornish (8 Conn. 375) i. 778, 793 ; ii. 79, 80 Holcroft, Reg. v. (2 Car. & K. 341) i. 803, 809 Holden, Rex v. (Russ. & Ry. 164 ; 2 Leach, 1019 ; 2 Taunt. 334) i. 287, 437 ; ii. 698 i. 141 i. 181 505 ii. 699 Holder, Com'th v. (9 Gray, 7) Holland, Com'th v. (1 Duvall, 182) , Reg. V. (2 Moody & R, 351) i. 257 ; ii. 638 , i?OT V. (1 T. E. 692) " "^ V. Slate (12Fla. 117) Holleman v. Commonwealth (2 Va, Cas. 135) ii. 1267 Hollen, The (1 Mason, 431) i. 910, 911 Holler V. Ffirth (Penning. 531) i. 974 Holliday v. People (5 Gilman, 214) i. 910, 916 Hottingherry, Rex v. (6 D. & E. 345 ; 4 B'. & d. 329) u. 215, 220 Hollingsworth V. Duane (Wal. C. 0. 77) ii. 244, 264, 259,'263, 269 Hollingsworth v. State (6 Sneed, 618) ii. 304 Holloway's Case (W. Jones, 198) i. 636, 843, 862, 875 HoUoway, Com'th v. (5 Binn. 516) i. 516 V. Lowe (7 Port. 488) i. 541 ; ii. 131, 132 HoUoway, Reg. v. (1 Den. C. C. 370 ; 2 Car. & K. 942 ; Temp. & M. 40 ; 3 New Sess. Cas. 410 ; 13 Jur. 86) u. 758, 841 , Rex V. (5 Car. & P. 524) i. 207, 305; ii. 839, 840 Hollowaye's Case (Palmer, 545) i. 536, 843, 862, 875 Holly V. State (10 Humph. 141) ii. 699, 704 , State «. (2 Bay, 262) ii. 529, 602 Hollywood V. People (2 Abb. Ap. Dec. 376) ii. 741 Holman, State v. (3 McCord, 806) ii. 995 Holme's Case (2 Lewin, 256) ii. 841 Holme, State v. (54 Misso. 153) ii. 708, 728 Holmes's Case (Cro. Car. 376; W. Jones, 351) i. 734, 759, 772, 810 ; ii. 13, 16, 20 Holmes, Ex parte (12 Vt. 631) i. 135 Holmes, Commonwealth v. (17 Mass. 336) i.500; ii. 906, 943 Holmes v. Jennison (14 Pet. 640) i. 135 Holmes, Reg. v. (Dears. 207 ; 3 Car. & K. 360 ; 20 Eng. L. & Eq. 597 ; 22 Law J. N. 8. M. C. 122 ; 17 Jur. 662) i. 244, 501, 1128 V. Staie (23 Ala. 17) i. 865 , U. S. V. (1 Clif. 98) i. 376 , United States v. ( 1 Wal. Jr. 1 ; Whart. Horn. 237) i. 348, 845; ii. 260 697 HOE TNDEX TO THE CASES CITED. HOX Section Holmes, V. S. V. (5 Wheat. 412) i. 117, 176 Holroyd, Beg. v. (2 Moody & E. 33fl) i. 343, 428 Holt, Rex T. (7 Car. & P. 618) i. 341, 735 ; ii. 991 , Rex V. (5 T. R. 436) i. 2iil ; ii. 918 T. Stale (38 Ga. 187) i. 1050, 1060 Home Insurance Co. m. Northwestern Packet Co. (32 Iowa, 223) i. 195 Homer v. Battyn (Buller's N. P. 62) ii. 26 w. Fish (1 Pick. 435) i. 1008 Homfs, Slate y. ( 17 Misso. 379) i. 297 ; ii. 768, 861 Honshell, People v. (10 Cal. 83) i. 876 ; ii. 656 Hood, Rex V. (1 Moody, 281) ii. 699 Hood V. State (44 Ala. 81) ii. 1015, 1030, 1047 Hood, Slate v. (51 Maine, 363) i. 953 .Hoofman, State v. (9 Md. 28) i. 105, 150 Hooker, Rex v. (7 Mod. 193) i. 110 Hooker, State v. (17 Vt. 658) i. 861 ; ii. 37, 39 Hoole V. Attorney-General (22 Ala. 190) i. 1081 Hoong V. Reg. (7 Cox C. C. 489) i. 112 Hooper v. Edwards (25 Ala. 628) ii. 968 v. State (8 Humph. 98) ii. 543, 606, 607, 608 Hoost, Rex V. (2 East P. C. 960) i. 769 Hoover, State u. (4 Dev. & Bat. 365) i. 314 Hojpe, Commonwealth v. (22 Pick. 1) i. 793, 796, 1062; ii. 116 , Rex V. (1 Moody, 396) i. 939 , Rex V. (1 Moody, 414) ii. 564, 575 Hopkins v. Calloway (3 Sneed, 11) ii.505 Hopkins V. Commonwealth (3 Met. 460) ii. 605, 606, 904 V. Cromliie (4 N. H. 620) 1. 829 ; ii. 1285 Hopkins v. Hopkins (10 Johns. 369) i. 208 V. Paxton (4 Dana, 36) ii. 140 Hopkins V. People (12 Wend. 76) ii. 1138 Hopkins, State v. (7 Blackf . 494) i. 965 , State V. (4 Jones, N. C. 305) i. 658 , State V. (5 R. I. 53) i. 1117 Hopkinson v. Pfeople (18 111. 264) i. 805; ii. 742 Hopley, Reg. v. (2 Post. & F. 202) i. 886 Hopps V. People (31 111. 385) i. 376, 384 Hopson, People v. (1 Denio, 574) i. 464 Hoi-e, Reg. v. (3 Post. & F. 315) Hornby, 'Rex v. (1 Car. & K. 305) Home, Rex v. (Cowp 672) Home, State v. (9 Kan. 119) Horner, Rex v. (1 Leach, 270) Horner, State v. (48 Misso. 520) Hornsea, Reg. v. (Dears. 291) 698 ii. 876 i. 649 ; ii. 822 ii. 941 i. 582 ; ii. 810 ii. 605 ii. 1267 Seotioit Hornsey, Reg. v. (10 Mod. 150) Ii. 1267, 1268 — -, Rex V. (1 Rol. 406) 1. 244 Horrigan, Com'th v. (2 Allen, 159) ii. 17 Hoi-sey, Reff. v. (3 Fost. & F. 287) ii. 657 Horton, People v. (5 Hun, 516) ii. 1271, 1272 Horton, People v. (4 Mich. 67) i. 857, 859 ; ii. 708 Hoskins V. State (27 Ind. 470) i. 930 V. Tarrence (5 Blackf. 417) ii. 758, 763 Hough, Rex v. (Bayley Bills, 6th ed. 586) ii. 603 Houghtaling v. Kelderhouse (1 Parker C. C. 241) i. 917 Houghton, Commonwealth v. (8 Mass. 107) ii. 288, 6,05 Houghton V. Havens (6 Conn. 306) i. 32 House, State w. (65 N. C. 315) ii. 771 Houseman, Reg; v. (8 Car. & P. 180) ii. 564 Houston V. Moore (5 Wheat. 1) 1. 989 , Reg. V. (2 Cravff . & Dix C. C. 310) i. 1022, 1024, 1027 Haimrd, Com'th r. (1 Grat. 555) ii. 1267 Howard v. Gossett (May Pari. Law, 151) i. 461 w. Mendoji (117 Mass. 585) ii. 1280 , Rex V. (7 Mod. 307) i. 237, 459 ; ii. 973 , United States v. (3 Wash. C. C. 340) i. 117 ; ii. 1061 Howarth, Reg. v. (11 Cox C. C. 688) ii. 437 Howarth, Reg. v. (33 U.C.Q.B. 637) ii. 960 Howarth, Rex v. (1 Moody, 207) i. 868 Howatt, Rex v. (2 East P. C. 604; 1 Leach, 83, n.) ii. 785, 904 Howe, Commonwealth u. (13 Gray, 26) i. 1085, 1117 V. Searing (6 Bosw. 684) ii. 256 V. Thompson (2 Fairf. 152) ii. 576 Howel V. James (2 Stra. 1272) i. 909 Howell V. McCoy (3 Rawle, 256) i. 1141 Howell, People v. (4 Johns. 296) ii. 560 , Req. V. (9 Car. & P. 437) i. .340, 632, 634, 636, 642, 791 ; ii. 691, 744, 994 , Reg. V. (4 Fost. & F. 160) ii. 235 , Rex V. (7 Car. & P. 825) ii. 834, 858, 860 Howell, Rex v. (Russ. & Ry. 253) i. 942 V. State (5 Ga. 48) . i. 867 V. State (37 Texas, 591) ii. 633 , State V. (9 Ire. 486) i. 870, 871 , State !). (R. M. Charl. 120) i. 135 Howerton, State v. (68 Misso. 581) ii. 1174 , State «. (59 Misso. 91) ii. 1156 Howie, Reg. v. (11 Cox C.C. 820) ii. 661 Howitt V. Rickaby (9 M. & W. 52) ii. 255 Howland, U. S. v. (i Wheat. 108) i. 194 Howlett, Bex v. (7 Car. & P. 274) i. 735 ; ii. 741 Howlett V. State (6 Yerg. 144) i. 682, 668, Hoxey, Com'th v. (16 Mass. 385) i. 642 HUG INDEX TO THE CASES CITED. HUN , Sectioit Home, United States v. (1 Paine, 265) i. 456 ; ii. 1202, 1226 Eoi/e T. Bush (2 Scott, N. R. 86 ; 1 Man. & G. 775) ii. 699 Eoyt, State v. (13 Minn. 132) ii. 723, 727, 728 Hoyt V. Thompson (1 Seld. 320) i. 541 ; ii. 139 Hubbard, People v. (24 Wend. 369) i. 857, 876 Hube, Rex v. (Peake, 132; 6 T. R. 542) i. 542 Huber v. Reily (3 Smith, Pa. 112) i. 947 , State V. (8 Kan. 447) i. 795, 797 Hubson, Rex v. (1 East P. C. 258) i. 634 ; ii 691, 744 Huckenstine's Appeal (20 Smitli, Pa. 102) i. 1142, 1143 Huckley's Case (2 Leach, 789, n.) ii. 897 Hudgins v. State (2 Kelly, 173) i. 858 Hudson, Commonwealth v. (14 Gray, 11) i. 1054, 1065 V. Geary (4 R. I. 485) ii. 961, 968 y. Guestief (6Cranch, 281) i. 120 Sudson, Reg. r. Bell C. C. 263; 8 CoxC. C". 305) i. 257;ii. 198 Hudson V. State (4 Zab. 718) i. 175 ii. 1269 ii. 657 ii. 1281 ii. 1269 , State V. (59 Misso. 135) , State V. (1 Vroom, 137) , State V. (3 Zab. 206) Hudson, United States v. (7 Cranch, 32) i. 199 ; ii. 243, 244, 938, 942 Huffman, Pennsylvania v. (Addison, 140) i. 1052 Huffman, State v. (2 Rich. 617) ii. 1267 Hugget's Case (J. Kel. 59) ii. 702 Huggins, Rex V. (2 Stra. 882 ; 2 Ld. Raym. 1574) i. 317, 328 ; ii. 666, 687 V. State (41 Ala. 393) ii. 1138, 1139 Huggins, State v. (47 Ind. 586) ii. 1267 Hughes, Commonwealth v. (5 Allen, 499) ii. 1020, 1026, 1053 V. Jones (2 Md. Ch. 178) i. 1050 Hughes v. Marshall (2 Tyrw. 134 ; 5 Car. & P. 150) ii. 86 , People V. (29 Cal. 257) ii. 12 , Reg. V. (Bell C. C. 242) i. 670 , R^g. V. (1 Car. & K. 519) u. 1024, 1044 , Reg. V. (Car. & M. 593) ii. 789 , Reg.\. (Dears. & B. 188; 7 Cox C! C.,286) ii. 1020 , Reg. V. (Dears. & B. 248 ; 7 Cox C. C. 301) • ii. 659, 696 , Reg. V. (Post. & F. 355) ii. 421 - — , Reg. V. (2 Moody, 190 ; 9 Car. & P. 762) ii. 1132 , Rex V. (4 Car. & P. 373) i. 800, 803 ; ii. 1147, 1154 , Rex V. (5 Car. & P. 126) i. 259, 510, 756, 759 ; ii. 1187 , Rex V. (1 Leach, 406 ; 2 East P. C. 491) i. 437, 559; ii. 91, 92, 93 Section Hughes, Rex v. (1 Moody, 370) ii. 346, 353 , Rex V. (Russ. Crimes, 3d Eng. ed. 21 ; 2 Lewin, 229) i. 207, 359, 362 V. State (12 Ala. 458) i. 622, 663, 1053 Hughes V. State (35 Ala. 351) i. 997 V. State (1 Eng. 131) ii. 1106 Hughes, State v. (2 Ala. 102) i. 998. Hughes, State v. (72 N. C. 25) ii. 1149, 1273, 1274 , U. S. i: (1 Bond, 574) i. 904, 907 Hughey v. State (47 Ala. 97) ii. 704 Hulbert, Commonwealth v. (12 Met. 446) ii. 410, 441, 448 Huling V. State (17 Ohio State, 583) i. 633 ^ Hull V. Ruggles (65 Barb. 432) i. 821 Hull v. State (22 Wis. 580) i. 766 Hull V. Thomas (3 Edw. Ch. 236) ii. 256 HummeU's Case (9 Watts, 416) ii. 268 Hammings, Rex v. (Comb. 374) i. 264 Humphrey, Rex v. ( 1 Root, 63) ii. 539 , State V. (32 Vt. 569) ii. 813 Humphreys v. State (45 Ga. 190) i. 384 Humphreys, State v. (10 Humph. 442) ii. 546, 563, 602 Humphries, Commonwealth v. (7 Mass. 242) ii. 1156, 1174 Humphries v. State (5 Misso. 203) ii. 53, 740 Hunckeller, People v. (48 Cal. 331) i. 1058 Hundley, State v. (46 Misso. 414) i. 387, 406 Hundson's Case (2 East P. C. 611) ii. 758, 775 Hungerford, Reg. v. (11 Mod. 142) i. 246 , State V. (8 Wis. 345) ii. 256 Hunt, Ex parte (5 Eng. 284) i. 899, 908, 914, 916 Hunt V. Adams (6 Mass. 519) , ii. 577 Hunt T. Bennett (19 N. Y. 173) ii. 937 , Commonwealth v. (4 Met. Ill) i. 508, 592 ; ii. 175, 177, 189, 231 , Reg. T. (8 Car. & P. 642) ii. 214, 339 369 ,Rfg.-v.{l Cox C.C.177) i. 260; ii. 2, 35 , Reg. T. (8 Cox C. C. 495) ii. 857 Hunt, Rex v. (1 Keny. 108) i. 534, 632, 658 ; ii. 1153 Hunt, Rex v. (1 Moody, 93) i. 328, 429, 736, 736 ; ii. 991, 997 , Rex T. (1 Russ. Crimes, 3d Eng. ed. 273) i. 534; ii. 1258 Hunt V. State (4 Kan. 60) i. 154 , State V. (Coxe, 287) ii. 256 V. Wilson (14 B. Monr. 44) u. 501 Hunter's Case (1 Swinton, 550) ii. 226 Hunter, Ex parte (2 W. Va. 122) i. 904, 920 V. Cobb (1 Bush, 239) ii. 540 V. Commonwealth (3 Cent. Law Jour. 129) i. 805 Hunter v. Commonwealth (2 S. & R. 298) , i. 504, 1109 Hunter u. Routlege (6 Jones, N. C. 216) i. 822 699 ILL INDEX TO THE CASES CITED. JAC Section Hunter v. State (1 Head, 160) i. 491 Hunter, State w. (33 Iowa, 361) i. 955 Hunter, State v. (14 La. An. 71) i. 713 , State V. (8 Blackf. 212) i. 343 Hunter, State v. (5 Ire. 309) i. 531, 687 ; ii. 1273 Huntington's Case (Rob. & W.'s Report)' i. 376 Huntington, State v. (3 Brer. Ill) ii. 493 Huntly, State v. (3 Ire. 418) i. 540 Huntress, The (Daveis, 82) i. 173 Hurd V. People (25 Mich. 405) ii. 681, 704, 712 Hurd, State v. (51 N. H. 176) ii. 12 Hurley, Com'th v. (99 Mass. 433) ii. 26 a , People V. (8 Cal. 390) i. 305, 384 Hurley v. State (6 Ohio, 399) 1. 1033 Hurse, Reg. v. (2 Moody & R. 360) i. 630 ; ii. 609 Hurt V. State (19 Ala. 19) ■ i. 294 Hurt Y. State (25 Missis. -378) i. 1056, 1058 Hurt, State v. (7 Misso. 321) i. 625, 679 Hussey v. Eoquemore (27 Ala. 281) ii. 968 Hutchins, Rex v. (2 Deac. Grim. Law, 1686) ii. 986 . V. State (13 Ohio, 198) ii. 605 Hutchinson, Commonwealth u. (3 Am. Law R'eg. 113) i. 1101 , Commonwealth v. (1 Pa. Law Jour. Rep. 302) ii. 415, 419 Hutchinson, Reg. v. (9 Cox C. C. 555) i. 256 ; ii. 656 b Hutchinson v. State (36 Texas, 293) ii. 88 V. Thompson (9 Ohio, 52) i. 174 Hutchison v. State (5 Humph. 142) i. 399 Huting, State v. (21 Misso. 464) i. 384, 385 Hutton's Case (1 Swinton, 497) i. 267 ; ii. 1103 Hyams, Rex v. (7 Car. & P. 441) ii. 91 Hyatt V. Adams (16 Mich. 180) i. 271 V. Wood (4 Johns. 150) i. 264; ii. 490 Hyde, Commonwealth v. (Thatcher Crim. Cas. 112) i. 1028 V. Middlesex j2 Gray, 267) ii. 1273 V. Morgan (14 Conn. 104) ii. 140 Hylliard t. Nickois (2 Root, 176) i. 990, 993, 1009 Hylton V. Brown (1 Wash. C. C. 298) i. 821 Hyneman, Commonwealth o. (101 Mass. 30) ii. 969 I. S. S., State V. (1 Tyler, 178) Idol V. Jones (2 Dev. 162) 1. 1016 ii. 777 lllidge, Reg. t. (2 Car. & K. 871 ; Temp. & M. 127 ; 13 Jur. 643 ; 18 Law J. N. s. M. C. 179 ; 1 Den. C. C. 404) ii. 560, 591 lUies V. Knight (8 Texas, 312) i, 569 • 700 Seotioh Illinois River Packet Co. o. Peoria Bridge (38 111. 467) i. 174 Ilott V. Wilkes (3 B. & Aid. 304) i. 855 Imbert, United States a. (4 Wash. C. C. 702) i. 117 Imlay v. Sands (1 Caines, 5B6) i. 306 Incledon, Rex v. (13 East, 164) i. 829; ii. 1286 Independence, The (2 Curt. C. C. 350) i. 194 Inder, Reg. v. (1 Den. C. C. 325) i. 672 ; ii. 664, 612 Indianapolis v. BIythe (2 Ind. 75) i. 433 Indianapolis v. Pairehild (1 Ind. 315 ; Smith, Ind. 122) i. .32 V. McClure (2 Ind. 147) ii. 1282 IngersoU v. Skinner (1 Denio, 540) i. 957 Inglee v. Bosworth (5 Pick. 498) Ji. 791 Ingold, State v. (4 Jones, N. C. 216) i. 871 Ingram !'. Tlie C. D. and M. R. E. Co. (38 Iowa, 669) i. 265 Ingram v. State (39 Ala. 247) i. 948 Ingram v. State (7 Misso. 293) i. 619 Innes, Wylie v. (1 Car. & K. 257) ii. 27 Inness, State v. (53 Maine, 536) i. 1060, 1065 Insane Criminals, Opinion on (8 Scott New Rep. 695) i. 384, 392, 393 Insurgents of Pa., United States v. (2 Dall. 335) ii. 1202 Intoxicating Liquors, Common- wealth V. (107 Mass. 396) i. 835 , Com'th «. (115 Mass. 142) i. 825, 833 , State V. (63 Maine, 121) i. 824 , State V. (44 Vt. 208) i. 821 Irby V. State (32 Ga. 496) i. 368 Ireton, Eex v. (Comb. 896) il. 1281 Isaac, Rex v. (2 East P. C. 1031) i. 329 ; li. 15, 21 i. 501 ii. 192 i. 866 ii. 846 Isaacs, Com'th v. (5 Rand. 634) Isaacs V. State (48 Missis. 234) Isaacs V. State (25 Texas, 174) Isaacs V. State (30 Texas, 450) Isham V. State (38 Ala. 213) i. 303, 305, 327 ; ii. 731 Isham, State v. (3 Hawks, 186) i. 938 Isherwood, Rex v. (2 Keny. 202) ii. 86, 88 Isla de Cuba, United States v, (2 Clif. 295 ; 2 Sprague, 26) i. 664 Ivens, Rex v. (7 Car. & P. 213) i. 532 Ives, State v. (13 Ire 338) i.700; ii. 1140 Ivey V. State (12 Ala. 276) ii. 314, 315 Ivyes, Eex v. (2 Show. 468) i. 506 J. B., State v. (1 Tyler, 269) ii. 1044 Jacko V. State (22 Ala. 73) i. 504, 1149 Jacks V. Bell.(3 Car. & P. 316) i. 266 Jackson's Case (18 Howell St. Tr. 1069) i. 116 Jackson v. Babcock (16 N. Y. 246) i. 821 , Com'th 0. (2 B. Monr'. 402) i. 664 Jackson, Com'th v. (2 Va. Cas. 601) i. 1010 Jackson v. Justices (1 Va. Cas. 314) il. 256 JAM ' INDEX TO THE CASES CITED. JEN Section Jackson, People v. (3 Denio, 101) i. 504, 1135 , People v. (3 Hill, N. Y. 92) i. 805 , People V. (7 Midi. 432) i. 245; ii. 1268 , People V. (3 Parker C. C. 590) ii. 808 . Beg. v. (1 Car. & K. 384) i. 667 ; ii. 376 , Reg. V. (7 Cox C. C. 357) i. 636 , Reg. V. (2 Moody, 32) ii. 365, 824, 836, 859 , Bex V. (3 Camp. 370) i. 585; ii. 147, 421 Jackson, Rex v. (1 Crawf. & Dix C. C. 149) i. 437, 772 ; ii. 1233 , Rex V. (Draper, 50) ii. 514 , Rex 0. (1 Lev. 124) 1. 685, 686, 992 , Rex V. (Lofft, 147) i. 462 ; ii. 972 Jackson, Bex v. (1 Moody, 119) ii. 820,. 822 , Rex T. (1 Russ. Crimes, 3d Eng. ed. 892 ; 1 East P. C. Ad- denda XXI. ; 1 Leach, 4th ed. 193, n. ; 2 lb. 618) 1. 438 ; 11. 1170 , Rex T. (Russ. & Ry. 487) i. 261, 554; ii. 1122 , Bex V. (1 T. R. 653) 1. 299 ; 11. 972 T. Base (2 Va. Cas. 34) 11. 1022 Jackson v. State (45 Ga. 198) 11. 704 V. State (51 Ga. 402) 11. 741 Jackson v. State ( 1 Ind. 184 ; Smith, Ind. 124) 11. 1018 V. State (14 Ind. 327) 1. 1061 V. State (11 Ohio State, 104) 11. 763, 764, 765 , Stale V. (12 Ire. 829) 1. 595 ; Ii. 996 Jackson, State v. (65 N. C. 305) 11. 795 Jackson, State v. (1 Speers, 13) 1. 534 ; 11. 1144, 1148 , U. S. V. (4 Cranch C. C. 483) 1. 597 v. Weisiger (2 B. Monr. 214) 1. 572 ; ii. 535, 601 Jacob V. State (3 Humph. 493) 1. 17 V. U. S. (1 Brock. 520) 1. 32 Jacob's Case (1 East P. C. 181) ii. 293 Jacobs V. Commonwealth (2 Leigh, 709) 1. 299, 462 ; 11. 396 , Com'th V. (9 Allen, 274) 1. 743, 752 , Beg. V. (12 Cox C. C. 151; 2 Eng; Rep 204) 11. 812 , Bex V. (Russ. & Ry. 331) ii. 1194 Jacobus, Commonwealth v. (1 Leg. Gaz. Rep. 491) 11. 954, 958 Jacoby, United States u. (12Blatch. 491) 1. 488, 615 Jailer, Com'th v. (7 Watts, 366) 1. 354 Jailer of Fai/ette, United States v. (2 Abb'. U. S. 265) 11. 647 Jakes V. State (42 Ind. 473) 1. 304 James v. Campbell (5 Car. & P. 372) 1. 288 ; u. 60 , Commonwealth y. (12 S. & R. 220) i. 540, 943, 946, 1101, 1104 , Commonwealth v. (1 Pick. 375) i. 583; 11.833,834,868 1.809 11. 813 1.542 Section James v. Hayward ( Cro. Car. 184 ; W. Jones, 221) i. 828, 1080 , People Y. (2 Calnes, 57) 1. 915 , Reg. V. (8 Car. & P. 292) 1. 303, 310 , Beg. V. (1 Eng. L. & Eq. 552; 2 Den. C. C. 1 ; Temp. & M. 300 ; 14 Jur. 940) 1. 441, 459 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 14) 11. 882 , State v. (37 Conn. 355) 1. 931 James W.Ward (2 Met. Ky. 271) 1.953 Janesville v. Milwaukee, &c., Rail- road (7 Wis. 484) il. 1274 Janitor of Supreme Court (36 Wis. 410) 11. 243 Janson v. Brown (1 Camp. 41) 1. 1080 Janson, Reg. v. (4 Cox C. C. 82) ii. 864 J'Anson V. Stuart (1 T. R. 748) 1. 1102 Janvrln v. Fogg (49 N. H. 340) 11. 540 Jarrott, State v. (1 Ire. 76) 11. 675, 690 Jarvis, Reg. v. (3 Fost. & F. 108) i. 491 , iJcxV. (1 Moody, 7) 11.106 , Bex V.' (2 Moody & R. 40) 1. 328, 341, 698, 735, 758 Jarrls, State v. (21 Iowa, 44) Jarvis, State v. (63 N. C. 556) Jasper, Slate v. (4 Dev. 323) Jeandell, Commonwecffth v. (2 Grant, Pa. 506) 11. 954, 965 Jeandell, State v. (5 Harring. Del. 475) 11. 908 Jecker v. Montgomery (18 How. U. S. 110) 1. 821 Jeff i). State (37 Missis. 321) i. 735, 736 ; 11.741 Jeffy. State (39 Missis. 593) 1. 735 Jefferson v. Adams (4 Harring. Del. 321) 1. 266 , Com'th V. (6 B. Monr. 313) 1. 1024 , State V. (66 N. C. 309) 1. 1033, 10g4, 1041 Jefferson, State v. (3 Harring. Del. 671) 1. 729, 735 ; 11. 741 Jeffries, Com'th y. (7 Allen, 848) 11. 438 , Reg. V. (3 Cox C. C. 85) i. 650 y. State (40 Ala. 381) 1. 1023 Jeffry, Rex «. (1 Leach, 443, n.) 1. 975 .leltyman, Beg. v. (8 Car. & P. 604) 11. 1193 Jenkins, People v. (16 Cal. 431) 11. 110 Jenkins, Reg. y. (9 Car. & P. 38) 11. 836, 858, 860 Jenkins v. State (50 Ga. 258) 1. 679 V. State (53 Ga. 33) ii. 15 , State V. (36 Mlsso. 372) 11. 1159 Jenkins, State y. (14 Rich. 215) i. 648 ; 11. 691 , State v.(2 Tyler, 377) 11. 758, 881, 882 .Tenks, Com'th y. (1 Gray, 490) 1. 1017 , Bex V. (2 Leach, 774 ; 2 East P. C. 514) 1. 762 ; ii. 114 Jenner v. JollfEe (9 Johns. 381) 1. 237, 459 Jennings y. Commonwealth (17 Pick. 80) 1. 500, 1086 Jennings, Com'th v. (3 Grat. 624) ii. 303 701 JOH INDEX TO THE CASES CITED. JON Seotioit Jennings, Reg. v. (1 New Sess. Cas. 488) ii. 218 Jennings, Rex v. (4 Car. & P. 249 ; 1 Lewin, 93) ii. 1129 Jennings v. State (16 Ind. 335) i. 35 , State V. (4 Ohio State, 418) i. 463 Jennings, State v. (18 Mieso. 435) ii. 728 Jennison, Reg. v. (1 Leigh & C. 157) , ii. 422, 424 JmouT, Rex V. (7 Mod. 400) ii. 925 Jenson, Rex v. (1 Moody, 434) ii. 340 Jepson, Rex t. (2 East P. C. 1115) ii. 1200 Jernagan, State v. (N. C. Term R. 44) i. 260, 938 ; ii. 811 Jernigan, State v. (3 Murpli. 12) i. 938 Jerome, People t. (1 Mich. 142) ii. 931 Jesse V. Stale (20 Ga. 156) i. 320; ii. 1047 , State V. 3 Dev. & Bat. 98) i. 791, 803, 1053, 1066 Jessop, Reg. v. (Dears. & B. 442; 7 CoxC. C. 399) ii. 435 Jett V. Com'th (18 Grat. 933) i. 155, 178 Jeyes v. Foreman (6 Sim. 384) ' ii. 270 ii. 12 ' ii. 37 i. 564 i. 65 ii. 106 Jhons V. People (25 Mluh. 499) Jillson, People v. (3 Parker C. ( 234) Jim, State v. (1 Dev. 142) T. Territory (1 Wash. Ter. 76 Jobtinq, Rex v. (Russ. & Ry. 525) John,' Rex v. (7 Car. & P. 324) ii. 783, 786 Jolm V. State (2 Ala. 290) i. 952 John V. State (23 Wis. 504) ii. 533, 540 , State T. (8 Ire. 330) i. 400, 401, 414 ; ii. 708 John, State v. (5 Jones, N. C. 163) ii. 1167 Johns «. State (19 Ind. 421) i. HI , United States v. (1 Wash. C. C. 363 ; 4 Dall. 412) i. 514, 570 Johnson v. Com'th (2 Grat. 581) i. 976 V. Commonwealth (5 Bush, 430) ii. 373 Johnson «. Com'th (24 Grat. 555) ii. 804 , Commonwealth v. (4 Pa. Law Jour. Rep. 398) i. 1090 V. Davis (7 Texas, 173) ii. 206 w. Duncan (3 Mart. La. 530) i. 45 V. Irasburgh (47 Vt. 28) ii. 960 Johnson v. Ogilhi/ (3 P. Wms. 277) i. 711 V. People (4 Denio, 364) i. 143 ; ii. 785, 78« Jolmson V People (55 N. Y. 512) i, 961, 963 Johnson,People v. (12 Johns. 292) ii.410,441 , People V. (1 Parker C. C. 291) ii. 721 , People V. (1 Parker C. C. 664) ii. 1138 Johnson n. Pinney (1 Paige, 646) ii. 270 Johnson, Reg. v. (Car. & M 218) i 262 , Reg. V. (2 lien. C. C. 310 ; 14 Eng. L. & Eq. 670) i. 583; ii. 817, 823 , Reg. V. (Leigh & C. 632; 10 Cox C. C. 114) i. 260; ii. 36 , Reg. V. (11 Mod. 62) i. 240, 339, 343; ii. 401, 978 ,fle(7.v.(14U.C.Q.B.569) ii. 1200,1201 Johnson, Rex v. (Comb. 377) i. 501 Johnson,Rex v.(2 East P.C.488) ii. 91,97,99 702 Seotios Johnson, Rex v. (7 East, 65 ; 3 Smith, 94) i. 110 Johnson, Rex v. (8 Mod. 241) i. 908, 910 Johnson, Rex v. (3 M. & S. 539, 556) i. 622; ii. 769 Johnson, Rex v. (2 Show. 1) i. 468; ii. 219, 1054, 1056 Johnson v. Slate (17 Ala. 618) i. 797 ; ii. 746 V. State (35 Ala. 363) ii. 23 Johnson v. State (-37 Ala. 457) ii. 996 Johnson v. State (2 Dutcher, 313) i. 804,805; ii. 217 Johnson v.State (6 Dutcher,453)i. 787,814 Johnson v. State (14 Ga. 65) i. 728, 791 r. Sto«e (26 Ga. 611) i. 750 V. State (30 Ga. 426) ii. 1010 Johnson V. State (48 Ga. 116) ii. 17 Johnson v. State (2 Humph. 283) i. 882 Johnson v. State (17 Texas, 515) ii. 72 Johnson v. State (27 Texas, 758) i. 869 T. State (30 Texas, 748) ii. 712, 728 Jolmson !). State (36 Texas, 376) ii. 876 V. State (41 Texas, 66) ii. 429 V. State (41 Texas,'608) ii. 851 , State V. (12 Ala. 840) i. 536, 778, 793, 861, 875, 876, 1061 , State V. (2 Bay, 385 ; 1 Brev. 155) i. 299, 460, 462 ; ii. 244, 263, 972 Johnson, Staie v. (7 Blackf. 49) ii. 1024 Johnson, State v. (8 Blackf. 533) i. 992 .State i>.(40 Conn. 136) i. 383, 387, 407 , State V. (41 Conn. 584) i. 401, 409 , State ". (8 Iowa, 526) ii 728 , State V. (19 Iowa, 2-30) ii. 20 Johnson, State v. (1 Ire. 354) ii. 696, 715, 716, 718 , State v. (3 Jones, N. C. 266) ii. 697 , State V. (2 Oregon, 115) i. 141 Johnson, State v. (Phillips, 140) ii. 1266 Johnson, State v. (Phillips, 186) ii. 91 , Slate V. (1 Vroom, 185) i. 805, 808 , State V. (Walk. Missis. 392) i. 997 Johnson v. Strjyton (5 Harring. Del. 362) i. 265 V. Tompkins (Bald. 571) ii. 23 V. Wideman (Dudley, S C. 70) ii.262 Johnston's Case (5 Grat. 660) ii. 665 Johnston v. Com'th (1 Bibb, 598) ii. 268 V. Com'th (10 Harris, Pa. 102) ii. 954 V. People (31 111. 469) ii. 968 Johnston, Reg. v. (5 Cox C. C. 133) ii. 564 , Reg. v'. (2 Moody, 254) ii. 422 Johnston u. State (7 Misso. 183) i. 619 Joice V. State (53 Ga. 60) ii. 1136 Jollie, Rex v. (1 Nev. & M. 483; 4 B. & Ad. 867) i. 247, 256 Jolliffe, Rex v. (1 East, 154, n.) i. 246,471 , Rex V. (4 T. R. 286) i. 468; ii. 916 JoUj V. Terre Haute Draw-Bridge (6 McLean, 237) i. 175 Jones V. Andover (10 Allen, 18) ii. 956, 969 V. Chiles (2 Dana, 26) ii. 140 Jones V. Clay (1 B. & P. 191) i. 265, 266 Jones 11. Com'th (1 Call, 555) i. 955 JON- INDEX TO THE CASES CITED. JOY Section Jones V. Com'th (15 Grav, 193) i. 1080 V. Com'th (1 Kob. Va. 748) ii. 748 V, Commonwealth (25 Smith, Pa. 403) i. 409 ; ii. 728 , Com'th V. (10 Bush, 725) ii. 317 Jones, Com'th t. (2 Grat. 555) i. 501 , Com'tk V. (1 Leigh, 598) ii. 723, 727 T. Harris (1 Strob. 160) i. 908. 917 Jones V. Hungerford (4 Gill & J. 402) ii. 17 w. Jones (13 Ire. 448) ii. 647 V. People (2 Scam. 477) ii. 972 , People V. (1 Mich. N. P. 141) ii. 1028, 1039 a Jones, Reg. v. (4 B. & Ad. 345; 1 Ney. &'M. 78) i. 572 a , Reg. V. (2 Car. & K. 236; 1 Den. C. C. 188) ii. 758, 843, 846 , Reg. V. (Car. & M. 611) ii. 811, 886 , Reg. V. (7 Car. & P. 834) ii. 376 , Reg. T. (8 Car. & P. 288) ii. .175 , Reg. V. (9 Car. & P. 258) i. 735 ; • ii. 655, 741 , Ri-g. V. (9 Car & P. 401) i. 462 , Reg. V. (9 Car. & P. 761 ; 1 Russ. Crimes, 3d Eng. ed. 82) i. 653 ; ii. 299 , Reg. T. (5 Cox C. C. 226) ii. 1200 , Reg. V. (11 Cox C. C. 544) ii. 662 a Jones, Beg. K. (12 Cox C. C. 628; 10 Eng. Rep. 510) ii. 656 b Jones, Reg. v. (Dears. & B. 555; 7 Cox C. C. 498) ii. 783 , Reg. V. (1 Den. C. C. 218; 2 Car. & K. 398) ii. 1200 , Reg. V. (1 Eng. L. & Eq. 533 ; 1 Den. C. C. 551 ; 4 Cox C. C. 198; Temp. & M. 270) ii. 467 , Reg. V. (4 Fost. & F. 25) i. 482 , Req. V. (4 Law Times, n. s. 154) ii. 1122, 1124, 1125 , Reg. V. (2 Ld. Raym. 1013 ; 1 Salk. 379) i. 571, 682; ii. 145 , Reg. v. (2 Moody, 293) ii. 789 , /Jpiv. (2B. & Ad. 611) i. 343 . , Rex T. 3 Camp. 230) i. 531 ; ii. 1274 , Rex V. (4 Car. & P. 217) i. 778, 793; ii. 889 , &XV. (6Car. &P. 391) i. 964 , Rex V. (7 Car. & P. 151) ii. 836, 858, 860 , Rex V. (7 Car. & P. 833) ii. 376 , Rex V. (2 East P. C. 714 ; 1 Leach, 139) i. 558 ; ii. 1172 , Rex V. (1 Leach, 53; 2 East P. C. 941) ii- 560 , Rex V. (1 Leach, 174 ; 2 East P. 0. 822) ii. 151 , Rex r. (1 Leach, 204 ; 2 East P. C. 883 ; 1 Doug. 300) ii. 594 , Rex V. (1 Leach, 366 ; 2 East P. C. 991) i. 572 ; ii. 523, 544, 598 , Rex V. (7 Mod. 410 ; 2 Stra. 1146) i. 237, 246 Jones, Rex v. (8 Mod. 201) Jones, Rex T. (1 Stra. 474) Jones, Rex v. (1 Wils. 7) i v. Rice (18 Picl£. 440) Jones V. State (13 Ala. 153) 930; V. State (15 Ark. 261) Section i. 992 ii. 514 462 ; ii. 973 i. 267, 711 i. 385, 396, ii. 758, 789 i. 990, 1022, 1024 V. State (29 Ga. 594) i. 414 ; ii. 680 Jones V. State (3 Heisk. 445) i. 772 0. State (14 Ind. 346) ii. 1139 Janes V. State (14 Misso. 409) ii. 699 V. State (11 N. H. 269) i. 793, 796, 1062 ; ii. 116 V. State (13 Texas, 168) i. 678, 1006 Jones, State v. (1 Bay, 207) i. 672 ; ii. 538 Jones, State v. (2 Dev. & Bat. 544) ii. 867 , State V. (7 Ga. 422) i. 992, 1009, 1024 Jones, State v. (9 Ire. 38) i. 498 ; ii. 79, 80, 82 Jones, State v. (1 McMuUan, 236) ii. 557 , State V. (20 Misso. 58) ii. 713 Jones, State v. (1 Murph. 257) i. 1024 Jones, State v. (7 Ner. 408) i. 670 Jones, State v. (50 N. H. 369) i. 37S, 377, 383 , State V. (65 N. C. 395) ii. 794, 795 , State V. (70 N. C. 75) ii. 449 , State V. (Walk. Missis. 83) i. 134 Jones, United States T. (3 Wash. C. C. 209) i. 355, 553, 632, 634 ; ii. 1061, 1178 Jones V. Van Zandt (5 How. U. S. 215) i. 135 Jopson, Rex v. (3 Bur. 1702) i. 538 Jordan u. Com'th (26 Grat. 943) ii.'758. 1162 o ii. 968 373; V. Moore (10 Ind. 386) Jordan, Reg. v. (9 Car. & P. 118) ii. 1117, 1132 , Rex V. (7 Car. & P. 432) i. 649, 676; ii. 92, 120 Jordan v. State (10 Texas, 479) ii. 728 V. State (14 Texas, 436) ii. 268 Jordin v. Crump (8 M. & W. 782) i. 855 Jose Eerreira dos Santos, Case of (2 Brock. 493) i. 135 Josefa Segunda, The (6 Wheat. 338) i. 119, 352, 564 Joseph, The (8 Cranch, 451) i. 294, 352 Joseph, The (1 Gallis. 545) i. 821 Josephine v. State (39 Missis. 613) i. 1031, 1033 Josshny. Commonwealth (6 Met. 236) i. 778, 793, 796, 953, 1062 Jowrdine, United States v. (4 Cranch C. C. 338) 1. 1088, 1109 Journeymen Tailors, Rex v. (8 Mod. 10) ii. 176 Joy V. State iU Ind. 139) i. 998, 1015, 1027 ; ii. 968 Joyner, Rex v. (J. Kel. 29) i. 569, 625, 804 ; ii. 984 703 KEE INDEX TO THE CASES CITED. KEM Seotioit Juarez, People v. (28 Cal. 380) ii. 843 Juaraqui v. State (28 Texas, 625) ii. 1043 Judd, Commonwealth v. (2 Mass. 329) i. 143, 331, 432, 692 ; ii. 175, 180, 192, 210 , Rex V. (1 Leach, 484 ; 2 T. R. 255 ; 2 East P. C. 1018) ii. 17 Judge !'. Cox (1 Stark. 285) i. 1080 Judges, People v. (8 Cow. 127) i. 1034 Judges, People v. (13 Johns. 85) i. 266 Judges of Dutchess Oyer and Ter- miner, People V. (2 Barb. 282) i. 1003 Judges of Washington, People v. (2 Caines, 97) ii. 256 , Report of the (3 Binn. 595) ii. 102, 103, 174, 320, 492, 493, 549, 554, 572, 712, 856, 866, 1002, 1049 Justice V. Commonwealth (2 Va. Cas. 171) i. 531 ; ii. 1273 Justice, State y. (2 Dev. 199) i. 582, 584 ; ii. 156; 204 Kaatz, People v. (3 Parker C. C. 129) U. 882 Kanavan's Case (1 Greenl. 