(AJ6S Cornell University Library KF9619.W551889 A treatise on criminal pleading and prac 3 1924 020 193 896 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnORY OF JUDQE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS 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/cu31924020193896 A TKEATISE ON CKIMINAL PLEADINa PRACTICE. BY FEANCIS WHARTON, LL.D., ATJTHOB OP TBBATISBS ON " CRIMINAL LAW," " EVIDENCE," " CONFLICT OP LAWS," AND " NEGLIOENCB." IN ONE VOLUME. NINTH EDITION. PHILADELPHIA : KAY AND BEOTHEE, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 1889. Entered accordfnf;: to Act of Congress, in the year 1846, hy James Kay, Jr., and Brother, in the Office of the Clerk of the District Court of the Uoited States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 18fi2, by James Eat, Jr., and Brother, in the Office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1865, by Kat and Brother, in the Office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1857, by Kat and Brother, in the Office of the Clerk of the District Court of the United States, in and for the Eastern District of Fennsylvania. Entered according to Act of Congress, in the year 1861, by Kat and Brother, in the Office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1868, by Kay and Brother, in the Office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1874, by Kat and Brother, in the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1880, by Francis Wharton, in the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1888, by Francis Wharton, in the Office of the Librarian of Congress, at Washington. COLLINS PRINTING HOUSE, 705 Jayne Street. PREFACE TO NINTH EDITION.' Since the issue of the eighth edition of this work, in 1880, the accumulation of important rulings bearing on it has required its careful revision. In carrying out this revision I have condensed the text as far as I could, but I have found it necessary, nevertheless, materially to in- crease the bulk of the volume. In the notes will be found references to more than three thousand cases not included in the prior edition. F. W. WASHiifGTOir, Jan. 1889. ANALYSIS, CHAPTER I. ARKEST. I. Arkest Generally, § 1. II. By Officers, § 5, III. By Persons not Officers, § 10. IV. Breaking Doors, and Search-warrants, § 18. V. Fugitives, § 28. VI. Privilege from Arrest, §' 59. VII. Eight to take Money from the Person of the De- fendant, § 60. VIII.. Rights of Bail to Arrest Principal, § 62. CHAPTER II. HEARING BEFORE MAGISTRATE. I. Commitment for further Hearing, § 70. II. Evidence Requisite, § 71. III. Final Committal and Binding Over, § 74. IV. Vagrants, Disorderly Persons, and Professional Criminals, § 80. V. Bail after Habeas Corpus, § 81. VI. Bail after Verdict, or after Quashing, § 82. CHAPTER III. FORM OF INDICTMENT. I. Indictment as Distinguished from Information, § 85. II. Statutes of Jeofails and Amendment, § 90. III. Caption and Commencement, § 91. ANALYSIS. IV. Name and Addition, § 96. V. Time, § 120. VI. Place, § 139. VII. Statement of Offence, § 151. VIII. Written Instruments, § 167. IX. Words Spoken, § 203. X. Personal Chattels, § 205. XI. Offences Created by Statute, § 220. XII. Duplicity, § 243. XIII. Repugnancy, § 256. XIV. Technical Averments, § 257. XV. Clerical Errors, § 273. XVI. Conclusion of Indictments, § 279. XVII. Joinder of Offences, § 285. XVIII. Joinder of Defendants, § 301. XIX. Statutes of Limitations, § 316. CHAPTER IV. FINDING INDICTMENTS, AND HEKEIN OP GRAND .JURIES. I. Power of Grand Jurors to Institute Prosecutions, § 332. II. Constitution of Grand Juries, § 341. III. Disqualifications, § 344. IV. Sanction of Prosecuting Attorney, § 354. V. Summoning and Indorsement of Witnesses, § 357. VI. Evidence, § 358 a. VII. Powers of Prosecuting Attorney, § 366. VIII. Finding and Attesting Bill, § 368. IX. Misconduct of Grand Juror, § 377. X. Duty to Testify, § 378. XI. Tampering with, an Offence, § 381. CHAPTER V. NOLLE PROSEQUI, § 383. CHAPTER VI. MOTION TO