226) i. 506 Kane t. People (3 Wend. 363) i. 424 V. People (8 Wend. 208) i. 424, 931 ; ii. 1270 Kanouse, State v. (Spencer, 115) i. 992 Kaltlemann, State v. (35 Misso. 105) i. 1004 ; ii. 675 Kavanaugh v. State (41 Ala. 399) ii. 1106 Kay, Reg. v. (7 Cox C. C. 289; Dears. & B. 231) ii. 812 , Reg. V. (Law Rep, 1 C. C. 257) ii. 560 Kay V. State (40 Texas, 29) ii. 851 Kazlnski, U. S. v. (2 Sprague, 7) i. 482 Kealey, Reg. y. (1 Eng. L. & Eq. 585 ; 2 Den. C. C. 68) ii. 472 Kean, Rex v. (2 East P. C. 1073) i. 595 ; ii. 996 Kearney, Ex parte (7 Wheat. 38) ii. 268, 269, 270 Kearney, State v. (1 Hawks, 53) i. 938, 941, 942, 943, 975 Keat's Case (Holt, 481 ; Skin. 666) ii. 641, 656, 657, 680, 704, 709 Keat, Rex v. (5 Mod. 288) i. 636 ; ii. 653 Keate, Rex v. (Comb. 406) ii. 704 Keay's Case (1 Swinton, 543) i. 548 ; ii. 28, 60 Keefe, Com'tk v. (7 Gray, 332) i. 1065 — - V. People (40 N. Y. 348 ; 7 Abb. Pr. N. 8. 76) ii.'727 V. State (19 Ark. 190) ii. 32 Keefe, U. S. v. (3 Mason, 475) i. 564 Keefer, People v. (18 Cal. 636) ii. 740 Keelif V. State (14 Ind. 36) ii. 801, 841, 847 Keen, State v. (34 Maine, 500) i. 791, 1067 Keen, U. S. v. (6 Mason, 453) i. 340 , U. (S. v. (1 McLean, 429) i. 981, 994, 1001, 1008, 1006 704 SECTIOlf Keene, U. S. v. (5 McLean, 509) ii. 904 Keenan v. Commonwealth (8 Wright, Pa. 56) i. 409, 410; ii. 728 Keenan v. State (8 Wis. 132) ii. 731 , State V. (8 Rich. 456) ii. 1024, 10.S2 Keene, State v. (26 Maine, 33) ii. 1018, 1019, 1028 Keener v. State (18 Ga. 194) i. 305, 84B, 872 Keeper of Prison, Commonwealth V. (1 Ashm. 140) i. 538 ; ii. 501 , Commonwealth v. (2 Ashm. 227) i. 321 ; ii. 641, 691, 727, 728 Keeran, State v. (5 R. I. 497) i. 1081, 1117 Kec/g-y. State {10 Ohio, 75) ii. 564 Keighley; Reg. t. (Dears. & B. 145) ii. 453 Keir v. Leeiiian (6 Q. B. 308) i. 711, 714 Keith, Com'thv. (8 Met.531 ) i.974,975,1021 Keith V. Goodwin (6 Jones, N. C. ^98) i. 938 Keith, Reg. v. (Dears. 486 ; 29 Eng. L. & Eq. 558; 6 Cox C. C. 533 ; 24 Law J. N. s. M. C. 110 ; 1 Jur. N. s. 454 ; 3 Com. Law, 692) ii. 561 Keith V. State (6 Coldw. 35) i. 893 Keith, State v. (63 N. C. 140) i. 900, 904 Keith V. Tuttle (28 Maine, 826) i. 32 ; ii. 968 Keithler v. State (10 Sm. & M. 192) i. 642, 669, 675 Kell, Rex v. (1 Crawf. & Dix C. C. 151) i. 998, 1032, 1037 Keller, Rex v. (2 Show. 289) i. 887 Keller v. State (11 Md. 525) i. 2.S7 Kelley v. Dresser (11 Allen, 31) i. 460 V. Story (6 Heisk. 202) i. 464 Kelliher, Com'th v. (12A,Uen,480) i. 1080 Kellogg V. Union Company (12 Conn. 7 • i. 174 Kellt/ T. Commonwealth (1 Grant, Pa. 484) i. 207, 409, 634 ; ii. 727, 728, 730, 1120, 1136 V. Commonwealth (11 S. & R. 345) i. 343, 829 ; ii. 1273 Kelly, Com'th v. (9 Philad. 586) i. 906 Kelly, People y. (38 Cal. 146) i. 165, 178 ; ii, 1023 Kelly, Reg. v. (2 Car. & K. 379) i. 649 )- ii. 1140 ii. 708 i. 630 , Reg. y. (2 Car. & K. 814) , Reg. y. (2 Cox C. C. 171) , Rex V. (1 Crawf. & Dix C. U. 186) i. 342, 735 , Rex V. (1 Crawf. & Dix C. C. 203) ii. 37, 1094 Kellif, Rex y. (Russ. & Ry. 421) i. 653 '■ y. State (3 Sm. & M. 518) i. 409, 412, 414 Kelly, U. S. v. (2 Sprague, 77) i. 564 Kelly, U. S. v. 11 Wheat. 417) i. 564 Kemp 1). State (11 Humph. 320) i. 263 ; ii. 797, 822 , State w. (17 Wis. 669) i. 1024 Kempf, State a. (26 Misso. 429) U. 1147 KIM INDEX TO THE CASES CITED. KEB Sectiok Kendall, People v. (25 "Wend. 399) i. 369 ; ii. 437 Kendall, Reg. v. (12 Cox C. C. 598; 8 Eng. Kep. 609) ii. 864 V. Powers (4 Met. 553) i. 463 V. United States (12 Pet. 524) i. 203 Kendrick, U. S. v. (2 Mason, 69) ii. 1023 Keniston, Com'th v. (5 Pick. 420) i. 965 Kennard, Commonwealth v. (8 Pick. 133) i. 636, 857 ; ii. 520, 1012 Kennedy v. McArthur (5 Ala. 151) i. 2t)4 , Rex V. (2 Leacli, 788 ; 2 East P. C. 706) ii. 897 Kennedy, State v. (7 Blackf. 233) i. 805 , State V. (20 Iowa, 569) i. 305, 843 , U. S. V. (4 Wash. C. C. 91) 1. 564 Kenny v. People (31 N. Y. 330) i. 400, 410 Kennck, Reg. v. (5 Q. B. 49 ; Dav. & M. 208 ; 7 Jur. 848) ii. 186, 188, 190, 193, 195, 198, 206, 211, 451, 483 Kensey, Commonwealth v. (3 Pa. Law Jour. Rep. 233) ii. 490 Kent, Commonwealth v. (6 Met. 221) ii. 288. 291, 294 Kent,People!;. (6 Cal 89) i. 821 Kent, People v. (1 Doug. Mich. 42) ii. 785 Kentucky v. Ohio (24 How. U. S. 6e) i. 180 Keogh, State v. (13 La. An. 243) i. 1053 Keppele v. Williams (1 Dall. 29) ii. 253^ Kercheval o. Triplett (1 A. K. Mar. 493) ■ ii. 137 Kerr, Meg. v. (8 Car. & P. 176) ii. 882 Kerr v. Seaver (11 Allen, 151) i. 1080 Kerrigan, Reg. y. (Leigh & C. 383) ii. 443 Kerrison, Rex v. (1 M. & S. 435) ii. 1281 Kesnal, Rex v. (1 Car. & P. 487) i. 870 Ketland v. The Cassius (2 Dall. 365) i. 32 Kew, Reg. v. (12 Cox C. C. 355; 4 Eng. Rep. 605) ii. 662 a Ke^, Reg. v. (2 Den. C. C. 347 ; 3 Car. & K. 371 ; 5 Cox C. C. 369 ; 8 Eng. L. & Eq. 584) i. 964 Key I). Vattier (1 Ohio, 132) i. 35, 331, 541 ; ii. 131, 132 Keyes, State v. (8 Vt. 57) i. 468, 974 Keyseru.Coe(9Blatch.32; 37 Conn. 597) i. 148 Kielley v. Carson (4 Moore P.C. 63) ii. 249 Kilbourn w. State (9 Conn. 560) i. 961 Kilham, Reg. v. (Law Rep. 1 C. C. 261) ii. 477 KiddfT, Commonwealth v. (107 Mass. 388) i. 1143, 1144 KiUian, Com'th v. (109 Mass. 345) i. 531 Kilpatrick y. Commonwealth (7 Casey, 198) ii. 712, 728 V. People (5 Denio, 277) i. 638, 596 Kimball v. Boston (1 Allen, 417) ii. 334 , Com'th V. (7 Grav, 328) i. 1016 , State V. (50 Maine, 409) ii. 529, 557, 698 Kimberley, Rex v. (2 Stra. 848) i. 135 Kimbrough v. State (10 Humph. 97) i. 424 Kimpton a. Eve (2 Yes. & B 349) ii. 270 VOL. I. 45 Seotios Kimpton K.London & North-western Railway (25 Eng. L. & Eq. 557) 1. 32 ; ii. 252 Kincaid v. Meadows (3 Head, 188) ii. 137 Kinder, Rex v. (2 East P. C. 855) i. 572 ; ii. 685 Kin^, In re (8 Q. B. 129) ii. 264 King v. Com'th (2 Va. Cas. 78) u. 699, 701 , People V. (27 Cal..507) i. 409 V. Reg. (14 Q. B. 31) ii. 1028 , Com'th V. (9 Cush. 284) ii. 823 King, Commonwealth u. (13 Met. 116) i. 631 ; ii. 1277 , Com'th V. (1 Whart. 448) i. 143 V. Kline (6 Barr, 318) i. 1080 ; ii. 773 V. People (6 Hun, 297) i. 1013, 1015 King, Reg.v. (Dav. & M. 741; 7 Q. B. 782 ; 13 Law J. N. s. M. C. 118; 8 Jur. 662, s. c. in error; 14 Law J. N. 8. M. C. 172; 9 Jur. 833) ii. 200, 206, 210 King, Reg v. (7 Mod. 150) i. 572; ii. 529 , Reg. „. (1 Salk. 182) i. 955, 957 King, Rex v. (Russ. & Ry. 332) i. 642, 649 '- V. Sanders (2 Brev. Ill) i. 1081 V. Slate (21 Ga. 220) i. 648, 736 V. State (6 How. Missis. 730) i. 795 , Slate V. (3 Ire. 411) ii. 1281 , Slate V. (22 La. An. 464) i. 865 Kingman, People a. (24 N. Y. 559) ii. 1266, 1268 Kingsbury, Commonwealth v. (6 Mass. 106) i. 759, 812, 814 ; ii. 239 Kingsbitfy v. Ellis (4 Cush. 578) i. 714 King's Langley, Rex c. (1 Stra. 631) i. 368, 515 Kingen v. State, (45 Ind. 618) i. 850, 865 Kingston's Case, Duchess of {I Leach, 146) i. 937 Kingston, Rex v. (8 East, 41) i. 424 Kintoch's Case (Foster, 16) i. 996, 998 Kinlock, Rex v. (1 Wils. 167) i. 998 Kinne v. Kinne (9 Conn. 102) i. 385 Kinnersley, Rex v. (1 Stra. 193) i. 740, 772; ii. 192 , Rex v. (1 W. Bl. 294) i. 540 ; ii. 932 Kinney, Commonwealth v. (2 Va. Cas. 139) ' i. 1057 ; ii. 1154 Kinney v. State (38 Ala. 224) ii. 304 Kinninmount's Case (1 Hume Grim. Law, 2d ed. 517) ii. 84 Kinsolving v. Pierce (18 B. Monr. 782) ii. 137 Kiphart v. State (42 Ind. 273) ii. 1149 Kirhi, Cmnmomoealth v. (2 Cush. 577) i. 303; ii. 39, 50, 51 - — v. State (7 Yerg. 259) ii. 745 , State v. (1 Murph. 254) i.498; ii. 80 Kirk. Commonwealth v. (9 Leigh, 627) i. 953, 1006 V. Striekwood (4 B. & Ad. 421) i. 713, 714 Kirkham, Reg. v. (8 Car. &P.115) ii. 716 Kirksey v. Fike (29 Ala. 206) ii. 792 705 KSO INDEX TO THE CASES CITED. LAN Section Kirhwood, Rex T. (1 Moody, 304) i. 143, 650 ; ii. 609 Kirland v. State, (43 Ind, 146) ii. 28 Kirschner v. State (9 Wis. 140) i. 976 Kity. State (11 Humph. 167) i. 553; ii. 1177 Kitchen, Rex v. (Russ. & Ry. 95) i. 758 Kitchener, Reg. v. (Law Rep. 2 C. C. 88 ; 12 Cox C. C. 522) ii. 1269 Kitchens, State v. (2 Hill, S. C. 612) i. 951 Kite V. Commonwealth (11 Met. 581) i. 796, 953, 960 Kitson, Reg. v. (Dears. 187 ; 20 Eng. L. &Eq. 590). ii. 12 Kittery, State v. (5 Greenl. 254) ii. 1267, 1281 Kittle, State v. (2 Tyler, 471) i. 992, 1004 Kleim, People v. (Edm. Sel. Gas. 13) i. 375, 884 Kliffield V. State (4 How. Missis. 304) i. 355 Klintoek, United Slates v (5 Wheat. 144) i. 118; ii. 1060, 1061 Klock V. Hudson (3 Johns. 375) ii. 137 Klock V. People (2 Parker CO. 676) i. 1016 Klum V. State (1 Blackf. 377) 1. 535 Knapp, Commonwealth v. (9 Pick. 496) i. 653, 670, 671, 976 , Commonwealth v. (10 Pick. 477) i. 667, 669 Knapp, State v. (6 Conn. 415) i. 631 ; ii. 1284 Kneeland, Commonwealth v. (20 Pick. 206 ; Thacher Crim. Cas. 34B) i. 808, 428, 498 ; ii. 76, 80, 81, 82, 924 Knewland, Rex v. (2 Leach, 721 ) i. 563 ; ii. 1172, 1173 Knight's, Sir John, Case (3 Mod. 117; Comb. 38) i. 540 Knight, Commonwealth v. (12 Mass. 274) ii. 1019, 10.31, 1032 , Reg. V. (12 Cox C. C. 102; 2 Eng. Rep. 186) ii. 882 ,Reg. V. (Leigh & C. 378; 9 Cox C. C. 437) ii. 888 , Rex V. (1 Car. & P. 116, n.) i. 358, 3.59, 361, 362 , Rex V. (2 East P. C. 510) i. 437, 559; ii. 110,111,851 ,Rex T. (1 Salk. 375; 1 Ld. Rayra. 527) i. 572, 748 Knight V. Sawin (6 Greenl. 361) i. 541 ; ii. 127 , State u. (2 Hayw. 109; Tay- lor, 65) i. 121, 152 Knights, Reg. v. (2 Post. & F. 46) ii. 686 Knote V. United States (10 Ct. CI. 397) i. 898, 904, 910 Knott, State v. (5 R. I. 293) i. 1117 Knotts, State t. (2 Speers, 692) i. 829 ; ii. 1273 Knouse, State r. (29 Iowa, 118) i. 810, 998 Knowles V. State (3 Day, 103) i. 504, 1126 Knox, Commonwealth v. (6 Mass. 76) i. 180; ii. 969, 960 706 Seotiok Knox, State v. (Phillips, 312) ii. 1048 Koch, State V. (4 Harring. Del. 570) ii. 789 Koenig v. Nott (2 Hilton, 323) i. 271 Kohlheimer v. State (39 Missis. 548) i. 1021 Kohn, Reg. v. (4 Post. & P. 68) i. 670 Kolb, People v. (3 Abb. Ap. Dec. 629) i. 956 Koop V. People (47 111. 327) ii. 962 Kos/off, Commonwealth v. (5 S. & R. 646) i. 127, 129, 181, 196, 201 Kramer v. Lott (14 Wright, Pa. 495) ii. 505 Kreidler v. State (24 Ohio State, 22) i. 468 Kreps, State v. (8 Ala. 951) i. 1016, 1052 Kriel V. Commonwealth (5 Bush, 362) i. 401 ; ii. 680 Kroeger, State v. (47 Misso. 552) ii. 580 Krummer, People v. (4 Parker C. C. 217) ii. 541, 546 Kunckle v. Kunckle (I Dall. 364) ii. 256 Kunkle v. State (32 Ind. 220) i. 737, 749, 750, 752, 754, 867, 861 Kyle Y. State (10 Ala. 236) i. 697 ; ii. 1106 La Coste, U. S. V. (2 Mason, 129) i. 564 torf, fiex V. (1 Leach, 96) i. 115 Ladd, Commonwealth v. (15 Mass. 526) i. 572; ii. 529, 565,602 Lafontaine, United States v. (4 Cranch C. C. 173) i. 126 L»liy, Com'th v. (8 Gray, 469) i. 1065 La Jeune Eugenie (2 Mason, 409) i. 564, 821 Lake, People v. (2 Parker C. C. 216) i. 396 , State V (8 Nev. 276) ii. 1269 Lakeman, Commonwealth v. (4 Cash. 597) i. 636 ; ii. 39, 500 Lallande v. Steamboat C. D. (1 Newb. Adm. 501) i. 1081 Lallement, Reg. v. (9 Cox C. C. 204J i. 730 ; ii. 53, 740 LamVs_ Case (9 Co. 59 h ; Sir F. Moore, 813) ii. 918, 927 Case (2 East P. C. 664) ii. 882 Lamb, People v. (54 Barb. 342) i. 303, 866 Lamb, People B. (17 Cal. 323) ii. 702 , State K. (65 N. C. 419) ii. 5B0 Lambert, Com'th v. (12 Allen, 177) i. 1085 Lambert, Commonwealth v. (9 Leigh, 603) ii. 312 Lambert v. People (7 Cow. 166; 9 Cow. 578) i. 592 ; ii. 122, 180, 198, 201, 209, 211 , Rex V. (2 Camp. 398) i. 457 ; ii. 942 Lambert, State v. (9 Nev. 321) i. 1014; ii. 888 Lambier, People v. (5 Denio, 9) ii. 1267 Lamden v. State (5 Humph.88) ii.1019,1027 Lamon, State v. (3 Hawks, 176) i. 997 Lamphier v. Railroad (33 N.H. 496) i. 265 Lancashire, Rex v. (2 B. & Ad. 813) li. 1281 Lancashire Justices, Rex v. (1 D. & K. 486) ii. 972 LAT INDEX TO THE CASES CITED. LED Lancaster's Case (1 Leon. 208) Section i. 287 ; ii. 1262 Lancaster, United States v. (2 McLean, 431) i. 198, 199, 622 ; ii. 904 Lancaster, U.S. r. (4 Wash. C. C. 64) i. 911 Turnpike v. Rogers (2 Barr, 114) i. 821,828; ii. 1277 Lancton v. State (14 Ga. 426) i. 998 Landaff, State v. (2 Fost. N. H. 588) ii. 1267, 1281 Lander v. Slate (12 Texas, 462) i. 843 Landis, Com'th v. (8 Pliilad. 4-53) i. 500 Landreth, State v. (2 Car. Law Uepos. 446) i. 569 ; ii. 985, 996 Landringiiam v. State (49 Ind. 186) ii. 192, 236 Lands, Reg. y. (Dears. 567 ; 33 Eng. L. &Eq. 536) i. 572a Lane v. Ellzey (4 Hen, & Munf. 504) ii. 270 Lane v. People (5 Gilman, 305) i. 998, 1003 ; ii. 768, 838, 882 Lane v. Shears (1 Wend. 433) ii. 137, 139 Lane, State v. (4 Ire. 113) ii. 715 Lane v. Townsend (Ware, 286) i. 194 Lanergan v. People (60 Barb. 266) i. 406 ; ii. 677 Langabier v. Fairbury, &c.. Rail- road (64 III. 243) . ii. 968 Langdon, Ex parte (25 "Vt. 680) ii. 256 . V. Potter (3 Mass. 216) ii. 490 Langdon Cheves,The (4 Wheat. 103) i.821 Lange v. Benedict (48 How. Pr. 465) i. 460, 462 Langford, Reg. v. (Car. & M. 602) i. 298 V. Stale (8 Texas, 116) ii.758, 789, 826 Langley, Reg. v. (3 Salk. 190 ; 2 Ld. liaym. 1029; 6 Mod. 124) i. 470, 540; ii. 263, 312, 946 , Rex V. (2 Ld. Raym. 790) i. 706 Langsdale «. Bonton (12 Ind. 467) ii. 1274 Lanier, State v. (71 N. C. 288) ii. 3 Lankford v. Barrett (29 Ala. 700) i. 271 Lanmon v. Clark (4 McLean, 18) i. 194 Lansing v. People (57 111. 241) i. 468 Lansing v. Smith (4 Wend. 9) i. 265 Lapeyre v. U. S. (17 Wal. 191) i. 904, 907 Lapier, Rex v. (1 Leach, 320 ; 2 East . P. C. 557) i. 553, 582 Lara, Rex v. (2 Leach, 647 P. C. 819; 6T. R. 565) LarUn, State v. (49 N. H. Dirned V. Com'th (12 Met. 240) Larrieu, Rex v. (7 A. & E. 277) Larumbo, State v. (Harper, 183) Lasington's Case (Cro. Eliz. 760) Lassley, State v. (7 Port. 626) Latham,State v.(13 Ire.33) i.595 ; ii.773,986 Lathrop v. Amherst Bank (9 Met. 489) i 641 ; ii.l22, 126, 127, 128, 131, 132 Lathrop,U.S.v.{n Johns, i) i.l81; ii. 1022 Latimer, Ex parte (47 Cal. 131) ii. 263 Latorre, U. S. v. (8 Blatch. 134) i. 672 a ii. 795, 1167 2 East i. 671, 586 ; ii. 147, 204, 472 i. 663 i. 810 i. 256 i. 679, 1003 i. 680 i. 953 Section Laugher, Reg. v. (2 Car. & K. 226) i. 859 Lauglin, State v. (8 Jones N. C. 354) ii. 16 Laurens, The (1 Abbott, 508) ii. 262 Lavalky, State v.(9 Misso.834) ii.1028,1032 La Vaul V. State (40 Ala. 44| i. 141 Lavender, Rex v. (2 East P. C. 666) ii. 836 Laver v. McGlachlin (28 Wis. 364) i. 464 Lavei/, Rex v. (1 East P. C. 166 ; 1 Leach, 153) ii. 292 Lavinia, State v. (25 Ga. 311) i. 990 Law, Ex parte (35 Ga. 285) i. 65, 904 Law, Reg. v. (2 Fost. & F. 836) i. 392 Lawless^ Com'th v. (101 Mass. 32) ii. 564 , Com'th V. (103 Mass. 425) ii. 812 Lawrence v. Buck (62 Maine, 276) ii. 881 Lawrence, Rex v. (4 Car. & P. 231) ii. 99 V. Stale (1 Humph. 228) ii. 758, 879, 880 , State T. (57 Maine, 674) i. 376, 384 Lawrence, State v. (45 Misso. 492) ii. 404 Lawson, People v. (17 Johns. 277) ii. 1267 , Reg. V. (1 Q. B. 486 ; 1 Gale & D. 18 ; 6 Jur. 387) i. 247, 256 Lawton, People v. (56 Barb. 126) i. 727 ; ii. 119(1 V. State (30 Ala. 14) ii. 23, 31 Lawyer v. Smith (1 Denio, 207) i. 990, 993 Lager's Case (16 Howell St.Tr. 93) ii. 1213 Layman, State i).(8 Blackf.330) ii. 416,484 Layman, State v. (5 Harring. Del. 510) i. 1135, 1136, 1137 Layton v. Harris (3 Harring. Del. 406) ii. 908 , State V. (25 Iowa, 193) i. 1065 Lazarus, State V. (1 Mirll, 33) i. 636, 857, 869, 861, 875 Lea, Rex v. (2 Moody, 9) i. 993 Lea, State !•. (3 Ala. 602) ii. 1040, 1046 Leach, Com'th v. (1 Mass. 59) i. 569 ; ii. 985 Leach v. Smith (25 Ark. 246) i. 14 , State I'. (60 Maine, 58) i. 32 ; ii. 982 , State V. (50 Misso. 535) i. 1090 Leafe, Rex V. (Andr. 226) i. 470 ; ii. 946 Leak, State v. (5 Ind. 359) i. 906 , State V. (Phillips, 450) ii. 664 Leake, Rex v.* (2 Ner. & M. 583 ; 5 B. & Ad. 469) ii. 1267, 1281 Leamard, State «. (41 Vt. 585) i. 367, 368 Leary, Reg. «. (3 Crawf. & Dix C. C. 212) i. 1032, 1033 Leath, Com'th v. (1 Va. Cas. 151) i. 9o3 Leavensworth w.Tomlinson (1 Root, 436) i. 32 Leavitt, State k.(32 Maine, 183) i. 792, 812 Le Blanc, State v. (1 Tread. 364) ii. 1131, 1132 Le Blanch, State t. (2 Vroom, 82) i. 141 Leddington, Reg. v. (9 Car. & P. 79) ■ i. 510, 652, 756; ii. 1187 Ledford, State v. (8 Misso. 102) ii. 64 — — , State V. (67 N. C. 60) ii. 842 Ledger, Reg. v. (2 Fost. & F. 867) ii. 662 a Led'gingham, Rex v. (1 Vent. 97) i. 1033 Lediard, Rex v. (Say. 242) i. 460; ii. 973 707 LES INDEX TO THE CASES CITED. LID Section Lee, Ex parte (7 Jur. 541) i. 247 Lee T. Gansd (Cowp. 1) i. 975 r. Gansell (LofEt, 274) i. 975 Lee V. Murphy (22 Grat. 789) i. 915 V. Newkirk ( 18 111. 550) i. 821 , People V. (1 Wheeler Grim. Gas. 364) ii. 28 Lee, Reg. \. (8 Gox C. G. 233) ii. 454 , lieg. V. (4 Fost. & E. 63) i. 637 ; ii. 657 , Reg. V. (Leigh & C. 309) ii. 425 , Reg. V. (Leigh & C.418) ii. 443, 453 , Rex V. (6 Car. & P. 536) i. 642, 695 , Rex \. (stated Gas. teitip. Hardw. 371) i. 204 , Rex V. (5 Esp. 123) i. 468 ; ii. 916 Lee, liex v. (1 Leach, 51) ii. 1181 Lee V. Risdon (7 Taunt. 188) ii. 766 Lee V. State (26 Ark. 260) i. 1013, 1015, 1016, 1032, 1033 V. State (1 Coldw. 62) ii. 656 b • , State !.•. (10 B. I. 494) i. 990 , U. S. I'. (2 Craneh C. C. 104) ii. 1202 Leech, Reg. v. (6 Mod. 145) i. 531 ; ii. 1276 , Rex r. (3 Stark. 70) ii. 345 Leech v. Waugh (24 111. 228) i. 934, 948 Leeds, Gom'tli v. (9 Philad. 569) ii. 220 Lefroy, Reg. v. (Law Kep. 8 Q. B. 134) ii. 263 Legg, Rex v. (J. Kel. 27) ii. 677, 695, 712 Legqetl, Req. v. (8 Car. & P. 191) i. 303 Leggettu.Simmons (7 Sm.c&M. 348) i. 631 Leginham, Rex v. (1 Mod. 71) i. 237, 538 Lehre. Slate v. (2 Brev. 446; 2 Tread. 809) i. 591 ; ii. 918 Leigh, Reg. t. (4 Fost. & F. 915) i. 387 — -, Rex V. (2 East P. G. 694 ; 1 .. Leach, 411, n.) i. 207 ; ii. 801, 837 Leigh, State v. (3 Der. & Bat. 127) i. 459, 721 ; ii. 972, 974 Leighton,State u.(3 Fost.N. H.167) i. 1137 , State V. (35 Maine, 195) ii. 306 Leitensdorfer v. Webb (20 How. TJ. S. 176) i. 14 Le Louis, The (2 Dods. 210) i. 124 Lemon v. State (19 Ark. 171) ii. 994 Xcni/, iJcff. V. (1 Fost. & F. 77_) i. 963 Lennard, Rex v. (2 W. Bl. 807 ; 1 Leach,90 ; 1 East P.G.170) i. 204 ; ii. 288 Lenoir Justices, State v. (4 Hawks, 194) i. 237 ; ii. 972, 974 Lenox v. Grant (8 Misso. 254) i. 462 Lenthal, Rex v. (3 Mod. 143) i. 218 Lentz V. Stroh (6 S. & R. 34) ii. 773 Leonard w. Bosworth (4 Conn, 421) ii. 139, 140 Leonard, People v. (11 Johns. 504) i. 536 ; ii. 501 , Reg. V. (1 Den. C. C. 304 ; 8 Cox C. G. 284 ; 2 Car. & K. 514) ii. 442 , Slate V. (6 Coldw. 307) ii. 373, 376 Leonard v. Wilkins (9 Johns. 233) i. 1080 Leppard, Reg. v. (4 Fost. & F. 51) ii. 869 Lesinghara, Rex v. (T. Raym. 205) i. 235, 588 708 Section Leslie v. Lewiston (62 Maine, 468) ii. 964 Lessing, State v,(16Minn.75) i.l006 ; ii.723 Lester, Commonwealth v. (2 Va. Gas. 198) i. 617; ii. 1004,1008 Lester V. State (33 Ga. 329) i. 1033 Le Tigre, Case of (3 Wash. C. C. 567) i. 206, 287, 823 Leunig, State v. (42 Ind. 541) i. 1013, 1026, 1035, 1041 Levett, Rex v. (Gro. Car. 538) i. 303 Levi V. Levi (6 Car. & P. 239) ii. 198, 216 Levine, Reg. v. (10 Cox C. C. 374) ii. 198 Levison v'. Krohne (30 Texas, 714) i. 14 , People V. (16 Cal. 98) ii: 1138 Levy V. Edwards (1 Car. & P. 40) ii. 248 , Rex V. (4 Car. & P. 241) ii. 867 V. State (6 Ind. 281) i. 1068 Letver v. Commonwealth (15 S. & R. 93) i. 583; ii. 809,811,813 Lewis V. Bell (17 How.U.S.616) ii. 134,140 V. Gom'th (3 Bush, 539) i. 894 Lewis V. Commonwealth (2 S. & R. 551) i. 143, 942 ; ii. 148, 609, 610 Lewis, Com'th v. (6 Binn. 266) i. 279 , Com'th v. (4 Leigh, 664) i. 218 Lewis, Commonvjeallh v. (1 Met. 151) i. 357, 363, 1084 v. Lemi (Ellis, B. & E. 537) ii. 916 Lewis V. New York Central Rail- rond (49 Barb. 330) ii. 892 Lewis, Pennsijlvania v. (Addison, 279) ii. 657, 658, 671, 690 Lewis, People v. (3 Abb. Ap. Deo. 535) ii. 714 , People V. (36 Cal. 531) i. 400 Lewis, Reg. v. (1 Car. & K. 419) i. 260,809 , iJeo. \. (9Car. &P. 623) i. 758, 762 ; ii. 991 , R:eg. V. (11 Gox C. C. 404) ii. 206 , Reg. V. (Dears. & B. 182; 7 Cox C'. C. 277) i. 112, 121 , Rex T. (2 Car. & P. 628) ii. 91 , Rex V. (6 Car. & P. 161) i. 328, 735 ; ii. 740 , Rex V. (2 East P. G. 957; Foster, 116) i. 572 ; ii. 529 Lewis, Rex v. (1 Moody, 372) i. 939 Lewis, Rex v. (Say. 206) i. 582 ; ii. 145 V. State (30 Ala. 54) ii. 1120, 1122 V. State (35 Ala. 380) i. 733 V. State (16 Conn. 32) i. 559; ii. 101 y. State (3 Head, 127) ii. 728 Lewis V. State (41 Missis. 686) i. 894 Lewis.State v.(2 Hawks,98) i.l063 ; ii.ll82 Lewis,Statei'.(10Kan.l57)ii. 1028,1039 a , State V. (22 La. An. 33) i. 464 Libhey, Commonwealth v. (11 Met. 64)' i. 567 ; ii. 341, 370 Libellis Famosis, Case de (5 Go. 125a) i. 719 ; ii. 907, 909, 918, 939, 948 Libby v. Nicola (21 Oliio State, 414) i. 909, 910, 914, 916 Libby V. U. S. (1 Woodb. & M. 221) i. 564 Liddle v. Hodges (2 Bosw. 537) ii. 914 LOG INDEX TO THE CASES CITED. LOT Section Liddle, United States v. (2 Wash. C. C. 205) i. 127; ii. 37,51 Ligan v. State (3 Heisk. 159) i. 947 Lightner, People «. (49 Cal. 226) i. 1034 Likes V. Dike (17 Ohio, 454) ii. 38 Lillard v. McGee (3 J. J. Mar. 549) ii. 140 Lince, Reg. v. (12 Cox C. C. 451 ; 6 Eng. Rep. 314) ii. 461 Lincoln, Commonwealth v. (11 Allen, 233) ii. 426, 444 M.Shaw (17 Mass.410) i.294 ; ii.399,404 Lindenmutler v. People (33 Barb.548) U.951 Lindenthall, State v. (5 Rich. 237) i. 583 ; ii. 809, 813 Lindsay v. Com'th (2 Va. Cas. 345) i. 1014 , United States u. (1 Cranch C. C. 245) i. 1113, 1115 Lindsey, Com'th \. (10 Mass. 153) ii. 118 Lines,' Reg. v. (1 Car. & K. 393) ii. 1132, 1133 Linford v. Fitzroy (13 Q. B. 240; 3 New Sess. Cas. 438) i. 299, 4fi0 Lingo V. State (29 Ga. 470) i. 305, 850 Lining v. Bentliam (2 Bay, 1) i. 299, 460, 462 ; ii. 244, 263, 972 Link V. State (3 Heisk. 252) i. 1029 a Linkhaw, State v. (69 N. C. 214) ii. 310 Linney v. State (6 Texas, 1) ii. 995 , State V. (52 Misso." 40) ii. 702 Linton, Commonwealth v. (2 Va. Cas. 476) i. 672 ; ii. 529 Lipe V. Mitchell (2 Yerg. 400) ii, Lisle's Case (J. Kel. 89) i Lisle V. State (6 Misso. 426) Lister, Reg. v. (Dears. & B. 118 Eng. h. & Eq. 600) Liston, State v. (9 Humph. 603) i. 246,'471 Litchfield, Hex v. (2 Stra. 1023) ' '"" Lithyow V. Com'th (2 Va. Cas. 297) Little V. Barreme (2 Cranch, 170) 1-. Gibson (39 N. H. 5051 Little, Reg. v. (10 Cox C. C. 559) , State V. (1 N.H. 257) i. 438, 571, 1010 Little Charles, United States r. (1 Brock. 347) i " Littler T. Thomson (2 Beav. 129) Littleton v. Dudley (5 Co. 47) Litton, Com'th v. (6 Grat. 691) Liverpool, Mayor of (8 Ellis & B. 537) i- 1079 Lieinqston v. Com'th (14 Grat. 592) i. 1004 ; ii, Livingston v. Fitzgerald (2 Barb. 396) ii. 256 V. Indianapolis Ins. Company (6 Blackf. 133) ii. 1262 V. New York (8 Wend. 85) i. 981 Livingston v. Van Ingen (9 Johns. 507) i- 173 Llovd V. Oliver (18 Q. B. 471) ii. 562 Uo'yd, Rex V. (7 Car. & P. 318) ii. 1136 , Rex V. (4 Esp. 200) i. 244 Lock, Reg. v. Law Rep. 2 C. C. 10 ; 12 Cox C.C. 244) ii. 36, 1122, 1124, 1195 ;37 538 139 795 997 376 507 i. 1004 i. 306 i. 974 ii. 812 . 821, 826 ii. 2.59 i. 908 ii. 1024 639 Sectiok Locke V. Dane (9 Ma^s. 360) i. 279 Locker, Rex v. (5 Esp. 107) ii. 187 Lockett, Rex v. (7 Car. & P. 300) i. 516, 630, 653 , Rex V. (1 Leach, 94 ; 2 East P. C. 940) ii. 560 Lockhart v. State (10 Texas, 275) i. 1137 V. Troy (48 Ala. 579) 1. 464 Lockley. Reg. v. (4 Fost. & F. 155) ii. 652, 653 Lockwood, Commonwealth u. (109 Mass. 323) i. 899, 903 t). State (1 Ind. 161) ii. 268 Loeffner v. State (10 Ohio State, 598) I i. 384; ii. 728 Logan's Case (5 Grat, 692) i. 932 Logan V. Mathews (6 Barr, 417) ii. 960 Loggen, Rex v. (1 Stra. 73) ii. 394 Logm V. Com'th (2 Wright, Pa. 265) i. 805 Lehman, People v. (2 Barb. 216) i. 810 V. Peo;)/e (1 Comst. 379) i. 791,812, 1057 ; ii. 740, 745 Lombard, People v. (17 Cal. 316) i. 850 Lonas v. State (3 Heisk. 287) i. 894 London, Reg. v. (12 Cox C. C. 50) ii. 1034 Lone, Rer v. (2 Stra. 920) i. 246 Long, People v.(39 Cal. 694)ii. 723, 727, 728 '-, Rex V. (4 Car &P. 398) i. 217, 314, 558 ; ii. 664 V. Rogers (17 Ala. 540) i. 548 ; ii. 26, 56 V. State (11 Fla. 295) ii. 842 V. State (12 Ga. 293) i. 207, 721 ; ii. 1156,1170, 1172, 1173, 1174 Long V. State (46 Ind. 582) ii. 740 V. State (1 Swan, Tenn. 287) i. 700 a ; ii. 485 V. State (34 Texas, 566) ii. 740 V. State (36 Texas, 6) i. 960, 961 Longhottom, Reg. v. (3 Cox C. C. 439 ; 7' Law Reporter, N.s. 379) i. 257 Longden, Rex v. (Russ. & Rv. 228) i. 536,859; ii. 699 Longstreeth, Rex v. (1 Moody, 137) i. 583 ; ii. 822, 826 Lonsdale, Reg. v. (2 Cox C. C. 222) ii. 560 Loomis 0. Cline (4 Barb. 453) i. 714 Loomis V. Edgerton (19 Wend. 419) i. 569 ; ii. 985 . , Pjeople V. (4 Denio, 380) i. 224 ; ii. 785, 787 Looper, State v. (14 Rich. 92) ii. 745 Loper V. State (3 How. .Missis. 429) i. 997 , State V. (Ga.Decis. Part II. 33) i. 1 35 Lopez, Reg. v. (Dears. & B. 525) i. 117 Lord V. State (16 N. H. 325) i. 1135 Lm-d Wellington, The (2 Gallis. 103) i. 821 Lore V. State (4 Ala. 173) i. 1031 Loring, Com'th v. (8 Pick. 370) ii. 1190 Lorman v. Clarke (2 McLean, 568) i. 194, 196 Lorton V. State (7 Misso. 55) i. 778, 793, 1061 ; ii. 888 Lott V. Barrel (2 Mill, 167) ii. 253 709 LTJT INDEX TO THE CASES CITED. MCB Sbotion Loud, Commonwealth v. (3 Met. 328) i. 1010, 1021, 1023 Loudon, State v. (3 Head, 263) ii. 1267, 1277, 1281 Loughran, Reg. v. (1 Crawf. & Dix C. C. 79) i. 468, 715 Loughridge, People v. (1 Neb. 11) i. 141 w. State (6 Misso. 594) i. 670 Louisville v. Roupe (6 B. Monr. 591) i. 522 Louisville, &c. Canal u. Murphy (9 Bush, 522) i. 372 Louisville, &o. Railroad v. Blair (1 Tenn. Ch. 361) i. 317 Louisville & Naslivllle Railroad v. Davidson (1 Sneed, 637) i. 169 Louisville V. Slate (3 Head, 623) i. 420; I ii. 1278 Lovd, Rex V. (2 Moody & R. 39) 1. 441, 758 Lovelace's Ca8e( Comb. 260) ii. 514 Lovett, Commonwealth v. (4 Pa. Law Jour. Rep. 5) i. 640, 1122 Louelt, Reg. v. (9 Car. & P. 462) i. 540, 734 ; ii. 922 Lovett V. State (19 Texas, 174) ii. 886 , State B. (3 Vt. 110) i. 467; ii 1011 Low,Com'thi'.(3Pick.408)i.2i5; ii. 1267 Low, Commmweallh v. (Thaeher Crim, Cas. 477) ii. 805 Low V. Hutchinson (37 Maine, 196) ii. 185 Low V. Knowlton (26 Maine, 128) i. 266, 828 V. People (2 Parker C. C 37) ii. 785, 786 , %. V. (10 Cox C, C. 168) ii. 824 Lowe, Reg. v. (3 Car. & K. 123; 4 Cox C. C. 449 ; 7 Law Reporter, N. s. 376 ; 1 Ben. & Ii. Lead Cas. 49) i. 217, 317 ; ii. 669 Lowe V. State (9 Ohio State, -337) ii. 262 Lowenstein v. People (54 Barb. 299) i. 685, 1094 Lowenthal v. State (32 Ala. 589) ii. 367 Lowerij V. State (30 Texas, 402) ii. 190 Lowrie, Reg. v. ( Law Rep. 1 C.C. 61 ; 10 Cox C. C. 388) ii. 785 Lom-y, State v. (1 Swan, Tenn. 34) i. 1010 Lowry, U. S. v. (2 Wash. C. C. 169) i. 467 LoydK. State (42 Ga. 221) i. 695, 699, 700 . Loyd V. State (45 Ga. 57) i. 384,387, 391, 6B7, 668 Lnca.i, Com'th v. (2 Allen, 170) i. 653,654 Luck, Reg. v. (3 Post. & F. 483) i. 634 Liirke!/ V. Stale (14 Texas, 400) ii. 1104 Lucki's, Com'th v. (99 Mass. 431) ii. 795 Luai, Rec/. v. (Car. & M. 51 1) i. 298 Lue'llin, Rex v. (12 Mod. 445) i. 532 Luke V. State (49 Ala. 30) ii. 15 Lumsden, U. S. y. (1 Bond, 5) i. 482 Lunn, State v. (49 Misso. 90) i. 536 Luter V. Hunter (80 Texas, 688) i. 14 Luther v. Borden (7 How. U. S. 1) i. 45, 48, 61, 15.3, 162, 160, 168 V. Fowler (1 Grant, Pa. 176) i. 821 , State V. (8 R. L 151) ii. 998 710 Skctiox Lyford V. Farrar (11 Fost. N. H. 314) i.974 Lyles, Uriited States v. (4 Cranch C. C. 469) i. 764; ii. 62 Lymbum, State v.(l Brev. 397) i. 686, 686 ; ii. 65 Lyme Regis T. Henley (3 B. & Ad. 77) i. 419 Lynch, Com'th v. (8 Gray, 384) ii. 963 Lynch, People v. (11 Johns. 