QUASH, § 385. vi ANALYSIS. CHAPTER VII. DEMURRER, § 400. CHAPTEE YIII. PLEAS. I. Guilty or not Goiltt, § 408. II. Special Pleas, § 419. III. Plea to the Jurisdiction, § 422. IV. Plea in Abatement, § 423. V. Other Special Pleas, § 429. VI. Autrefois Acquit or Convict, § 435. VII. Once in Jeopardy, § 490. VIII. Plea of Pardon, § 521. CHAPTER IX. PRESENCE OF DEFENDANT IN COURT, § 540. CHAPTER X. COUNSEL. I. Counsel for Prosecution, § 554. II. Counsel for Defence, § 557. III. Duties op Counsel, § 560. CHAPTER XI. MOTION FOR CONTINUANCE, AND CHANGE OF VENUE. I. On Application of Prosecution, § 583. II. On Application of Defendant, § 584. III. New Trial, § 600. IV. Question in Error, § 601. V. Change or Venue, § 602. CHAPTER XII. CHALLENGES. I. Challenges to Court, § 605. II. Challenges to Jury, § 606. vii ANALYSIS. III. Mode and Time op taking Challenges, § 672. IV. How Challenges are to be Tkied, § 684. V. Juror's Personal Privilege not Ground for Chal- lenge^ § 692. VI. Revision by Appellate Court, § 693. CHAPTER XIII. CERTAIN SPECIAL INCIDENTS OF TRIAL. I. Furnishing Copt of Indictment, § 696. II. Concurrent Trial of Separate Indictments, § 697. III. Severance of Dependants on Trial, § 698. IV. Arraignment, § 699. V. Bill of Particulars, § 702. VI. Demurrer to Evidence, § 706. VII. View op Premises, § 707. VIII. Charge op Court, § 708. CHAPTER XIV. CONDUCT OF JURY. I. Swearing, § 716. II. Conduct during Trial : Adjournment : Discharge, § 717. III. Deliberations of Jury, § 727. IV. Curing Irregularities by Consent, § 733. CHAPTER XV. VERDICT. I. Where there are several Counts, § 736. II. Defendant must be Present, § 741. III. Double or Divisible Count, § 742. IV. Adjournment of Court Prior to, § 744. V. Special Verdict, § 745. VI. How Verdict is Rendered, § 747. VII. Sealed Verdict, § 749. VIII. Polling Jury, § 750. IX. Amending Verdict, § 751. X. Designation op Degree or op Punishment, § 752. XL Valuation op Property, § 753. XII. When Court may refuse to receive Verdict, § 754. viii ANALYSIS. XIII. When there aee severai. Defendants, § 755. XIV. Defective Verdict, § 756. XV. Recommendation to Mercy, § 757. XVI. Effect op Sunday or Legal Holiday Rendering, §758. CHAPTER XVI. MOTION IN ARREST OF JUDGMENT, § V59. CHAPTER XVII. WRIT OF ERROR. I. To what Court, § 770. II. How ONE BAD Count affects Conviction, § 771. III. Bill of Exceptions, § 772. IV. In whose Behalf Writ of Error Lies, § 773. V. At what Time, § 775. VI. For what Errors, § 777. VII. Error in Sentence, § 780. VIII. Assignment of Error, §: 781. IX. Joinder in Error, § 782. X. Supersedeas, § 783. XL Removal to Federal Courts, § 783 a. CHAPTER XVIII. NEW TRIAL. I. In what New Trials Consist, § 784. II. In what Cases Courts have Authority to grant, § 785. III. For what Reasons : — 1. Misdirection of Court, § 793. 2. Mistake as to admission or rejection of evidence, § 801. 3. Verdict against law, § 805. 4. Verdict against evidence, § 813. 5. Irregularity in conduct of jury, § 814. 6. Misconduct of prevailing party, § 849. 7. After-discovered evidence, § 855. 8. Absence of defendant on trial, § 875. 9. Mistake in conduct of cause, § 876. 10. Surprise, § 881. 11. Irregularity in summoning of jury, § 886. ix ANALYSIS. IV. At what Time Motion must be made, § 890. V. To WHOM Motion applies, § 893. VI. When Conviction is for only Part of Indictment, § 895. VII. By what Codrts, § 897. VIII. In what Form, § 899. IX. Costs, § 901. X. Error, § 902. CHAPTER XIX. SENTENCE. I. Defendant to be asked if he has Anything to say, §906. II. Distribution op Punishment as to Counts, § 907. III. Defendant's Presence Essential, § 912. IV. Amendment or Stay, § 913. V. Capital Punishment, § 914. VI. Corporal Punishment, § 918. VII. Fines, § 922. VIII. Form of Sentence, § 923. IX. Sentence by Appellate Court, § 927. X. Sentence by succeeding Judge, § 929. XI. Successive Imprisonments, § 931. XII. When severer Punishment is assigned to second Offences, § 934. XIII. Disfranchisement and Incapacitation, § 939. XIV. Joint Sentences, § 940. XV. Bindings to keep the Peace, § 941. XVI. Considerations in adjusting Sentence, § 942. XVII. Ex post facto Penalties, § 946. XVIII. Benefit of Clergy, § 946 a. CHAPTER XX. CONTEMPT, § 947. I. When the only Method of Suppression is by Sum- mary Commitment, § 948. II. When the Contempt can be Suppressed otherwise than by Commitment, § 957. ANALTSIS. III. By whom Such Commitments mat be issued, § 962. IV. Indiotabilitt of Contempts ; Embeacekt, § 965. v. Peactice, § 967. VI. Punishment, § 970. VII. Conviction no bar to othek Proceedings, § 973. VIII. Appeal, Eeeoe and Paedon, § 974. CHAPTER XXI. HABEAS CORPUS, § 978. ERRATA ET ADDENDA. § 373, note 3, add "but see State v. Harris, 91 N. C. 656." Chap. rV., Sub-head XI., after "with" insert "gkahd jukt." Between § 380 and § 381, insert " xi. lAMPEKiifG with gband juet an offence." Between § 757 and § 758, insert " xvi. effect of sundat ok legal holiday een- PLEADING AND PEACTICE. CHAPTER I. ARREST. I. Aebest Geneeallt. Criminal procedure usually begins with oath before magistrate, § 1. Officer may be described by office, §3. To arrest, corporal control and no- tice are essential, § 3. But notice may be by implication, §4. II. By Ofpiceks. Officer not protected by illegal war- rant, § 5. Warrant omitting essentials is Il- legal, § 6. Not necessary for officer to show warrant, § 7. Peace officers may arrest without warrant for offences in their pres- ence and for past felonies or simi- lar crimes, § 8. Reasonable suspicion convertible with probable cause, § 9. III. Bt PEBsosrs NOT Officers. Peace officers may require aid from private persons, § 10. Officers may have special assist- ants, § 11. Pursuers of felon are protected, § 13. Private persons may arrest with probable cause, § 13. May use force necessary to prevent felony, § 14. May arrest felon after escape, § 15. May interfere to prevent riot, § 16. And so as to other offences, § 17. IV. Bkeaking Dooes, and Sbabch- Wabkants. House may be broken open to execute warrant in felonies or breaches of the peace, § 18. ^ In felonies this may be done by private person, § 19. Peace officers may, on reasonabls suspicion, break doors without warrant, § 20. Private person requires stronger ground for interference, § 21. Search-warrants may be issued on oath, § 22. Houses of third persons may be broken open to secure offender or stolen goods, § 23. In opening trunks, etc., keys should be first demanded, § 24. Warrant must be strictly followed, §25. Search-warrants limited by Consti- tution, § 26. That arrest was illegal is no de- fence on the issue of guilt, § 37. V. Fugitives. 1. Between the several United States. Under federal Constitution fugi- tives may be arrested when flee- ing from State to State, § 28. Arrest may be in anticipation of requisition, § 39. Sufficient if offence be penal in de- manding State, § 30. Requisition must be duly framed and lies only for fugitives, § 31. §1.] PLEADING AND PRACTICE. [CHAP. I. Federal courts cannot compel gov- ernor to surrender, § 32. No objection that fugitive is amen- able to asylum State, § 33. Governor of asylum State cannot impeach requisition, § 34. Ordinarily gives warrant of arrest, §34 a. Sdbeas corpus cannot go behind warrant, § 35. Bail not to be taken, § 35 a. Indictment or afSdavit must set forth a crime, and must be in course of judicial proceedings, § 36. Fugitive may be tried for other than requisition offence, § 37. Officers executing process protected by federal courts, § 37 a. For federal offences warrants may be issued in all districts, § 37 &. i. Between Federal Government and Foreign {states. Limited by treaty, § 38. Offence must be one recognized in asylum State, § 39. Treaties are retrospective, § 40. Extradition refused when there cannot be fair trial, § 41. And so for political offences, § 42, And so for persons escaping mili- tary service, § 43. But not because person demanded is subject of the asylum State, §44. Where asylum State has