549) i. 177, 456 ; ii. 1022 Lvnoh, Reg. v. (26 U. C. Q. B. 208) ii. 1213 Lynch, Rex v. (5 Car. & P. 324) i. 227 ; ii. 699, 703 Lynn, Rex v. (2 T. R. 733 ; 1 Leach, 497) i. 296, 606, 948 Lyon «. Morris (15 Ga. 480) i. 910 Lyon, Reg. v. (1 Fost. & F. 64) Ii. 855 ,i?ca; v. (Russ. &Ry. 255) ii. 539 Lyon V. Richmond (2 Johns. Ch. 51) i. 294 Lyon v. State (22 Ga. 399)__i. 872 ; ii. 652 -, State V. (12 Conn. 487) Lyon, State v. (39 Iowa, 379) Lyons, Commonwealth v. (1 Law Jour. Rep. 497) Lyons, Reg. v. (Car. & M. 217) ii. 17 i. 1088 Pa. i. 491 i. 262 ; ii. 1140 , Rex V. (1 Leach, 185; 2 East P. 0.497) i. 752;ii. 114 Lythgoe.State i;.(6Rich. 112) ii.1267,1268 Lytle V. State (17 Ark. 608) ii. 132 Mabel, Reg. v. (9 Car. & P. 474) ii. 39, ^ 41,653 Maberry, State v. (3 Strob. 144) i.469,464 Mabbett, Reg. v. (6 Cox C. C. 339) ii. 661 Mabrey, State v. (64 N. C. 592) i. 891 McAdams v. State (25 Ark. 405) ii.675,677 McAdden, State v. (71 N. C. 207) ii. 517, 619 McAfee, Com'th v. (108 Mass. 458) i. 891 McAfee V. State (31 Ga. 411) 1. 259 McAlister v. Clark (33 Conn. 91) i. 1089 McAllister v. State (17 Ala. 434) i. 384, 385 ; ii. 638 McAneany !>. Jewett (10 Allen,151) i.l080 McArthur v. Campbell (4 Nev. & M. 208; 2 A. &E. 52) ii. 256 Macarty, Rex v. (2 East P. C. 823 ; 6 Mod. 301) i. 692 ; ii. 198, 205 McAtee, Cvm'th v. (8 Dana, 28) i. 685,965 McAthey, Reg. v. ( Leigh & C. 250) ii. 1142 Macadey, Rex v. (1 Leach, 287) i. 682; ii. 804, 1167 McAuley v. State (8 Greene, Iowa, 436) i. 857 McAuly V. State (7 Yerg. 526) ii. 1262 McAvoy, U. S. v. (4 Blatch. 418) i. 670 McBee v. Hoke (2 Speers, 138) i. 464 McBennet, Rex v. (Jebb, 148) i. 752 McBride v. Com'th (4 Bush, 331) Ii. 978 V. State (2 Eng. 374) i. 796 , State V. (19 Misso. 239) ii. 1163 , Slate V. (Kiee, 400) ii. 1022 MCC INDEX TO THE CASES CITED. MCF Sbotion McCafferty, Reg. v. (Ir. Eep. 1 C. L. 363; 10 Cox C. C. 603) li. 1213, 1235 HcCahon o. Leavenworth (8 Kan. 437) i. 464 McCall w.Capehart (20 Ala.521) ii.121,122 McCcdL, State v. (4 Ala. 643) i. 559 ; ii. 92 95 McCann v. Com'th (14 Grat. 570) i. 1014 , Reg. V. (28 U. C. Q. B. 514) ii. 119 a , State V. (19 Misso. 249) ii. 758, 879 McCants, State v. (1 Speers, 384) i. 414; ii. 711, 713, 718 McCarn, State v. (11 Humph. 494) ii. 744 MeCartey, Stale v. (17 Minn. 76) ii. 812 McCartliy, Ex parte (29 Cal.895) ii. 1026 McCarty,Respuhlica v.(2 Dall.86) i.347,456 McCarty v. State (44 Ind. 214) i. G70 V. State (26 Missis. 299) i. 648 V. State (37 Missis. 411) i. 531 , State w. (1 Bay, 334) i. 916 McCauless, State v. (9 Ire. 375) ii. 517 McCauley, Com'th v. ( 105 Mass. 69) i. 1065 McCauley v. State (26 Ala. 135) i. 990 «. Weller (12Cal. 500) ii. 501 McChord, Com'th v. (2 Dana, 242) i. 1053 McClay, State a. (1 Harring. Del. 520) ii. 490, 505 McClelland v. Kay (14 B. Monr. 103) i. 849, 854 MeClintock, State v. (1 Greene, Iowa, 392) i. 1053 McClure v. Giilick (2 Harrison, 340) ii. 256, 269 , State V. (4 Blackf. 328) ii. 1190 McClure, State v. (25 Misso. 338) ii. 58 McCombs, Commonwealth o. (6 Smith, Pa. 436) i. 464 McConico v. Singleton (2 Mill, 244) i. 578 ; ii. 776 f. State (49 Ala. 6) i. 294 McConnell,Com'th v. (11 Gray,204)i.l061 McConnell, Reg. v. (1 Car. & K. 371 ; 2 Moody, 298) ii. 539, 560 McConnell v. State (46 Ind. 298) ii. 258, 269 McCord V. People (46 N. Y. 470) ii. 467, 468 McCorUe v. State (1 Coldw. 333) ii. 441 Y. State {Uh)d. 3d] ii. 968 McCormick v. Fitch (14 Minn. 252) i. 464 McCormlck, State v. (27 Iowa, 402) i. 797 McCorij, State V. (2 Blackf. 5) i. 1028, 1029 McCoy V. State (3 Eng. 451) i. 428, 735, 859, 862, 875 McCoy V. State (52 Ga. 287) i. 663 McCoi/, State V. (14 N, H. 364) i. 1052 McCoy V. Williford (2 Swan, Tenn. 642) ii- 137 McCreary v. State (5 Casey, 323) i. 1033 McCredie v. Senior (4 Paige, 378) ii. 256 McCroskey v. State (2 Coldw. 178) ii. 741 McCroskey, State v. (3 McCord, 308) * ii. 1020, 1026 McCue, Com'th v. (16 Gray. 226) i. 464 Section McCuUoch, Commonwealth v. (15 Mass. 227) i. 541, 588; ii. 65, 66 McCulloch y. Maryland (4 Wheat. 316)1.185 McCune, State v. (5 R. L 60) ii. 1167 McDaniel's Case (Foster, 121) i. 677 McDaniel's Case (19 Howell St. Tr. 745) ii. 793, 1174 McDaniel v. Coleman (14 Ark. 545) i.1003 Macdaniel, Rex v. (1 Leach, 44) i. 564 ; ii. 219 McDaniel v. State (27 Ga. 197) i. 713 McDaniel v. Slate (8 Sm, & M.401) i. 305, 342, 536, 857, 862 ; ii. 706, 758, 804, 843, 851, 1174 McDaniel v. State (33 Texas, 419) ii. 842 , State V. (41 Texas, 229) i. 668 McDaniel, Slate v. (1 Winston, 249) i. 732 ; ii. 112 McDaniels, People v. (1 Parker C. C. 198) i. 553; ii. 1172 McDermod, Rex v. (Jebb, 118) ii. 1200 McDermott, People v. (8 Cal. 288) ii. 1041 McDonald's Case (1 Broun, 238) i. 303 McDonald, Ex parte (2 Whart. 440) i. 910 McDonald, Com'th v. (5 Cush. 365) i. 743 McDonald, Commonwealth v. (110 Mass. 405) ii. 1122 McDonald v. People (47 111. 533) ii. 12 , People Y. (9 Mich. 150) i. 795 ; ii. 1133, 1136 , People V. (43 N. Y. 61) ii. 789 , Reg. V. (Leigli & C. 85) ii. 341 McDonald, Beg. v. (12 U. C. Q. B. 543) ii. 561 , Rex V. (3 Bur. 1645) i. 504, 1121 McDonald v. State (8 Misso. 283) i. 578 ; ii. 785, 786 McDonald, State v. (3 Dev. 468) i. 299 , State V. (4 Harring. Del. 555) i. 298, 299 McDonald, State v. (4 Jones, N. C. 19) i. 857 McDonell, People v. (47 Cal. 134) i. 384 McDonnell, Reg. y. (5 Cox C. C. 153) ii. 1200 , Stale V. (32 Vt. 491) ii. 676 McDowell, State v.. (1 Hawks, 449) i. 536; ii. 517 McDuffie,State y. (34 N.H. 523) ii. 773, 985 Mace, State v. (5 Md. 337) i. 32 McElroy v. Carmichael (6 Texas, 454) i. 504 V. State (25 Texas, 507) ii. 309 McEntee v. State (24 Wis. 43) ii. 1159,1160 McEnture, Slate v. (3 Ire. 171) i. 237, 246, 458, 459, 464 ; ii. 392 McFadden v. Commonwealth (11 Harris, Pa. 12) i. 1014 McFall V. Com'th (2 Met. Ky. 394) i. 150 McFall, Pennsylvania v. (Addison, 255) i. 400, 401 ; ii. 671 Macfarland's Case (8 Abb. Pr. N. s. 67) i. 384 McFarland v. State (4 Kan. 68) i. 141 711 MCK INDEX TO THE CASES CITED. MOM Suction McGahey, Com'th v. (11 Gray, 194) ii. 1011 McGardiner, State v. (1 Ire. 27) ii. 629 McGarren, People v. (17 Wend. 460) ii. 802, 879, 882 McGatrick v. Wasoii (4 Oliio State, 566) ii. 959 McGee v. State (8 Misso. 495) i. 797 ; ii. 745 McGill V. McCall (9 Ind. 306) ii. 139 , Pennsylvania v, (Addison, 21) i. 767 McGi/l, U. S. V. (4 Dall. 426) i. 115 McGinnes, Reg. v. (11 Cox C. C. 391) i. 363 McGinnis v. State (9 Humph. 43) i. 1028 MeGinty, State v. (41 Missis, 435) i. 14 McGlue, United States v. (1 Curt. C. C. 1) i. 376, 384, 406 ; ii. 680 McGonigal, State v. (5 Harring. Del. 510) i. 406 McGoon V. Ankeny (11 111. 558) ii. 878 McGowan, Com'th v. (2 Parsons, 341) i.814 , People V. (17 Wend. 386) i. 1055 McGraqor v. State (Smitli, Ind. 179 ; 1 Ind. 232) ii; 1020 McGrath v. Merwin (112 Mass. 467) ii. 959 McGrath, Reg. v. (Law Rep. 1 C. C. 205; 11 Cox C. C. 347) ii. 807 McGregor v. Boyle (34 Iowa, 268) i. 1081 «. Comstoclc (16 Barb. 427) i. 821 McGregor, Reg. v (1 Car. & K. 429) ii. 1061 , Btate V.' (41 N. H. 407) i. 618 McGrew o. Cato (Minor, 8) i. 267, 271 McGrorty, State v. (2 Minn. 221) i. 992 McGrowther, Rex v. (1 East P. C. 71) i. 347 McGuffie V. State (17 Ga. 497) i. 872 McGuife V. State (7 Humph. 54) i. 298 McGurn u. Brackett (33 Maine, 331) i. 429 Machynlleth, Rex v.(4 B.& Aid. 469) ii. 1286 MelUioiie, Rex v. (1 Crawf. & Dix C. C. 156) i. 634, 735 Mcllvoy u. Cockran (2 A. K. Mar. 271) ii. 37 Mclnstry «. Tarner (9 Johns. 135) i. 464 Mclntire, State v. (1 Jones, N. C. 1) i. 905 Mcintosh, Rex v. (2 East P. C. 942) i. 572 ; ii. 539, 544, 560 Mclntyre v. People (38 III. 514) i. 400, 401 McJunicins v. State (10 Ind. 140) i. 35, 1134 McKale, Reg. v. (Law Rep. 1 C. C. 125; 11 Cox C. C. 32) ii. 812 Mackaley's Case (Cro. Jac„279) ii. 652 Mackalley's Case (9 Co. 65) ii. 647, 652 Mackart'y, Rex v. (2 Ld. Raym. 1179) i. 599 ; ii. 198, 205 McKay v. Campbell (2 Sawyer, 118) i. 154 Maekay w.People (1 Parker C.C.459) i.772 McKay, People v. (18 Johns. 212) i. 998, 1001 , Rex V. (Russ. & Ry. 71) i. 143 McKearney, Rex v. (Jebb, 99 ; 1 Ben. & H. Lead. Cas. 640) ii. 99 McKeay, Rex v. (1 Moody, 130) i. 143 712 Skction McKee v. McKee (8 B. Monr. 433) i. 832 McKee, State v. (1 Bailey, 651) i. 992, 998, 1014, 1032, 1033, 1038, 1039, 1041 MeKenna w.Eisk (1 How. U.S. 241) i. 203 McKenney, Com'th v. (9 Gray, 114) ii.885 McKenzi'e v. Allen (3 Strob. 546) ii. 40 McKenzie v. State (26 Ark. 334) i. 1015; ii. 677 McKenzie v. State (6 Eng. 594) i. 586 ; ii. 415, 419, 420 McKenzSe, State v. (42 Maine, 392) ii. 592 McKeowen v. Johnson (1 McCord, 578) i. 359 Mackerell, Rex v. (4 Car. & P. 448) ii. 986 Mackey, Rex v. (1 East P. C. 399) ii. 1181 McKim V. Somers (1 Pa. 297) i. 464 Maclcinley, People v. (9 Cal. 250) ii. 787 McKlnney, People v. (3 Parker C. C. 610) i. 320, 437 McKinney v. State (25 Wis. 378) ii. 53 Mackintosh, Rex v. (2 Leach, 883) i. 572 ; ii. 539, 644; 560 McKisson, Commonweatth v. (8 S. & R. 420) i. 432 ; ii. 201 McKone v. Wood (5 Car. & P. 1) i. 1080 McLane u.U.S. (6 Pet. 404) i. 821, 822, 911 McLaren's Case (33 Howell St. Tr. 1) i. 457 McLauchlin v. Charlotte and Soutli Carolina Railroad (5 Rich. 583) i. 265 McLaughlin, Ex parte (41 Cal. 211) i. 1032, 1033, 1034 McLaughlin, Com'th v. (5 Allfen, 507) ii. 60 McLaughlin,Com'th v. (11 Cush. 698) ii.904 McLaughlin, Commonwealth «. (12 Cush. 612) ii. 55 McLaughlin, Commonwealth v. (12 Cusli. 615) i. 736; ii. 699,741 McLaughlin v. State (45 Ind. 338) i. 1072, 1079, 1117 Maclay v. Work (5 Binn. 154) i. 821 McLean v. State (16 Ala. 672) i. 385 McLi-more, State v. (2Hill, S.C. 680) i.l031 McLeofI, People v. (1 Hill, N. Y. 377 ; 25 Wend. 483) i. 46, 132. 134, 185, 842; ii. 715 Macleod, Reg. v. (12 Cox C. C. 534; 8 Eng. Rep. 689) ii. 664 McLeod V. State (35 Ala. 395) i. 965 McLeran, State v. (1 Aikens, 311) i. 572, 806 ; ii. 578 Maclin, Com'th v. (3 Leigh, 809) ii. 985 Macloon, Commonwealth y. (101 Mass. 1) i. 114, 115, 116 McMahon, Reg. o. (26 U. C. Q. B. 195) ii. 1213 McMakin, Rex v. (Russ. & Ry. 833, n.) i. 642, 649; ii. 841 Macmichael, Reg.v.{S Car. & P. 765) i. 1079 McMicken v. Perin (18 How. U. S. 507) ii, 134 McMillan v. State (35 Ga. 64) ii. 677 McMonagle, Commonwealth v. (1 Mass. 517) ii. 118 MAH INDEX TO THE CASES CITED. MAN Section McMuUen v. Guest (6 Texas, 275) i. 541 ; ii. 131 V. Hodge (5 Texas, 34) i. 14 McMurry v. State (6 Ala. 324) ii. 1031 McNab, State v. (20 N. H. 160) ii. 694 McNaghten's Case flO 01. & F. 200) i. 303, 384, 392, 393 McNally, State v. (32 Iowa, 580) i. 810 McNamara's Case (Arkley, 521) ii. 1123 McNamee v. People (31 M;ieh.473) ii. 1188 McNamee, Rex v. {1 Moody, 368) ii. 824, 836, 859 McNeal v. Woods (3 Blaokf. 485) i. 559, 577 ; ii. 13 McNeali/, People v. (17 Cal. 332) i. 1052 McNielt). Holbrook (12 Pet. 84) i. 194 McO'Blems, State v. (12 Misso.272) i.910 Macomb, U. S. v. (5 McLean, 286) i. 1003 Macomber, Commonwealth v. (3 Mass. 264) i. 622, 705. 810 ; ii. 986, 1000 Macon v. Cook (2 Nptt & McC. 379) i. 460 Maconnehey r. State (5 Ohio State, 77) i. 406 McPhane, Reg. v. (Car. & M. 212) i. 842 McPherson, Retj. v. (Dears. & B. 197 ; 7Cox C. C.'281) i. 741, 757 V. State (22 Ga. 478) i. 305, 849 V. State (9 Yerg. 279) i. 797 McPherson, State v. (9 Iowa, 53) i. 165, 178 ; ii. 285 , State V. (70 N. C. 239) ii. 99 McPike, Commonwealth v. (3 Gush. 181) i. 339, 792 ; ii. 639 McQuaig, State v. (22 Misso. 319) i. 934 Mr.Qnillm v. State (8 Sm. & M. 587) i. 997 McQuoid V. People (3 Oilman, 76) i. 931, 1049 ^fnR7le, Reg. v. (8 Car. & P. 641) ii. 1132 Mc Whirl's Case (3 Grat. 594) i. 934 ; ii. 708, 711 Madan, Rex r. (1 Leach, 223) i. 915 Madden v. Woods (7 Ir. Eq. 637) ii. 270 Haddocks, Rex V. (2 Russ. Crimes, 3d Eng. ed. 499) i. 584 ; ii. 582 , Rex V. (1 Sid. 430) i. 905 Madge, Reg. v. (9 Car. & P. 29) i. 141 Madison, State i\ (33 Maine, 267) ii. 1267 , State V. (59 Maine, 538) ii. 1281 Madox, Rex v.(Russ. & Uy. 92) ii. 834, 860 Magee, State v. (11 Ind. 1.54) ii. 425 Magellan Pirates, The (18 Jur. 13; 25 Eng. L. & Eq, 596) ii. 1061 Magrath, Reg. v. (26 U. C. Q. B. 385) • ii.l213 Ma:hala y. State (10 Yerg.532) i. 1033, 1034 Mahan v. Berry (5 Misso. 21) ii. 1020, 1026 Maker v. People (24 111. 241) i. 305 V. People (10 Mich. 212) i. 730 ; ii. 676, 708, 712, 741 V. State (3 Minn. 444) ii. 1018 , State V. (35 Maine, 225) i. 782, 793; 1065 Mahon, Bex v. (4 A. & E. 575) i. 266, 948 ; ii. 55 Section Mahon, State v. (3 Ilarring. Del. 568) ii. 37 Mahoney v. Crowley (36 Maine, 486) i. 32 V. People (5 Thomp. & C. 329 ; 3 Hun, 202) ii. 1167, 1168 Mahony, Reg. v. (6 Cox C. C. 487 ; ii. 576, 592 Main, State v. (31 Conn. 572) i. 1085, 1088 , Stale V. (16 Wis. 398) i. 152 Maine Central Railroad, State v. (60 Maine, 490) i. 531 Mainor, State v. (6 Ire. 340) i. 800 Mains K. State (42 Ind, 327) i. 1109 Makes, State v. (4 Vroom, 142) ii. 892, 395, 404 Mairet v. Marriner (34 Wis. 582) ii. 1028 Mairs v. Sparks (2 Southard, 513) ii, 501 Mairs, State v, (Coxe, 335) i, 648 , State V, (Coxe, 453) ii. 1004 Maisonnaire v. Keating (2 Gallis. 325) i. 132, 821 Major V. Gibson (1 Pat. & H. 48) ii. 132 V. State (4 Sneed, 597) i. 1004 Malcolm, State v. (8 Iowa, 413) ii. 23 Malek, Adhel, The (2 How. U. S. 210)1.306,826; ii. 1060 Maley v. Shattuck (3 Cranch, 458) i. 306 Mali-y V. State (31 Ind. 192) ii. 430 Malin, Respublica „. (1 Dall. 33) i. 206, 440, 456 ; ii. 1255 Mailing, State v. (11 Iowa, 239) i. 1004 Mallor'y, People v. (4 Thomp. & C. 567) i. 1078 a V. Willis (4 Comst. 76) ii. 857 Malone v. State (49 Ga. 210) ii. 704 L\ State (14 Ind. 219) i. 35 Maloney, People v. (1 Parker C. C. 593)' ii. 773 Maloney, State v. (R. M. Charl. 84) ii. 900 Manchester & Lawrence Railroad, State y. (52 N. H. ,528) i..531 Maner, State v. (2 Hill, S. C. 453) i. 759 Mang'ham u. Cox (29 Ala. 81) i. 307 Manhattan Manuf. &c. Co v. Van Keuren (8 C. E. Green, 255) i. 828, 1080 Mankin ti. State (2 Swan, Tenn. 206) ii. 1267 Mayiku, Commonwealth v. (12 Pick. 173) i. 756; ii. 214 V. People (3 Seld. 295) i. 110, 148, 178, 989 Manley, Reg. v. (1 Cox C. C. 104) i. 368, 66] Mann, Com'th i>. (116 Mass. 58) i. 842, 850 ; ii. 41 V. Owen (9 B. & C. 595; 4 Mail. & R. 449) i. 459 ; ii. 982 3JaHu, Rex V. (4 M. & S. 337) i. 992 Mann, State v. (21 Wis. 692) i. 624 V. Trabue (1 Misso. 709) i. 271 Manners, Rex v. (7 Car. & P. 801) i. 653 ; ii. 299 Manney's Case (12 Co. 101) ii. 1054 Mannhardt v. Soderstrom (1 Binn. 138) i. 181, 196 713 MAE INDEX TO THE CASES CITED. MAE Suction Manning, Reg. v. (2 Car. & K. 887) i. 361, 365, 635, 670, 678 , Reg. v. (Dears. 21 ; 17 Jur. 28 ; 14 Eng. L. & Eq. 548 ; 22 Law J. N. s. M. C.-21) ii. 824, 836 Manning, Rex v. (2 Comyns, 616) i. 955 Manning, State v. (14 Texas, 402) i. 1024 Manseli's Case (2 Dy. 128 I) i. (!36 ; ii. 691, 744 Manson, Commonwealth t. (2 Aslim. 31) i. 482,801; li. 187 Manuel, States. (72 N. C. 201) ii. 992 Marble, State v. (4 Ire. 318) ii. 1267 Marbury v. Brooks (7 Wheat. 556) i. 717 March V. Peopk (7 Barb. 391) ii. 178, 201 , People V. (6 Cal. 543) 1. 385, 1021, 1022 , Reg. y. (1 Car. & K. 496) i. 2B1 ; ii. 29, 33 , Rex V. (1 Moody, 182) ii. 13, 17 March, State v. (1 Jones, N. C. 526) i. 976 Marcus, Reg. v. (2 Car. & K. 356) i. 734, 7.48 ; ii. 529, 543, 599 — V. State (26 Ind. 101) ii. 824 Margerum, Rex v. (Trem. P. C. 168) ii. 1056, 1197 Margetts, Rex v. (2 Leach, 930) ii. 106 Marianna Flora, The (11 Wheat. 1) i. 120,306,824; ii. 1061 Marigold, United States v. (9 How. U. S. 560) i.,179, 998; ii. 282, 289 Mariner v. Dyer (2 Greenl 165) ii. 243 Marion, People v. (29 Mich. 31) ii. 523 Marks v. Donaldson (24 La. An. 242) ii. 1269 Marks, People v. (4 Parker C. C. 153) ii. 115 Markuss, Reg. v. (4 Fost. & F. 356) ii. 664 Marlborough, Ex parte (1 New Sess. Cas. 195 ; 5 Q. B. 955; 13 Law J. N.S.M.C.105; 8Jur. 664)1.640; ii. 946 Marner, Reg. v. (Car. & M. 628) i. 672 a Marriott, Reg. v. (8 Car. & P. 425) i. 314; ii. 641, 657, 660, 669, 686 Marrow, Com'th v. (3 Brews. 402) ii. 968 Marrow, Rex v. (Cas. temp. Hardw, 174) i. 536 ; ii. 500, 514 Mars, The (1 Gallis. 192) i. 822 Marsden, Regi r. ( Law Rep. 1 C. C. 131; ll'Cox C. C. 90) i. 465 Marsdis, U. S. v. (2 Blatch. 108) ii. 904 Marsh's Case ( 1 Leon. 325) i. 668 Marsh v. Burroughs (1 Woods, 463) i. 65 Marsh V. Loader (U C. B. n. s. 535) i. 368 , People V. (2 Cow. 493) ii. 256 ,Reg, V. (1 Den. C. C. 505; Temp. & M. 192; 3 New Sess. Cas. 699 ; 13 Jur. 1010) ii. 168 , Rex V. (1 Leach, 345) i. 583 ; ii. 819 , Rex V. (3 Mod. 66) ii. 531, 674 Marsh y. Shute (1 Denio, 230) , State V. (36 N. H. 196) , State V. (64 N. C. 378) 714 i. 967 i. 572 a ii. 520 SEOTIOlf Marsh.!). Titus (6 Thomp. & C. 29; 3 Hun, 550) ii. 857 Marshall's Case (1 Lewin, 76) i. 414 Marshall v. Com'th (6 Grat. 663) i. 998 Marshall, Reg. v. Ill Cox C. C. 490) ii. 341 , Reg. V. (4 Ellis & B. 475; 24 Law J. N. s. Q. B. 242; 30 Eng. L. & Eq. 204) i. 266 Marshall, Reg. v. (2 Jur. 254) ii.' 913, 91ii Marshall, Rex v. (13 East, 322) i. 247, 2.")6 , Rex T. (Russ. & Ry. 75) i. 572 ; ii. 583, 603 Marshall v. State (33 Texas, 664) ii. 745 — ^, State V. (14 Ala. 411) i. 728 Marsion v. Jenness (11 N. H. 156) i. 1014, 1028 Martha Anne, The (Olcott, 18) i. 145, 148 Martha v. State (26 Ala. 72) i. 1052 Martin's Case (Shelford Lun. 465) i. 380, 384, 394 Martin v. Amos (13 Ire. 201) ii. 131 w. Bold (7 Taunt. 182) ii.,252 V. Brooklyn (1 Hill, N. Y. 545) i. 237 Martin V. Commonwealth (1 Mass. 347) i. 359, 361, 365, 821, 824 Martin, Commonwealth v. (17 Mass. 359) i. 340, 729 V. Martin (25 Ala. 201) i. 271 f. Miirer (4 Misso. 47) ii. 1031, 1044 1). Mott (12 Wheat. 19) i. 61 V. Pace (6 Blackf. 99) ii 137, 139 V. People (13 111. 341 ) i. 1024 ; ii. 1267 V. People (23 111. 395) ii. 1267 Mai-tin, Reg. v. (9 Car. & P. 213 ; 2 Moody, 123) i. 260, 261, 759, 765; ii. 36 , Reg. V. (6 Cox C. C. 356) ii. 258, 264 , Reg. V. (11 Cox C. C. 136) i. 314 , Zie^.v. (1 Fost. &F. 501) ii. 444 Martin, Reg. v. (Hodges Report) ii. 916 Martin, Reg. v. (Law Rep. 1 C. C. 214) i. 964 , Rex V. (3 Car. & P. 211) ii. 641, 693 , Rex V. (7 Car. & P. 549 ; 1 Moody, 483) ii. 564, 565 , Rex V. (1 Leaeh, 171 ; 2 East P. C. 618) ii. 758, 797, 804 , Rex V. (Russ. & Ry. 196) i. 287, 466 , Rex V. (Russ. & Ry. 324) i. 758 Martin v. Snowden (18 Grat. 100) i. 821 Martin V. Slate (W AXu.lX) i. 468 Martin, State v. (3 Hawks, 881) i. 992 , State V. (9 Humph. 56) ii. 564 Martin, State v. (2 Ire. 101) i. 997; ii. 71'> Martin, State v. (12 Ire. 167) ii. 758, 797, 823 Martin, State v. (28 Misso. 580) ii. 882 , State ,. (30 Wis. 216) i. 844, 850, 869, 1004, 1005 Martindale, State v. (1 Bailey, 163) i. 180 Martinez v. State (41 Texas, 126) ii. 902 Marton, Rex v. (Andr. 276) ii. 1280 Marvin's Case (3 Dy. 288) i. 584 ; ii. 680, 590, 691 Marvin v. State (19 Ind. 181) i. 35; ii. 306 MAX INDEX TO THE CASES CITED. MEB Seotiok Mash, Com'th v. (7 Met. 472) i. 211, 903 Mason, Com'th v. (12 Allen, 185) 1. 317 Mason, Com'th v. (106 Mass. 163) ii. 841 a Mason v. Keeling (1 Ld. Raym. 606 ; 12 Mod. 332) i. 1080 Mason v. People (26 N. Y. 200) ii. 108 , Reg. V. (29 U. C. Q. B. 431) ii. 1028 , Rex V. (D. & K., N. P. 22) ii. 342 Mason, Rex v. (1 East P. C. 239) ii. 699, 715, 716 Mason, Rex v. (Russ. & Ry. 419) i. 553; ii. 1167 Massage, State v. (65 N. C. 480) ii. 701 Master v. MiKer (4 T. R. 320) ii. 125, 127, 574 Master Stevedores' Association v. Walsh (2 Daly, 1) ii. 231 Masters, In re (1 Har. & W. 348) ii. 132 Masters, Reg. v. (1 Den. C. C. 382 ; 2 Car. & K. 930; Temp. & M. 1 ; 18 Law J. N. s> M. C. 2; 3 New Sess. 326 ; 12 Jur. 942) ii. 363, 365, 368 Mastin, Rex v. (6 Car. & P. 396) i. 314, 634, 635 ; ii. 667, 690, 744 Mather, People v. (4 Wend. 229) i. 432, 630, 642, 674, 792, 814, 992; ii. 175, 190, 239, 240 Matheson's Case (1 Swinton, 593) i. 217, 227 Mathews, Reg.y. (1 Eng. Law & Eq. 649) ii. 1142 , State V. (2 Dev. & Bat.' 424) i. 604, 532, 1109, 1110, 1118 Mathias, Reg. v. (2 Post. & F. 570) i. 828, 1 1080 Mathison v. Hanks (2 Hill, S.C. 626) i. 266 Mattiiews i>. Burdett (3 Salk. 318) i. 607 Matthems, Reg. v. (12 Cox C. C 489 ; 6 Eng. Rep. 329) ii. 876, 882 , Reg. V. (1 Den. C. C. 596; Temp. & M. 337) i. 362; ii. 1142 Matthews v. State (4 Ohio State, 539) ii. 1159 , State V. (20 Misso. 65) ii. 840, 995 Matthews, State v. (37 N,H.450) ii. 243, 247 Matthews, State >.'. (42 Vt. 642) i. 536 V. Terry (10 Conn. 455) i. 887 , U. S. V. (2 Sumner, 470) i. £64 Mattock, U. S. V. (2 Sawyer, 148) ii. 986 Mattocks V. Owen (5 Vt. 42) i. 267, 714 Maulshy, Ex partJi (13 Md. 626) ii. 268 Maw-ice, U. S. V. (2 Brock. 96) i. 199, 975 Mawhey, Rex v. (6 T. R. 619 ; 2 Russ. Crimes, 3d Eng. ed. 677) i. 948, 1001, 1002; ii. 219,220, 230 Mawqridqe's Case (17 Howell St. Tr. 67; J.Kel. 119) ii. 311, 702, 704 Max, Ex parte (44 Cal. 579) i. 772 , Com'th V. (8 Philad. 422) ii. 728 Maxcy, State v. (1 McMiillan, 501) i. 615 Maxwell «. Boyne (36 Ind. 420) i. 1079 ij. Palmerton(21 Wend.407) i. 1080 , People V. (24 Cal. 14) i. 699 , State V. 38 Conn. 259} i. 1108 Sectioit May, Reg. v. (8 Cox C. C. 421; Leigh & C. 13) ii. 348, 353 May V. Slaughter (3 A. K. Mar. 505) ii. 140 May, State V. (20 Iowa, 305) ii. 781 Mayberry, State v. (48 Maine, 218) i. 619, 814 ; ii. 175 Mayers, Reg. v. (12 Cox C. C. 311 ; 4 Eng. Rep. 569) ii. 1122, 1136 Mayle, Reg. v. (11 Cox C. C. 150) ii. 341 Maynard's Case (1 Vent. 182) ii. 1044 Maynard, Rex v. (Cro. Car. 231) i. 525 Mayo V. Wilson (1 N. H. 58) ii. 968 Mazagora, Rex v. (Russ. & Ry. 291) ii. 598 Mazeau, Reg. v. (9 Car. & P. 676) i. 310, 630, 651 ; ii. 609 Mazyck, State v. (3 Rich. 291) ii. 791 Me, M'. [For names beginning thus see Mac] Mead v. Boston (3 Cush. 404) i. 622 Mead, Com'th v. (10 Allen, 398) i. 368 Mead v. Norris (21 Wis. 310) ii. 256 Mead, Rex v. (4 Car. & P. 535) ii. 358, 785 786 V. Young (4 T. R. 28) i. 672 ; ii! 587 Meadville v. Erie Canal (6 Harris, Pa. 66) ii. 1269, 1270 Meakin, Reg. v. (11 Cox C. C. 270) ii. 444 , Rex V. (7 Car.& P. 297) i. 401, 414 Meat, Req. v. (3 Cox C. C. 70) ii. 119 a Meaney,keg.v.(lT. Rep.l C. L. 500) ii. 1213 Meany, Reg. v. (10 Cox C. C. 606) ii. 1213 Mears v. Com'th (2 Grant, Pa. 385) ii. 1134 , Re^. V. (1 Eng. L. & Eq. 681 ; Temp! & M. 414 ; 2 Den. C. C. 79 ; 15 Jur. 66) ii. 235 Medley, Rex v. (6 Car. & P. 292) i. 243, 316, 420 Medlor.Rex v. (2 Show.36) i. 504,1136,1137 Meek, Reg. v. (9 Car. & P. 513) ii. 1028 Meeker v. Van Rensselaer (15 Wend. 397) i. 490, 821, 828 Meeres, Rex v. (1 Show. 50) ii. 866 Meigh, Reg. v. (7 Cox C. C. 401) ii. 564 Meilheim, Rex v. (Car. Crim. Law, 3d ed 281) ii. 820 Mellish, Rex v. (Buss. & Ry. 80) ii. 32-3, 349, 353 Mellor, Rex v. (1 B. & Ad. 32) ii. 1270 Melton V. State (45 Ala. 56) i. 934 Menage, Reg. v. (3 Post. & F. 310) ii. 1200 ^/ence, Reg. v. (Car. & M. 234) ii. 785 MendelL v. Tyrell (9 M. & W. 217) ii. 256 Menham, Reg. v. (1 Post. & F. 369) i. 117 Mercer v. State (17 Ga. 146) i. 401 Meredith v. Commonwealth (18 B. Monr. 49) i. 306, 865 ,Ri'g.v.{S Car. & P.689) i. 260, 759, 762 , iJea; v. (Russ. & Ry. 46) i. 657, 888 ; ii. 29 Merrill, Com'th v. (14 Gray, 415) ii. 1136 , Commonwealth v. (Thacher Crim. Cas. 1) i. 1032 Merrill v. Hampden (26 Maine, 234) ii. 1280 716 MIL INDEX TO THE CASES CITED. MIT Section Merrill, People T. (2 Parker C. C. 590) i. 152 ; ii. 753 , Stote v. (2 Dev. 269) i. 861, 873, 1003 ; ii. 704 Merrill, State v. (44 N. H. 624) ii. 888 Merriman v. State (6 Blackf . 449) ii. 1262 Merrit, State v. (35 Conn. 314) ii. 1272, 1273 Merritt, State t. (Phillips, 134) i. 648 Merritt, State v. (5 Sneed, 67) ii. 392 Merri/ v. Green (7 M. & W. 623) ii. 758, 851, 868 Merryman.Ex Parte (24 Law Rep.78) i.63 Messenger's Case (6 Howell St. Tr. 879,n.; J. Kel. 70) ii. 1213 Me.ssinger, Cotn'th v. (1 Binn 273) i. 578 Metcalf, Rex v. (1 Moody, 433) ii. 365, 817, 836 Methardy.State {Id Ohio State,363) i.l049 Metropolitan Railroad, Commonwealth T. (107 Mass. 236) i. 531 Metzger, In re (1 Barb. 248 ; 1 Par- ker C. C. 108) i. 135 Pleyer, State \. (1 Speers, 305) ii. 968 Meyers, Ex Parte (44 Misso. 279) i. 35, 953 Miard, Reg. v. (1 Cox C. C. 22) ii. 1200 Miazza v. State (36 Missis. 613) i. 1014 Michael ».Nutting(l Ind.481) i.541;ii.l37 Michael, Reg. v. (9 Car. & F. 356 ; 2 Moody, i20) i. 651 ; ii. 740 Michael v. State (40 Ala. 361) i. 14,900,904 Mickey «. Com'th (9 Busli, 593) ii. 744 Middleditch,Reg.v.(\ Den. C.C. 92) ii. 1195 Middlesex, Rex v. (3 B. & Ad. 201) ii. 1269 Middleship, Reg.v. (5 Cox C.C. 276) ii. 68t) Middleton v. Holmes (3 Port. 424) i. 267 Middleton,Reg.v.[La.vfUei).2C.C.3S; 12 Cox,C.C. 260 ; 4 Eng Rep.536) ii. 855 Middleton, Rex v. (4 D. & R. 824 ; 3 B & C. 104) ii. 954 Middleton v.Sttite (Dudley.S.C.275) ii. 157 Miduille, Reg. v. (4 Q. B. 240 ; 3 Gale & D. 522) ii. 1281 Mifflin V. Commonwealth (5 Watts & S. 461) i. 592; ii. 176,. 183, 235 Mikels !). State (3 Heisk. 321) i. 1028 Mildmay's Case (6 Co. 40) i. 823 Miles V. Collins (1 Met. Ky. 308) ii. 132 Miles, Reg. v. (6 Jur. 243) i. 548, 887 , Rex V. (1 Doug. 284) 1. 256 ; ii. 918 Miles, State v. (2 Nott & McC. 1) ii. 880 Mill/ate, People v. (5 Cal. 127) ii. 697 Miilain, State v. (3 Nev. 409) ii. 728 Millard, State v. (18 Vt. 574) i. 244, 1127, 1129 Miller v. Allen (11 Ind. 389) i. 953 V. Burch (32 Texas, 208) i. 828 , Com'th 0. (2 Ashm. 61) i. 465, 466, 625, 697, 938, 1014 ; ii. 1069, 1070, 1074 Miller, Com'th v. (6 Dana, 320) i. 1029 Miller v. Forman (8 Vroom, 55) i. 1080, 1081 V. Lockwood (5 Harris, Pa. 248) 716 i. 218, 288, 317 Seotiou Miller v. Munson (34 Wis. 579) ii. 1028 Miller v. People (5 Barb. 203) i. 500, 1133 Miller v. People (2 Scam. 233) ii. 299 Miller, People v. (14 Johns. 371) i. 582 ; ii. 145, 204, 816 , Reg. V. (6 Cox C. C. 353) ii. 1139 , Reg. V. (2 Moody, 249) ii.339,340,369 , Rex V. (1 Leach, 74 ; 2 W. Bl. 797) i. 915 Miller, Rex v. (2 Stra. 1103) i. 515 V. Roessler (4 B. D. Smith, 234) ii. 968 Miller V. State (5 How. Missis. 250) i. 785 V. State (8 Ind. 325) i. 1033 Miller v. State (37 Ind 432) ii. 681 Milter v. State (3 Ohio State, 475) i. 831 , State V. (12 Vt. 437) ii. 1012 MilUgan, Ex parte (4 Wal. 2) i. 52, 63, 64 Milliman, Commonwealth v. (13 S. & R. 403) i. 531 ; ii. 1274 Millis, Reg. v. (10 CI. & F. 534) i. 1024 Mills V. Com'th (1 Harris, Pa. 631) i. 953 V. Hall (9 Wend. 315) i. 821, 1078a Mills V. Martin (19 Johns. 7) i. 44 Mills, Reg. V. (Dears. & B. 205 ; 7 Cox C. C. 263 ; 40 Eng. L. & Eq. 562) ii. 462 Mills, Rex V. (1 Leach, 269 ; 1 East P. C. 397) ii. 1181 , Rex V. (2 Show. 181) i. 240; ii. 978 Mills V. State (20 Ala. 86) ii. 1266 , State V. (2 Dev. 420) i. 636, 538 ; ii. 517, 518 , State V. (17 Maine, 211) i. 571 ; ii. 418, 434, 451 , U. S. V. (7 Pet. 138) i. 685; ii. 1180 Milner v. Maclean (2 Car. & P. 17) i. 536, 538 ; ii. 505 , Reg. \. {2 Car. &K.3\0) i. 572o Milnor V. New Jersey Railroad (6 Am Law Reg. 6) i. 174 Milton, Rex v. (Moody & M. 107) ii. 37, 41 Milwaukee and St. Paul Railway, United States v. (5 Bis. 410) i. 174 Mirer, U. S. v. (11 Blatch. 511) i. 1066 Mines, Case of (1 Plow. 310) ii. 279 Mingia v. People (54 111. 274) ii. 745 Mingo, United States v. (2 Curt. C. C. 1) i. 869;ii. 701 Minify, Rex t. (1 Stra. 642) i. 948 Minnoch, Reg. v. (1 Crawf. & Dix C. C. 45) ii. 639 Minton, State v. (Phillips, 196) i. 679 ; ii. 1137 Miskimmons, State k. (2 Ind. 440) ii. 1273 Misner, Pennsylvania v. (Addison, 44) ■ ii. 628, 529, 672 Mississippi, &c.. Railroad v. Ward (2 Black, 486) ii. 1272 Missouri, The (4 Ben. 410) 1. 488 Mitchel V. Lipe (8 Yerg. 179) ii. 137 Mitchell, Commonwealth v. (8 Bush, 26) ii. 392, 895 Mitchell, Com'th v. (3 Bush, 30) ii.978,1106 MON INDEX TO THK CASES CITED. MOO Section Mitchell V. Churchman (4 Humph. 218) il. 137, 140 , Com'th V. (1 Va. Cas. 116) ii. 653 u. Mims (8 Texas, 6) 1. 271 Mitchell, Reg.v. (1 Den. C. C. 282, n.) ii. 576, 587 Mitchell, Reg. v.(2 Foat. & F. 44) ii. 560,563 , Rex V. (4 Car. & P. 251) i. 572 a Mitchell u. Ringgold (3 Har. & J. 159) ii. 575 V. State (7 Eng. 50) i. 319 ; ii. 37, 748 Mitchell V. State (22 Ga. 211) i. 842, 849 Mitchell V. State (41 Ga. 527) ii. 704 Mitchell V. State (5 Yerg. 340; 8 Yerg. 514) i. 1005 ; ii. 728 , State V. (6 Ire. 350) i. 224, 729 ; ii. 15, 17 Mitchell V. Tibbetts (17 Pick. 298) i. 159 Mitchell, United States v. (2 Dall. 348) i. 456 ; ii. 1202, 1226 Mitchum v. State (45 Ala. 29) ii. 811 Milchum V. State (U Ga. 615) ii. 677, 695 Milton's Case (1 East P. C. 411) i. 736 Miiton, Rex v. (3 Car. & P. 31) ii. 37, 41 Mix, Stale V. (15 Misso- 153) i. 997 Mixed Money, Case of (2 Howell St. Tr. 113) ii. 277, 279 Mixer u. Manistee (26 Mich. 422) i. 32 Mize y. State (49 Ga. 375) i. 1014 Moah, Reg. v. (Dears. 626; 36 Eng. L. & Eq. 592) ii. 327, 375 , Req. V. (Dears. & B. 550 ; 7 Cox d. C. 503) ii. 529, 534 Mobile w. The Cuba (28 Ala.185) i.172,173 V. Eslava (9 Port. 577) i. 174 Mobley, State v. (1 McMuUan, 44) ii. 1267 Moffat's Case (2 East P. C. 954) ii. 538 Moffatt, Rex v. (1 Leach, 431) ii. 538 Moffetl V. Brewer (1 Greene, Iowa, 348) i. 490, 828 , State V. (1 Greene, Iowa, 247) i. 828 Mogg, Rex v. (4 Car: & P. 364) _ i. 735 Mohn, Commonwealth v. (2 Smith, Pa. 243) i. 540, 1101 Mohney v. Cook (2 Casey, 342) ii. 968 Mohun's Case ( Holt, 479 ; 12 How- ell St. Tr. 949) i. 632 ; ii. 744 Moland, Reg. v. (2 Moody, 276) i. 685, 686 ; ii. 485 Mok, Reg. V. (1 Car. & K. 417) ii. 758, 882 Molette ■«. State (49 Ala. 18) ii. 1006 Molier, Slate v. (1 Dev. 263) ii. 1019 Monaghan,Reg.i). (11 CoxC. C. 608)1.531 Monday v. State (32 Ga. 672) ii. 740, 741 Mongeon v. People (55 N. Y. 613) ii. 731 Monkhouse, Reg. v. (4 Cox C. C. 55) i. 408 Monnier, State v. (8 Minn. 212) ii. 574 Monroe v. State (5 Ga. 85) i. 305, 536, 842, 849, 853, 857, 865, 872, 998 ; ii. 718 Monroe Oyer and Terminer, People v. (20 Wend. 108) i- 1014 Montalvo v. State (31 Texas, 63) ii. 741 Montgomery, People v. (13 Abb. Pr. U.S. 207) i. 376, 384 Section Montgomery, Respublica v. (1 Yeates, 419) i. 459 ; ii. 974 Montgomery v. State (7 Ohio State, 107) i. 679 V. State (10 Ohio, 220) ii. 1019, 1020 Montgomery v. State (11 Ohio, 424) ii. 737 Montgomery, State v. (Cheves, 120) i. 363, 366 Moody V. Com'th (4 Met. Ky. 1) ii. 316 Moody V. People (20 111. 315) ii. 752 , People V. (5 Parker C. C. 568) i. 569 , Reg. V. (Leigh & C. 173) ii. 529, 564 ii. 1039 i. 637 ii. 1274 , Rex T. (5 Car. & P. 23) Moody V. State (6 Coldw. 299) V. Ward (13 Mass. 299) Mooney v. State (8 Ala. 328) ii. 797, 806 Mooney v. State (33 Ala. 419) i. 413, 735, 843 , State V. (Phillips, 434) ii. 25 Moor, State v. (Walk. Missis. 134) i. 981, 1018, 1031 Moore, Ex parte (30 Ind. 197) ii. 677 Moore, In re (63 N. C. 397) ii. 243, 255 V. Clerk of Jessamine (Litt. Sel. Cas. 104) ii. 255, 268 Moai-e T. Com'th (8 Barr, 260) ii. 767, 768 , Com'th V. (11 Cush, 600) i. 1090 Moore v. Graves (3 N. H. 408) i. 464 Moore V. Hussey (Hob. 93) i. 536, 849, 857, 858 V. Illinois (14 How. U. S. 13) i. 178, 179, 988 ; ii. 285, 287 Moore v. Moore (47 N. Y. 467) ii. 540 Moore, People v. (8 Cal. 90) ii. 695 Moore v. Quirk (105 Mass. 49) ii. 540 Moore, Req. v. (3 Car. & K. 319) i. 412 , Req. V. (1 Leigh & C. 1 ; 8 Cox C. C. 416) ii. 883 , Rex V. (3 B. & Ad. 184) i. 531, 735, 1146 , Rex T. (1 Leach, 314; 2 East P. C. 679) i. 648 ; ii. 819 , Rex\. (1 Leach, 335) i. 553 ; ii. 1167 , Rex V. (2 Leach, 575; 2 East P. C. 582) ii. 856 V. Sanborne (2 Mich. 519) i. 174 ; ii. 1271 Moore v. State (18 Ala. 532) i. 735, 738 ; ii. 741 i. 1004 i.998 V. State (4 Chand. 168) V. State (3 Heisk. 493) Moore V. Stale (17 Ohio State, 521) i. 373 V. State (31 Texas, 572) ii. 723 , State V. (31 Conn. 479 i. 853, 855, 856; ii. 1273 Moore, State v. (39 Conn. 244) ii. 1010 , State V. (6 Post. N. H. 448) i. Ill , State V. (15 Iowa, 412) ii. 480 Moore, State v. (25 Iowa, 128) ii. 657 , State V. (11 Ire. 70) ii. 758, 765 , Stale V. (12 N. H. 42) i. 208, 339, 793,796, 1062; ii. 107, 116 Moore, State v. (69 N. C. 267) ii. 712 717 MOB INDEX TO THE CASES CITED. MOS Sbotiojt Moore, State v. (Smith, Ind. 816 ; 1 Ind. 648) ii. 408 Moore, State v. (1 Swan, Tenn. 136) i. 38, 501 Moore v. Turbeville (2 Bibb, 602) ii. 433 Moorhouse, Rex v. (Cald. 554; 4 Doug. 388) • i. 240 Mopset/, Reg. v. (11 Cox C. C. 143) ii. 562 Moran v. Rennard (3 Brews. 601) i. 286 Mordecai, State v. (68 N. C. 207) ii. 91 More, U. S. V. (3 Crancli, 159) i. 1024 Marea, State T. (2 Ala. 275) ii. 638 Morehead v. State (9 Humph. 635) ii. 758, 799, 880 Morely's Case (J. Kel. 53) ii. 704 Morey v. Com'th (108 Mass. 433) i. 1053, 1061 Morjil, Rex v. (Russ. & Ry. 307) ii. 758, 843, 846 Morgan v. Bliss (2 Mass. Ill) i. 430, 4.32; ii. 175 , Com'th V. (14 B. Monr. SW i. 909 Morgan, Com'th v. (107 Mass. 199) i. 317 Morgan v. King (18 Barb. 277) i. 174 V. Pettit (8 Scam. 529) 1. 143 Morgan, Reg. v. ( Dears. 395 ; 29 Eng. L. & Eq. 543) ii. 808 Morgan, Rex v. (11 East, 457) i. 950 V. Rliodes (1 Stew. 70) i. 267, 271 V. State (33 Ala. 413) ii. 741 Morgan V . State {IS Ind. 216) i. 1014 V. State (13 Sm. & M. 242) i. 342 ; ii. 741 Morgan v. State (3 Sneed, 475) i. 998, 1033 V. State (34 Texas, 677) i. 1053 V. State (42 Texas, 2;i4) ii. 1018 , State V. (40 Conn. 44) i. 1088 , State V. (3 Heisk. 262) ii. 1200 Morgan, Slate V. (3 Ire. 186) i. 536, 548, 857 ; ii. 34, 706 Morgan, State v. (Winston, No. 1, 246) ii. 499 Morison's Case (1 Broun, 394) ii. 28, 32 Morissey v. People (U Mich. 327) i. 141 Morlei/'s Case (1 Hale P. C. 456 ; 6 Howell St. Tr. 769) ii. 704 Morley v. Prajfnell (Oro. Car. 510) i. 1142 , Rex V. (4 A. & E. 849) ii. 269 Morman v. State (24 Missis. 54) i. 736, 998 Morphin, State v. (37 Misso. 373) ii'. 888 Morrdl V. People (32 III. 499) ii. 1020 Morrill, Com'th v. (8 Cush. 671) ii. 469 , State V. (16 Ark. 884) ii. 243 Morris's Case (4 Howell St. Tr. 951) ii. 529 Mojris, Com'th v. (1 Va. Cas. 176) ii. 918 Morris v. McMorris, (44 Missis. 441) ii 540 V. Nugent (7 Car. & P. 572) i. 1080 Morris, Reg. v. (9 Car. & P. 89) i. 342 , Reg. V, (9 Car. & P. 849) i. 224 ; ii. 767 Morris, Reg. v. (2 Crawf. & Dix C. C. 91) i. 883 718 Section Morris; Reg. v. (Law Rep. 1 C. C. 90; 10 Cox C. C. 480) i. 1059 , Bex V. (IB. & Ad. 441) i. 531; ii. 1267, 1278 , Eex T. (2 Leach, 1096) i. 363, 673, 956 , Rex V. (Russ. & Ry. 270) i. 359 Morris v. State (31 Ind. 189) ii. 959 w. State (47 Ind. 503) ii. 966 Mon-is V. State (8 Sni. & M. 762) i. 1006 Morris v. State (38 Texas, 603) i. 1088 , State V. (3 Hawks, 388) i. 689 , State V. (3 Misso. 127) i. 536, 537 ; ii. 490 Morris, United States v. (1 Curt. C. C. 28) . i. 990, 1089, 1041 Morris, U. S. v. (10 Wheat. 246) i. 910 Morris Canal & Banking Co. v. State (4 Zab. 62) ii. 1282 .State V. (2 Zab. 537) ii. 1269, 1270 Morris Sf Essex Railroad, State v. (3 ' Zab. 360) i. 420 Morris Rim Coal Co. v. Barclay Coal Co. (18 Smith, Pa. 173) ii. 198, 231 Morrison v. McDonald (21 Maine, 550) i. 462;ii. 243 V. Moat (4 Edw. Ch. 25) . ii. 259 V. Morrison (4 Hare, 590), ii. 270 Morrison, Pennsylvania v. (Addison, 274) i. 534; ii. 1147 , People V. (1 Parker C. C..625) i. 1003 ; ii. 1122 , People V. (13 Wend. 899) i. 572 a , Reg. V. (Bell, C. C. 158 ; 8 Cox C. C. 194) ii. 785 , State V. (3 Dev. & Bat. 115) i. 1034 Morrison, U. S. v. (1 Sumner, 448) i. 564 Morrow, Com'th v. (9 Philad. 583) i. 960 Morrow, United States v. (4 Wash. C. C. 733) i. 681, 682, 685, 686, 769 ; ii. 291, 299 Morse v. Calley (5 N. H. 222) i. 464 Morse, Com'th v. (2 Mass. 128) ii. 543, 605 , Com'th V. (2 Mass. 138) i. 204, 206 , Com'th V. (14 Mass. 217) ii. 758,826 Morse o. State (6 Conn. 9) i. 207 Mortimer, Com'th v. (2 Va. Cas. 325) i. 1052 Morton v. Bradley (27 Ala. 640) i. 267, 271 V. Moore (15 Gray, 673) ii. 1273 V. Princeton (18 111. 383) i. 934, 948 Morton, Reg. v. (Law Rep. 2 C. C. 22 ; 12 Cox C. C. 456) ii. 567 , Rex V. (2 East P. C. 955 ; 1 Leach, 258, n.) ii. 529, 540 V. Shoppee (3 Car. & P. 373) ii. 28, 31 Moseley, Reg. v. (Leigh & C. 92 ; 9 Cox C. C'. 16) ii. 472 V. Slate (33 Texas, 671) i. 1033 Moseley v. State (42 texas, 78) ii. 789 Mosebj V. State (28 Ga. 190) ii. 996 Moses V. Dubois (Dudley S. C. 209) ii. 748 Moses, U. S. V. (4 Wash. C. C. 726) ii. 698 Mosher B.Vincent (89 Iowa, 607) ii. 1273 MTJE INDEX TO THE CASES CITED. MYC Section Mosler, Commonwealth v. (4 Barr, 204) i. 376, 380, 384, 388 ; ii. 703 Moss V. Bettis (4 Heisk. 661) ii. 857, 858 V. Scott (2 Dana, 271) ii. 139 V. State (42 Ala. 546) i. 934 Mostyn v. Fabrigas (Cowp. 161) i. 110 Motl, Com'th V. (21 Pick. 492) i. 960, 1049 , Rex V. (2 Car. & P. 621) ii. 206 Mott, State v. (4 Jones, N C. 449) ii. 268 Mott, State V. ( 16 Minn. 472) ii. 540 Moulton, Com'th u. (108 Ma38.307) ii. 1200 Moullon, U. S. V. (5 Mason, 537) ii. 785 Moultrieville, State v. (Rice, 158) i. 793 ; ii. 986 Mouncer, Rex v. (2 Leach, 567 ; 2 East P. C. 6391 i. 937 Mount V. Com'th (2 Duvall, 93) i. 919, 1027 V. Utate (14 Ohio, 295) i. 994, 1016, 1041 T. State (7 Sm. & M. 277) i. 689 Momlfurd, Rex v. (7 Car. & P. 242 ; 1 Moody, 441) i. 758 Mowrey w. Walsh (8 Cow. 238) i. 583; ii. 809, 815 Mucklow, Rex T. (1 Moody, 160 ; Car. Crim. Law, 3d ed. 280) ii. 801, 802 Mudie, Rex v. (1 Moody & R. 1-28) ii. 1039 Muir w.State (8 Blackf .154) i. 464 ; ii. 1020 Mnhahy v. Reg. (Law Rep. 3 H. L. 306) ii. 1231 Mnllany, Beg. v. (Leigh & C. 593) ii. 1032 Maltee, In re (7 Biatch. 23) i. 913 ; ii. 269 Mullen V. State (45 Ala. 43) i. 749 , Stale V. (30 Iowa, 203) ii. 789 Mullen, State y.(35 Iowa, 199) i. 150, 1085 , State V. (14 Ala. An. 670) i. 37,401, 680, 850, 865 Mallikin, State v. (8 Blackf. 260) i. 504, 1113, 1115 MuUius V. Collins (Law Rep. 9 Q. B 292) i. 317 V. State (37 Texas, 337) ii. 847 Mdreaty, Rex v. (1 Rass. Crimes, 3d Eng.ed. 698) i. 503; ii. 1192 Mulrou, Reg. v. (3 Crawf. & Dix C. C. 318) i. 557, 883, 884 ; ii. 29, 56 Mulvey v. State (43 Ala. 316) i. 363 Munco, State v. (12 La. An. 625) i. 791 Munday, Reg. o. (2 Fost. & F. 170) i,663 Mundel, U. S. V. (6 Call, 245) i. 934 Mauford v. State (39 Missis. 658) i. 1054, 105-5, 1056 Mimgeam v. Wheatley (1 Eng. L. & Eq. 516 ; 15 Jur. 110) i. 299 ; ii. 256, 269 Munson v. People (5 Parker C. C. 16) i. 1079 Munton, Rex v. (1 Esp. 62) i. 110 Murat, People v. (46 Cal. 281) i. 772 ; ii. 740 Murdoch, Reg. v. (2 Den. C. C. 298 ; 8 Eng. L & Eq. 577) ii. 376 Mure V. Kaye (4 Taunt. 34) i. 135 Murfreesboro', State v. (11 Humph. 217) l419, 531; u. 1281 Section Murphy v. Bottomer (40 Misso. 67) i. 714 V. Com'th (23 Grat. 960) i. 1054 Murphy, Commonwealth v. (12 Allen, 449)' ii. 404, 1200 , Commonwealth v. (2 Gray, 510) i. 361, 363, 366 Murpliy, Commonwealth v. (3 Pa. Law Jour. Rep. 290) i. 974 Murphy V. People (37 111. 447) i. 857 Murphy v. People (5 Thomp. & C. 302; 3 Hun, 114) ii. 1162 a , People V. (45 Cal. 137) i. 951 Murphy, Reg. t. (8 Car. & P. 297) ii. 190 , Reg. V. (4 Cox C. C. 101) ii. 335 , Rjg. V. (6 Cox C. C. 340) ii. 901 Murphy, Reg. v. (1 Crawf. & Dix C. C. 20) ii. 991 Murphy, Reg. V. (Law Rep. 2 P. C. 535) i. 1001 , Rex V. (6 Car. & P. 103) i. 632, 636, 642 ; ii. 692, 744 V. State (37 Ala. 142) ii. 715 V. State (7 Coldw. 516) i. 998 Murphy v. State (3 Head, 249) ii. 1262 Murphyv. State (31 Ind.511) ii. 677,680,697 , State V. (6 Ala. 765) i. 259, 261, 592, 792 ; ii. 235, 239, 1122 , State V. (8 Blackf. 498) i. 578, 679, 799 ; ii. 758, 771 Murphy v. "Wilson (46 Ind. 537) ii. 263 Murray's Case (1 Wils. 299; 8 Howell St. Tr. 30) ii. 247 Murray v. Ballou (1 Johns. Ch. 566) ii. 140 ^ D. Charming Betsey (2 Cranch, 64) i. 306 V. Commonwealth (12 Harris, Pa. 270) ii. 960 V. Com'th (13 Met. 514) i. 965 Murray, Com'th r.' (2 Ashm. 41) ii. 728 Murray, Com'th o. (14 Gray, 397) i. 516 «. Lylburn (2 Johns. Ch. 441) ii. 140 Murray, People v. (14 Cal. 159) i. 764 , keq. V. (I Fost. & F. 80) ii. 1036 , Rex V. (6 Car. & P. 145 ; 1 Moody, 276) i. 667 Murray, Hex v. (1 Jur. 37) i. 247, 256 Murray, Rex v. (1 Leach, 344; 2 East P. C. 683) ii. 365, 813, 830, 856 , Rex V. (1 Moody, 276) ii. 365, 368 Murray w. State (18 Ala. 727) i. 141 ; ii. 758, 880 Murray, State T. (16 Maine, 100) i. 465, 466, 697, 792, 814 ; ii. 1089 Murtagh, Reg. v. (1 Crawf. & Dix C. C. 355) i. 578 ; ii. 769 Murrell v. State (44 Ala. 367) i. 894 Murton, Reg. v. (3 Fost. & F. 492) ii. 657 Muscat, Reg. v. (10 Mod. 192) ii. 1046 Muse V. Vidal (6 Munf. 27) i. 460 Muaqrave v. Medex (19 Ves. 652) i. 110 ; ii. 1029 Mutters, Reg. v. (Leigh & C. 511) ii. 874 Ml/call, Commonwealth v. (2 Mass. 136) i. 672; ii. 631, 685 719 NEL INDEX TO THE CASES CITED. NEW SEOTIOlf Myers, Commonwealth v. (1 Va. Gas. 188) i. 1014, 1028 Myers «. People (26 111. 173) i. 141 , Rex w. (1 T. R. 265) ii. 256 u. Springfield (112 Mass. 489) ii. 1280 Miiers v. Slate (1 Conn. 502) i. 301, 303 ; ii. 970 Myers v. State (33 Texas,"" 525), ii. 704 , United States i-. (1 Cranuh C. C. 310) ii. 34 Myhand, State v. (12 La. An. 604) i. 940 Mytton, Rex v. (Cald. 536 ; 1 Bott P. L. 439, n. ; 4 Doug. 333) i. 240 Nabors v. State (6 Ala. 200) i. 499, 1006 ; ii. 968 Naglee, People v. (1 Cal. 232) i. 176 Ndilor's Case (cited Foster, 278) i. 867 Nailor,U.S.v. (4 Cranch C. C. 372) i. 1088 Naish V. East India Co. (2 Comyns, 462) i. 355 Nail y. State (34 Ala. 262) ii. 1104 Nancy v. State (6 Ala. 483) i. 736 ; ii. 741 Napper, State o. (6 Nev. 113) i. 738, 749 ; ii. 53 Nasli '!. Primm (1 Misso. 178) i. 271 Nash, Reg. v. (2 Den. C. C. 493 ; 12 Eng. L. & Eq. .578) i. 748 ; ii. 599 , State v. (7 Iowa, 347) i. 653 Nason, Com'ih v. (9 Gray, 125) ii. 430 Nason u. Dillingham (15 Mass. 170) i 464 Nathan v. State {8 Misso. 631) i. 620 ; ii. 1134 Nations, State v. (31 Texas, 561) ii. 741 Nayler's Case (5 Howell St. Tr. 802) ii. 76 Naylor, Com'th «. (10 Casey, 86) ii. 961 Naijhr, Reg. v. (11 Cox C. C. 13) ii. 10.30 , Reg. f. (Law Rep. 1 C. C. 4) ii. 471 Nealu. Com'th (17 S. &R. 67) i. 145 , Commonwealth v. (10 Mass. 152) i. 358, 359, 361 V. Farmer (9 Ga. 555) i. 271, 564 Neal, Slate v. (37 Maine, 468) i. 786 Neale v. The Overseers (5 Watts, 538) i. 464 Neale, Reg. v. (1 Car. & K. 591 ; 1 Den. C'. C. 36) i. 791, 812 ; ii. 1118 , Reg. V. (9 Car. & P. 431) i. 459, 534 ; ii. 974, 1258 Ned V. Slate (7 Port. 187) i. 1031, 1033, 1034, 1041 Needham, Ex parte (Pet. C. C. 487) i. 482 Needham v. Slale'(\ Texas, 139) i. 34:i Neel V. State (4 Eng. 259) ii. 269 Neeley, Slate v. (20 Iowa, 108) i. 843, 844 Negus, Reg. v. (Law Rep. 2 C. C. 34 ; 12 Cox C. C. 492) ii. 341, 346 Neil, Rex v. (2 Car. & P. 485) i. 491, 11.38 Nelson u. State (39 Ala. 667) i. 893 V. State (10 Humph. 518) i. 811 V. State (47 Missis. 021) ii. 1030 Nelson, Slate v. (7 Ala. 610) i. 1040 , State V. (26 Ind. 366) i. 1033 720 Seotiok Nelson, State v. (29 Maine, 329) i. 359, 363, 793, 1061 , State V. (8 N. H. 163) ii. 888 Nelson, U. S. r. ( 1 Abb. U. S. 135) ii. 605 w.Whetmore (1 Rich. 318) ii. 82.3, 880 Nemo V. Com'th (2 Grat. 558) i. 932, 934 Nerae's Estate (35 Cal. 392) i. 970 Nesbit, Commonwealth r. { 10 Casey, 398) ii. 964, 958, 960 Nether Ralhm, Reg. v. (3 Com. Law, 94 ; 29 Eng. L.'& Eq. 200) ii. 1281 Nelherthouq, Rex v42 B.& Aid. 179) ii. 1270 . Nettlelon, Rex v.{l Moody, 259) ii. 334, 346 NeviUe, Rex v. (Peake,91) i. 244,531, 1139 ■ , State V. (6 Jones, N. C. 423) ii. 708 Nevllls V. State (7 Coldw. 78) i. 772 Nevins, Peoide v. (1 Hill, N. Y. 154) ii. 265, 268 New Bedford Bridge, Com'th v. (2 Gray, 339) i. 174, 175, 420 ; ii. 1269 New Bedfiyrd Bridge, U. S. V. (1 Woodb'. & M. 401) i. 174, 190, 195, 199, 201, 265 New Orleans v. Costello (14 La. An. 37) i. 1089 V. United States (10 Pet. 662) i. 169 New York, Tlie (3 Wheat. 59) i. 352, 824 , People V. (29 Barb. 622) ii. 268 , &c., Railroad, Commonwealth !>. (112 Mass. 409) ii. 1274 Newall V. Jenkins (2 Casey, 159) ii. 220 Newark Plank Road v. Elmer (1 Stock. 754) , ii. 1271 Newbegin, State v. (25 Maine, 500) ii. 118 Newhery, In re (4 A. & E. 100) ii. 255 Newbery v. Goodwin (1 PhilUm. 282) i. 38 Neivburii, In re (5 Nev. & M. 419) ii. 255 Newburyport Bridge, Common- wealth V. (9 Pick. 142) ii. 1269 Newby, State v. (64 N. C. 23) ii. 996 Newby v. Territory (1 Oregon,163) ii.ll47 Newdigate, Rex v. (Comb. 10) i. 540; ii. 312 Newell, Com'th v. (7 Mass. 245) i. 36, 437, 659, 617, 625, 805, 808, 810 ; ii. 110, 1004, 1008 , State T. (1 Misso. 248) ii. 444 Newell V. Cowan (30 Missis. 492) i. 271 Newfane, State v. (12 Vt. 422) ii. 1267 Newkirk v. Cone (18 111. 449) ii. 131, 135 , State V. (49 Misso. 84) ii. 998 Newlands, Reg.u.(4 Jur. 322) i. 5.36 ; ii. 505 Newman, Ex parte (9 Cal. 502) ii. 951 Newman, Reg. v. (1 Ellis & B. 268; Dears. 86; 22 Law J. n. s. Q. B. 166; 17 Jur. 617; 18 Eng. L. & Eq. 113) ii. 920 Newman v. Shyriff (3 Leon. 170) ii. 666 , State V. (9 Nev. 48) i. 140, 141 ; ii. 799, 839 Newport v. Taylor (16 B. Monr. 699) i. 172 Newsom v. State (2 Kelly, 60) i. 1014, 1017 Newton, In re (13 Q. B. 716 ; 18 Jur. 606; 18Law J.N.S.M.C.201) i.1033,1041 NOB USTDEX TO THE CASES CITED. NUT Sectiok Newton v. Com'th (8 Met. 535) i. 960 , Commonwealth v. (1 Grant, Pa. 453) ii. 268 , Com'th V. (8 Pick. 234) ii. 968 Newton v. Harland (1 Man. & G. 644) ii. 490 , Reg. V. (1 Car. & K. 469) i. 464 ; ii. 1020 ,Beg. V. (3 Car. & K. 85: 3 Cox. C. C. 489) i. 1033 , Reg. V. (2 Moody & R. 503) i. 1014 Newton, Rex v. (Car. Crim. Law, 285) ii. 1173 , Rex V. (2 Lev. Ill) i. 625, 799 u. Ricketts (11 Beav. 67) ii. 270 , State V. f42 Vt. 637) ii. 888 V. Trigg (1 Show. 268) i. 532 Nicholj Rex V. (Russ. & Ry. 130 ; 1 Ben. & H. Lead. Cas. 613) i. 261, 548 ; ii. 28, 36 Nicliolas, State v. (2 Stroh. 278) i. 287,992 NichoUs, Reg. v. (9 Car. & P. 267) i.735,809 , Reg. V. (2 Cox C. C. 182) i. 804 NichoUs, Reg. v. (18 Cox C. C. 75) ii. 660 ^— , Rex V. (2 Keny. 512) i. 536; ii. 499 Nichols, Commonwealth v. (10 Met. 259) i. 631, 686 V. PeopZe (17 N. Y. 114) ii. 860 Nichols, People v. (3 Parker C.C. 579) ii. 860 V. Pixly (1 Root, 129) i. 265 Nichols V. Slate (8 Ohio State, 435) i. 413 Nichols V. State (35 Wis. 308) i. 618 , State V. (26 Ark. 74) i. 899, 900, 903, 907 , State V. (8 Conn. 496) i. 736, 794 ; ii. 56, 741 , State V. (12 Rich. 672) ii. 995 V. Valentine (36 Maine, 322) i. 11 Nicholson v. Hardwick (5 Car. & P. 495) i. 306 Nicholson, Rex v. (1 East P. C. 346) i. 429 , Rex V. (2 Leach, 610; 2 East P. C. 669) i. 583 ; ii. 810 Nicholson, State v. (2 Murph. 135) ii. 1282 Nickerson, Commonwealth v. (5 Al- len, 518) ii. 751, 753, 754 Nickerson, United States -v. (17 How. U. S. 204) i. 1053 ,U. S.v. (1 Sprague, 232) ii. 1026,1027 Nickless, Reg. v. (8 Car. & P. 757) i. 516, 630 Nicolls, Rex V. (2 Stra. 1227) i. 801 ; ii. 188 Nine Packages of Linen, United States V. (1 Paine, 1.29) i. 306, 824 Nisbett, Reg. v. (6 Cox C. C. 320) ii. 605 Nix, Com'th f. (U Leigh, 636) i. 564, 998 Nixon, Rex v. (7 Car. & P. 442) ii. 763, 783 , State V. (18 Vt. 70) i. 343, 734, 1086 Nixon, State v. (Wright, 763) ii. 272 Noahs V. People (25 N. Y. 380) ii. 560 , Reg. v. (4 Fost. & F. 920) ii. 664 Noble V. 'State (22 Ohio State, 641) ii. 1131 Noe V. People (39 111. 96) ii. 7 VOL. I. 46 Seotioit Noel, State v. (T. U. P. Charl. 43) ii. 256 Nolan, Com'th v. (5 Cush. 288) ii. 898 Noland V. State (19 Ohio, 131) i. 670, 789 Notes V. Slate (26 Ala. 31) i. 842, 849, 857 Nolton, U. S. V. (6 Blatch. 427) i. 488 Noon, Reg. v. (6 Cox C. C. 137) ii. 676, 681 Norden's Case (Foster, 129 ; 1 Russ. Crimes, 3d Eng. ed. 880) i. 438 Norfolk's Case (1 Howell St. Tr. 957) ii. 1213 Norman, Reg. v. (Car. & M. 501) i. 567 ; ii. 376 Norns, Rex v. (2 Keny. 300) ii. 230 , State V. (9 N. H. 96) ii. 1018, 1038, 1039 North, Reg. v. (8 Cox C. C. 433) ii. S12 North River Steamboat Co. u. Liv- ingston (3 Cow. 7r3) i. 173 Northampton's Case (12 Co. 132) i. 940 Northampton, Rex v. (2 M. & S. 262) ii. 1281 Northampton Insurgents (Wharton's State Trials, 458) ii. 1202 Northcot V. State (43 Ala. 330) ii. 996 Northrop v. Brush (Kirby, 108) ii. 54 Northrup v. Foot (14 Wend. 248) ii. 968 Northumberland, State v. (44 N. H. 628) ii. 1267, 1268 Norton, Com'th v. (11 Allen, 266) ii. 428, 432 a V. Ladd (5 N. H. 203) i. 578; ii. 758, 772, 773 V. People (8 Cow. 137) i. 653, 664 , People V. (7 Barb. 477) i. 237, 239, 459, 460, 462 ; ii. 973 Norton v. Sanders (1 Dana, 14) ii. 139 V. State (4 Misso. 461) i. 207 ; ii. 863, 864 Norton V. State ( 14 Texas, 387)i. 1028 ; ii. 43 , State V. (2 Ire. 40) i. 491 , State V. (3 Zab. 33) i. 432; ii. 174, 192, 198, 209, 237, 578 Norton, State v. (45 Vt. 258) i. 516 Norvell, State v. (2 Yerg. 24) i. 982, 994, 1000, 1024, 1041 Nott, Reg. V. (4 Q. B. 768; Day. & M. 1) i. 237 , U. S. V. (1 McLean, 499) ii. 904 Noyes, State v. (10 Fost. N. H. 279) i. 829, 1079 Noyes, State ». (47 Maine, 189) ii. 1267 Noi/es, Slate v. (25 Vt. 416) i. 432, 814 ; ii. 193, 239, 1011 Nueslein, State v. (25 Misso. Ill) ii. 728 Nueva Anna, The (6 Wheat. 193) i. 119 Nugent, Ex Parte (4 Pa. Law Jour. Rep. 220) ii. 247 , Reg. V. (11 Cox C. C. 64) i. 466 Nugent v. State (18 Ala. 521) i. 753 ; ii. 1116 Nugent V. State (4 Stew. & P. 72) i. 1032 Nugent, Territory v. (1 Mart. La. 103J i. 945 Nun, Reg. v. (10 Mod. 186) i. 470, 734 ; ii. 266, 946 Nuthill V. State (11 Humph. 247) ii. 744, 745 721 OKB INDEX TO THE CASES CITED. OET Section Nutt, State v. (28 Vt. 598) i. 1054 Nutting, State ;>. (16 Vt. 261) i. 811 ■ Nt/e, U. S. V. (2 Curt. C. C. 225) i. 564 Nymph, The (1 Ware, 257) i. 821 Oakley, Rex v. (4 B. & Ad. 307) ii. 503 Oaks,' Com'th v. (113 Mass. 8) ii. 1273 Oates, Reg. v. (Dears. 459 ; 29 Eng. L. & Eq. 552 ; 6 Cox C. C. 540 ; 24 Law J. N. s. M. C. 123 ; 1 Jur. n. s. 429 ; 3 Com. Law, 661) il. 429 Oath before the Justices ( 12 Co.l30) i. 171 O'Blennis v. State (12 Misso. 311) i. 226, 689 0' Brian v. Com'th (& Bush, 563) i. 1018 O'Brian v. Commdnwealtli (9 Bush, 333) i. 1013, 1015, 1018, 1026, 1039, 1041 O'Brian, Reg. v. (1 Den. C. C. 9; 3 Car. & K. 115) 1. 693 , Rex V. (2 Stra. 1144; 7 Mod. 378) i. 287,468,572, 793 ; ii.165,529,1029 O'Brian v. State (12 Ind. 369) i. 1028 O'Brien's Case (1 Townsend St. Tr. 469) ii. 1213 O'Brien, Com'tli v. (12 Cush. 84) i. 814 V. Henry (6 Ala. 787) ii. 513 O'Brien v. People (48 Barb. 274) i. 409 O'Brien v. People (28 Mich. 213) i. 1088 O'Brien, Reg. v. (4 Cox C. C. 398) ii 92 93 O'Brien, State v. (2 Eoot, 516) ii.' 17 O'Brien, State v. (3 Vroom, 169) i. 314 ; ii. 662 a O'Connell v. Reg. (11 CI. & P. 155 ; 9 Jur. 25 ; 2 Townsend St. Tr. 392) i. 432, 945 ; ii. 175, 176, 224 O'Connor, State v. (31 Misso. 389) i. 305, 843 Odel, State v. (3 Brev. 552) i. 572 ; ii. 543, 598 Odell V. Garnett (4 Blackf. 549) ii. 79. 80 Odell, State y. (4 Blackf. 156) i. 1028 Odell, State i'.(8 Blackf. 396) i.460 ; ii.973 O'Dogherty, Seg. v. (5 Cox C. C. 348) ii. 259, 262 O'Doherty, Reg. v. (Hodges' Re- port) ii. 916 O'Donnell, Iieg.v.{7 Cox, C.C. 387) ii. 841 a Odum, State v. (11 Texas, 12) 1. 35 Offord, Ri'x T. (5 Car, & P. 168) i. 384 Offutl, State T. (4 Blackf. 355) ii. 1024 Ogden V. Des Arte (4 Duer, 275) ii. 132 V. Gibbons (4 Johns. Ch. 150) i. 173 V. State (12 Wis. 532) i. 671 Oglesby v. State (39 Texas, 53) ii. 748 Ogletree v. State (28 Ala. 693) i. 735, 786 ; ii. 741 O'Hanlan v. Myers (10 Rich. 128J i. 399 O'Herrin v. State (14 Ind. 420) i. 411, 934 Ohio and Mississippi Railroad, State V. (23 Ind. 862) 1. 420 Ohio and Pennsylvania Railroad, Com'th V. (1 Grant, Pa. 329) i. 420, 906 Okey, Rex i;.(8 Mod. 45) i.460, 462 ; ii. 978 722 Olcott, People T. (2 Johns. Cas. 301 ; 2 Day, 507, n.) i. 801, 990, 1033, 1034, 1041 ; ii. 188, 201 Old Malton, Rex t. (4 B. & Aid. 469) ii. 1286 Oldfield's Case ( 12 Co.71 ) i.470, 942 ; ii. 50 Olds V. Com'ih (3 A. K. Mar. 465) i. 488 , Commonwealth v. (5 Litt. 137) i. 982, 990, 1018, 1031, 1041 O'Leary v. People (4 Parker C. C. 187) ii. 740, 743 Oleson V. State (20 Wis. 58) ii. 1105 Olinger v. Shepherd (12 Grat. 462) ii. 505 Oliphant, Pennsylvania u. (Addi- son, 345) ii. 1267 Olive V. Com'th (5 Bush, 376) ii. 110 Oliver v. Loftin (4 Ala. 240) ii. 1267, 1277 Oticer, Rex v. (2 Russ. Crimes, 3d Eng. ed. 43 ; 2 Leach, 1072 ; 4 Taunt. 274) ii. 812, 817 V. 5(afe (17 Ala. 587) i. 305, 321, 347, 842, 849, 857, 869 ; ii. 731 Olivers. State (17 Ark. 608j ii. 1012 , State V. (2 Houston, 585) ii. 699 , State V. (70 N. C. 60) i. 891 Olmsted v. Hotailing (1 Hill, N. Y. 317) ii.818 Olmstead, People v. (80 Mich. 431) ii. 722 Olwell, People v. (28 Cal. 456) i. 1047 Omeak v. Newell (8 East, 364) i. 468, 734 ; ii. 1029 O'Meara v. State (17 Ohio State, 515) i. 373, 1014 Omit V. Com'th (9 Harris, Pa. 426) ii. 961 One Case, U. S. v. (6 Ben. 493) i. 488 One thousand nine hundred and sixty Bags of Coffee, United' States V. (8 Cranch, 398) i. 821, 822 Onebg, Rex v. (2 Stra. 766 ; 2 Ld. Raym. 1485) ii. 673 a, 675, 712 O'Neil V. People (15 Mich. 275) i. 772 , People !'. (47 Cal. 109) ii. 268 Oneil v. State (48 Ga. 66) i. 1052 O'Neill V. State (16 Ala. 65) i. 535 ; ii. 3 Onslow, Reg.v.{La.vr Rep.9 Q. B. 219 ; 12 Cox C.C. 358 ; 5 Eng. Rep.443) ii.259 Ontario, People v. (4 Denio, 260) i. 32 Ooton V. State (5 Ala. 463) i. 930 Opinion of Judges (4 R. I. 583) i. 918 Opinion of Justices (3 Cush. 586) i. 44 Opinion of Justices (11 Cush. 604) ii. 745 Opinion of Justices (13 Gray, 618) i. 068 Orbell, Reg.v.{6 Mod. 42) i. 592 ; ii. 198, 204 Orchard, 'Reg. \. (20 Eng. L. & Eq. 598 ; 3 Cox C. C. 248) j. 244, 1128 Ordway, Com'th ;;. (12 Cush. 270) ii. 59 Orne v. Roberts (51 N. H. 110) i. 302 Orr u. Bank of U. S. (1 Ohio, 36) i. 422 Orrell, State v. (1 Dev. 139) ii. 640 Ortega, United States v. (4 Wash. C. C. 531) i. 127; ii. 37,51, 72 Ortega, U. S. v. (11 Wheat. 467) i. 181 Ortner v. People (6 Thomp. & C 548) ii. 1024 PAIi INDEX TO TEffi CASES CITED. PAR Section Orton V. State (4 Greene, Iowa, 140) i. 888 Orwig, State v. (24 Iowa, 102) ii. 357 a Osborn, Rex v. (3 Bur. 1697) i. 582, 685 ; ii. 145, 146 Osborn, Kex v. (1 Comyns, 240) i. 469; ii. 982 V. Union Ferry (63 Barb 629) i. 265 i;.U. S. (1 Otto, 474) i.898, 909,910,914 Osmer,People u.(4 Parker C.C.242) ii. 291 Ossnlston,Rex v.(2 Stra.1107) i.l067 ; ii.264 Oswald w. Everard {lLd.Kaym.637) i.908 , Respublica v. (1 Dall. 319) ii. 259 Oulaghan, Reg. v. (Jebb, 270) i. 1016, 1037 Outeveras, People u. (48 Cal. 19) i. 670 Outlaw V. State (35 Texas, 481) i. 400 ; ii. 1136 Overholtzer v. McMichael (10 Barr, 139) i, 218 Overman v. May (36 Iowa, 89) ii. 1274 Overstreet v. State (46 Ala. 30) ii. 16 Overton, Ex parte (2 Rose, 257) ii. 1029 , Reg. V. (2 Moody, 263 ; Car. & M. 665) ii. 1031, 1038 Owen, Rex v. (4 Car. & P. 236) i. 368 , Rex V. (1 Moody, 96) i. 654 Owen, Rex v. (1 Rol. 185) i. 127 , State V. (72 N. C. 605) ii. 1018 , State V. (Phillips, 425) i. 872 Oxford, Reg. v. (9 Car. & P. 525) i. 384, 387, 396, 758 Oxfordshire, Rex v. (1 B. & Ad. 289) ii. 1281 , Rex v. (16 East, 223) ii. 1281 Oxley V. Flower (2 Selw. N. P. tit. Imprisonment, I.) ii. 56 Package of Lace, United States v. (Gilpin, 338) i. 821, 824 Packard, Reg. r. (Car. & M. 236) i. 327, 331 ; ii. 668, 692, 693 Paddle, Rex v. (Russ. & Ry. 484) ii. 1200 Page v. Com'th (9 Leigh, 683) i. 998 Page V. Hardin (8 B. Monr. 648) i. 971 Page, Reg. v. (8 Car. & P. 122) i. 572 ; ii. 607 , Reg. V. (9 Car. & P. 756) i. 961 , Z?cj.v.