jurisdic- tion there should be no surren- der, § 45. Conflict of opinion as to whether foreign State can claim a subject who has committed a crime in a third State, § 46. Extradition does not lie for a case not in treaty, § 47. Nor where defendant Is in cus- tody for another offence, § 48. Trial should be restricted to the offence charged, § 49. Courts may hear case before mandate, § 50. Complaint and warrant should be special, § 51. Warrant returnable to commis- sioner, § 52. Evidence should be duly authen- ticated, § 53. Terms to be construed as in asy- lum State, § 54. Evidence must show probable cause, § 55. Evidence may be heard from de- fence, § 56. Circuit Court has power of re- view, § 57. Surrender is at discretion of ex- ecutive, § 58. Remedy by habeas corpus, § 993. VI. Privilege PROM Arbbst. Foreign ministers privileged from arrest, § 59. VII. Eight to take Monet erom Per- son or Defendant. Proof of crime may be taken from person, § 60. But not money unless connected with offence, § 61. VIII. Eight of Bail to arrest Prin- cipal. Bail may arrest and surrender principal, § 62. I. ARREST GENERALLY. § 1. The usual commencement of a criminal procedure is a pre- liminary oath before a magistrate, upon which, if it ap- Criminal pgj^,. qq j.{jg f^gg ^f gygjj Q^^h that a Criminal offence has usually been committed by the defendant within the magistrate's with oath jurisdiction, a warrant of arrest issues.* The affidavit 1 See Blodgett v. Race, 18 Hun, 132 ; v. People, 75 111. 487 ; Woodall v. Mc- People V. Pratt, 22 Hun, 200 ; Housh Millan, 38 Ala. 622 ; State v. Graffmul- 2 CHAP. I.] ARKBST. [§ 3. must be specific,' and must aver personal knowledge on before the part of the affiant. Mere belief is not sufficient. If trate. the affiant cannot testify to knowledge of the facts, other witnesses should be brought forward to supply the defect ; but without affidavit to the inculpatory facts a warrant should not issue. ^ § 2. The affidavit being thus specific and direct, a warrant issues for the defendant's arrest. Under the common law prap- tice, this warrant is addressed to a constable, or officer, J^^y b'e de- or other person whose name is specified f the usual and scribed by best course being to name the constable of the ward or precinct. When addressed to the sheriff of the county, the latter may act by deputy. Whether a constable may act through deputy has been doubted ; and in England the negative seems to be held.* In English practice a warrant may be directed to officers by the description of their office. When addressed by name, the officer named may execute the warrant anywhere within the jurisdiction of the magistrate granting the warrant. When addressed to officers designating them only by the description of their office, the officer acting can execute the warrant only within the precincts of his of- fice." § 3. To constitute an arrest, so as to make the defendant guilty of escape in case he does not submit and follow, it is ,j, enough that there should be some degree, however corporal slight, of corporal control. Thus to inform a defendant notice is that he is arrested, and to. lock the door,* or to touch ^^^^° '* " him with only a finger, provided he be informed at the time that he is arrested,' constitutes an arrest. And corporal touch is not ne- cessary, provided it be waived by the defendant, which can be done ler, 26 Minn. 6. Even though the pun- information, see State v. Good, 9 Lea, ishment inflicted ia only a fine, the de- 240. fendant may be arrest^ and required ' See R. ». Whalley, 7 C. & P. 245 ; to find bail. Jackson, ex parte, 14 Meek v. Fierce, 19 Wis. 300. Blatch. 245. * 1 Chit. Crim. Law, 48. 1 State V. Burrell, 86 Ind. 313. = Ibid., citing 1 B. & C. 288 ; 2 D. & 2 Com. V. Lottery Tickets, 5 Cush. E. 44. 