(2 Cox C.C. 133) ii. 1122, 1124 , Reg. V. (1 Russ. Crimes, 8d Eng. ed. 82) ii. 299 , Rex V. (1 Brod. & B. 308 ; Russ. & Ry. 392 ; 3 Moore, 656 ; 7 Price, 616) i. 572 a Page, U. S. V. (2 Sawyer, 363) i. 488 Paget, Reg. v. (3 Fost. & P. 29) i. 32 Paice, Reg. v. (1 Car. & K. 73) i. 803; ii. 17 Paige I/. People (3 Abb. Ap. Dec. 439) ii- 606 Pain, Rex v. (Comb. 368; Holt, 294) i. 540;ii. 941 Paine's Case (Yelv. Ill) ii. 1020 Paine, Rex v. (7 Car. & P. 136) ii. 96 , Rex V. (5 Mod. 163) ii. 926, 927, 948 Palmer V. Cuyahoga (3 McLean, 226) i. 176 Sbctiox Palmer v. Horton (1 Johns. Cas. 27) i. 821 V. People (5 Hill, N. Y. 427) i. 796 Palmer v. People (10 Wend. 165) ii. 758, 791 i. 895 2 i. 649; Palmer, People v. (61 111. 255) Palmer, Rex v. (Russ. & Ry. 72 Leach, 978 ; 1 New Kep. 96) ii. 608, 609 Palmer v. State (45 Ind. 388) ii. 998 V. Tijou (2 Add. Ec. 196) i. 38 Palmer, United States v. (3 Wheat. 610) i. 117, 119, 120; ii. 1060, 1061 Palmyra, The (12 Wheat. 1) i. 824, 825, 831, 968 Pankey v. Mitchell (Breese, 301) ii. 575 Pankey v. People (1 Scam. 80) ii. 404, 1020, 1031 Pappineau, Rex\.{l Stra. 686) i. 829, 1079 Paradice, Rex v. (2 East P. C. 565) ii. 366, 836 Pardenton, Reg. v. (6 Cox C. C. 247) ii. 662 a Pardons, Case of (12 Co. 29) i. 829, 903 Par fait. Rex v. (1 Leach, 19; 1 East P. C. 416) i. 762; ii. 1181 Pargeter, Reg. v. (3 Cox G. C. 191) ii. 662 a Pargoud v. U. S. (13 Wal. 156) i. 904, 907 Parish, People v. (4 Denio, 163) ii. 485 , Reg. T. (8 Car. & P. 94) i. 303, 572 ; ii. 579, 601 Parish, State v. (8 Rich. 322) i. 1061 Park, People v. (41 N. Y. 21) i. 619, 974 Parker's Case (1 CoUinson Lun. 477; Shelford Lun. 460) i. 384 (2 Dy. 186) i. 676 ; ii. 634 Parker, Commonwealth v. (2 Cush. 212) ii. 1024, 1031, 1038 . Commonwealth v. (9 Met. 263) i. 260 ; ii. 641, 691 Parker v. Cutler Mill Dam (20 Maine, 353) i. 174 Parker v. Green (9 Cox C. C. 169) i. 32 Parker v. Huntington (2 Gray, 124) ii. 220 V. Mise (27 Ala. 480) ii. 773 Parker, People v. (38 N. Y. 85) i. 491 , Reg. V. (3 Q. B. 292; 2 Gale & D. 709) ii. 198 , Rex V. (7 Car. & P. 825; 2 Moody, 1) ii. 420, 421 , Rex r. (1 Leach, 41) i. 204 V. State (31 Texas, 132) i. 877 Parker v. U. S. (2 Wash. C. C. 361) i. 822 Parkerson, State v. (1 Strob. 169) i. 368, 362 Parkes, Rex v. (2 Leach, 614) i. 583 ; ii. 816, 822 , Rex V. (2 Leach, 775; 2 East P. C. 963) i. 672 ; ii. 523, 683, 587, 688 Parks V. Hendricks (11 Wend. 442) ii. 139, 140 Parks, Rex v. (2 East P. C. 671) i. 583 ; ii. 816, 822 Parks I). Turner (12 How. U. S. 39) i. 194 Parmelee, State v. (9 Conn. 259) i. 791 723 PAY INDEX TO THE CASES CITED. PEI Section Parnell, Rex v. (2 Bur. 806) ii. 1024 Parr, Com'th v. (5 Watta & S. 345) i. 787 , Reg. V. (2 Moody & R. 346) i. 698 , iJfa; V. (1 Leach, 434; 2 East P. C. 1005) ii. 152 Parrott v. Lawrence, (2 Dillon, 332) ii. 1269 , State V. (71 N. C. 311) i. 1081 V. Wilson (51 Ga. 255) 1. 910, 911 Parry, Rex v. (7 Car. & P. 836) i. 1058 Parsons v. Bedford (3 Pet. 433) i. 194 , Rex V. (1 Show. 283) i. 899 Parsons, Rex t. (1 W. Bl. 392) ii. 190 V. State (21 Ala. 300) ii. 639 , U. S.v.{2 Blatch. 104) ii. 904 Part of Lot v. State (1 lovpa, 507) i. 32 Partridge v. Naylor (Cro. Eliz. 480) i, 957 Partridge, Reg. v. (6 Cox C. C. 182) ii. 430 Pascoe, Reg. v. (4 New Sess. Cas. 66 ; 2 Car. & K. 927) ii. 1138 Passaic Turnpike, State w. (3 Dutcher, 217) ii. 1273 Passey,JRex v. (7 Car. & P. 282) i. 516, 630, 653 Passmore, Com'thv. (1 S. & R. 217) ii. 1274 , RespuUica v. (3 Yeates, 441) ii. 259 Patch. Rex v. (1 Leach, 238 ; 2 East P. C. 678) i. 583 ; ii. 819 Patchett, Rex v. (5 East, 339) i. 515 Patehin v. Brooklyn (13 Wend. 664) ii. 256 Pate, State v. (Busb.ee, 244)' ' i. 32 Pateman, Rex v. (Russ. &, liy. 455) ii. 561 Pater, Ex parte (9 Cox C. C. 544) ii. 268 Paterson's Case (1 Broun, 629) ii. 83 Patience, Rex v. (7 Car. & P. 775) i. 868 ; ii. 699 Patillo, State v. (4 Hawks, 348) i. 571 ; ii. 148, 157, 543 Patrick v. Smoke (3 Strob. 147) ii. 1040 Patridge v. Emson (Noy, 62) i. 957 Patten v. Gurney (17 Mass. 182) i. 592 ; ii. 198 Patten v. People (18 Mich. 314) i. 849, 877 Patterson v. McVay (7 Watts, 482) i. 832 V. Miller (2 Met. Ky. 493) i. 464 Patterson y. People (46 Barb.625) i. 803,805 Patterson, State u. (14 La. An. 46) i. 492 , State V. (45 Vt. 308) i. 858 Pattont). Freeman (Coxe, 113) i. 267,271 ii. Harris (15 B. Monr. 607) ii. 268 , Reg. V. (13 L. Canada, 311) i 828 1080 Patton, State v. (4 Ire. 16) ii! 1270 Paul, Rex v. (6 Car. & P. 323) i. 267 , State V. (5 R. I. 186) i. 1081, 1117 Payne v. Com'th (1 Met. Ky. 370) i. 865 Payne v. Partridge (1 Show. 255) i. 531 ; ii. 1269 Pame v. People (6 Johns. 103) i. 224 ; ii. 767, 768 Payne, People v. (8 Cal. 341) i. 849, 857 ; ii. 656 Payne, Reg. v. (Law Rep. 1. C. C. 27; 10 Cox C. C. 231) ii. 1106 724 Section i. 736 i. 1028 3) i. 698 i. 464 ii. 752 i. 1006 Payne, Rex v. (4 Car. & P. 558) — '—, State V. (4 Misso. 376) Payne, State v. (1 Swan, Tenn. 3 Payson v. Hall (80 Maine, 319) V. Macomber (3 Allen, 69) , State V. (37 Maine, 361) Peabody, People v. (25 Wend. 472) i.'572, 748 ; ii. 543 Peacham's Case (3 Howell St. Tr. 368) ii. 1233 Peacock, People v. (6 Cow. 72) ii. 439, 587, 593, 612 , Rex V. (Russ.fe Ry.278) i. 572 ; ii. 583 Pear, Rex v. (1 Leach, 212; 2 East P. C. 685) i. 207, 583 ; ii. 813 Pearce v. Atwood (18 Mass. 824) ii. 968 . Com'th V. (6 Grat. 669) i 967 V. Hawkins (2 Swan, Tenn. 87) i. 464 Pearce, Reg. v. (3 B. & S. 531; 9 Cox. C. C. 258) ii. 1028 , Reg. y. (9 Car. & P. 667) ii. 740 ,Rex v.(2 East P. C. 603) i. 588 ; ii. 813 Pearce, Rex v. (1 Leach, 527 ; 2 East P. C. 1072) i. 595 ; ii. 996 Pearce, State v. (2 Blackf. 318) i. 795 , U. S. V. (2 McLean, 14) i. 287, 303 Pearson's Case (2Lewiu,144)i.400,405,414 (2 Lewin, 216) ii. 708 Pearson, People v. (3 Scam. 270) ii. 256 Pearson, Rex v. (4 Car. & P. 572) ii. 904 , Rex V. (5 Car. & P. 121 ; 1 Moody, 313) i. 578 ; ii. 769 Pearson, State v.{2 N.H.550) i. 536; ii. 501 Pease, Commonwealth v. (16 Mass. 9H i. 267, 275, 711 ; ii. 401 Pease v. McAloon (1 Kerr, 111) i. 268,269 , People V. (3 Johns. Cas. 333) i. 914, 917 Pease, Rex v. (4 B. & Ad. 30) ii. 1270,1278 Pease v. Smith (5 Lans. 519) i. 271 Peat, Rex y, (1 Leach, 228 ; 2 East P. C. 557) i. 553 ; ii. 758, 796, 1163 Peate v. Dickens (3 Dowl. P.C. 171) ii. 954 Pechell y. Watson (,8 M. & W. 691) ii. 181 Peck's Case (2 Russ. Crimes, 3d Eng. ed. 180) ii. 365 Peck's Case (2 Stark. Ev. 842) ii. 828 Peck'v. Reg. (1 Per. & D. 508) ii. 206 , Reg. V. (9 A. & E. 686) ii. 206 Peckham v. Lebanon (39 Conn. 231) ii. 1266, 1269 V. Tomlinson (6 Barb. 253) 1. 564 Peddell v. Rutter (S Car. & P. 337) i. 266 Pedley, Rex y. (1 Leach, 242 ; Cald. 218; 2 East P.C. 1026) i. 329,559; ii.13,16 , Rex V. (1 Leach, 325) ii. 1040 Pefferling v. State (40 Texas, 486) ii; 1136 Peqram y. Styron '(1 Bailey, 595) ii. 1027 Peirson,Reg. v. (2 Ld. Raym. 1197) i. 1085 Peisch V. Ware (4Cranch,847) i. 851, 824 Pelham, Reg. v. (8 Q. B. 959 ; 15 Law J. N. s. M. C. 105 ; 10 Jur. 659) i. 557, 883, 884 ; ii. 29 Pell V. Prevost (2 Caines, 164) i. 821 PEV INDEX TO THE CASES CITED. PHI Section Peltier's Case (28 Howell St. Tr. 529) i. 484 ; il. 938 Pember, Eex v. (Caa. temp. Hardw. 112) ii. 1090 Pemberton, State v. (2 Dev. 281) i. 504 Pemblilon, Reg. v. (Law Rep. 2 C.C. 119 ; 12 Cox C. C. 607) i. 429 Pendock v. Mnckender (2 Wils. 18) i. 975 V. Mackinder ( Willes, 655) i. 974,975 Penley, State v. (27 Conn. 587) ii. 415, 428 Penn v. Messinger ( 1 Yeates, 2) ii. 268 Pennington, State v. (3 Head, 299) i. 1123 Pennock, Com'lh v. (3 S. & R. 199) i. 970 Penny, State «. (1 Car. Law Repos. 517) i. 204 Penruddock's Case (5 Co. 100; Jenk. Cent. 260) i. 821 Pepper v. Haight (20 Barb. 429) ii. 137 Pepper, State v. (68 N. C. 259) ii. 74, 79 Percavil, Com'tli v. (4 Leigh, 686) ii. 988 Perdue, Com'th v. (2 Va. Cas. 227) i. 535, 795, 800 Perdue v. State { 2 Humph. 494) i. 341, 348 ; ii. 598, 608, 609 Perez, United States v. (9 Wlieat. 579) i. 1018, 1033, 1041 Perham v. Coney (117 Mass. 102) ii. 864 Perfes, /?ej:T. (1 Car. & P. 300) ii. 95 Perkins v. People (27 Mich. 386) ii. 605 Perkins, Reg. v. (2 Den. C. C. 4-59 ; 6 Cox C. C. 654) ii. 1140 , Reg. T. (12 Eng. L. & Eq. 587) i. 653, 663 , Rex T. (4 Car. & P. 537) i. 260, 632 ; ii. 35 Perkins, Rex v. (Holt, 403) i. 998 Perkins, State v. (6 Blackf . 20) ii. 312, 314 , State T. (4 Zab. 409) i. 464 V. Stevens (24 Pick. 277) i. 914, 917 Perley, Com'th v. (2 Cush. 559) i. 782 Perrine v. Farr (2Zab. 356) i.245 ; ii. 1267 Perry ii. Com'th (3 Grat. 632) i. 279 V. Phipps (10 Ire. 259) i. 1080 ; ii. 773 Perry, Reg. v. (1 Den. C. C. 69 ; 1 Car. & K. 725) i. 224 ; ii. 768 V. Stote (43 Ala. 21) ii. 675, 677 , State V. (5 Jones, N. C. 9) ii. 3 Persse v. Persse (7 CI. & F. 279) ii. 127 Pervear v. Com'th (5 Wal. 475) i. 946 Peters, Commonwealth v. (12 Met. 387) i. 145, 147, 176, 195, 201, 1028 , Reg. V. (1 Car. & K. 245) i. 207 ; ii. 758, 796, 878, 879, 880, 882 Peters v. State (39 Ala. 681) i. 893 Petre v. Cambridge (3 Lev. 332) i. 916 Pettamberdass v. Thackoorseydass (7 Moore P. C. 239) i. 519 Pettingill v. Rideout (6 N. H. 454) i. 271, Pettit, Rex v. (Jebb, 151) i. 582 ; ii. 160 Petty V. San Joaquin Court (45 Cal. 245) ii- 65 Peverelly v. People (3 Parker C. C. 59) ii- 19 Seotioh Pew's Case (Cro. Car. 183) ii. 652 Pfomer v. People (4 Parker C. C. 558) i. 850 Phelips V. Barrett (4 Price, 23) ii. 270 Phelps V. Baldwin (17 Conn. 209) ii. 503 V. People (55 111. 334) ii, 840, 863 , People V. (49 How. Pr. 462) ii. 586 Phulps, Reg. v. (Car. & M. 180) i. 648, 868 , Rfg. V. (2 Moody, 240) i. 809 Phelps, Eex v. (2 Keny. 570) i. 460, 462 ; ii. 973 V. Stearns (4 Gray, 105) i. 264 , U. S. V. (4 Day, 469) i. 464 Phetheon, Reg. v. (9 Car. & P. 552) ii. 796, 841 Phifer, State v. (65 N. C. 321) ii. 415 Phil, Slate v. (1 Stew. 31) i. 998 Philadelphia County Prison, Com- monwealth V. (4 Brews. 320) i. 915 Philadelphia, &c. Railroad v. Quigley (21 How. U. S. 202) ii. 914 Phile V. Anna (1 Dall. 197) i. 306, 821, 824 Philip's Case (1 Sid. 170) i. 908 Philipps, Rex v. (2 East P. C. 662) i. 579; ii.. 758, 841 , Rex V. (6 East, 464) ii. 312 Philips V. Commonwealth (2 Duvall, 328) i. 305, 844 ; ii. 681 Philips V. Harriss (3 J. J. Mar. 122) ii. 256 , People V. (1 Wheeler Crim. Cas. 155) . i. 887 Philips, Reg. v. (8 Car. & P. 736) i. 373, 746 ; ii. 1117 Phillips V. Com'th (3 Met. 588) i. 960, 965 Phillips, Com'th v. (16 Mass. 423) i. 668 Phillips, Commonwealth w. (11 Pick. 28) i. 279, 960, 965 , Com'th V. (3 Pittsb. 426) i. 468 V. Eyre (Law Rep. 6 Q. B. 1) i. 132 V. Innes (4 CI. & F. 234) ii. 958 V. Jansen (2 Esp. 624) ii. 927 V. Kelly (29 Ala. 628) i. 264 ; ii. 743 V. People (55 111. 429) i. 150, 986 , Reg. V. (3 Cox C. C. 225) i. 637 Phillips, Reg. V. (11 Cox C. C. 142) i. 1039 , Reg. V. (2 Moody, 252) i. 287 , Rex V. (3 Camp. 73) i. 741, 768 , Rex v. (Cas. temp. Hardw. 241) i. 247, 266, 759 ; ii. 1056 , Rex V. (2 Smith, 650) i. 734 ; ii. 62, 312 Phillips, Rex v. (1 Jur. 427) i. 1049 , State V. (66 N. C. 646) i. 992, 1024, 1026 V. State (19 Texas, 158) V. State (29 Texas, 226) Phillips, State v. (24 Misso. 475) ii. 728 Phillpot, Reg. v. (Dears. 179; 20 Eng. L. & Eq. 591) i. 227, 567, 883, 884 ; ii. 29 Phittpotts, Reg. v. (2 Den. C. C. 302) ii. 1031, 1032, 1035 Philpot, State v. (Dudley, Ga. 46) ii.253 Philpott, Reg. v. (6 Cox C. C. 140) i. 884 725 i. 237 ii. 1190 PIS INDEX TO THE CASES CITED. POL Pierce, Rex v. (2 Show. 327) , State V. (7 Ala. 728) , State V. (8 Iowa, 231) V. Win (1 Vent. 321) Pierson v. Post (3 Caines, 175) Sbotiok Philpotts, Reg. v. (1 Car. & K. 112) i. 845 ; ii. 148, 4T1 , Reg. V. (8 Eng. L. & Eq 580) ii. 1031 Phipoe, Rex v. (2 Leauh, 673; 2 East P. C. 599) 1. 582 ; ii. 767, 785, 787 Phippa, State v. (4 In.d. 515) ii. 1273 , State V. (10 Ire. 17) 1. 536, 538 ; ii. 518 Phitton's Case (6 Co. 79) i. 908 Pickens v. Delozier (2 Humph. 400) ii. 137, 140 Pickering, Commonwealth y. (8 Grat. 6l'8) ii. 1024, 1031 Picket, Rex V. {2 East P. C. 501) ii. 106 Pickford. Rex v. (4 Car. & P. 22J) ii. 1200 ~- i 2i4, 1138, 1143 i. 429, 595 ; ii. 996 ii. 523, 544, 598 i. 823 i. 578 ; ii. 776 , Reg. V. (1 Salk. 382) i. 500, 501,1085 Pierson,' Rex v. (Andr. 310) ii. 264 Pierson v. State (12 Ala. 149) ii. 717 Pierson, State r. (8 Vroom, 216) ii. 1267 Pigman r. Stale (14 Ohio, 555| i. 409, 411 Pigot, Rex y. (Holt, 758) i. 555 Pike V. Cora'th (2 Duvall, 89) i. 504 V. Hanson (9 N. H. ifdl) i. 548, 553 ; ii. 26, 747, 748 Pike, Reg. v. (2 Moody, 70; 3 Jur. 27) i. 572 ; ii. 540, 641, 544 Pike V. State (35 Ala. 419) i. 1148 Pike, State v. (33 Maine, 361) ii. 989 , State V. (15 N. H. 83) ii. 1022, 1023 , Stale V. (49 N. H. 399) i. 383, 407 ; ii. 723, 727 Pilcher v. Hart (1 Humph. 524) i. 1081 ; ii. 1272 Pile, State v. {5 Ala. 72) ii. 1018 Pilling, Reg. v. (1 Eost. & P. 324) ii. 560 Pillow V. Buslmell (5 Barb. 156) ' ii. 35 Pine, People v. (2 Barb. 566) i. 384, 385, 400, 406 Pinkard v. State (30 Ga. 757) i. 649, 733 Pinkerton, Rex v. (2 East, 357) i. 948, 950 Pinkney's Case (2 East P. C. 818) ii. 145, 146 Pinney, Rex v. (5 Car. & P. 254) ii. 974, 976 Pinson v. State (23 Texas, 579) i. 772 Piper, Com'tli v. (9 Leigli, 667) ii. 1282 K. Pearson (2 Gray, 120) -1.460 Pippet V. Hearn(lD. &li.-2ti6; 5B. & Aid. 634) ii. 1028 Pippin V. State (30 Texas, 696) ii. 978 Pirates, United States v. (5 Wheat. 184) i. 117, 120, 132, 986 ; ii. 1060, 1061 Pirtle V. State (9 Humph. 663) i. 400, 401, 409,412,414; ii. 728 Piscataqua Bank v. Turnley ( 1 Miles, 812) i. 271 726 Seotiok Pitcher v. People (16 Mich. 142) ii. 104, 757 Pitman, Matter of (1 Curt. C. C. 186) ii. 269 V. Clarke (1 McMullan, 316) ii. 255 Pitman v. Davis (Hemp. 29) ii. 501 Pitman, Rex v. (2 Car. & P. 423) i. 411 ; ii. 797 , State V. (1 Brev. 32) i. 178, 989 ; ii. 611 Pitman, U.S. y.(l Sprague, 196) i. 141, 176 Pitt, Rex \. (Z But. 1336) i. 471 Pitts, Reg. v. (Car. & M. 284) i^ 502 ; ii. 641, 657 Pitts, State v. (57 Misso. 85) i. 1054, 1055 ; ii. 1182 Plant, Rex v. (7 Car. & P. 575) 1. 663, 803, 1063 Planter v. Sherwood (6 Johns. Ch. 118) i. 970 Playford w. Com'th (4 Barr, 144) i. 910 Pleasant t. State (15 Ark. 624) ii. 1119 V. State (8 Eng. 360) ii. 1119, 1122, 1125 Ploughboy, The (1 Gallis. 41) i. 821,822 Plumbe V. Plumbe (3 Y. & Col. Ex. 622) ii. 270 Plumbly y. Commonwealth (2 Met. 413) i. 960, 961,965, 1061 Plumer v. Smith (5 N. H. 553) i. 267, 711, 714 Ptummer v. Com'th (1 Bush, 76) i. 633 Plummer, Reg. v. (30 U. C. Q. B. 41) ii. 1274 Plummer, Reg. v. (1 Car. &K. 600) i. 331 ; ii. 662, 686 , Rex V. (J. Kel. 109; 12 Mod. 627 ) 1. 328, 632, 6-34, 636 ; ii. 691, 694 Plummer v. State (6 Misso. 231) i. 795 V. Webb (Ware, 75) i. 271 Plunkett, State v. (3 Harrison, 5) i. 793, 1029, 1067 Plymouth v. Painter (17 Conn. 585) i.464 Plympton, Rex v. (2 Ld. Rayra. 1377) i. 246, 471 ; ii. 85, 86, 88 Poage u. Chinn (4 Dana, 50) ii. 139 Poage v. Stale (3 Ohio State, 229) i. 974, 1034 ; ii. 529, 568 Poage, TJ. S. v. (6 McLean, 89) i. 633 Pocock, Reg. v. (17 Q. B. 34 ; 24 Eng. L. & Eq. 190) ii. 668 , Rex V. (2 Stra. 1157; 7 Mod. 310) i. 470; ii.946 Poe V. Davis (29 Ala. 676) ii. 134 Pogue V. McKee (3 A. K. Mar. 127) ii. 501 Point V. State (37 Ala. 148) ii. 901, 902 Police Jury v. Shreveport (5 La. An. 661) ii, 1269 Pollard V. Bell (8. T. R. 434) i. 124 Pollard, Com'th V. (12 Met. 225) ii. 1032 Pollard «. Hagan (3 How. U. S. 212) i. 145 Pollard, Reg. v. (1 Russ. Crimes, 3d Eng. ed. 22) i. 362 Pollard, Bex «. (8 Mod. 204) 1. 699 POU INDEX TO THE CASES CITED. PBI Section Pollard !). State (2 Iowa, 587) ii. 1122 Pollman,_Rex v. (2 Camp. 229) ii. 85, 222 PoUok, State v. (4 Ire. 303) , State V. (4 Ire. 305) 1. 631, 687 ii. 1277 i. 536, 538 ; ii. 501, 505 Polly, Reg. r. (I Car. & K. 77) ii. 101 Polwart, Reg. v. (1 Gale & D. 211 ; 1 Q. B. 818) . i. 968 Pomeroy v. Commonwealth (2 Va. Cas. 342) i. 578 ; ii. 785,- 786 Pond V. People (8 Mich. 150) i. 305, 853, 858, 865, 877 ; ii. 653, 656 , U. S. V. (2 Curt. C. C. 265) ii. 904 Pool, People V. (27 Cal. 572), ii. 652 Pool V. Perdu (44 Ga. 454) i. 464 , Eeg. V. (9 Car. & P. 7'28) i. 809 V. Trumbal (3 Mod. 56) i. 908, 909 Pooley, Rex v. (Buss. & By. 12; 3 Bos. & P. 311) ii. 785, 786 Poor V. Horton (15 Barb. 485) ii. 137 ■Pope, Com'th v. (3 Dana, 418) ii. 314 Pope, Rex v. (6 Car. & P. 346) i. 207 ; ii. 882 Pope V. Tearle (Law Rep. 9 C. P. 499) i. 491 Porpoise, The (2 Curt.C.C. 307) i. 564, 824 Porter, Com'thv. (1 Gray, 476) ii 302,308 Porter v. Jones (6 Coldw. 313) i. 711, 715 Porter, State v. (3 Brer. 175) i. 462 , People V. (2 Parker C. C. 14) ii. 78, 84 , Reg. T. (12 Cox C. C. 444; 5 Eng. Rep. 497) ii. 652 ,Req. V. (Leigh & C. 394; 9 Cox d. C. 449) ii. 660 Porter v. Seller (11 Harris, Pa. 424) i. 266 Porter v. State (Mart. & Yerg. 226) ii. 758, 838, 880, 882 Porter, State v. (7 Ind. 204) i. 464 , State V. (4 Earring. Del. 556) i. 299 , State V. (2 Tread. 694) i. 299, 460, 462 ; ii. 972 Portland v. Richardson (54 Maine, 46) i. 265 Portland, The v. Lewis (2 S. & R. 197) ii. 347 Portsmouth Livery Co. v. Watson (10 Mass. 91) ii. 543 Posey, Commonwealth v. (4 Call, 109) i. 938 ; ii. 17, 18 Post, Rex V. (Buss. & By. 101) i. 572; ii. -574 Potter, People v. (Edm. Sel. Cas. 235) i. 914, 915 Potter, People v. (1 Parker C. C.47) i. 914, 915 Potter, State v. (30 Iowa, 587) i. 656, 1079, 1090 , State V. (13 Kan. 414) i. 305, 850 Potter, Slate v. (42 Vt. 495) i. 359, 363 Pottmeyer, State v. (33 Ind. 402) ii. 765 Potts, Rex V. (Buss. & By. 353) i. 648 Ponlk V. Sloeum (3 Blackf. 421) i. 463 Seotioh Poulson, Commonwealth v. (4 Pa. Law Jour. Rep. 20) ii. 437 Poulterer's Case. (9 Co. 66 h) ii. 192 Ponlton, Rex v. (5 Car. & P. 329) ii. 632 Pound V. State (43 Ga. 88) i. 865 Powell V. Commonwealth (11 Grat. 822) ' ii. 529, 572, 591 Powell, Commonwealth v. (8 Leigh, 719) i. 569 ; ii. 985 Powell, Com'th v. (2 Met. Ky. 10) ii. 1052 V. People (5 Hun, 169) ii. 229 Powell, RespuUica y. (1 Dall. 47) i. 571 ; ii. 147 , Rex V. (2 B. & Ad. 75) i. 623 V. Staie (19 Ala. 577) i. 1031, 1034, 1035 Powell, State u. (70 N. C. 67) u. 74, 79 Powds, Rex T. (4 Car. & P. 571) i. 758 ; ii. 740 Power, Com'th v. (7 Met. 596) i. 30-3, 875 Power, U. S. v. (11 How. U. S. 570) i. 14 Powers, People \. (2 Seld. 50) i. 962 Powers, State v. (36 Conn. 77) i. 1085 Powlter's Case (11 Co. 81) ii. 102 Pownell, Rex v. (W. Kel. 58) ii. 314, 927, 930, 933 Poyas V. Wilkins (12 Rich. 420) ii. 138 Pounton, Reg. v. (Leigh & C. 247 ; 9 Cox C. a 249) ii. 855 Podser, Reg. v. (4 Eng. L. & Eq. 565 ; 2 Den. C C. 233) ii. 834, 860, 871 Praed, Rex v. (4 Bur. 2257) i. 992 Pratley, Rex v. (5 Car. & P. 533) ii. 833, 858, 860 Pratt V. Gardner (2 Cush. 63) i. 460 Pratt V. Hutchinson (15 East, 511) i. 519 Pratt V. Price (11 Wend. 1-27) ii. 1024 Pratt, Rex v. (1 Moody, 250) i. 583; ii. 816, 822 Pray, People v. (1 Mich. N. P. 69) ii. 434 Prescott V. Norris (32 N. H. 101) i. 658 Prescott, State v. (7 N. H. 287) i. 1003 Prescott, U. S. v. (2 Abb.U. S. 169) i. 572 a , U. S. V. (2 Dillon, 405) i. 572 a Presiiell, State v. (12 Ire. 103) i. 343 Pressy, Reg. v. (10 Cox C. C. 635) ii. 1123 Preston v. Hunt (7 Wend. 53) ii. 136 Preston, Reg. v. (2 Den. C. C. 353 ; 8 Eng. L. & Eq, 589) i. 207 ; ii. 758, 838, 882 , Reg. V. (2 Lewin, 193) ii. 1270 T. State (25 Missis. 383) ii. 697, 710 Preston, State v. (34 Wis. 675) i. 428 Preston, United States v. (3 Pet. 57) i. 564 Price, Com'th v. (10 Gray, 472) ii. 605 , Reg. V. (8 Car. & P. 282) ii. 652 , Reg. V. (9 Car. & P. 729) i. 341 ; ii. 16 , Rm. T. (8 Cox C. C. 96) i. 634 , Reg. V. (3 Per. & D. 421 ; 11 A. &E. 727; 4 Jur. 291) i. 294, 343 , Rex T. (5 Car. & P. 510) i. 340, 341 : ii. 994 , Rex V. (8 Car. & P. 19) i. 359, 362 V. State (36 Missis. 531) i. 1084 72T PUT INDEX TO THE CASES CITED. BAN SEOTIOIf Price V. State (19 Ohio, 423) i. 1053 Price V. Thornton (10 Miaso. 135) i. 307 V. Van Doren (2 Soutbard, 578) i. 713 Priddle, Rex v. (1 Leach, 442) i. 974 Pridgen v. State (31 Texas, 420) ii. 704 ; State V. (8 Ire. 84) i. 536 ; ii. 513 Pries, Reg. v. (6 Cox C. C. 165) ii. 664 Priester v. Augley (5 Rich. 44) i. 857 Prigg, Rex v. (Aleyn, 78) i. 246, 458 Prim V. State (36 Ala. 244) ii. 1273, 1279 Primus, The (29 Eng. L. & Eq. 589) 1. 826 Prince, Reg. v. (Law Rep. 1 C. C. 150 ; 11 Cox C. C. 193) ii. 416, 442 , Rex V. (2 Car. & P. 517) ii. 353 PrindeviUe v. People (42 111. 217) i. 798, 808 Prine v. Com'th (6 Harris, Pa. 103) i. 997 Prine v. State (41 Texas, 300) i. 1058 Pringle, Reg. v. (9 Car. & P. 408 ; 2 Moody, 127) i.791; ii. 564 Prior V. State (41 Ga. 155) ii. 53 Pritchard, Rex v. (7 Car. & P. 303) i. 396 Pritchard, State u. (7 Vroom, 101) i. 971 Pritchett v. State (22 Ala. 39) i. 872 ; ii. 703 T. State (2 Sneed, 285) i. 1021 ; ii. 758, 879 Privett, Reg. v. (1 Den. C. 0. 193 ; 2 Car. & K. 114) ii. 758, 843, 846, 855 Privett, State v. (4 Jones, N. C. 100) i. 317 Prize Cases, The (2 Black, 635) i. 59 Proberts, Rex t. (2 East P. C. 1030) i. 329 ; ii. 12, 15, 21 Proby, Rex v. (1 Keny. 250) i. 468 Prosser, Rex v. (2 East P. C. 502) ii. 106 Prosser v. Howe (2 Car. & P. 421) i. 269 ; ii. 817 Proud, Reg. v. (Law Rep. 1 C. C. 71 ; 10 Cox C. C. 455) ii. 1026 Proud, Reg. v. (Leigh & C. 97) ii. 343 Prout, United States v. (1 Cranch C. C. 203) i. 1113, 1114, 1115 Prowes, Rex v. (1 Moody, 349) i. 141 Pruden v. Northrup (1 Root, 93) i. 990, 993, 1009 Pruitt V. Miller (3 Ind. 16) i. 974 Prgor, State v. (30 Ind. 350) ii. 437 , United States t. (3 Wash C. C. 234) ii. 1202, 12.34 Pugh, State v. (7 Jones, N. C. 61) i. 368 Piilham, Rex v, (9 Car. & P. 280) i. 699 PuUe, State v. (12 Minn. 164) i. 35 ; ii. 192 J^ulse V. State (5 Humph. 108) i. 761 Punshon, Rex v. (3 Camp. 96) i. 572a Purchase's Case (15 Howell St. Tr. 651) ii. 1213 Purchase, Commonwealth v. (2 Pick. 521) i. 981, 1033, 1041 Parley, People ex rel. (2 Cal. 564) ii. 89 Purse, State v. (4 McCord, 472) i. 490, 1106 Pursell V. Home (3 Nev. & P. 564) ii. 72 Pusey, United States v. (6 Bankr. Reg. 284) i. 572 a Putnam, Com'th v. (5 Casey, 296) ii. 216 Putnam v. Payne (13 Johns. 312) i, 1080 V. Putnam (8 Pick. 483) i. 110 728 Section Putnam v. Sullivan (4 Mass. 45) i. 584 ; ii. 581 Pybass, State v. (4 Humph. 442) i. 667 Pyland v. State (4 Sneed, 357) ii. 769, 879 Pi-well, Rex V. (1 Stark. 402) ii. 190, 211, 444 Quail, Reg. v. (4 Post. & F. 1076) i. 767 Quail, Rex v. (1 Crawf. & Dix C. C. 191) i. 800 Quann, Com'th v. (2 Va. Cas. 89) i. 1066 Quarles v. State (1 Sneed, 407) ii. 701 Quarrier, Ex parte (2 W. Va. 569) i'i. 1236, 1254, 1255 Queen,The,U. S. v. (4 Ben. 237) i. 821, 825 , The, U. S. V. (11 Blatch.416) i. 835 Quin, Com'th v. (5 Gray, 478) i. 975 , People V. (50 Barb. 128) i. 736 ; ii. 1115 , Stale V. (3 Brev. 615) ii. 37, 41 Quincy, United States v. (6 Pet. 445) i. 482 Raahe, Reg. v. (2 Moody, 66 ; 8 Car. & P. 626) ii. 560 Rachels v. State (51 Ga. 374) ii. 1143, 1144, 1147 Radcliffe, Reg. \. (2 Moody, 68) i. 572 a Rafferty v. People [I'i Cox C. C. 617) ii. 652 Rafferty v. People (66 111. 118) i. 409 Rahl, State v. (33 Texas, 76) i. 501 Ragg, Reg. v. (Bell C. C. 214; 8 Cox C.' C. 262) Ragley, Rex \. (12 Mod. 409) Ra'gsdale, U. S. v. (Hemp. 497) Railroad Bridge Co., United States V. (6 McLean, 617) , i. 174 Railroad Cars, United States v. (1 Abb. U. S. 196) i. 428 Rainer, Rex v. (1 Sid. 214) i. 945 Raines, State v. (3 MuCord, 533) i. 803 Rainey v. Capps (22 Ala. 288) Rake ';. Pope (7 Ala.' 161) Ramelsburg, State v. (30 Misso. 26) ii. 904 Ramsay, U. S. o. (Hemp. 481) ii. 744 Ramsey, State v. (6 Jones, N. C. 195) i. 868 Randv. Commonwealth (9 Grat. 738) i. 283, 960, 961 Rand, Commonwealth t. (7 Met. 475) i. 141, 578; ii. 767, 785, 786, 787 , State V. (51 N. H. 361 ) i. 658 Randal v. State (4 Sm.& M. 349) ii. 880, 882 Randall v. Com'th (24 Grat. 644) i. 618 Randall, Commonwealth v. (4 Gray, 36) i. 882, 886 ; ii, 38, 60 Randall, Rex v. (1 East P. C. 423) ii. 48 Randall, Rex v.(Russ.& Ry.l95) ii. 539,562 , State V. (2 Aikens, 89) ii. 1022 Randall, State v. (1 Strob. 110) i. 245; ii. 1268 , U. S. V. (Deady, 524) ii. 781 Bandle v. State (49 Ala. 14) ii. 85] ii. 443 ii. 1281 i. 154 ii. 868 i. 1050 KBA INDEX TO THE CASES CITED. EEl Section Randolph, People v. (2 Parker C. C. 174) i. 373 ; ii. 1117 Randolph, People v. (2 Parker C. C. 213) i. 746 , State V. (24 Conn. 363) i. 974 Ranger's Case (2 East P. C. 1074) i. 595 ; ii. 992 Rankin v. Beaird (Breese, 123) i. 910 Rankin, Rex v. (Russ. & Ry. 48) ii. 691, 701 , State V. (4 Coldw. 145) i. 990, 1029, 1060 Rankin, State v. (8 S. C. 438)i. 1078 a Ranney v. People (22 N. Y. 413) ii. 424 Ransom v. State (22 Conn. 153) i. 207 ; ii. 758, 838, 880, 882 Ranson, Rex v. (Russ. & Ry. 232 ; 2 Leach, 1090) ii. 787 Rapid, The (8 Cranch, 155) i. 821 , The (1 Gallis. 295) i. 821 Rapp V. Commonwealth (14 B. Monr. 614) i. 736,849,865; ii. 704 Rasnickv. Commonwealth (2 Va. Cas. 356) i. 572 a, 769 ; ii. 291, 299 Eatclifie's Case (2Lewin, 57) i.578 ; ii.769 Raihbone, Reg. v. (2 Moody, 242 ; Car. & M. 220) 1. 262, 440 ; ii. 904 Rathbun, People v. (21 "Wend. 509) i. 977 ; ii. 561, 1088, 1089 Rather v. State (1 Port. 132) i. 366 Raoara, United States v. (2 Dall. 297) i. 129, 181, 196, 199, 201 Raven, Rex t. (J. Kel. 24) ii. 758, 799, 866 Ravenscroft, Rex v. (Russ. & Ry. 161) ii. 560, 562 Rawleigh's Case (2 Rol. 50) i. 908 Rawles v. State (15 Texas, .581) i. 658, 659 Rawles, State v. (65 N. C. 334) ii. 25, 32 Rawlings v. State (2 Md. 201) i. 932 Rawlins, Rex v.(2 East P.C. 617) ii.794,797 Rawson, People v. (61 Barb. 619) i. 679 Ray, Commonwealth v. (3 Gray, 441) ii. 527, 545, 546, 557, 609 , Com'th T. (1 Va. Cas. 262) i. 955 Ray V. Lynes (10 Ala. 63) i. 244, 581, 1143 Ray T. State (15 Ga. 223) ii. 703, 704 Ray V. State (1 Greene, Iowa, 316) i. 997 , State V. (10 Ire. 39) i. 636, 538 ; ii. 618, 519 , State V. (37 Misso. 365) ii. 53 V. Thompson (43 Ala. 434) i. 14 Ray, State v. (Riee, 1) i- 1021 Raymond, Com'th v. (97 Mass. 567) i. 491 Raymond, Slate v. (20 Iowa, 582) ii. 1048 Raynes, People v. (3 Cal. 366) i.1135,1137 Raynham v. Rounseville (9 Pick. 44) i. 1010 Rea, Beg. v. (17 Ir. Com. Law. 584) ii. 946 Read V. Coker (24 Eng. L. & Eq.213) ii. 34 V. Com'th (22 Grat. 924) ii.675,677,741 Read v. Dawson (1 Sid. 49) i. 1002 Read, Reg. v. (1 Den. C. C. 877 ; 2 Car. & K. 957 ; Tenlp. & M. 62 ; 3 New Sess. Cas. 405 ; 13 Jur. 68) i. 261 ; u. 36 Section Read, Reg. v. (11 Mod. 142) ii. 943 Read, Rex ». (1 Lev. 9) i. 1002 V. State- (1 Ind. 511; Smith, Ind. 369) ii. 986 Reading's Case (1 Leach, 240, n.) ii. 897 Reading v. Commonwealth (1 Jones, Pa. 196) i. 531 ; ii. 1274 Real V. People (42 N. Y. 270) i. 400 Ream v. Com'th (3 S. & R. 207) ii. 670 Ream, Rex v. (2 East P. C. 734 ; 2 Leach, 616 ; 1 Russ. Crimes, 3d Eng. ed. 890) i. 438, 553 ; ii. 1174 Rearden, Reg. T. (4 Eost. & F. 76) ii. 1118 Reason, Reg. v. (22 Eng. L. & Eq. 602) ii. 904 Rectified Spirits, United States v. (8 Blatch. 480) i. 821, 822 Rector, People v. (19 Wend. 569) ii. 721 Rector v. State (1 Eng. 187) i. 32, 1028 Reculist, Rex v. (2 Leach, 703; 2 East P. C. 956) ii. 540 Red River Turnpike v. State (1 Sneed, 474) ii. 1270 Redfield v. State (24 Texas, 133) ii. 749 Redman, Req. v. (Law Rep. 1 C. C. 12; 10 Cox C. C. 159) ii. 1200 , Rex V. (1 Leach, 477) i. 810 Redman v. Sanders (2 Dana, 68) ii. 140 Redman, State v. (17 Iowa,329) i. 998, 1014 Reed v. Cist (7 S. & R. 183) i. 32 ; ii. 404 Reed, Com'th v. (10 Casey, 275) i. 1144 Reed v. Harper (25 Iowa, 87) i. 400 V. People (1 Parker C. C. 481) i. 492 Reed, Reg. v. (Car. & M. 306) i. 297 ; ii. 758, 850, 878, 882 , Reg. V. (8 Car. & P. 623; 2 Lewin, 185) ii. 568 , Reg. V. (12 Cox C. C. 1 ; 2 Eng. Rep. i57) i. 500, 1128, 1131 ,Reg. V. (24 Eng. L. &-Eq. 562 ; Dears. 257 ; 18 Jur. 66) ii. 828, 829, 830, 831, 832 , Rex V. (7 Car. & P. 848) ii. 428, 442 Reed v. Rice (2 J. J. Mar. 44) i. 306 V. State (28 Ind. 396) ii. 533 , State V. (26 Conn. 202) i. 1010 Rees, Com'th v. (2 Brews. 564) ii. 505 Rees, Rex v. (6 Car. & P. 606) ii. 340 Reese v. State (8 Ind. 416) i. 1033 Reese v. Wyman (9 Ga. 430) ii. 429, 454 Reeves, Rex v. (9 Car. & P. 25) ii. 632 , Rex V. (Peake Ad. Cas. 84) ii. 922 Regan, Reg. v. (4 Cox C. C. 835) ii. 14, 15 Regan, State v. (63 Maine, 127) i. 961 Regicide's, Trials of the (5 Howell St. Tr. 947) ii. 1213, 1283 Reid, Req. v. (1 Eng. L. & Eq. 596; 15 Jur: 181 ; 2 Den. C. C. 88) i. 794, 796, 803, 809, 998, 1041; ii. 116 Reid V. Ship Vere (Bee, 66) i. 117 Reid, State v. (20 Iowa, 413) ii. 91 , United States v. (12 How. U. S. 361) i. 194, 200 729 KIO INDEX TO THE CASES CITED. EIK Section Reidel, State v. (26 Iowa, 430) ii. 437 Keilly, Rex v. (Jebb, 51) ii. 859, 860 Reilly, Rex v. (1 Leach, 454) i. 903, 917 Eeily, State v. (2 Brev. 444) i. 992 Reindeer, The, U. S. v. (2 Clif. 57) i. 822 Remington \. Congdon (2 Pick. 310) ii. 914 Reniger v. Fogossa (1 Plow. 1) i. 401 Rennie's Case (1 Lewin, 76) i. 400, 406 Reopelle, Reg. v. (20 U. C. Q. B. 260) ii. 560 Renshaw, Reg. v. (20 Eng. L. & Eq. 593; 2 Cox C. C. 285; 11 Jiir. 615) i. 880, 384, 385, 557, 734, 762, 883 ; ii. 29, 660, 686, 741 Renwich t. Mmr!s (3 Hill, N. Y. 621 ; 7 HiU. N. Y. 575) i. 531, 828 ; ii. 1278 Reonnals, State v. (14 La. An. 278) i. 141 Revel, Rex v. (1 Stra. 420) ii. 244, 263, 265, 266 Revels, State v. (Busbee, 200) i. 1052 Rew, Rex v. (J. Kel. 26) i. 257 ; ii. 638 Reyburn, U. S. V. (6 Pet. 352) i. 482 Reynell,Rex V. (6 East, 315 ; 2 Smith, 406) i. 793, 992 ; ii. 1286 Reynolds, Com'th v. (14 Gray, 87) i. 468 V. People (1 Col. Ter. 179) i. 159 V. People (41 How. Pr. 179) ii. 1122 , People V. (2 Mich. 422) i. 207 ; ii. 801, 1138 , Reg. V. (2 Cox C. C. 170) ' ii. 812 Reynolds, Rex v. (Russ. & Ry. 465) i. 429 ; ii. 991 Reynolds v. Schultz (4 Rob. N. Y. 282) i. 821 V. State (1 Kelly, 222) i. 795; ii. 745 Reynolds v. State (3 Kelly, 53) i. 1014, 1016 Reynolds, State v. (4 Hayw. 109) i. 992, 1024 V. Stevenson (4 Ind. 619) ii. 954 V. Taylor (43 Ala. 420) i. 14 Rheinstrom v. Cone (26 Wis. 163) H. 540 Rhoads v. Commonwealth (3 Harris, Pa. 272) i. 592 ; ii. 198, 201 Rhodes v. McDonald (24 Missis. 418) i. 464 Rhodes, Rex v. (1 Stra. 703) i. 266 Rhodes, Rex v. (4 T. R. 220) i. 515 v. State (1 Coldw. 351) i. 736 Rhodes, U. S. v. (1 Abb. U. S. 28) i. 894 Rhoner, Peopley.{i Parker C.C. 166) ii. 527 Rice V. Com'th (3 Bush, 14) i. 772 ; ii. 968 V. Com'th (12 Met. 246) i. 930 V. McClintock (Dudley, S. C. 354) ii. 255 Rice, Reg. v. (Law Rep. 1 C. C. 21) i. 1087, 1107 , RexY.(Z East, 581) i. 259 ; ii. 312 Rice V. Simmons (2 Harring. Del. 417) ii. 908 0. State (3 Heisk. 215) ii. 1138 Rice V. State (7 Ind. 332) i. 934 V. State (8 Misso. 661) i. 314; ii.664 Rice V. State (10 Texas, 545) i. 1137 Rich V. JBasterfidd (4 C. B. 783) i. 1095 Rich V. Hogeboom (4 Denio, 453) ii. 72 S "P f T TOW Rich V. State (8 Ohio, 111) i. 578; ii. 785 Richards v. Com'th (13'Grat. 803) ii. 864 , People V. (1 Mich. 216) i. 432, 814; ii. 178, 181, 198, 201, 211, 239 , Reg. V. (1 Car. & K. 532) ii. 758, 841 , Reg. T. ( 11 Cox C.C. 43) ii. 1200, 1201 , Rexv.{lD.& R. 665) i. 427 ; ii. 1046 , Rex T. (Russ. & Ry. 28) ii. 763, 783 , Rex V. (Russ. & Ry. 193) ii. 539, 560 , Rex T. (8 T. R. 634) i. 245 ; ii. 1267 Richards, State v. (39 Conn. 591) i. 376 Richardson v. Kimball (28 Maine, 463) ii. 968 Richardson, Reg. v. (1 Eost. & F. 488) ii. 824 , Reg. V. (2 Post. & F. 343) ii. 580 , Rex T. (6 Car. & P. 335) i. 642 ; ii.l 138 Richardson v. Rowland (40 Conn. 565) ii. 131 . , State V. (38 N. H. 208) ii. 1012 Richardson, United States v. (5 Cranch C. C. 348) ii. 34 Richmond v. Dayton (10 Johns. 393) ii. 244, 263 , People V. (29 Cal. 414) i. 367 Richmond, Reg. v. (1 Car. & K. 240) i. 1021 - — , Ro): v.'(12 Cox C. C. 495; 6 Eng. Rep. 332) - ii. 867 Richmond, State v. (1 R. I. 49) ii. 1267 Ricker, State v. (29 Maine, 84) i. 670, 696 Rickelts, Rex v. (3 Camp. 68) i. 303 Rickey, State v. (4 Halst. 293) i. 592; U. 198, 214 Riddle w. State (49 Ala. 389) ii. 40 , U. S. K. (5 Cranch, 311) i. 206 Ridgelay, Rex v. (1 Leach, 189) ii. 294 Ridgeley, Rex v. (1 East P. C. 171) ii. 291, 294 Ridgeway u. State (41 Texas, 231) ii. 847 Ridqway, Commonwealth y. (2 Ashm. 247) i. 287, 692; ii. 190, 198, 201 , Reg. T. (3 Fost. & F. 838) ii. 443 Ridley, ttex v. (1 Russ. Crimes, 3d Eng. ed. 752; 2 Camp. 650) i. 548, 557, 883, 888 ; ii. 29 T. Sherbrok (3 Coldw. 569) i. 920 Riggs v. Stale (30 Missis. 635) ii. 714 Riggs, State v. (22 Vt. 321) i. 1138 Riley's Case (2 Pick. 172) i. 283, 960 Rilei/, Reg. v. (14 Eng. L. & Eq. 544 ; Eiears. 149 ; 17 Jur. 189 ; 22 Law J. N. s. M. C. 48) i. 207 ; ii. 801, 889 y. State m Conn, ii) i. 257, 287 ; ii. 1104 Riley v. State (9 Humph. 646) i. 113, 115 ; ii. 723, 727 Riley y. State (43 Missis. 397) i. 685 Riley, State v. (28 Iowa, 647) i. 966 Riley, U. S. V. (5 Blatch, 204) i. 1029 a Rinaldi, Reg. y. (Leigh & C. 330 ; 9 Cox C. C. 891) u. 572 BOB INDEX TO THE CASES CITED. EOD Seotion Rineman v. State (24 Ind. 80) i. 303 King V. State (42 Texas, 282) i. 633 Eipley v. Gelston (9 Johns. 201) i. 351 Ripley, State v. (2 Brev. 300) ii. 885 , State V. (31 Maine, 386) i. 432; ii. 236 Eippy V. State (2 Head, 217) i. 865 Risher, State v. (1 Rich. 219) i. 1052 Rispal, Rex v. (1 W. Bl. 368 ; 3 Bur. 1320) i. 591 ; ii. 192, 216, 217 Ritclier v. State (38 Texas, 643) ii. 876 Ritohey v. State (7 Blackf. 168) i. 559 ; ii. 13 Ritson, Reg. v. (Law Eep. 1 C. C. 200) ii. 584, 585 Rives V. Weaver (36 Missis. 374) ii. 136 Roane, State v. (2 Dev. 58) i. 305, 849; ii. 647, 657, 658, 681, 692 Robbins v. State (20 Ala. 36) i. 891, 948 V. State (8 Ohio State, 131) ii. 728 Roberts's Case (2 East P. C. 487) ii. 95 (3 Inst. 139) i. 468, 095, 895 Roberts, Ex parte (9 Nev. 44) i. 953 V. Egerton (Law Rep. 9 Q. B. 494) i. 491 Roberts v. Hunt (15 Q. B. 17) ii. 1267, 1281 v. People (19 Mich. 401) i. 387, 406, 408, 729, 735 V. Preston (9 C. B. N. s. 208) i. 531, 889 V. O'Connor (33 Maine, 496) i. 658 , Reg. V. (3 Cox C. C. 74) ii. 824 , Reg. V. (7 Cox C. C. 422) ii. 571 , Reg. V. (33Eng. L. & Eq 553 ; Dears! 539 ; 25 Law J. n. s. M. C. 17 ; 1 Jur. jr. 8. 1094) i. 435 ; ii. 294 , Respublica v. (1 Dall. 39) i. 206, 772 , Respublica v. (2 Dall. 124 ; 1 Yeates, 6) ' i. 795 , Rex V. (1 Camp. 399) ii. 65 Roberts, Bex v. (Car. Crim. Law, 293) i. 559 ; ii. 93 Roberts, Rex v. (4 Mod. 101) ii. 394 V. Rose (3 H. & C. 162) i. 1081 Roberts v. State (7 Coldw. 359) ii. 12 Roberts v. State (14 Ga. 8) i. 1064 ; ii. 1182 Roberts v. State (2 Head, 501) i. 570 ; ii. 484 Roberts V. State (3 KeUy, 310) i. 384, 385, 387, 394 T. State (14 Misso. 138) i. 868, 915; ii. 699, 706 Roberts, State v. (1 Hawks, 349) ii. 701 , State V. (1 Hayw. 176) i. 940 , State V. (11 Humph. 539) ii. 1024 Roberts, State v. (34 Maine, 320) i. 586 ; ii. 201 Robertson's Case (1 Broun, 295) ii. 215 (1 Swinton, 93) ii. 1128, 1130, 1132 Robertson v. Bingley (1 McCord Oh. 833) ii- 262 Section Robertson, Pennsylvania v. (Addi- son, 246) i. 865 ; ii. 630 Robertson, Reg. r. (Leigh & C. 483 ; 10 Cox C. C. 9) ii. 1200 Robeson «. French (12 Met. 24) ii. 968 Robinett v. Ruby (13 Md. 95) u. 914 Robins, Reg. v. (Dears. 418; 18 Jur. 1058 ; 29 Eng. L. & Eq. 544) ii. 824, 836 , Rex V. (1 Leach, 290, n.) i. 582 ; ii. 804, 1167 Robinson, Ex parte (19 Wal. 505) ii. 243, 255, 260 V. Campbell (3 Wheat. 212) i. 194 i'. Com'th (6 Dana, 287) i. 1117 V. Com'th (101 Mass. 27) ii. 1200 Robinson, Com'th v. (1 Gray, 555) ii. 982 , Commonwealth v. (Thacher Crim. Cas. 488) ii. 751 V. Culp (1 Tread. 231) i. 271 Robinson v. Hawkins (4 T. B. Monr. 134) ii. 37 V. Munson (1 Johns. 277) i. 821 , People V. (1 Parker C. C. 649) i. 401 Robinson, People v. (2 Parker C. C. 235) i. 401, 405, 409, 414 ; ii. 671 , Reg. T. (8 Cox C. C. 115 ; Bell C. C. 34) ii. 479 Robinson, Reg. v. (9 L. Canada, 278) ii. 441 Robinson, Reg. T. (Leigh & C. 604 ; 10 Cox C. C. 107) ii. 291 , Rex v. (2 Bur. 799 ; 2 Keny. 513) i. 240 , Rex V. (2 East P. C. 565) ii. 365, 824, 831, 836 , Rex V. (2 East P. C. 1110; 2 Leach, 749) ii. 1200 ,Rex V. (1 Leach, 37; 2 East P. C. 1010) ii. 187, 216 , Rex V. (1 Moody, 413) i. 953 , Rex V. (2 Stark. 485) ii. 899 V. State (1 Coldw. 120) ii. 799, 834 V. State (31 Texas, 170) ii. 53 , State V. (3 Dev. & Bat. 130) i. 569 ; ii. 985, 996 , Stale V. (1 Harrison, 507) i. 572 ; ii. 576, 592 Robinson, State v. (28 Iowa, 514) ii. 1268 Robison v. Beall (26 Ga. 17) ii. 132 Robson ». The Huntress (2 Wal. Jr. 59) i. 129 Robson, Reg. v. (Leigh & C. 93) ii. 812 , Rex V. (Russ. & Ry. 413) i. 583 ; ii. 810, 813 Roby, Commonwealth v. (12 Pick. 496) i. 787, 788, 804, 805, 807, 808, 809, 812, 916, 1003, 1059 Roby V. West (4 N. H. 285) i. 658 Roderick, Rex v. (7 Car. & P. 795) i. 759 Rodes, Commonwealth v. (6 B. Monr. 171) i. 313, 460; ii. 392, 972 Rodgers, Ex parte (Amb. 307) i. 287 Rodway, Reg. v. (9 Car. & P. 784) ii. 785, 787, 817 731 EOS ESTDEX TO THE CASES CITED. RUN Sbotion Roe, Reg. v. (11 Cox C. C. 554) ii. 773 , State V. (12 Vt. 93) i. 1016, 1017 Roebuck, Reg. r. (Dears. & B. 24 ; 36 Eng. L. & Eq. 631 ; 7 Cox C. C. 126) ii. 453, 488 Rogers v. Alexander (2 Greene, Iowa, 443) 1. 32 Rogers, Commonwealth v. (7 Met. 500) i. 303, 375, 384, 385, 387, 392, 974 , Com'th V.' (1 S. & R. 124) i. 536 , Com'th V. (5 S. & R. 463) i. 743 Rogers v. ' Kennebec and Portland Railroad (36 Maine, 319) i. 174 V. Paterson (4 Paige, 450) ii. 270 Rogers v. People (3 Parker C. C. 632) i. 414 , Peop;e V. (18N. Y. 9) i. 415 , Reg. T. (8 Car. & P. 629) ii. 529, 579, 587, 688 , Req. V. (5 Cox C. C. 293) ii. 904 , Reg. V. (2 Moody, 86; 2 Lewin, 119) i. 630, 648 Rogers, Reg. v. (7 Mod. 28) ii. 244, 252, 263, 266, 946 , Rex V. (2 Keny. 373) i. 237 , U. S. ^. (Hemp. 450) i. 154 , U. S. V. (4 How. U. S. 567) i. 154 Rohen v. Sawin (5 Cush. 281) i. 700 Rohfrischt, State v. (12 La. An. 382) i. 621 Rollins, State v. (8 N. H. 550) i. 35, 553 ; ii. 26, 36, 748, 750, 751 Rollins, State v. (12 Rich. 297) i. 1065 Rome u. Omburg (22 Ga. 67) ii. 1013 Romeyn v. Caplis (17 Mich. 449) ii. 268 Rood V. Winslow (2 Doug. Mich. 68) i. 915 Root V. King (7 Cow. 613) ii. 922, 937 Roper, Rex v. (1 Crawf. & Dix C. C. 185) i. 1014 , State V. (1 Dev. & Bat. 208) i. 500, 1127 , State v. (3 Dev. 473) i. 207 ; ii. 838, 882 Rose V. Groves (6 Scott N. R. 645) i. 265 Rose V. Himely (4 Cranch, 241) i. 120 iJosev. ik?tVes (4 M.&S. 101) i. 265 , State V. (32 Misso. 560) i. 500, 1125 Rosenberg, Reg. v. (1 Car. & K. 233 ; ICoxC. C. 21) ii. 758, 874 Rosenstein, Rex v. (2 Car. & P. 414) i. 204 Rosewell, Rex v. (2 Salk. 459) i. 828 Rosinski, Rex v. (1 Moody, 19) 1. 261, 548 ; Ii. 36 Ross's Case (2 Pick. 165) i.279, 283, 960 Ross V. Blair (Meigs, 525) ii. 137 Ross V. Com'th (2 B. Monr. 417) i. 206, 500, 631, 686, 759, 761, 1091, 1093 V. People ,(5 Hill, N. Y. 294) i. 583 ; ii. 809, 815, 818 , State T. (2 Dutcher, 224) ii. 37, 38 Ross, State v. (4 Jones, N. C. 815) ii. 505 , State V. (14 La. An. 364) i. 1014, 1024 732 Section Ross, State r. (29 Misso. 32) i. 648, 1004, 1005 , United States v. (1 Gallis. 624) i. 117, 327, 633, 636 ; ii. 744 Rosser v. McCoUy (9 Ind. 587) ii. 968 Rossiter v. Chester (1 Doug. Mich. 154) i. 173 Rothwell, Reg. v. (12 Cox C. C. 145 ; 2 Eng. Rep. 201) ii. 704 Roudenbush, CI. S. v. (1 Bald. 514) i. 411 Rough, Rex v. (2 East P. C. 607) ii. 758, 779 Rourke, Com'th v. (10 Cush. 397) ii. 781 Rouse V. State (4 6a. 136) i. 178 Rousseau v. Troy (49 How. Pr. 492) ii. 1190 Routt V. Feemster (7 J. J. Mar. 131) i. 910 Rovena, The (Ware, 309) i. 821 Rou;an v. State (30 Wis. 129) ii. 727 Rowe V. State (2 Bay, 565) i. 910, 911 , State V. (8 Rich. 17) i. 621 '; ii. 609, 610 Rowed, Reg. v. (6 Jur. 396) i. 767 ; ;i. 1195 Rowlands, Req. t. (2 Den. C. C. 364 ; 5 Cox C. C. 436 ; 9 Eng. L. & Eq. 287 ; 17 Q. B. 671) ii. 183, 230 Rowky, Rex v. (Russ. & Ry. 110) ii. 605 , State V. (12 Conn. 101) i. 264, 592; ii. 175, 181, 410, 423, 452 Roxburgh, Reg. v. (12 Cox C. C. 8 ; 2 Eng. Rep. 166) i. 713 Royal, People v. (1 Scam. 557) i. 1024 Roi/all, United States v. (3 Cranch C. C. 620) i. 640, 943, 1101, 1103, 1104 Royce, Rex v. (4 Bur. 2073) i. 648 Rucker u. Bos worth (7 J. J. Mar. 645) i. 910 Rudland, Reg. T. (4 Fost. & P. 495) ii. 1122 Rue V. Perry (63 Barb. 40) ii. 790 Ruff V. Phillips (60 Ga. 130) i. 1080, 1081 Rugen, The (1 Wheat. 62) i. 821 Rugg, Reg. v. (12 Cox C. C. 16) i. 884 Ruggks, People t. (8 Johns. 290) i. 497 498; ii. 74, 77, 78, 81 , U. S. v. (5 Mason, 192) Ii. 37 RiM, State y. (8 Iowa, 447) i. 327 Ruloff V. People (45 N. Y. 213; 11 Abb. Pr. N. s. 245; 5Lans. 261) i. 637, 842 ; ii. 728 Rulo V. State (19 Ind. 298) i. 1032 Rum, State v. (51 N. H. 373) i. 821, 825 833 Rumble, Reg. v. (4 Fost. & P. 175) i'. 482 Rump V. Commonwealth (6 Casey, 475) i. 178 ; ii. 1023 RumseyK. People (19 N.Y. 41) ii. 741 Rundle, Req. v. (Dears. 482 ; 24 Law J. N. 8.' M. C. 129; 1 Jur. K. s. 430 ; 29 Eng. L. & Eq. 555) i. 891 Rung V. Shoneberger (2 Watts, 23) 1. 246, 531, 829 ; ii. 1269 Runndls v. Fletclier (15 Mass. 525) i. 573; ii. 393, 404 STC INDEX TO THE CASES CITED. SAR Section Runnels, Com'th v. ( 10 Mass. 518) i . 534 ; ii. 1147 Rupp, Com'th V. (9 "Watts, 114) i. 464 Rusby, Rex v. (1 Bott P. L. 335) ii. 218 , Rex V. (Pamph. A. D. 1800) i. 528 , Rex V. (Peake Add. Cas. 189) i. 519, 528 Rush, Commonwealth v. (2 Harris, Pa. 186) i. 531 ; ii. 1269 Rnshhy, Rex v. (2 Chit. Crim. Law, 536) i. 528 Rushing, State v. (69 N. C. 29) ii. 1138 Rushivorth, Rex v. (Russ. & Ry. 317 ; . 2 Russ. Crimes, 3d Eng. ed. 517 ; 1 Stark. 396) ii. 538 Russell -V. Commonwealth [7 S. & R. 489) i. 960 , Reg. v. (3 Ellis & B. 942 ; 23 Law j. N. 8. M. e. 173 ; 18 Jur. 1022; 26 Eng. L. & Eq. 230) i. 32, 993, 1024; ii. 1272 , Rex V. (6 B. & C. 566) i. 341, 531 ; ii. 1272 , Rex V. (6 East, 427 ; 2 Smith, 424) i. 531; ii. 1274 , Rex V. (1 Moody, 356) i. 259, 510, 511, 681, 652 , Rex T. (1 Moody & R. 122) ii. 1129 V. Shenton (3 Q. B. 449) i. 1095 Russell V. State (3 Coldw. 119) ii. 1267 Russe/l. State v. (45 N. H. 83) i. 534 Rnssen, Rex v. (1 East P. C. 438) ii. 1132 Rust V. Larue (4 Litt. 411) i. 541 ; ii. 122, 131, 132 Rust, Rexv. {1 Moody, 188) i. 559 ; ii. 93 Rutherford v. Holmes (5Hun, 317) ii. 214 Rutherford, /State v. (1 Hawks, 457) i. 305, 849 Ryalls v.Leader (Law Rep.l Ex.296)ii. 915 V. Reg. (13 Jur. 259; 18 Law J. N. s. M. C. 69) ii. 1054 Ryan, Reg. v. (2 Cox C. C. 115) ii. 1115, 1121,1128 , Reg. V. (2 Moody & R. 213) i. 842, 735 Ryan v. State (45 Ga. 128) ii. 419 Rye, State v. (35 N. H.-368) i. 245; ii. 1268 Rye Justices, Rex i;.(Say.25) i. 462; ii. 972 Ryland, Reg. v. (Law Rep. 1 C. C. 99 ; 10 Cox C. C. 569) i. 884 Rynders, People v. (12 Wend. 425) ii. 548 S , Reg. V. (5 Cox C. C. 279) i. 888 ; ii. 660, 686 S. L. State v. (2 Tyler, 249) i. 700 Sackrider v. McDonald (10 Johns. 253) i- 208 Sacooaacot, United States v. (1 Abb. U. S. 377) i. 154 St. Charles v. Meyer (58 Misso. 86) ii. 7 St. Clair v. Piatx (Wright, 682) ii. 252, 269 , State V. (17 Iowa, 149) i. 634 ; ii. 1138, 1139 St. Croix V. Sands (2 Johns. Cas. 267) i.821 St. George, Reg. v. (9 Car. & P. 483) i. 548, 758, 762, 809 ; ii. 32, 991 St. Giles, Rex v. (5 M. & S. 260) ii. 1281 St.Jago de Cuba.Tlie (9 Wheat.409) i. 564 St. Lawrence, The (8 Craneh, 434) i. 821 St. Leger v. Pope (Comb. 327) ii. 514 St. Louis, People y. (6 Gilman, 351) i. 174 ; ii. 1271, 1273 St. Weonard, Rex v. (5 Car. & P. 579) ii. 1269, 1280 Saintiff, Reg. v. (Holt, 129; 6 Mod. 255) i. 245 ; ii. 1266, 1269 Sale V. Marsh (Cro. Eliz. 178) ii. 531 Sales, State v. (2 Nev. 268) ii. 389 Salisbury, Rex v. (5 Car. & P. 155) ii. 340, 353, 361, 904 Sallie V. State (39 Ala. 691) ii. 891 Sally, The (8 Craneh, 382) i. 821 Salmon, Rex v. (Russ. & Ry. 26) i. 429 ; ii. 986, 994, 997 Salmons v. Tail (31 Ga. 676) ii. 1032 Saloway, Rex v. (3 Mod. 100) i. 910 Salvi, Reg. v. (10 Cox C. C. 481, n.) i. 1059 Sam, State v. (Winston, No. 1, 300) i. 746; ii. 1117 Samanni v. Com'th (16 Grat. 543) ii. 1149 Sampson v. Commonwealth (5 Watts &S, 385) i. 667; ii. 18 Sampson, Com'th v. (97 Mass. 407) ii. 969 V. Smith (15 Mass. 365) ii. 37 Samuel, State v. (3 Jones, N. C. 74) ii. 708 Samways, Reg. v. (Dears. 371 ; 26 Eng. L. & Eq. 576) ii. 824, 836 Sanchez v. People ( 4 Parker C. C. 635) i. 888 Sanchez, People r. (24 Cal. 17) ii. 717, 727 Sander, U. S. v. (6 McLean, 598) ii. 379 Sanders v. Johnson (29 Ga. 526) ii. 964 V. Metcalf (1 Tenn. Ch. 419) ii. 254 Sanders Y. State (18 Ark.198) i.685; ii.l274 Sanders v. State (2 Iowa, 230) i. 1065 , V.S.v. (Hemp. 483) i. 164 Sanderson, Reg v. (1 Post. & F. 37) i. 631 Sanderson, Rex K. (3 UC.O.S.103)ii.l267 Sandiman v. Breach (7 B. & C. 96 ; 9 D. & R. 796) ii. 954 Sands, People v. (1 Johns. 78) i. 531, 1098 Sanford, Com'th v. (12 Gray, 174) i. 631 , Com'th V. (6 Litt. 289) i. 1024 , State V. (1 Nott & McC. 512) i. 700 San Francisco v. Clark (1 Cal. 386) ii.l272 Sunkey, Commonwealth v. (10 Harris, Pa. 390) i. 584 ; ii. 590 Santissima Trinidad, The (7 Wheat. 283) - i. 119, 130, 132 Sarah ;;. State (18 Ark. 114) i. 948 Sarah v. State (28 Missis. 267) ii. 693 Sargent, Reg. t. (10 Cox C. C. 161) ii. 574 T. State (11 Ohio, 472) i. 998 Sarmon, Rex v. (1 Bur. 516) i. 531; ii. 1275 Sartor, State v. (2 Strob. 60) ii. 1267 Sartori v. Hamilton (1 Green, N. J. . 107) i. 181 733 SCH INDEX TO THE CASES CITED. SEA Sbotiok Sasser v. State (13 Ohio, 453) i. 345 ; ii. 294, 543, 605 Sattler, Reg. v. (Dears. & B. 525; 7 Cox C. C. 431) i. 112 Saugatuck Bridge Co. v. Westport (39 Conn. 337) ii. 1269 Saunders v. Groves (2 J. J. Mar. 406) ii. 139 , People V. (25 Micli. 119) li. 220 , People V. (29 Micli. 269) i. 1090 Saunders, People v. (4 Parker C. C. 196) i. 1055 , Reg. V. (8 Car. &. P. 265) i. 261, 809 ; ii. ri22 , Reg. T. (2 Plow. 473) i. 328, 640, 651 , Reg. V. (10 Q. B. 484) i. 247, 256 ,Reg. y. (1 Q. B. D. 15; 13 Cox C. C. 116) i. 500, 504, 1146 , Rex V. (7 Car. & P. 277) i. 217, 364, 883 ; ii. 660, 686 Saunders v. Robinson (5 Met. 343) ii. 490 Sauvinet, State v. (24 La. An. 119) i. 913 ; ii. 269 Savage, Rex v. (5 Car. & P. 143) ii. 833 , Rex V. (Style, 12) ii. 529 , United States y. (5 Mason, 460) i. 564 Savannali v. State (4 Ga. 26) i. 174 , State V. (T. U. P. Cliarl. 235) i. 504, 1135 Savannali Pirates (Warburton's Trial) ii. 1058 Saward, Reg. v. (5 Cox C. C. 295) ii. 867- Sawyer, In re (2 Gale &D. 141) i. 974 Sawyer, Rex v. (2 Car. & K. 101 ; Euss. & Ry. 294 ; Car. Crim. Law, 103) i. 121 y. State (35 Ind. 80) ii. 708 Sayles v. Tibbitts (5 R. L 79) ii. 121 Soaggs, State v. (6 Blackf. 37) ii. 1143 Scaife, Reg. v. (2 Den. C. C. 281 ; 17 Q. B. 238) i. 1001 Scalbert, Rex v. (2 Leach, 620) i. 1032 Scarborough v. State (46 Ga. 26) i. 1084 Scarfe v. Morgan (4 M. & W. 270 ; 1 Horn & H. 292) ii. 954 Scarlet's Case (12 Co. 98) i. 468 Scales, People v. (3 Scam. 351) i. 997 Scates, State y. (5 Jones, N. C. 420) ii. 639 Schaffer, Commonwealth v. (4 Dall. App. xxyi.) ii. 1022 Schaller y. State (14 Misso. 502) i. 400 Schenck, People v. (2 Johns. 479) i. 141 Schiever, Rex v. (2 Bur. 765) i. 63 Schingen, State y. (20 Wis. 74) i. 411 Schlesinger, Reg. v. (10 Q. B. 670; 12 Jur. 283 ; 17 Law J. n. s. M. C. 29) ii. 1040 Schlit V. State (31 Ind. 246) ii. 951 Schmidt y. State (14 Misso. 137) i. 355, 631,686 ,Reg. V. (Law Rep. 1 C.C. 15) ii. 1140 Schnier y. People (23 III. 17) i. 805 Schnierle, State v. (5 Rich. 299) i. 499 ; ii. 968 734 Seotioh Schoettgen v. Wilson (48 Misso. 253) ii. 1104 Schoharie v. Pindar (3 Lans. 8) i. 464 Scholtz's Case (5 City H. Rec. 112) ii. 201 School, Reg. V. (26 U. C. Q.B. 212) ii. 1213 Schooner Exchange v. McFaddon (7 Cranch, 116) i. 106, 126, 130 Schooner Kitty, U. S. v. (Bee, 252) i. 564 Schuyler, People v. (6 Cow. 572) ii. 873 Schuylkill v. Copely (17 Smith, Pa. 386) i. 972, 974 Schuylkill V. Reifsnyder (10 Wright, Pa. 446) i. 910 Schwartz, People v. (32 Cal. 160) ii. 12 Scitz V. State (23 Ala. 42) i. 736 Scobey v. Ross (13 Ind. 117) ii. 1-32 Scofield V. Collins (3 Cow. 89) ii. 137 Scofield, Rex y. (Cald. 397 ; 2 East P. C. 1028) i. 206, 329, 335, 434, 559, 759, 772, 810 ; ii. 16 Scoggins, People v. (37 Cal. 676) i. 305, 843 Scot V. Turner (1 Root, 163) i. 960 Scott's Case (5 Newgate Calendar, 284) i. 477 Scott, Ex parte (4 Man. & E. 361 ; 9 B. & C. 446) i. 135 , Ex parte (19 Ohio Stats, 581) i. 899 Scott V. Com'th (4 Met. Ky. 227) i. 387 v. Com'th (6 S. & R. 224) ii. 1004 Scott, Com'th V. (10 Grat. 749) i. 1024 V. Cook (1 Duvall, 314) ii. 1040 Scott y. People (62 Barb. 62) ii. 415, 429 , People V. (6 Mich. 287)i. 735 ; ii. 742 ,Reg. v. (Dears. & B. 47 ; 36 Eng. L. & Eq. 644) i. 572 a , Reg. v. (2,Gale & D. 729 ; 3 Q. B. 643) i. 531 ; ii. 1278 , Rex V. (3 Bur. 1262 ; 1 W. Bl. 350) i. 534; ii. 1144 Scott V. State (37 Ala. 117) ii. 676 Scolt, State V. (1 Hawks, 24) i. 936, 938 , State V. (4 Ire. 409) i. 305 ; ii. 699, 701, 704 , State V. (12 La. An. 274) ii. 639 , State y. (64 N. C. 586) ii. 796 Scott, State v. (72 N. C. 461) i. 772 Scott, State v. (24 Vt.l27) i. 621, 806 Scott V. U. S. (8 Ct. CI. 457) i. 914 Scott v. United States (Morris, 142) i. 534, 1057, 1058 ; ii. 1146 Scott, r. S. 0. (4 Bis. 29) i. 199 Scotton, Reg. v. (8 Jur. 400) ii. 1028 Scovel, State v. (1 Mill, 274)i. 700; ii. 1139 Scribner v. Beach (4 Denio, 448) ii. 38, 39, 41 Scripture, State v. (42 N. H. 485) ii. 97 Scroggins, U. S. v. (Hemp. 478) ii. 1004 Scudder, Rex v. (1 Moody, 216; 3 ■ Car. & P. 605) i. 741 Scudder v. Thomas (35 Ga. 364) i. 14 Scully V. Com'th (11 Casey, 611) ii. 958 Scully, Rex v. (1 Car. & P. 819) i. 305, 843 Seaborn V. State '{20 A\ii. IB) i. 052 , State v.(4Dey. 305) i. 938, 997 ; ii. 18 SE\ INDEX TO THE CASES CITED. SHE Section Sea/ord Justices, Rex v. (1 W. Bl. 432) i. 460, 462 ; ii. 972 Seagler, State t. (1 Rich. 30) ii. 758, 797 Searing, Rex v. (Russ. & Ry. 350) i. 578; ii. 773 Searle, Com'th v. (2 Binn. 332) ii. 605 V. Williams (Hob. 288) i. 899, 937 Searls w.Viets (2 Thomp. & C. 224) ii. 748 Sears v. Eastburn (10 How. U. S. 187) i. 194 Sears, Rex v. (1 Leach, 415) ii. 758, 838, 879, 882 Seny, State v. (3 Stew. 123) i. 141, 984 Seberff, Reg. V. (Law Rep. 1 C.C. 264 ; llCoxC. C. 520) i. 112 Seborn v. State (51 Ga. 164) ii. 741 Sedgwick ti.Stanton (4 Kernan,289) ii. 135 Sedley, Rex v. (17 Howell St. Tr. 156, n.) i. 1132 Segar, Rex v. (Comb. 401) i. 559; ii. 101 Seixa8 u. Woods (2 Gaines, 48) i. 11 Self, Rex v. (1 Leach, 137 ; 1 East P. C. 226) i. 887 ; ii. 660, 686 , State v. (1 Bay, 242)ii. 758, 841, 855 Selfridge's Case (Whart. Horn. 417) i. 805; ii. 703, 716 Sellers v. Dugan (18 Ohio, 489) ii. 954, 968 ». State (49 Ala. 357) ii. 1137 w. State (1 Oilman, 183) i. 998 , State V. (7 Rich. 368)ii. 392, 978, 981 Sellis, Rex v. (7 Gar. & P. 850) ii. 632, 633 Selten, Reg. v. (11 Gox C. C. 674) ii. 681 Selmdge t. State (30 Texas, 60) i. 653 Selway, Reg. v. (8 Gox G. G. 235) ii. 898 Semayne's Case (5 Co. 91 a; Yelv. 29; 1 Smith Lead. Gas. 39) i. 536, 849, 857, 858, 877 Semple, Rex v. (1 Leach, 420 ; 2 East P. C. 691) i. 583; ii. 813 Seneca Road v. Auburn and Roch- ester Railroad (5 Hill, N.Y. 170) i. 224 Senior, Reg. v. (Leigh & G.401; 9 Cox C. C. 469) ii. 1020 , Rex V. (1 Moody, 346) ii. 633, 664 Sergeant, People v. (8 Cow. 139) i. 504, 541, 1135, 1136 Serjeant, Rex v. (Ryan & Moody N. P. 352) ii. 235 Serlested's Case (Latch, 202) i. 468, 587 ii. 392 IDen. i. 117, 564 ii. 1020 & M. ii. 136, 138 Serva, Reg. v. (2 Car. & K. 53 ; C. G. 104) Server v. State (2 Blackf. 35) Sessions v. Reynolds' (7 Sm. 130) i. 541; Seveloff, U. S. v. (2 Sawyer, 311) i. 154 Severance v. Carr (43 N. H. 65) ii. 851 Seuerin v. People (37 111. 414) i. 1055 Seward, Rex v. (3 Nev. & M. 557; 1 A. & E. 706) ii. 218 Seymour, Ex parte (14 Pick. 40) i. 960 ,Rex».(7Mod.382)i.459;ii.392,399 V. State (15 Ind. 288) u. 1174 SECTioir Shaekborough v. Biggins (Gro. Eliz. 632) i. 899 Shackleford, United States v. (3 Cranch C. G. 178) ii. 316 Shadbolt, Rex v. (Car. & P. 504) i. 340 Shaffer v. State (27 Ind. 131) i. 1033 Shaftow, Reg. v. (11 Mod. 195) ii. 946 Shnftsbury's Case (1 Mod. 144; 6 Ilowell St. Tr. 1270) ii. 247 Shall, People v. (9 Cow. 778) i. 572; ii. 545, 546 Shanks, Com'th v. (10 B. Monr. 304) i. 930 V. State (25 Texas, Supp. 326) ii. 579 Shannahan v. Com'th (8 Bush, 463) i. 401 Shannon v. Cojnmonwenlth (2 Harris, Pa. 226) i. 501, 732, 768 ; ii. 184 Shannon v. People (5 Mich. 71) i. 884 V. State (18 Wis. 604) ii. 268 Sharman, Reg. v. (Dears. 2%b;'2A Eng. L. & Eq. 553; 23 Law J. n. s. M. G. 51 ; 18 Jur. 157; 6 Cox C. C. 312) ii. 529, 605 Sharp V. State (19 Ohio, 379) i. 736, 877 ; ii. 741 , U. S. V. (Pet. C. C. 131) i. 805 Sharp V. Wilhite (2 Humph. 434) ii. 1018, 1019 Sharpe's Case (2 Lewin, 233) ii. 902 Sharpe, Reg. v. (3 Cox C. C. 288) i. 639 ; ii. 1153 , Reg. V. (Dears. & B. 160; 7 Gox G. C. 214 ; 40 Eng. L. & Eq. 581) ii. 1188 , Rex v. (1 Moody, 125 ; Car. Grim. Law, 3d ed. 147) ii. 904 Sharpless, Commonwealth v. (2 S. & R. 91) i. 500, 502, 1129 ; ii. 943 , Rex V. (1 Leach, 92 ; 2 East P. G. 675) ii. 758, 816 Sharpness, Rex v. (1 -T. R. 228) i. 948 Shattuck, Commonwealth v. (4 Gush. 141) i. 237, 536, 538 ; ii. 490, 505 V. Woods (1 Pick. 171) i. 294, 573; ii. 393, 399, 404 Shaver, Com'th v.(3 Watts & S. 338)ii. 86, 87 Shaw's Case (1 East P. C. 351) i. 648 Shaw, Com'th V. (4 Allen, 308) ii. 798 Shaw u. Macon (21 Ga. 280) ii. 978 Shaw, People t. (1 Parker C. C. 327) i. 73.5, 736; ii. 741 , Reg. V. (10 Cox G. G. 66) ii. 1020 , Rex T. (6 Car. & P. 372) ii. 699, 701 , Rex V. (Ruas. & Ry. 526) i. 342, 465; ii. 1106 T. State (18 Ala. 547) i. 648, 758, 793 ; ii. 32 Shaw-mux, U. S. v. (2 Sawyer, 364) i. 154 Shawnee v. Beckwith (10 Kan. 603) ii. 1274 Shay V. People (22 N. Y. 317) i. 620, 679 Shay V. People (4 Parker G. G. 353) i. 974 Shea, Commonwealth v. (14 Gray, 386) i. 1060,1061; ii. 967 Shea, Reg. v. (7 Cox G. C. 147) u. 882 735 SHE INDEX TO THE CASES CITED. SIM Seotion Shed, Commonwealth v. (1 Mass. 2'27) i. 299 ; ii. 399, 404 Shedd, Com'th v. (7 Cush. 514) ii. 178 Slieelmn, Com'th v. (105 Mass. 192) i. 1065 Sheffield, Com'th v. (11 Cush. 178) i. 507 Sheffield Canal, Rex v. (4 New Sess. Gas. 25; 14 Jur. 170; 19 Law J. N. s. M. C. 44) , ii. 1270 SheiHeld Gas Co., Reg. u. (22 Eng. L. & Eq. 200) i. 531 ; ii. 1274 Sheffill y.Van Deusen (13 Gray, 304) ii. 927 Shelby v. State (10 Humph. 165) ii. 1267 Shelbyville, State v. (4 Sneed, 176) i. 1082 Sheldon v. Sherman (42 N. Y. 484) ii. 876 Shell V. State (6 Humph. 283) i. 569 Shellard, Reg. v. (9 Car. & P. 277) ii. 224 Shelledy, State v. (8 Iowa, 477) i. 637 ; ii. 694, 722 Shellmire,United States V. (Bald. 370) i. 320;ii. 543, 1048 Shelton v. State (30 Texas, 431) ii. 7 V. State (34 Texas, 662) ii. 728 Shelton, State v. (65 N. C. 294) i. 904, 908 Shepard, State v. (7 Conn. 54) i. 554, 788 809j 1057 ; ii. 1122 , State T. (10 Iowa, 126) i. 795; ii. 32 , U. S. T. (1 Abb. U. S. 431) i. 200 Shepardson, People v. (48 Cal. 189) i. 670; ii. 1137, 1141 Shepherd v. McTntire (5 Dana, 574) i. 831 Shepherdv. People {WM.Y.b31)u.l2,U.n Shepherd v. People (25 N. Y. 406) i. 1001, 1047, 1049 Shepherd, Reg. v. (11 Cox C. C. 325) ii. 230 , Reg. \. (Dears. 606 ; 36 Eng. L. & Eq. 599) ii. 785, 904 , Reg. V. (Leigh & C. 147) ii. 641, 643 , Rex V. (2 East P. C. 944) i. 572 Shepherd, Rex v. (2 East P. C. 967) u. 583 , Rex V. (1 Leaeh, 539 ; 2 East P. C. 1073) i. 595 ; ii. 996 Sheppard, Reg. v. (9 Car. & P. 121) ii. 816, 822 , Reg. V. (11 Cox C. C. 802) i. 738 , Rex V. (1 Leach, 226) i. 572 Sheppard, State w. (1 Mill, 145) ii. 268 Sheriff, Com'th V. (8 Brews. 343) i. 465 ; ii. 1011 Sheriff, Commonwealth «. (1 Grant, Pa. 187) ii. 1104 .Com'th ».(1 Leg.Gaz. Rep.340) i. 287 Sherman v. Cohen (2 Strob. 553) ii. 266 Sherman, People v. (10 Wend. 298) ii. 849, 353 Sherman v. Roberts (1 Grant, Pa. 261) ii.968 Shermer, State v. (55 Miaso. 83) ii. 841 Sherwood v. Burr (4 Dav, 244) ii. 138 V. Mcintosh (Ware,' 109) i. 821 Sherwood, Reg. v. (1 Car. & K. 556) ii. 703, 704 ,Reg. V. (Dears. & B. 251 ; 7 Cox C. C.'270 ; 40 Eng. L, & Eq. 584) ii. 442 736 Section Shichle, Reg. t. (Law Rep. 1 C. C. 158) ii. 773 Shields, Rex v. (28 Howell St. Tr. 619) i. 1033 Sliields V. Yonge (15 Ga. 349) i.264 ; ii 690 Shifflet V. Com'th (14 Grat. 652) ii. 1200 Ship Cotton Planter (1 Paine, 23) i. 296 Shipley v. Craister (2 Vent. 131) i. 903 , Rex V. (4 Doug. 73) ii. 918 Shippey, State v. (10 Minn. 223) i. 305, 37G, 842, 844, 872 Shirley, State v. (64 N. C. 610) i. 877 Shoaf, State v. (68 N. C. 375) ii. 808 Shoemaker v. Nesbit (2 Rawle, 201) i. 460 V. State (12 Ohio, 43) . ii. 696, 728 Shoemaker, State v. (7 Misso. 177) i. 803; ii. 295 , United States v. (2 McLean, 114) i. 1016, 1031, 1037, 1041 Sholes, Com'th t. (13 Allen, 554) i. 998 Shoop V. Com'th (3 Barr, 126) i. 899, 910 Shooter, State r.(8 Rich.72) ii. 198, 211, 212 Short y. State (7 Yerg. 610) ii. 679 Shorter v. People (2 Comst. 193) i. 842, 850, 865, 875 ; ii. 641, 701, 703 , People V. (4 Barb. 460) i. 305, 865 Shortridge v. Macon (1 Abb. U. S. 58) . ii. 1202 Shotwell, Matter of (10 Johns. 304) ii. 514 Shotwell, People t. (27 Cal. 394) i. 1033 Shoultz, State v. (25 'Misso. 128) ii. 695, 728 Shousev. Commonwealth (5 Barr, 83) i. 800 ; ii. 1154 Shooer V. State (6 Eng. 259) i. 343, 497 ; ii. 951, 970 Shreve, State v. (lSouthard,297) ii. 1018 Shriedley w. State (23 Ohio State, 130) ii. 1137, 1141 Shriver v. State (9 Gill & J. 1) ii. 256 Shryber, Respublica v. (1 Dall. 68) ii. 501 Shugborough v. Biggins (5 Co. 50 a) i. 899 Shukard, Rex v. (Russ. & By. 200) ii. 607 Shults, U. S. V. (6 McLean, 121) i. 384 Shultz T. State (13 Texas, 401) i. 385 Shape, State v. (16 Iowa, 36) ii. 1032 Shurtliff, State v. (18 Maine, 368) i. 672, 584 ; ii. 589 Shuttleworth v. State (35 Ala. 415) i. 940 Sias, State v. (17 N. H. 558) i. 1053, 1066 Sidley, Rex v. (1 Sid. 168) i. 1132 Sigman, Commonwealth v. (2 Pa. Law Jour. Rep. 36) i. 882 Silliman v. Hudson River Bridge Co. (1 Black, 582) i. 174 Silsbee, Com'th v. (9 Mass. 417) i. 246,471 Silver v. State (17 Ohio, 365) ii. 1019 Silversides v. Reg. (2 Gale & D. 617) i. 930 Silvertm, Rex v. (1 Wils. 298) i. 992 Simmonds, Reg. v. (8 Cox C. C. 190) ii. 1020, 1028 Simmons K.Com'th (6Binn.617) i. 138, 141 Simmons v. Kelly (9 Casey, 190) ii. 898 , Reg. V. (Bell C. C. 168) ii. 1020, 1028 , Rex V. (1 Wils. 329) i. 885, 762, 1002 BLA INDBX TO THE CASES CITED. SMI Sbotioit Simmons v. State (4 Ga. 465) i. 671 Simmons, State u. (3 Ala. 497) i. 429 ; u. 1004, 1006 , State K. (1 BreT. 6) ii. 744 Simmons, Slate v. (6 Jones, N. C. 21) i. 648 Simmons, State v. (1 Pike, 265) ii. 255, 269 Simonds, State v. (3 Misso. 414) i. 1029 Simons', Rex v. (2 East P. C. 712) i. 582; ii. 1163 ,Iiex v.(2 East P.C.731) i.553 ; ii.ll71 , flea; v. (Say. 34) i. 998, 1002 , Slate V. (Dudley, Ga. 27) ii. 851 Simons, State v. (4 Strob. 266) ii. 198, 206 Simpson's Case (1 Lewin, 172) ii. 664 Simpson, Commonwealth v. (9 Met. 138) i. 567, 622 ; ii. 327 , Beg. V. (Car. & M. 669) i. 642, 649; ii. 994 ' , Reg. V. (2 Cox^C. C. 235) ii. 812 , Reg. V. (29Eng. L. & Eq. 530 ; Dears. 421 ; 18 Jur.1030) ii. 794,795, 899 V. State (4 Humph. 456) i. 141 V. State (5 Yerg. 356) i. 535 ; ii, 2, 3 T. State (10 Yerg. 526) i. 264, 791, 1067 ; ii. 1270 Simpson, State v.{l Bailey,378) i. 899, 910 , State V. (1 Dev. 504) i. 538 ; ii. 180, 505, 517, 519 Simpson, State v. (2 Hawks, 460) i. 569;ii. 985 Simpson, State v. (3 Hawks, 620) i. 586 ; ii. 433 Sims V. Cross (10 Yerg. 460)' ii. 139 , State V. (Dudley, Ga. 213) i. 1003 , State V. (3 Strob. 137) i. 548, 758 ; ii 28 32 Simson's Case (1 Hale P. C. 527) ii. 100 Sinclair's Case (23 Howell St. Tr. 778 i- 457 Sinclair's Case (2 Lewin, 49) i. 762 ; ii. 740 Sisson, State v. (3 Brev. 58) ii. 641, 680 Six Lots of Ground, United States V. (1 Woods, 234) i. 904, 910, 914, 915 Sizemore v. State (3 Head, 26) i. 155, 178 ; ii. 285 Sizemore, State v. (7 Jones, N. C. 206) ii. 703, 713 Skains V. State (21 Ala. 218) i. 948 Skeehan, People v. (49 Barb. 217) ii. 728 Skeet, Reg. v. (4 Eost. & E. 931) i. 637 Skerrit, Rex v. (2 Car. & P. 427) i. 632, 654; ii. 299 Skiff V. People (2 Parker C. C. 139) ii. 433 Skinner v. Kitch (Law Rep. 2 Q. B. 893 ; 10 Cox C. C. 493) ii. 1200 V. Perot (1 Ashra. 57) i. 967, 975 Skipworth, Reg. v. (Law Rep. 9 Q. B. 219 ; 5 Eng. Rep. 456) ii. 259 Skuse T. Davis (2 Per. & D. 550; 10 A. & E. 635 ; 7 Dowl. P. C. 774) i. 266 Slack, Com'th v. (19 Pick. 304) ii. 1190 Slack, State v. (6 Ala. 676) i. 996, 1003 , State T. (1 Bailey, 330) i. 224 VOL. I. 47 Section Slade V. Arnold (14 B. Monr. 287) ii. 968 Slaney, Rex v. (5 Car. & P. 213) ii. 925 Slatterly v. People (58 N. Y. 354) i. 729; ii. 740 Slattery, Ex parte (3 Pike, 484) ii. 943 V. State (41 Texas, 619) ii. 1006, 1007 Slaughter v. Commonwealth (11 Leigh, Va. 681) ii. 715, 716 Slaughter «. People (2 Doug. Mich. 334, n.) i. .32 Slaughter v. State (6 Humph. 410) i. 992, 1004 Slavers, The (2 Wal. 350, 375, 383) i. 564 Sleght V. Kane (2 Johns. C'as. 236) i. 821 Slingsby's Case (5 Howell St. Tr. 871) ii. 1213 Slingby, Reg. v. (4 Fost. & F. 61) ii. 812 Sloan, Com'th v. (4 Cush. 52) i. 957 Sloan V. State (8 Blackf. 361) i. 424 V. State (8 Ind. 312) i. 889 V. State (9 Ind. 565) i. 634 ; ii. 1143 Sloan, State v. (47 Misso. 604) i. 306, 795, 797,865; ii. 731 Slociim, State v. (8 Blackf. 315) i. 785 Sloggett, Reg. v. (Dears. 656 ; 36 Eng. L. & Eq. 620) i. 572 a Slomer v. People (25 111. 70) ii. 219, 748 Sloper, People v. ( 1 Idaho Ter. 183) ii. 605 Sloss, State v. (25 Misso. 291) i. 900 Slowly, Reg. v. (12 Cox C. C. 269 ; 4 Eng. Rep. 545) ii. 816 Sluby, State v. (2 Har. & McH. 480) i. 201 Small, Rex v. (8 Car. & P. 46) ii. 822 Small, State v. (31 Texas, 184) i. 572 a Smaltz V. Com'th (3 Bush, 32) i. 305 Smart, State v. (4 Rich. 356) ii. 767, 785, 786 Smedlu V. State (30 Texas, 214) ii. 1159 Smiths Case (1 Broun, 240) i. 734, 751; ii. 1239 (2 Howell St. Tr. 1049) i. 593 (Syme, 185) i. 459 Smith, Ex parte (5 Cow. 273) ii. 1022 , Ex parte (28 Ind. 47) i. 895; ii. 243 , In re (4 Moore, 319 ; 2 Brod. & B. 522) ii. 270 V. Adrian (1 Mich. 495) i. 686 V. Bowen (11 Mod. 254) i. 899 V. Brown (3 Texas, 360) ii. 253 Smith T. Com'th (6 B. Monr. 21) i. 500, 504, 1113, 1114, 1119 V. Commonwealth (1 Duvali, 224) i. 387, 401, 410, 414 T. Com'th (4 Grat. 532) ii. 351 V. Commonwealth (7 Grat. 69S) i. 778, 782, 793, 1061 Smith V. Com'th (10 Leigh, 695) ii. 1140 Smith V. Commonviealth (14 S. & R. 69) i. 960, 961, 963 V. Com'th (4 Smith, Pa. 209) i. 768, 772 Smith V. Com'th (9 Smith, Pa. 320) ii.ll04 Smith, Commonwealth v. (11 Allen, 243) ii. 1018, 1025, 1026, 1028, 1066, 1197 73T SMI INDEX TO THE CASES CITED. sm Seotion Smith, Commonwealth v. (6 Gush. 80) i 243 531 1138 Smith, Com'th v. (Ill Mass. 429) i'i. 898 , Commonwealth v. (1 Pa. Law Jour. Rep. 400) ii. 813 SmM, Com'th v. (7 Pick. 137) li. 594 Smith, Com'th v. (2 Va. Cas. 327) i. 998 V. Deaver (6 Jones, N. C. 563) ii. 1041 V. Junction Railway (29 Ind. 546) ii. 253 V. Kinne (19 Vt. 564) i. 287 V. Langliam (Skin. 60) i. 237, 459 ; ii. 973 SmUh V. Mall, (2 Rol. 263) ii. 392 Smith V. Maryland (18 How. U. S. 71) i. 145, 830 Smith V. Matham (4 D. & R. 738) ii. 270 Smith V. Myers (41 Md. 425) ii. 1014 V. Paxton (4 Dana, 391) ii. 132, 140 Smith T. People (1 Col. Ter. 121) i. 630 V. People (25 III. 17) i. 35 ; il. 235 V. People (47 N. Y. 303) ii. 421, 434 Smith V. People (53 N. Y. Ill) ii. 808, 813 Smith, People v. (24 Barb. 16) ii. 505, , People T. (57 Barb. 46) i. 777, 792, 1062 Smith, People v. (15 Cal. 408) ii. 797 , People V. (23 Cal. 280) ii. 857, 862 Smith, People y. (5 Cow. 258) i. 569 ; ii. 985 , Req. V. (1 Car. & K. 423) ii. 341, 365, 813, 836 , Bjeg. V. (8 Car. & P. 153) i. 888 , Reg. V. (8 Car. & P. 160 i. 869 ; ii. 715, 716 , Reg. V. (6 Cox C. C. 31) i. 572 o , Reg. V. (Dears. 494 ; 33 Eng. L. & Eq. 531 ; 24 Law J. n. b. M. C. 135 ; 1 Jur. N. s. 575) ii. 1139, 1140 , Reg, V. (Dears. 559 ; 25 Law J. N. s. M. C. 29; 1 Jur. N. a. 1116 ; 33 Eng. L,& Eq. 567) i.736 ; ii. 741 , Reg. v. (Dears. 561) ii. 785 , Reg. V. (Dears. & B. 553; 8 Cox C. C. 27) i. 359 , Reg. V. (Dears. & B. 566; 8 Cox C. C. 32) ii. 527, 536 , Reg. V. (2 Den. C. C. 449 ; 9 Eng. ii. & Eq. 532) ii. 758, 787, 823 , Reg. T. (3 Post. & E. 504) ii. 579 , Reg. T. (4 Post. & F. 1066) ii. 704 , Reg. v. (Law Rep. 1 C.C. 266) ii. 1141 , Reg. v. (Leigh & C. 168) ii. 529 , Reg. V. (Leigh & C. 607) ii. 641, 643 , Reg. V. (2 Moody, 295) ii. 562 , Req. V. (Temp. & M. 214; 1 Den. C. C. 510 ; 2 Car. & K. 882 ; 14 Jur. 92 ; 19 Law J. n. s. M. C. 80) ii, 1200 Smith, Reg. v. (34 U. C. Q. B. 552) i. 794, 1054 Smith, Rex v. (2 Car. & P. 449) i. 217, 314, 557, 888 ; li. 660 738 Sbotios Smith, Rex v. (6 Car. & P. 107 ; 1 Moodv, 314) i. 207 , Rex V. (2 Doug. 441) i. 237 , Rex V. (4 Esp. Ill) ii. 1274 , Rex V. (1 Leacii, 288] i. 669 , Rex V. (1 Moody, 473) ii. 833, 869 Rex V. (1 Russ. Crimes, 3d Eng. ed. 546) , Rex V. (Russ. & Ry. 267) i. 873 - ii. 344, 365, 376 - 1. 516 ii. 92 , Rex V. (Russ. & Ry. 368) , Rex V. (Russ. & Ry. 417) , Rex V. (Russ. & Ry. 516) ii. 346, 353 Smith, Rex v. (2 Show. 165) i. 1002 ; ii. 1046 Smith, Rex v. (1 Stra. 704) i. 531, 1138 , Rex V. (7 T. R. 80) i. 247, 256, 462 Smith V. Shelbourn (Cro. Eliz. 685) i. 909 Smith V. Shuliz (1 Scam. 490) ii. 758, 840 Smith V. State (37 Ala. 472) i. 633 V. State (46 Ga. 298) i. 667 V. State 49 Ga. 482) ii. 697 V. State (52 Ga. 88) ii. 741 Smith V. State (6 Gill, 425) i. 500, 1090 V. Slate (1 Humph. 396) i. 399 Smith V. State (5 Humph. 163) i. 658 Smith V. State (7 Humph. 43) ii. 26, 747, 748 V. State (33 Maine, 48) i. 619 Smith V. State (8 Ohio, 294) i. 997 Smith V. State (12 Ohio State, 466) i. 36, 37, 260, 746 Smith V. State (18 Ohio State, 420) ii. 570 V. State (22 Ohio State, 539) i. 1079 Smith V. State (32 Texas, 393) ii. 32 v. State (1 Stew. 506) i. 540, 734 ; ii. 312, 316 V. State (32 Texas, 594) ii. 930, 932 Smith V. State (35 Texas, 500) i. 795 V. State (42 Texas, 444) ii. 851 Smith V. State (1 Yerg. 228) ii. 255 , State V. (1 Bailey, 283) i. 135, 915 Smith, State v. (2 Bay, 62) i. 948, 950 , State V. (8 Blackf. 489) i. 618 , State V. (Brayt. 143) i. 679 Smith, State v. (5 Day, 175) i. 953, 1006 , State V. (3 Dev. & Bat. 117) i. 536, 842, 857, 869, 862 , State V, (3 Hawks, 378) i. 491 , State V. (2 Humph. 467) i. 548,768; ii. 32 , State V. (2 Ire. 127) ii. 505 Smith, State v. (13 Kan. 274) ii. 349 Smith, State v. (32 Maine, 369) i. 334, 619 ; ii. 692, 694, 728 Smith, State v. (30 Misso. 114) ii. 904 Smith, State v. (37 Misso. 58) ii. 1140 Smith, State k.(53 Misso. 189)1.1004, 1005 , State «.(1 Nott& McC. 13)i.955, 957 , State V. (10 R. I. 258) i. 304, 889 , State V, (8 Rich. 460) i. 961 Smith, State v. (10 Rich. 841) ' ii. 736 , State V. (2 Strob. 77) ii. 676, 679, 680, 682 SOM rSTDEX TO THE CASES CITED. SPI Section Smith, State v. (32 Texas, 167) i. 38, 501 , State V. (2 Tyler, 272) i. 207 ; ii. 801 , State V. (43 Vt. 324) i. 1054, 1058 Smith, Slate v. (8 Yerg. 150) i. 672 ; ii. 529, 538, 544 , U. S. V. (3 Blatch. 255) i. 564 Smitli, U. S. 0. (4 Day, 121) i. 135, 564 , U. S. V. (1 Dillon, 212) i. 895 Smith, U. S. T. (1 Mason, 147) 1.117, 564 , U. S. V. (2 Mason, 143) i. 564 — =-, U. S. V. (1 Southard, 33) ii. 1022 , U. S. V. (3 Wash. C. C. 78) i. 564 , U. S. v. (3 Wash. C. C. 525) i. 564 , U. S.v.(5 Wheat. 153) i. 201 ; ii. 1061 Smith V. Weaver (Taylor, 58; 2 Hayw. 108 i. 271, 272 V. Wilcox (19 Barb. 581) ii, 968 V. Wilcox (25 Barb. 341) ii. 954 V. Wilcox (47 Vt. 587) 1. 428 Smiiherman v. State (27 Ala. 23) i. 794 Smitherman, State v. (1 Ire. 14) i. 058 Smoot V. Wetumpka (24 Ala. 112) i. 419 Smyth, Com'th v. (14 Gray, 33) ii. 1267 Smyth, Rex v. (5 Car. & P. 201 ; 1 Moody & R. 155) i. 536, 538 ; ii. 500, 505 Smythe's Case (Palmer, 318)i. 573 ; ii.392 Snap V. People (19 III. 80) ii. 990 Snell V. State (50 Ga. 219) ii. 856 SneU V. Slate (2 Humph. 347) ii. 529, 546 Snell, State v. (9 B. I. 112) i. 567 Snelling, Commpnwealth v. (4 Binn. 879) 1. 553 ; ii. 1168, 1174 , Cotn'th V. (15 Pick. 321) ii. 936 , Commonwealth v. (15 Pick. 337) i. 429 ; ii. 918, 920, 922 , fleg. V. (Dears. 219 ; 22 Eng. L. & Eq. 697; 23 Law J. n. s. M. C. 8 ; 17 Jur. 1012) ii. 660, 562 Snigge v. Shirton (Cro. Jac. 199) ii. 512 Snow, Bex v. (1 East P. C. 244; 1 Leach, 151) ii. 699, 701, 704 , State v.(18 Maine, 346) i.534; ii. 1150 Snowley, Rex v. (4 Car. & P. 390) ii. 323, 353, 361 Snyder v. People (26 Mich. 106) ii. 13 Snyder, People t. (2 Parker C.C. 23) ii, 116 Snyder, State v. (14 Ind. 429) ii. 305 , State V. (25 Iowa, 208) ii. 1267 , State V. (50 N. H. 160J ii. 888 Soares, Rex v. (Russ. & By. 25; 2 East P. C. 974) i. 65-3, 676 ; ii. 609 Soldier's Case (1 Wils. 331) i. 615 Soleguard, Hex v. (Andr. 231) i. 146, 226, 294, 468, 688 Soleu, Reg. y. (11 Mod. 115) i. 246, 471 ; " ii. 1147, 1151 , Reg. V. (2 Salk. 594) i. 5-34, 634 ; ^ ii. 1147, 1150 Solomons, Rex v.(l Moody, 292) i. 622, 699 SolomSns, State v. (6 Yerg. 360) i. 1024 Somerset's Case {stated and commented on) i- 358 Samervile's Case (1 Anderson, 109) i. 358, 681 Section Somerville, Commonwealth v. (1 Va. Cas. 164) i. 358, 1049 Somerville w. Marks (58 111. 371) i. 492 Somerville, State V. (21 Maine, 14) ii. 768, 789 826 Sonachall, U. S. v. (4 Bis. 425) ii. 1026 Sonnerkalb, State i\ (2 Nott & McC. 280) i. 263, 791, 1067 Sorrell's Case (1 Va. Cas. 253) i. 1014 Sotherlen, State u. (Harper, 414) i. 467 ; ii. 791 Soult V. L'Africaine (Bee, 204) i. 104 South, State v. (4 Dutcher, 28) ii. 841 Souther v. Com'th (7 Grat. 673) ii. 727 Southern, Rex v. (Russ. & Ry. 444) i. 516, 634, 642 Southerlon, Rex v. (6 East, 126) i. 712 Southwood, Reg.v.(\ Fost. &F.356) il 1018 Southworth v. State (5 Conn. 325) i. 735 ; ii. 743 Spainhour, State v. (2 Dev. & Bat. 547) i. 531 ; ii. 1267 Spalding v. Preston (21 Vt. 9) ii. 781 Spalding, Rex v. (1 Leach, 218; 2 East P. C. 1025) i. 559, 577 ; ii. 12, 13 Spongier v. Com'th (3 Binn. 533) ii. 785 Spaiin V. State (47 Ga. 549)'i.384, 387, 396 Spanner. Reg. v. (12 Cox C. C. 156 ; 2 Eng. Rep. 208) ■ ii. 119 a Sparkes, Rex v. (2 Show. 447) i. 237, 578 Sparks V. Com'th (3 Hush, 111) ii. 656 6 Sparks v. White (7 Humph. 86) ii. 1269 Sparrow, Rex v. (2 T. R. 198) i. 266 /Spear, State v. (6 Misso. 644) i. 990, 992, 994, 1024 Sfiears, Req. v. (2 Leach, 826; 2 East P. C. 568) ii. 855 Specht V. Commonwealth (8 Barr, 312) i. 344; ii. 951, 969 Speer, Commonwealth v. (2 Va. Cas. 65) i. 571 ; ii. 148, 543 Spei7-in, State v. ( 1 Brev. 119) i. 536 ; ii. 490, 501 Speke, Rex v. (3 Salk. 358) i. 121, 702 Spence v. State (8 Blackf. 281) ii. 605 Spencer v. Eustis (21 Maine,* 519) i. 821 Spencer, Reg. v. (10 Cox C. C. 525) ii. 664 , Reg. V. (Dears. & B. 131 ; 7 Cox C. C. 189) ii. 986 , Rex T. (3 Car. & P. 420) ii. 148,417 , Rex V. (2 East P. C. 712) i. 582; ii. 1163 , Rex V. (Russ. & Ry. 299) ii. 346, 353 Spencer v. State (15 Ga. 562) i. 998 Spencer, State v. (1 Zab. 196) i. 384, 385 Spier, Inre{l Dev. 491) i. 1014, 1031 Spiller, Rex v. (6 Car. & P. 333) i. 314 ; ii. 664 , Rex T. (2 Show. 207) i. 264, 470 ; ii. 931, 936, 946 Spilling, Reg. t. (2 Moody & R. 107) '^ ^ i. 314;ii.664 Spirits, U. S. V, (4 Ben. 471) i. 488 739 STA INDEX TO THE CASES CITED. STE Section Spragg, Rex v. (2 Bur. 993) ii. 192, 219 Spraggins, Commonwealth v. (18 B. Monr. 512) i. 909 Sprague, People v. (2 Parker C. C. 43) i. 384 Spurgin, State v. (1 McCord, 252) i. 679, 793 998 Squaires, State V. (2 Nev. 226) i! 648 Squares v. Campbell (41 How. Pr. 193) i. 832 Squire, Commonwealth v. (1 Met. 258) i. 810, 812, 1057 ; ii. 17 , Kex T. (1 Buss. Crimes, 3d Eng. ed. 19) i. 217, 557 ; ii. 660 , Rex v. (1 Euss. Crimes, 3d Eng. ed. 490) i. 364, 883 ; ii. 660, 686 , Rex V. (Russ. & Ry. 349 ; 2 Stark. 349) ii. 334, 349 Squires, State v. (11 N. H. 37) i. 778, 793, 796,1062; ii. 116 Squires v. Whisken (3 Camp. 140) i. 504 St. [For names beginning thus see Saint. 1 Staats, united States v. (8 How. U. S. 41) i. 658; ii. 1056 Stackpole v. Symonds (3 Fost. N. H. 229) ii. 968 Stafford's Case (cited 12 Co. 37) ii. 1127 Stafford, Coni'th v. (12 Cusii. 619) i. 115 V. Hesketh (1 Wend. 71) ii. 256 Staid, Com'th v. (7 Allen, 304) i. 1135 , U. S. V. (McCahon, 206) i. 154 Stakem, People v. (40 Cal. 599) i. 699 Stamper v. Commonwealth (7 Bush, 612) i. 658, 689 Stainer, Reg. v. (Law Rep. 1 C. C. 230) ii. 335, 339 Stulcup, State V. (1 Ire. 30) i. 459, 534, 634; ii. 1150 Stalcup, State v. (2 Ire. 50) ii. 37 Standifer, State V. (5 Port. 523) i. 778, 782, 1052, 1054, 1061 Standley, Rex t. (Russ. & Ry. 305) i. 630, 649 ; ii. 813 Stanley's Case (J. Kel. 86) i. 305, 636, 642 ; ii. 654 Stanley v. Jones (7 Bing. 369) ii. 126 Stanley, People v. (47 Cal. 113) i. 965 V. State (24 Ohio State, 166) i. 140, 141 , State V. (64 Maine, 157) ii. 429,453 Stankij, U. S. V. (6 McLean, 409) ii. 1047 Stanly, State v. (4 Jones, N. C. 290) ii. 56 Stannard, Reg. v. (Leigh & C. 349) i. 1095 Stansbury u. Marks (2 Dall. 213) ii. 253, 969 Stanton, Reg. v. (1 Car. & K. 415) i. 261, 729 , Rex V. (2 Show. 30) 1. 264, 631 ; ii. 1271, 1273 , State V. (1 Ire. 424) i. 1005 ; ii. 608 Staples, Rex v. (Andr. 228) i. 470; ii. 986 Stapleton, Rex v. (1 Crawfr. &. Dix C. C. 163) i. 862, 363 740 Stapleton, Rex v. (Jebb, 93) i. 358, 361 Starin v. People (45 N. Y. 333) i. 667 Stark V. McGowen (1 Nott & McC. 387) ii. 1269 Stark, State T. (1 Strob. 479) i. 376, 385, 400 Starkey v. State (6 Ohio State, 266) ii. 785, 786 Starkie v. Commonwealth (7 Leigh, 752) i. 583 ; ii. ^3 Starling, Rex v. (1 Sid. 174) ii. 225 Starr, State v. (38 Misso. 270) i. 844 ; ii. 702, 728 State Bank v. Moore (2 Southard, 470) i. 714 Staten v. State (30 Missis. 619) i. 849, 877 Statham v. State (41 Ga. 507) i. 713 Stead, Rex v. (8 T. R. 142) i. 1079 Steamboat New World v. King (16 How. U. S. 469) i. 173 Steamboat Orleans v. Phcebus (11 Pet. 175) i. 173 Stear, Reg. v. (1 Den. C. C. 349 ; Temp. & M. 11 ; 13 Jur. 41) ii. 865 Stearns, Com'th v. (2 Met. 343) ii. 370 Stearns v. V. S. (2 Paine, 300) ii. 1022 Stebbins, Com'th T. (8 Gray, 492) ii. 849 , State V. (29 Conn. 463) i. 1052 Stedman's Case (cited Foster, 292) Ii. 703 Stedman, Com'th v. (12 Met. 444) i. 1006 Stedman, State v. (7 Port. 495) i. 795 Steel V. Roach (1 Bay, 63) i. 993 Steele v. Brannan (Law Rep. 7 C. P. 261) i. 309 Steele ». Dunham (26 Wis. 393) i. 460 , Respublica v. (2 Dall. 92) 1. 967 Steele v. Southwick (9 Johns. 214) ii. 907, 929, 930, 931, 932 , State V. (1 Yerg. 394) u. 1018 Steels, Reg. r. (11 Cox C. C. 5) ii. 442 Steer, Reg. v. (6 Mod. 183) ii. 775 Stegar v. State (39 Ga. 583) ii. 1177 Stein, People v. (1 Parker C. C. 202) ii. 1137 Stein T. State (37 Ala. 123) i. 431 ; ii. 665 Stein, State v. (1 Rich. 189) i. 264, 266 Steiner's Case (6 Opin. Att. Gen. 413) • i. 1029 Steinman v. McWilliams (6 Barr, 170) i. 320; ii. 1031 '.en V. State (11 Ga. 225) i. 789, 809 ; ii. 1118, 1124, 1133 Stephens, Matter of (1 Kelly, 584) i. 218 ; ii. 255 V. Graham (7 S. & R. 505) ii. 575 Stephens v. Hill (10 M. & W. 28) ii. 270 Stephens v. James (4 Sim. 499) i. 823 Stephens v. Mi/ers (4 Car. & P. 349) i. 548; ii. 31 , Reg.y. (Law Rep. 1 Q.B. 702) i. 1075 V. Siate (14 Ohio, 386) i. 802, 957 Stephens v. State (1 Swan, Tenn. 167) ii. 1024, 1038 STI INDEX TO THE CASES CITED. STO , People V. (13 Wend. 341) Stevens, Hex v. (5 B. & C. 246) Section Stephens v. Watson (1 Salk. 45) i. 604, 505, 1113 Stephens, &c. Co. v. Central Rail- road (5 Vroom, 280) ii. 1267 Stephenson, Com'th v. (11 Cush. 481) ii. 698 Siephenson, State v. (2 Bailey, 334) ii. 784 , State V. (4 MoCord, 165) ii. 1026 Stereoscopic Slides, United States v. (1 Sprague, 467) i. 821 Sterling, Rex v. (1 Leach, 99; 2 East P. C. 950) ii. 603 , State V. (34 Iowa, 443) ii. 190 Stern v. State (53 Ga. 229) i. 304 Stetson V. Faxon (19 Pick. 147) i. 265 Sutson, People v. (4 Barb. 151) i. 257 ; ii. 159, 420, 462, 468 Stetter, United States v. (1 Whart. Crim. Law, § 766, note) i. 906 Stevens's Case (Cro. Car. 566) 1. 668 Stevens, Ex parte (14 Pick. 94) i. 965 Stevens v. Bagwell (15 Ves. 139) ii. 131 Stevens v. Com'th (4 Met. 360) ii. 1105 Stevens v. Com'th (6 Met. 241) i. 785, 799 , Com'. (McCahon, 199) i. 154 JFarrfe, iJea: V. (Cro. Car. 266) ii. 1283 Wardell, Reg. v. (8 Fost. & P. 82) ii. 576 Warden, Com'th v. (11 Met. 406) ii. 1026 1). State (24 Ohio' State, 143) i. 648 Warden of the Fleet, Rex v. (12 Mod. 337) 1. 975 Wardle, Reg. v. (Car. & M. 144) 1. 1041 , Reg. V. (Car. & M. 647) 1. 1039 Wardroper, Reg. v. (Bell C. C. 249; 8 Cox C. C. 284) ii. 1141, 1142 Ware, State v. (10 Ala. 814) ii. 758, 843 Wareham v. State (25 Ohio State, 601) i. 328 Waring i». Clarke (5 How. U. S. 441) i. 173, 174, 176 V. U, S. (7 Ct. CI. 501) i. 904, 914 Warne, Rex v. {1 Stra. 644) i. 206 ; ii. 218 750 Warner v. Fowler (8 Md. 25) ii. 1014, 1027 , Rex V. (1 Moody, 380; 5 Car. & P. 525) i. 639 Warner, State v. (34 Conn. 276) i. 536 , State V. (14 Ind. 572) i. 1062 Warner, United States v. (4 McLean, 463) i. 314 ; ii. 667 Warren v. Com'th (1 Wright, Pa. 45) ii. 728 , Commonwealth v. (6 Mass. 72) i. 571, 582, 585, 592 ; ii. 145, 146, 204, 410 . Commonwealth v. (6 Mass. 74) i. 432, 571 ; ii. 198 Warren v. Doolittle (5 Cow. 678) i. 956 V. People (3 Parker C. C. 544) i. 500 Warren, People v. (1 Parker C. C. 338) ' i. 1052 , Reg. V. (10 Cox C. C. 359) ii. 824 Warren, Rex v. (Cowp. 371) i. 542 Warren, Rex v. (Russ. & Ey. 47, n. ) i. 557, 888 ; ii. 29 V. State (4 Coldw. 130) ii. 675, 677 V. State (1 Greene, Iowa, 106) ii. 758, 773 Warren v. State (33 Texas, 517) ii. 25 Wartman v. Philadelphia (9 Casey, 202) i. 420 Warwick v. State (25 Ohio State, 21) ii. 1020, 1026 Wash V. Com'th (16 Grat. 530) ii. 605 Wash V. McBrayer (1 Dana, 565) ii. 140 Washington v. Slate (36 Ga. 222) i. 648 , Stale V. (1 Bay, 120) i. 572; ii. 602 Wason V. Walter (Law Rep. 4 Q. B. 73) ii. 915, 917 Wasson v. Canfield (6 Blackf. 406) ii. 37 Waterford and Whitehall Turnpike V. People (9 Barb. 161) i. 237, 419, 531 ; ii. 1270 Waterhouse, State T. (Mart. & Yerg. 278) i. 1034, 1041 Waterman v. People (67 III. 91) ii. 534 Waters, Reg. t. (12 Cox C. C. 390; 5 Eng. Rep. 469) 1. 1014 , Reg. v.(l Den. C.C. 356 ; Temp. & M. 57 ; 13 Jur. 130 ; 18 Law J. N. s. M. C. 53) i. 657, 883 ; ii. 660, 686 , Rex V. (6 Car. & P. 328) ' i. 217 ; ii. 693 , State V. (3 Brev. 507 ; 2 Tread. 669) i. 672 ; ii. 574 , State V. (6 Jones, N. C. 276) ii. 990 Watertown v. Mayo 109 Mass. 315) i. 492, 1072, 1144 Watkins, Reg. v. (Car. & M. 264; 2 Moody, 217) i. 809 ; ii. 56 Watkins v. State (14 Md. 412) ii. 885 Watkins, State v. (4 Humph. 266) i. 636, 638 ; ii. 518 Watkinson, Reg. v. (12 Cox C. C. 271 ; 4 Eng. Eep. 647i i. 572 a Watson's Case (32 JHowell St. Tr. 1) ii. 1213 Watson T. Carr (1 Lewin, 6) i. 501 Watson V. Mercer (8 Pet. 88) i. 279 WEB INDEX TO THE CASES CITED. WEL .,„ Section Watsgn v. People (64 Barb. 130) ii. 612 -i— , Reg. V. (Dears. & B. 348 ; 7 Cox C. C. 364) ii. 483 , Reg. V. (20 Eng. L. & Eq. 599 ; 2 Cox C. C. 376) i. 501, 1127 Watson, Reg. v. (2 Ld. Eaym. 817) i. 913 Watson, Reg. v. (2 Ld. Eaym. 856; 3 Ld. Raym. 18) ii. 1275 , Rex V. (2 East P. C. 562) ii. 836 , Rex V. (2 Leach, 640 ; 2 East P. C. 680) 1.583; ii. 819 , Rexy.{2 T. R. 199) i. 237, 582 ; ii.935 , Rex V. (1 Wils. 41) ii. 209, 218 V. State (36 Missis. 593) i. 140, 141 Watson V. State (5 Misso. 497) i. 795 , State V. (63 Maine, 128) ii. 12 Watson, State v. (41 N. H. 533) ii. 813 Watson V. Stone (40 Ala. 451) i. 14 , U. S. V. (3 Ben. 1) i. 1032, 1035 V. Williams (36 Missis. 331) ii. 243 Wattingliam v. State (5 Sneed, 64) i. 930 Watt's Case (23 Howell St. Tr. 1167) ii. 1213 Watts's Case (Cro., Jac. 335) i. 910 Watts V. Brains (Cro. Eliz. 778) ii. 704 V. Com'th (5 Bush, 309) ii. 968 Watts, Reg. v. (Dears. 326 ; 6 Cox C. C. 304) ii. 768 , Reg. V. (1 Eng. L. & Eq. 558; 2 Den. C. C. 14; Temp. & M. 342 ; 14 Jut. 870) ii. 365, 368, 758, 793, 828, 830, 832 , Reg. r. (1 Salk. 357) i. 531 ; ii. 1275 , Rex V. (2 Esp. 675) i. 531, 829 ; ii. 1279 , Kex V. (Moody & M. 281 ; 2 Car. & P. 486) i. 244, 341, 531, 1139, 1151 , Rex V. (Russ. & Ry. 436 ; 3 Brod. & B. 197) ii. 583, 588 Watts V. State (5 W. Va. 532) i. 637 Waupun V. Moore (34 Wis. 450) i. 1142, 1150 Wavell, Rex v. (1 Moody, 224) i. 586 ; ii. 147, 483 Way V. Poster (1 Allen, 408) ii. 968 , People V. (10 Cal. 336) ii. 561 Wayman v. Southard (10 Wheat. 1) i. 194 Wayne v. Benoit (20 Mich. 176) i. 464 Weathered v. Bray (7 Ind. 706) ii. 1272 Weathers v. State (2 Blackf. 278) Ii. 1031 Weaver v. Bush (8 T. R. 78) i. 536 V. Com'th (5 Casey, 445) ii. 1105 Weaver «. Devendorf (3 Denio, 117) i. 460 V. Eegely (5 Casey, 27) i. 172 «. Hamilton (2 Jones, N. C. 343) ii. 256, 262 V. State (24 Texas, 387) ii. 740 Weaver, State v. (Busbee, 9) i. 560 , State V. (13 Ire. 203) 1. 990 V. Ward (Hob. 134) i. 287, 288; ii. 60 Webb V. Armstrong (5 Humph. 379) ii. 121 V. Bindon (21 Wend. 98) ii. 138, 140 Sbction Webb V. Camp (26 Ga. 354) ii. 138, 384 Webb, Commonwealth v. (6 Rand. 726) i. 235, 245, 531 , People T. (38 Cal. 467) i. 992, 1013, 1014, 1015, 1026, 1032 , Reg. T. (5 Cox C. C. 154) ii. 812 , Reg. V. 11 Cox C. C. 133) i. 972 , R^g. V. (1 Den. C. C. 3.38; 2 Car. & K. 933 ; Temp. & M. 23 ; 13 Jut. 42 ; 18 Law J. jf. s. M. C. 39) i. 243, 244, 500, 501, 1127 , Rex T. (3 Brod. & B. 228; Russ. & Ry."405 ; cited 6 Moore, 447) i. 572, 584; ii. 688 , Rex v. (14 East, 406) i. 519 , Rex V. 1 Ld. Raym. 737) i. 531 ; ii. 1275 , Rex T. (1 Moody & R. 405 ; 2 Lewin, 196) i. 314 ; ii. 664 , Rex V. (1 Moody, 431) ii. 793 Webb, Rex K. (1 W. Bl. 19) i. 835, 460; ii. 748 Webb, State v. (25 Iowa, 285) i. 1107 , State v. (26 Iowa, 262) ii. 429 Webber v. Merrill (34 N. H. 202) ii. 968 Webbei; v. State (10 Misso. 4) i. '998 Webster v. Com'th (5 Cush. 386) i. 951 Webster v. People (14 111. 365) i. 32 Webster, People v. (3 Parker C. C. 503) ii. 244 Webster, Reg. v. (9 L.Canada, 196) i. 1054 Webster, Reg. v. (Leigh & C. 77) ii. 792,793 , Rexv.iSI. R. 388) i. 256 Webster t). Sanborn (47 Maine, 471) i. 294 Wegener, Rex v. (2 Stark. 245) ii. 927 Weidle, Respublica v. (2 Dall. 88) i. 400 Weightman v. Washington (1 Black, 39) i. 265 Weiher, Com'th v. (3 Met. 445) ii. 1267 Weil V. Bicord (9 C. E. Green, 169) i. 1080 Weinzorpjlin v. State (7 Blackf. 186} i. 618, 1003, 1006, 1014, 1017 Welch,Com'thv. (97 Mass.593) i. 359, 1065 , Reg. V. (2 Car. & K. 296) ii. 837, 349 , Reg. v. (1 Den. C. C. 199) ii. 376, 877 , Reg. V. (2 Den. C. C. 78; 4 Cox C. C. 430; 1 Eng. L. & Eq. 588; Temp. & M. 409 ; 15 Jur. 136) ii. 288, 605 Welch, State v. (37 Wis. 196) ii. 1010 V. Stowell (2 Doug. Mich. 332) i. 490, 828 Weld, Commonwealth v. (Thacher Crim. Cas.,157) i. 298 Wellar w. People (30 Mich. 16) ii. 675 Wellings, Rex v. (1 Car. & P. 454) i. 257 Wellington, Com'th «.(7Allen,299)ii.ll90 Wellman v. Hickson (1 Ind. 581) i. 541 ; ii. 137 Wells, Ex parte (18 How. U. S. 307) i. 902, 914 V. Abrahams (Law Rep. 7 Q. B. 554) i. 269 751 "WES INDEX TO THE CASES CITED. ■WHI SECTIOlf Wells V. Head (4 Car. & P. 568) i. 1080 V. Martin 2 Bay, 201 1. 967, 970, 976 Wells, Reg. v. (1 Fost. & F. 109) 11. 813 , State V. (Coxe, 424) 1. 842, 865 "Wells, State v. (2 Hill-, S. C. 687) ii. 1022 Welman, Reg. v. (Dears. 188; 20 Eng. L. & Eq. 588 ; 22 Law J. N. s. M. C. 118 ; 17 Jur. 421) li. 431 Welsh, Com'th V. (7 Gray, 324) i. 260; ii. 7 Welsh, Com'th v. (2 Va. Gas. 57) i. 961 V. People (17 III. 839) ii. 813 Welsh, Reg. v. (11 Cox G. G. 336) ii. 681 . , Rex T. (1 East P. C. 87, 164 ; 1 Leach, 364) i. 769 ; ii. 291 ' Weltje, Rex v. (2 Camp. 142) i. 470 ; ii. 946 Weltner v. Biggs (3 W. Va. 445) ii. 540 Wemyss v. Hopkins (Law Rep. 10 Q. B. 378) ^ i. 1054 Wertheimer u. Howard (30 Misso. 420) i. 463 Wesley, Reg. v. (1 Fost. & F. 528) ii. 706 V. State (11 Humph. 502) i. 997 West's Case, (111 Mass. 443) i. 915 V. Commonwealth (3 J. J. Mar. 641) i. 504, 1135 West, Reg. v. (2 Car. & K. 496 ; 1 Den. C. C. 258) ii. 663, 564, 565 , Reg. V. (2 Car. & K. 784) i. 328 ; ii. 633, 638, 641, 691 , Reg. V. (Dears. 402 ; 24 Law J. N. s. M. G. 4 ; 18 Jur. 1031 ; 29 Eng. L. & Eq. 525) ii. 879, 882 , Reg. T. (Dears. & g. 109) ii. 785, 787 , Reg. V. (Dears. & B. 575 ; 8 Cox C. C. 12) ii. 427 West, Reg. w. (11 Mod. 59 J . ii. 263 West, Rex v. (2 Deac. Grim. Law, 1687) ii. 986 T. Slate (2 Zab. 212) ii. 643 West, State v. (6 Jones, N. G. 505) ii. 680, 681 , State V. (71 N. C. 263) i. 992, 1024, 1026 Westbeer, Rex v. (2 Stra. 1133; 1 Leach, 12 ; 2 East P. C. 596) i. 569, 625,804; ii. 758,770,984 Westchester, People v. (1 Parker C. C. 659) i. 172, 176, 178, 989, 1018 ; ii. 721 Westchester Judges, People v. (2 Johns. Gas. 118) ii. 256 Western and Atlantic Railroad v. Fulton (4 Sneed, 589) i. 307 Western Insurgents (Wharton's State Trials, 102) ii. 1202 Westjield, State v. (1 Bailey, 132) i. 685 Westmark, Reg. v. (2 Moody & R. 805) ii. 1267 Weston's Case (3 Inst. 50, 135) i. 115 Weston V. Lumley (33 Ind. 486) ii. 1020 Weston, State v. (9 Conn. 527) i. 207, 700; ii. 758, 882 West Riding of Yorkshire, Rex v. (4 B. & Aid, 623) ii. 1281 752 Seotiost West Riding of Yorkshire, Rex v. (2 East, 342) 1. 531 ; ii. 1273 , Rex V. (7 T. B. 467) i. 829; ii. 1286, 1286 Wetherall, State v. (6 Harring. Del. 487) i. 1138 Wetherbee ». Johnson (14 Mass. 412) ii. 1022 Welmore v. Tracy (14 Wend. 250) i. 828 Wetzler v. State (18 Ind. 35) ii. 966 V. State (18 Ind. 416) ii. 964 Weyman v. People (6 Tliomp. & C. 696; 4 Hun, 511) ii. 812, 813 Whaley, People v. (6 Cow. 661) i. 573 ; ii. 393, 395, 396 Whaley, State v. (2 Harring. Del. 538) ii. 760, 756 Wharton, Rex v. (12 Mod. 510) i. 316, 531, 823 Wharton v. State (5 Coldw. 1) i. 893 Wheatley v. Fowler (2 Lee, 376) i. 38 V. Harris (4 Sneed, 468) ii. 773 Wheatley, Rexv. (1 W. Bl. 273) i. 582 ; ii. 146, 147 Wheatley v. Thorn (23 Missis. 62) i. 264, 266 Wheatly, Rex v. (2 Bur. 1125 ; 1 Ben. & H. Lead. Gas. 1) i. 582; ii. 145, 147, 204, 986 Wheaton v. Peters (8 Pet. 591) i. 194, 195 Wheddon, Reg. v. (8 Gar. & P. 747) ii. 99, 100 Wheeler, Com'ih v. (2 Mass. 172) 1. 1014 Wheeler v. Lynde (1 Allen, 402) ii. 527 V. Pounds (24 Ala. 472) ii. 131 , Beg. V. (6 Mod. 187) 1. 827 Wheeler, Rex y. (1 Car. & P. 170) i. 699 Wheeler, Rex v. (1 W. Bl. 311) ii. 269 , State V. (15 Rich. 362) i. 679 Wheeler, State v. (3 Vt. 344 i. 569, 621,. 806, 810 Wheeling and Belmont Bridge, Penn- sylvania V. ( 13 How. U. S. 518 ; 18 How. U. S. 421) i. 174, 821 ; ii. 1273 Wheelock v. Archer (26 Vt. 380) i. 208 Whiley, Rex v. (Buss. & By. 90) i. 572 ; ii. 583 Whipple, People T. (9 Cow. 707) i. 972, 975 Whisenhurst, State v. (2 Hawks, 458) ii. 1018, 1019 Whistler, Beg. v. (7 Mod. 129) i. 555 (11 Mod. 25 ; 2 Ld. Raym. 842) i. 648 Whitaker u. Cone (2 Johns.Cas. 58) ii. 137 Whitaker v. English (1 Bay, 15) i. 681 V. Wisbey (9 Eng. L. & Eq. 457) i. 615 Whitcojnb, Com'th v. (107 Mass. 486) ii. 467 Whitcomb v. Gilman (35 Vt. 297) ii. 959 White, Ex parte (14 Pick, 90) i. 966 White V. Com'th (4 Binn. 418) ii. 639 White u. Com'th (1 S. & R. 189) ii. 745 White, Com'th v. (11 Gush. 483) ii. 839, 864 White, Com'th v. (110 Mass. 407) ii. 32 White, Com'th v. (8 Pick. 463) ii. 1020 "WHI INDEX TO THE CASES CITED. WIL Section "White V. Fort (3 Hawks,251 ) i.267,27 1 ,970 V. Franklin Bank (22 Pick. 181) i. 658 V. Hass (32 Ala. 430) ii. 676 V. McBride (4 Bibb, 61) i. 44 , People V. (34 Cal. 188) i. 155, 178; ii. 605 White, People v. (22 Wend. 167) i. 797, 805 , Rec;. V. (2 Car. & K. 404; 1 Den. C. C. 208) i. 584 ; ii. 151, 582 , Reg. V. (8 Car. & P. 742) ii. 341, 345, 349, 353, 376 , Reg. V. (9 Car. & P. 282) iv 791 ; ii. 560, 663 , Reg. V. (9 Car. & P. 344) ii. 758, 843 , Reg. V. (2(( Eng. L. & Eq. 585 ; Dears'. 203 ; 8 Car. & K. 363 ; 22 Law J. N. s. M. C. 123; 17 Jur. 536) i. 791 ; ii. 758, 798 , Reg. V. (1 Post. & P. 665) ii. 1138 , Reg. V. (2 Post. & P. 554) ii. 529 , Reg. V. (Law Rep. 1 C. C. 311 ; 12 Cox C. C. 88) i. 884 , Rex V. (1 Bur 333) i. 531, 1138, 1143 , Rex V. (1 Camp. 359, n.) ii. 936 , Rex V. (4 Car. & P. 46) ii. 365, 368 , Rex y. (Moody & M. 271) ii. 1024, 1028 , Rex V. (Russ. & Ry. 99) i. 635 White V. Ross (40 Ga. 339) i. 894 V. Spettigue (13 M. & W. 603) i. 268, 269 u. State (49 Ala. 344) i. 1021 V. State (51 Ga. 285) ii. 99 0. State (42 Missis. 635) i. 910 V. State (13 Ohio State, 569) i. 795 White V. State (1 Sni. & M. 149) ii. 1024, 1031 V. State (11 Texas, 769) ii. 864 White V. State (13 Texas, 133) ii. 1104 V. State (22 Texas, 608) i. 764 V. State 20 Wis. 233) ii. 863 White, State v. (7 Ire. 180) i. 319, 591 ; ii. 918, 920, 930 White, State v. (T. U. P. Cliarl. 123) ii. 243, 268 White, State v. (2 Tyler, 852) ii. 320 White, Texas v. (7 Wal. 700) i. 161 White, U. S. V. (5 Cranch C. C. 73) ii. 18 Whiteford v. Commonwealth (6 Rand. 721) ii. 723, 728 Whitehead, Reg. v. (2 Moody, 181 ; 9 Car. & P. 429) i. 615, 822 V. Reg. (7 Q.B. 582 ; 9Jur. 594) i. 9-30 Whitehead v. State (4 Humph. 278) i. 667 Whitehouse, Reg. v. (6 Cox C. C. 38) ii. 198 Whiteley, Reg. v. (3 H. & N. 143) ii 961 Whiteley, Rex T. (1 Lewin, 173) ii. 717 Whiteman, Reg. v. (Dears. 353; 23 Law J. N. s. M. C. 120 ; 18 Jur. 434 ; 25 Eng. L. & Eq. 590) ii. 986 Whitesides v. Martin (7 Yerg. 384) i. 541 ; ii. 137, 139 Whitfield V. Longest (6 Ire. 268) i. 831 Whitfield, Reg. v. (3 Car. & K. 121) i. 395 VOL. I. 48 Sectiok Whitfield V. Southeastern Railroad (Ellis, B. &E. 115) i. 420 Whithorne, Rex v. (3 Car. & P. 394) i. 632 ; ii. 652, 744 Whittingham, State v. (7 Vt. 390) ii. 1269, 1281 Whitler, Commonwealth v. (2 Brews. 388) ii. 697, 708 Whitley's Case (1 Lewin, 123) , i. 758 Whitman v. Spencer (2 R. I. 124) ii. 206 Whitmarsh, Commonwealth v. (4 Pick. 233) ii. 288, 605 Whitnash, Rex v. (7 B. & C. 596) ii. 954 Whitney v. McConnell (29 Mich. 12) ii. 857 V. State (8 Misso. 165) 1. 400 Whittaker,Reg. v. (1 Den. C. C. 310) i. 630 Whittem v. State (36 Ind. 196) ii. 268, 269 Whittemare, State t. (50 N. H. 245) ii. 1023, 1028 Whittier, State v. (21 Maine, 341) i. 1017 Whittingham, Rex v. (2 Leach, 912) i. 262 ; ii. 365 Whitton V. State (37 Missis. 379) i. 294 Whgte, Reg. v. (5 Cox C. C. 290) ii. 583 Whyte, State v. (2 Nott & McC. 174) ii. 758, 806 Wickersham v. People (1 Scam. 128) i. 462 Wickhara v. Conklin (8 Jolins. 220) ii. 127 , U. S.v. (1 Wash. C. C. 316) ii. 37 Wickoffv. Humphrey (1 Johns. 498) ii. 1020, 1027 Wicks, Rex V. (Russ. & Ry. 149) ii. 562, 591 Wicks V. State (44 Ala. 398) i. 663 Widdop, Reg. V. (Law Rep. 2 C. C. 3) i. 572 o Widdup, Reg. v. ( 12 Cox C. C. 251) 1. 572 a Widenhouse, State v. (71 N. C. 279) ii. 518, 1273 Wier's Appeal (24 Smith, Pa. 230) i. 1097, 1098, 1142 Wigg, Reg. v. (2 Salk. 460; 2 Ld. Uaym. 1163) i. 244, 531 Wiggins V. Chicago (68 111. 372) i. 32 Wiggot, Rex V. (Comb. 205) i. 240 Wiggs, Rex v. (1 Leach, 378, n.) 1. 887, 888 ; ii. 684, 709 Wilcox V. Bowers (36 N. H. 372) ii. 392 V. Calloway (1 Wash. Va.38) ii. 137 Wilcox, Rex V. (Russ. & Ry. 50) ii. 574 Wilcox, Rex v. (2 Salk. 458) i. 829, 903 Wilcox V. Smith (5 Wend. 231) i. 464 Wilcox V. State (3 Heisk. 110) ii. 885 ' , State V. (3 Yerg. 278) i. 595; ii. 996 Wilcox, U. S. V. (4 Blatch. 393) ii. 1197 Wild's Case (2 Lewin, 214) i. 862, 875 Wild, flex V. (1 Moody, 452) i. 370 Wilde V. Commonwealth (2 Met. 408) i. 930, 941, 964, 965; ii. 118, 487 , Com'th V. (5 Gray, 83) ii. 816 Wilders, Rex v. (cited 2 Bur. 1128) ii. 147 Wildeu, Rex v. (1 M. & S. 183) i. 1021, 1041 753 WIL INDEX TO THE CASES CITED. ■WIL Section Waeg, People v. (3 Hill, N. Y. 194) i. 224, 578, 700; ii. 758, 767, 768, 785, 787, 1138 , Reg. T. (2 Den. C. C. 37 ; 1 Eng. L. & Eq. 567) ii. 1139 Wilqus, Commonwealth v. (4 Pick. 177) i. 586 ; ii. 410, 433, 440 ■Wilhite W.Roberts (4Dana,172) ii.132,140 Wilke, Exparte (34 Texas, 155) ii. 763,765 Wilkerson u. Allan (23 Grat. 10) i. 899,909 Wilkes ». Dinsman (7 How. U. S. 89) i. 44, 459, 460, 1029 ; ii. 37 V. Hungerford Market (2 Bing. N. C. 281) i. 265 Wilkes, Rex v. (4 Bro. P. C. 360) i. 953 Wilkes, Rex v. (1 Leach, 103; 2 East P. C. 746) i. 699, 791 Wilkie V. Brig St. Petre (Bee, 82) ii. 876 Wilkins v. Malone (14 Ind. 153) ii. 1262 Wilkins, Req. r. (Leigh & 0. 89 ; 9 Cox C. C. 20) i. 491 , Rex V. (1 Leach, 520 ; 2 East P. C. 673) i. 583 ; ii. 812, 822 Wilkinson's Case (1 Hale P. C. 508) ii. 795 Wilkinson, Com'th v. (16 Pick. 175) i. 245, 531 ; ii. 1266, 1270, 1277 Wilkinson v. Cook (44 Missis. 367) i. 821 Wilkinson, Rex v. ( Russ & Ry. 470) i. 342; ii. 758, 791 Wilkinson v. State (10 Ind. 372) ir. 593 Wilks, Rex v. (2 East P. C 957) i. 572 Will, State v. (1 Dev. & Bat. 121) i. 206, 207, 429; ii. 710 Willan, Rex v. (1 Leach, 495; 2 East P. C. 705) ii. 897 Witland, Ex parte (11 C. B. 544 ; 20 Eng. L. & Eq. 293) ii. 255 Willard v. Cambridge (3 Allen, 574) i. 265 Willard, Commonwealth v. (22 Pick. 476) i. 226, 658, 761 Willey, People r. (2 Parker C. C. ■ 19) ii. 1048 William Gray, The (1 Paine, 16) i. 287, 351, 821, 824 Williams's Case (3 Howell St. Tr. 368) ii. 1233 Williams v. Augusta (4 Ga. 509) i. 32, 531, 1100 V. Bennett (4 Ire. 122) ii. 139 Williams v. Com'th (10 Casey, 178) ii.240 V. Commonwealth (2 Grat. 567] i. 990, 998, 1033, 1041 , Com'th V. (2 Ashm. 69) ii. 728 Williams, Com'th c. (3 Gray, 461) ii. 863 , Com'th V (9 Met. 273) ii. 785 V. Council (4 Jones, N. C. 206) ii. 137, 140 Williams V. East India Co. (3 East, 192) i. 734, 1098 Williams v. Hedley (8 East, 378) i. 658 V. Hogan (Meigs, 187) i. 541 ; il. 137 V. Lunenburg (21 Pick. 75) i. 464 Williams v. Lyons (8 Mod. 189) ii. 394 Williams o. Mlatthews (3 Cow. 252) ii. 135 754 Seotioit Williams t-. People (54 HI. 422) - ii. 702 , People V. (32 Cal. 280) i. 305, 874 Williams,People v.(85 Cal. 671) ii. 763,766 Williams, People v. (43 Cal. 344) i. 409 Williams, People v. (4 Hill, N. Y. 9) i. 586 ; ii. 420, 433, 464 , People V. (24 Mich. 156) i. 141 , Reg. V. (1 Car. & K. 195) i. 262 , Reg. Y. (Car. & M. 259) i. 631, 648 ; ii. 288 , Reg. V. (8 Car. & P. 286) i. 261, / 809 ; ii. 1122 , Reg. V. (6 Cox C. C. 49) ii. 785 , Reg. V. (1 Den. C. C. 39) i. 435, 677, 756 ; ii. 740, 744 , Reg. V. (10 Mod. 63 ; 1 Salk. 384) i. 361, 500, 1084 , Rex V. (3 Bur. 1317) ii. 973 , Rex V. (2 Camp. 506) ii. 62, 312, 314 , ifcx V. (2 Camp. 646) i. 799 ; ii. 948 , Rex V. (6 Car. & P. 390) ii. 817 , Rex V. (6 Car. & P. 626) ii. 361 , Rex V. (7 Car. & P. 338) ii. 376 , Rex V. (7 Car. & P. 354) i.438 ; ii.466 Williams, Rex t>. (Comb. 18) i. 903 Williams, Rex v. (1 D. & R. 197 ; 5 B. & Aid. 595) i. 256 Williams, Rex v. (26 Howell St. Tr. 654) i. 950 ; ii. 76 Williams, Rex v. (1 Leach, 114; 2 East P. C. 937) ii. 560 , Rex V. (1 Leach 529 ; 1 East P. C. 424) i. 340, 341 Williams, Kex v. (Lofft, 759) i. 221, 948 Williams, Rex v. (4 Man. & R. 471 ; 9 B. & C. 549) ii. 495, 501, 514 , Rex y. (1 Moody, 107) i. 327 ; ii. 758, 797 , Rex V. (2 Show. 471) ii. 917 V. State (44 Ala. 41) 1. 869 V. State (44 Ala. 396) ii. 840 Williams v. State (46 Ga. 212) ii. 103 !■. State (51 Ga. 535) ii. 608 i. State (3 Heisk. 376) 1.305,869; ii. 704 V. State (47 Ind. 568) i. 648 ; ii. 741 V. State (48 Ind. 306) i. 304 V. State (49 Ind. 367) ii. 812 Williams V. State (9 Misso. 270) i. 534, 632, 658 ; ii. 1153 T. State (14 Ohio, 222) i. 373, 746 ; ii. 1117, 1131 Williams v. State (18 Ohio State, 46) i. 953 Williams v. Slate (12 Sm. & M. 58) i. 685, 686 V. State (2 Sneed, 160) ii. 390 Williams v. State (3 Sneed, 313) ii. 304 V. State (34 Texas, 558) ii. 758 V. State (41 Texas, 649) ii. 901, 902 Williams, State v. (10 Humph. 101) i. 793, 1061 ; ii. 888 , Slate V. (4 Ind. 234) il. 1262 Williams, State «.(4 Ire.lOO) i. 499 ; ii. 968 WIL INDEX TO THE CASES CITED. yrm -_.,,. „ Section Williams, State v. (9 Ire. 140) ii. 758, 879, 880 , State V. (12 Ire. 172) i. 237 , State V. (25 Maine, 561) 1. 471 Williams, State v. (30 Maine, 484) ii. 904 "Williams, State v. (5 Md. 82) i. 1021 Williams, State v. (19 Misso. 389) ii. 882 . State T. (85 Misso. 229) i. 141; ii. 864 Williams, State a. (65 N. C. 398) i. 359, 362 Williams, State v. (1 Nott & McC. 26) i. 910, 911 Williams, State v. (2 Speers, 26) ii. 255, 264, 270, 273 Williams, State v. (3 Stew. 454) i. 1039 , State V. (2 Strob. 474) . ii. 784 , State V. (2 Tenn. 108) i. 540, 1122 , State v. (1 Vroom, 102) i. 1094, 1112, 1114, 1120; u. 967 Williams, State v. (5 Wis. 308) i. 464 B. Stokes (3 Johns. 151) i. 821 Williams v. Stott (3 Tyrw. 688 ; 1 Cromp. & M. 675) ii. 834, 337, 341 , U. S. V. (1 Clif. C. C. 5) ' i. 1003 Williams, United States v. (2 Cranch C. C. 438) i. 857 Williamson's Case (2 Casey, 9) ii. 262, 268 WiUiamson, Commonwealth v. (2 Va. Cas. 211) i. 668 Williamson v. Freer (Law Hep. 9 C P. 393) ii. 914 Williamson, Reg. v. (1 Cox C. C. 97) i. 257 , Reg. V. (il Cox C. C. 328) ii. 429 , Rex V. (3 B. & Aid. 582) ii. 972 , Rex V. (3 Car. & P. 635) i. 217, 314 ; ii. 664 Williamson v. Sammons (34 Ala. 691) ii. 127 .■. State (16 Ala. 431) i. 363 Williford V. State (23 Ga. 1) i. 1033 Willis V. People (32 N. Y. 715) i. 384 V. People (5 Parker C. C. 621) i. 384, 387 392 , Reg. T. (12 Cox C. C. 164; 2 ' Eng. Rep. 218) ii. 1020 Willis, Reg. V. (Jebb, 48, n.) i. 204 Willis, Reg. v. (Law Rep. 1 C. C. 363; 12' Cox C. C. 192) J. 961 , Rex V. (1 Moody, 375) ii. 872 , State V. (7 Jones, N. C. 190) ii. 98 Willis V. Warren 1 Hilton, 590) i. 500 1079, 1146 V. Watson (4 Seam. 64) ii. 137 Willmer, Reg. «. (15 Q. B. 50) i. 260 Willmett, Reg. v. (3 Cox C. C. 281) i. 304, 317 Willoughbu, Rex v. (1 East P. C. 288) ii-699 Wills V. State (4 Blackf. 457) i. 794, 799 V. State (3 Heisk. 141) i. 159 Willson i: Black Bird Creek Marsh (2 Pet. 245) i. 174 Wilson V. Bates (9 Sim. 54) ii. 270 Seotiok Wilson T. Commonwealth (12 B. Monr. 2) i. 504, 782, 794, 1113, 1114, 1119 V. Com'th (3 Bush, 105) i. 1018 Wilson «. The Mary (Gilpin, 31) i. 294, 948 V. Middleton (2 Cal. 54) i. 266 , People V. (9 Cal. 259) ii. 55 Wilson V. People (24 Mich. 410) ii. 742 V. People (39 N. Y. 459) ii. 801 V. People (4 Parker C. C. 619) ii. 721 Wilson, People v. (64 111. 195) ii. 243, 257 259 , People V. (6 Johns. 320) ii.'468, 538, 561, 671 Wilson, People v. (3 Parker C. C. 199) i. 148 , Reg. V. (2 Car. & K. 527 ; 1 Den. C. C. 284) i. 572 ; ii. 580, 598 , Reg. V. (8 Car. & P. Ill) i. 583, ii. 198, 819 , Reg. V. (9 Car. & P. 27) ii. 349, 353, 361, 365, 856 , Reg. V. (Dears. & B. 558 ; 8 Cox C. C. 25) ii. 529 , Reg. V. (2 Moody, 52) ii. 1137 , Rex V. (1 Leach, 285) ii. 291 , Rex V. (Russ. & Ry. 115) ii. 106 Wilson, Rex v. (4 T. R. 487) i. 950 Wilson, Rex v. (8 T. R. 357) u. 490, 500, 501 V. State (24 Conn. 57) i. 1055, 1062; ii. 118 Wilson V. State (3 Heisk. 278) ii. 2 V. State (28 Ind. 393) i. 947 Wilson V. State (20 Ohio, 26) i. 998 Wilson V. State (5 Pike, 513) ii. 785 Wilson V. State (1 Port. 118) i. 224, 583 ; ii. 768, 785, 786, 787 Wilson V. State (16 Texas, 246) i. 1028 V. State (25 Texas, 169) ii. 740 V. State (1 Wis. 184) i. 618; ii. 299 Wilson, State v. (30 Conn. 500) i. 744, 809 , State: V. ( Coxe, 439) i. 437, 559 ; ii. 97, 98, 110, 758, 794 Wilson, State v. (3 McCord, 187) i. 679, 801 , State V. (42 Maine, 9) ii. 1267, ■ 1269, 1272 Wilson, State v. (2 Mill, 135) i. 571 ; ii. 147 Wilson, State v. (3 Misso. 125) i. 537, 538 ; ii. 490, 504 V. Stewart (3 B. & S. 913) i. 1090 Wilson, United States T. (Bald. 78) i. 648 . United States V. (7 Pet. 150) i. 898, 902, 907 Wiltberger, United States v. (3 Wash. C. C. 515) i. 305, 536, 849, 850, 857, 867, 877 ; ii. 680, 704 , United States v. (5 Wheat. 76) i. 117, 176, 201 ; ii. 1235 Wilts, Reg. t. (6 Mod. 307 ; Holt, 339) i. 531 ; ii. 1267, 1269, 1281 Wiltshire v. (Yelv. 146) ii. 531 Wimberly, State v. (3 McCord, 190) i.810 755 woo INDEX TO THE CASES CITED. WOO Section Winchcombe o. Winchester (Hob. 165) i. 909 Winchester, U. S. y. (2 McLean, 135) ii. 1023 ■Windsor, In re (10 Cox C. C. 118 ; 6 B. & S. 522) ii. 623, 586 , State V. (5 Harring. Del. 512) i. 384 Winehart y. State (6 Ind. 30) i. 294 Win field v. Stale (3 Greene, Iowa, 339) ii. 40 Wing, Com'th v. (9 Pielc 1) i. 549 Winsliip V. People (51 111. 296) ii. 263 Winslow V. Anderson (4 Mass. 376) i. 32 Winsor, Reg. y. (10 Cox C. C. 276) i. 982, 991, 1033 V. Reg. (Law Rep. 1 Q. B. 289 ; 7 B. & S. 490) i. 982, 991, 1033, 1034, 1041 Winter v. Dickerson (42 Ala. 92) i. 14 Winterbottom, Req. v. (1 Den. C. C. 41 ; 2 Car. & K. 37 ; 1 Cox C. C. 164) ii. 570 a Winters v. State (9 Ind. 172) ii. 1190 Wisconsin River Impr. Co. v. Lyons (30 Wis. 61) ii. 1267, 1271 Wisdom, State v. (8 Port. 511) i. 653 ; ii. 758, 786, 789, 797, 806 Wise u. Withers (3 Cranch, 331) i. 44, 460 Wiseman, State v. (68 N. C. 203) i. 1032, 1035 Witchett, Rex v. (2 East P. C. 830) ii. 461, 470 Witherby v. State (39 Ala. 702) i. 893 Withers v. Buckly (20 How. U. S. 84) i. 174 Withers, Rex v. (1 East P. C. 295) i. 868 ; ii. 699 Withers, Rex v. (3 T. R. 428) i. 948 ; ii. 918 Witt, Rex V. (1 Moody, 248) ii. 106 V. State (9 Misso. 671) Ii. 758, 811, 840, 851 Wixson V. People (6 Parker C. C. 119) i. 310, 651, 653 Woart V. Winnick (3 N. H. 473) i. 270 Wolcot V. Knight (6 Mass. 418) i. 307 ; ii. 136 Wolcott V. Whitcomb (40 Vt. 40) ii. 1266 Wo/fv: State (41 Ala. 412) i. 789, 809 ; ii. 886 Wollaston, Reg. v. (12 Cox C. C. 180 ; 2 Eng. Rep. 234) ii. 35 Womack V. State (7 Coldw. 508) i. 777 Wonson V. Sayward (13 Pick. 402) ii. 758, 780 Wood, Com'th V. (11 Gray, 85) i. 658 — •-, Com'th v.(97 Mass. 225) i. 1084, 1086 Wood V. Fitzgerald (3 Oregon, 668) i. 916 V. McGuire (21 Ga. .576) ii. 137 V. Mears (12 Ind. 516) ii. 1274 V. People (53 N. Y. 511) i. 963 V. People (59 N.Y. 117) ii. 1030, 1032 Wood, People v, (2 Parker C.C. 22) ii. 824 , /eejr. V. (IFost. &F. 497) ii. 1138 756 Sectiom Wood, Reg. V. (3 New Sess. Cas. 681) ii. 758, 838, 880 Wood, Rex T. (2 East P. C. 7.32) ii, 1173 -, Rex V. (2 Russ. Crimes Eng. ed. 632) , State V. (1 Bay, 351) Wood V. State (46 Ga. 322) V. State (48 Ga. 192) Wood, State v. (17 Iowa, 18) Wood, State v. (1 Mill, 29) 3d ii. 1020 ii. 40, 41 ii. 103 i. 794 ii. 1043 i. 679, 799, 1003 V. United States (16 Pet. 842) i. 821 , United States v. (2 Gallis. 361) i. 464 w, Wood (2 Cow. 819) i. 981 Wood Ditton, Reg. v. (18 Law J. N. s. M. C. 218) i. 240 Wooderd, State v. (20 Iowa, 541) ii.573, 598 Wood/all, Reg. v. (5 Bur. 2661) i. 998 Woodtall, Rex v. (Lofft, 776) i. 734 ; ii. 925, 929, 942 Woodjin, Slate v. (5 Ire. 199) ii. 243, 264 Woodhall, Reg. t. (12 Cox C. C.240 ; 4 Eng. Rep. 529) i. 772, 804 ; ii. 55 Woodin V. People (1 Parker C. C. 464) ii. 1122 Woodman v. Kilbourn Manuf. Co. (1 Abb. U. S. 158) ii. 1272 Woodrow, Rex v. (2 T. R. 731) i. 246 Woodruff, Ex parte (4 Pike, 630) ii. 256, 269 Woodruff V. Slate (3 Pike, 285) i. 279 , State V. (2 Day, 504) 1. 1033 Woodruff V. Tilly (25 Ark. 309) i. 14 Woodrun, Commonwealth «. (4 Pa. Law Jour. Rep. 207) ii. 478 Woods, Com'th v.(10 Gray, 477) ii. 523, 573 Woods, Commonwealth v. (7 Law Reporter, 58) ii. 187 v. People (55 N. Y. 515) ii. 1119 !). Woods (2 Curt. Ec. 516) i. 38 Woodside, State v. (7 Ire. 296) ii. 978 Woodward's Case (cited 2 Leach, 782) i. 584 Woodward, Commonwealth v. (102 Mass. 155) i. 115 , Commonwealth y.[Tha.eheTCrim. Cas. 63) i. 667 Woodward, People v. (45 Cal. 203) i. 633 Woodward, Reg. v. (8 Car. & P. 561) i. 363 , Reg. V. (Leigh & C. 122 ; 9 Cox C. C. 95) ii. 113'J, 1142 , Reg. V. (11 Mod. 137) i. 673; ii.407, 1173 Woodward u. S.quires (39 Iowa, 435) i. 32 Woodward, Slate v. (23 Vt. 92) ii. 1267 Woodward, State v. (25 Vt. 616) i. 785 Woody, People v. (48 Cal. 80) i. 735 ; ii. 1181 Woodworth v, Janes (2 Johns. Cas. 417) ii. 136 Woodworth v. Rogers (3 Woodb. & M. 135) ii.256 Wooldridge v. Lucas (7 B. Monr. 49) i. 616, 831 WRI INDEX TO THE CASES CITED. YAT Section Wookry, Slate v. (29 Misso. 300) i. 903 Woolleii, Reg. v. ( 1 Den. C. C. 559 ; 1 Erig. L. & Eq. 537 ; 4 New Sess. Cas. 341 ; Temp. & M. 279) ii. 415, 420, 434, 442, 464 Woolmer, Rex v. (1 Moody, 334) i. 305 ; li. 652 Woolston, Rex v. (2 Stra. 834) ii. 74 Woolverton, State v. (8 Blackf. 452) ii. 1040 Wooten V. Miller (7 Sm. & M. 380) i. 110 Woolton V. Dawkins (2 C. B. n. s. 412) i. 855 Worcester, Commonwealth v. (3 Pick. 462) i. 540 Worcester v. Georgia (6 Pet. 516) i. 154 Work, Com'th v. (3 Pittsb. 493) ii. 580 Works V. Junction Kailroad (5 Mc- Lean, 425) i. 341 ; ii. 1272 Worley, Reg. v. (3 Cox C. C. 535) ii. 1032, 1038, 1039 a V. State (11 Humph. 172) i. 429 Wormall, Rex v. (2 Rol. 120) ii. 715 Worrall, Rex v. (7 Car. & P. 616) ii. 783 Worrall, Rex v. (Skin. 108) i. 592 Worrall, United States v. (2 Dall. 384) i. 199, 767 ; ii. 88, 1201 Worrell, Rex t. (Trem. P. C. 106) ii. 150 Wortkayn v. Commonwealth (6 Rand. 669) i. 625, 1014 Worllev, Reg. v. (IDen. C. C. 162) ii. 763 • , Reg. V. (2 Den. C. C. 333 ; 16 Jur. 1137) ii. 376 Wray, Ex parte (30 Missis. 673) ii. 681, * ^ '695,717 Wren v. Com'th (25 Grat. 789) i. 694 Wright, In re (6 Dowl. & L. 394) ii. 270 , In re (1 Exch. 658) Wright, Com'th v. (1 Cush. 46) Wright V. Lindsay (20 Ala. 428) ii. 264 ii. 936 ii. 758, 833 V. Meek (3 Greene, Iowa, 472) ii. 131 V. Moore (38 Ala. 693) Wright v. People (Breese, 66) Wright, People v. (45 Cal. 260) V. Rainsear (1 Sid. 336) V. Ramscot (1 Saund. 84) i. 1139 ii. 147 ii. 40 i. 1080 i. 1080; ii. 773 ; ii. 198 i. 731 Wright v. Reg. (14 Q. B. 148) , Reg. v."(4 Post. & F. 967) Wright, Respublica v. (1 Yeates, 205) ii. 1024 Wright. Rex r. (3 B. & Ad. 681) ii. 1267 , Rex V. (1 Bur. 543) • i. 237 ,Rexv. (Car. Crim. Law, 3d ed. 278 ; stated 9 Car. & P. 654, n.) ii. 796, 841 Wright, Rex v. (2 Chit. 162) i. 256 ; ii. 918 , Rex V. (1 East P. C. 396; 1 Hale P. C. 412; Co. Lit. 127 a) i. 269 Wright, Rex v. (8 T. R. 293) ii. 917 V. State (4 Humph. 194) i. 259, 260 ; ii. 1119, 1125 SECTIOJt Wright V. State (5 Ind. 290) i. 1014, 1016, 1031, 1033, 1035, 1037, 1041, 1059 Wright V. State (5 Ind. 527) i. 804, 998, 1059 Wright T. State (5 Yerg. 154) f. 437, 698; 700; ii. 768, 799, 1140 T. State (9 Yerg. 342) i. 429 ; ii. 740 Wright, State l-. (3 Brev. 421 ; 2 Tread, 517) i. 992, 1009 , State V. (4 Jones, N. C. 308) i. 668 Wriqht, Stale v. (B Jones, N. C. 25) i. 1078 Wright V. Wrainscott (1 Lev. 216) i. 1080 V. Wranscot (2 Keb. 237) i. 1080 Wrightson, Reg. v. (11 Mod. 166) i. 470 ; ii. 946 Wroe V. State (8 Md. 416) i. 1079; ii. 1273 V. State (20 Ohio State, 460)i. 795,797 Wroughton, Hex v. (3 Bur. 1683) i. 642 Wusn'ig V. State (33 Texas, 651) i. 368 Wijat, Reg. v. (1 Salk. 380) i. 240; ii. 978 Wijatt, Com'th V. (6 Rand. 694) i. 943, 947 — , Reg. V. (2 Ld. Raym. 1189) i. 240 ; ii. 978 , Rex V. (Russ. & Ry. 230) i. 951, 952 , Slate V. (2 Hayw. 66) ii. 1020 V. State (2 Swan, Tenn. 394) ii. 1122 Wyer, Rex v. (1 Leach, 480; 2 East P. C. 753 ; 2 T. R. 77) i. 622, 699 Wykes, Rex v. (Andr. 238) i. 462; ii. 973 Wyld V. Cookman (Cro. Eliz. 492) i. 462 ; ii. 1020, 1046 Wyman, Com'th v. (12 Cush. 237) i. 279 ; ii. 18 Wyman, Commonwealth y. (8 Met. 247) ii. 337, 350, 376 Wyman v. State (13 Wis. 663) , ii. 1273 Wynkoop v. Wynkoop (6 Wright, Pa. 293) ii. 1188 Wynn,Reg. t. (1 Den. C. C. 365; Temp. & M. 32; 2 Car. & K. 859 ; 3 New Sess. Cas. 414 ; 13 Jur. 107 ; 18 Law J. N. s. M. C. 51) i. 794 ; ii. 758, 785, 843, 904 Wiinne, Rex v. (1 Leach, 413; 2 East P. C. 664) ii. 758, 838, 879, 882 Wi/tral's Case (5 Co. 49 6) i. 908 Wyvill, Rex v. (7 Mod. 286) i. 637 ; ii. 504, 1149 Yancy, Com'th v. (2 Duvall, -375) ii. 743 Yanci/, Slate v. (1 Car. Law Repos. 519) ii. 252, 264 Yancy, State v. (1 Tread. 241) i. 667 Yarbrough, State v. (1 Hawks, 78) i. 843, 1010, 1014 Yarrell, State v. (12 Ire. 130) ii. 1273 Yarnngton, Reg. v. (1 Salk. 406) ii. 529 Yates, Ex parte (9 Bing. 455) ii. 270 Yates V. Iiansing (4 Johns. 317; 5 Johns. 282 ; 6"Johns. 337 ; 9 Johns. 395) i. 462 ; ii. 243, 255, 268 Yates V. Milwaukee (10 Wal. 497) i. 1080 Yates V. People (32 N. Y. 509) i. 303, 305; ii. 699 757 YOU INDEX TO THE CASES CITED. ZUL i. 794 , 132 ,308 .492 Section Yates, Reg. v. (Car. & M. 132 ; 5 Jur. 636) ii. 1031, 1038 , Rex V. (1 Moody, 170 ; Car. Crim. Law, 273, 333) ii. 785, 786 Yates V. Russell (17 Johns. 461) ii. 256 Yeadon, Reg. v. (Leigh & C. 81 ; 9 Cox C. C. 91) Yeatman, Ex parte (4 Dowl. P. C. 304; 1 Har. & W. 510) ii. Yeaton, State i>. (53 Maine, 125) ii. Yeazel v. Alexander (58 III. 254) i. Yeiiow Sun, U. S. V. (1 Dillon, 271) i. 154 Yoe V. People (49 III. 410) i. 670 Yoes V. State (4 Eng. 42) i. 206 ; ii. 37 Yolo V. Sacramento (36 Cal. 193.) i. 265 Yong's Case (4 Co. 40 a) i. 328 ; ii. 6-54 York, Reg. v. (1 Den. C. C. 335; Temp.&M. 20) ii. 841 York, Keg. v. (12 Jur. 1078) ii. 758, 882 , Rex w. (6 T. R. 490) i. 507 York, State v. (5 Barring. Del. 493) ii. 841 Yorli;, State v. (70 N. C. 66) ii. 1149 Yorke, Reg. v. (2 Car, &. K. 841) ii. 841 Toumans, State v. (5 Ind. 280) i. 911 Young's Case (2 East, 14) ii. 85 (cited 2 T. R. 734) ii. 228 Young V. Com'th (8 Bush, 366) i. 648 ; Com'th V. (9 Gray, 5) ii. 349 Young V. Governor (11 Humph. 147) • V. Kiraberland (2 Litt. 223) 758 11. 1262 ii. 140- Sbotion Young V. MeCampbell (6 J. J. Mar. 490) ii. 140 Young, People v. (31 Cal. 563) ii. 1019 ,' Reg. V. (8 Car. & P. 644) i. 269, 632,654; ii. 311, 711, 744 , Reg. V. (10 Cox C. C. 371) i. 260 ; ii. 657 , Reg. V. (1 Den. C. C. 194; 2 Car. & K. 466) ii. 904 V. Rex (3 T. R. 98; 2 East P. C. 828) i. 633; ii. 423, 446 V. State (11 Humph. 200) i. 865 ; Young V. State (6 Ohio, 435) Young, State v. (46 N. H. 266) ii. 697 i. 35 ii. 529, 585, 586 ii. 540 ii. 209 , State V. (47 N. H. 402) Young, State v. (8 Vroom, 184) Young Men's, &o., Society, People v. (65 Barb. 357) ii. 954 Younger, Rex v. (5 T. R. 449) ii. 958 V. State (2 W. Va. 579) i. 998 Younger, State v. (1 Dev. 357) ii. 176, 198, 201, 206 Yundt V. People (65 111. 372) ii. 657 Yslas, People T. (27 Cal. ti30) ii. 23, 31, 32 Zellers, State v. (2 Halst. 220) i. 536, 857, 858, 862, 876 ; ii. 706 Zulueta, Reg. v. (1 Car. & K. 215) i. 121, 664 END OF VOL. I. Cambridge : Press of John Wilson & Son.