369 ; People v. Recorder, 6 Hill, 429 ; ^ Williams v. Jones, Cas. temp. Swart V. Kimball, 43 Mich. 27 ; People Hardwicke, 284. V. Heffron, 53 Mich. 527. That hear- ' Genner v. Sparks, 1 Salk. 79. say is not excluded when the object is §5.J PLEADING AND PRACTICE. [chap. I. by his submission to the process, and placing himself in the power of the ofiScer.' But it is essential that there should be notice of arrest given either ^expressly or by implication ; and without such notice no amount of physical restraint can constitute an arrest.^ The amount of force justifiable in arresting is discussed elsewhere.* § 4. But this notice may be given by implication.* If, as has But notice ^®®° seen, a constable command the peace," or show his may be badge Or staff of office,* this is a sufficient intimation of his ffivBii by impiica- authority. In such a case it is not necessary to prove ^°^' the officer's appointment as constable ; proof that he was accustomed to act as constable is sufficient.' Where he shows his warrant,' or where it appears that he is known to the defendant to be an officer ; as, for instance, when the defendant says : " Stand off; I know you well enough ; come at your peril ;"' this is notice enough." II. BY OFFICERS. 1. With Warrant. § 5. It is elsewhere shown" that there is a distinction between a warrant that is illegal and one that is irregular. When protected a warrant is illegal — e. g., when the magistrate has no warrsTnt*' jurisdiction," or when on its face the offence charged is ' Emery v. Chesley, 18 N. H. 198 Biissen v. Lucas, 1 Car. & F. 153 George v. Radford, Moody & M. 244 Searls u. Viets, 2 Th. & C. 224. See Whart. Crim. Law, 9th ed. §§ 402, 444, 1672-4. 2 Whart. Crim. Law, 9th ed. §§ 395-444 ; Maokalley's case, 9 Coke, 66 ; Yates v. People, 32 N. Y. 509 ; R. V. Howarth, 1 Ry. & Moody C. C. 207 ; R. w. Gardener, Ibid. 390 ; R. v. Payne, Ibid. 378 ; State v. Belk, 76 N. C. 10. 3 In Whart. Crim. Law, 9th ed., the topic in the text is discussed at large in §§ 402 S. As to the right to resist officers, see Whart. Crim. Law, 9th ed. §§ 647-9. * People V. Pool, 27 Cal. 572. See Whart. Crim. Law, 9th ed. §§ 402, 444, 1672. 6 1 Hale, 561. « Foster, 311 ; Yates «. People, 32 N. Y. 509; R. c;. Woolmer, 1 Moody C. C. 334 ; Whart. Crim. Law, 9th ed. § 1646. ' 1 East P. C. 315 ; Whart. Crim. Evid. § 833. 8 1 Hale, 461. s R. !!. Pew, Cro. Car. 183. 10 1 Hale, 438. See People v. Pool, 27 Cal. 572. Infra, § 8. " Whart. Crim. Law, 9th ed. §§ 402, 444. ^ Hence an arrest, out of the juris- diction of the magistrate issuing the warrant, is illegal. State v. Bryant, 65 N. C. 327 ; State v. Shelton, 79 N. C. 605. CHAP. I.] ARIiiCjST* [§6. not the subject of arrest, or when the constitutional pre-requisite of an " oath or affirmation" has not been complied with ;* or when the officer holding the warrant is acting out of his jurisdic- tion,'' — then the officer is not protected by the warrant, and acts on his own peril.' He is liable, also, if it appear that there was no reason- able ground for arresting the defendant, to an action of trespass ; and if the defendant kill the officer, there being no such reasonable ground, this is only manslaughter.* § 6. A warrant is illegal, in the sense above specified, which does not state the specific ofience with which the party to be arrested is charged ;' or which does not aver that ^ty„~ information was duly made thereof by oath before a essentials . . e A 1 . . '^ illegal, magistrate having jurisdiction." And it is fatal to the efficacy of such warrant for it to omit to specify the defendant's name otherwise than as " John Doe or Richard Roe, whose other or true name is to the complainant unknown ;"' or if it omit the Christian name.' Yet if the warrant substantially comply witli the requisites specified above, it will not be avoided by merely formal or clerical errors,' or by preliminary defects in the sufficiency of the 1 State V. Wimbush, 9 S. C. 309. 2 People V. Burt, 51 Mich. 199. 3 See Whart. Crim. Law, 9th ed. § 648 ; 20 Alb. L. J. 215. * See Whart. Crim. Law, 9th ed. §§ 414^7 ; Hale P. C. 465 ; R. v. Carvan, 1 Mood. C. C. 132; Com. v. Drew, 4 Mass. 391 ; Com. v. Carey, 12 Cush. 246 ; State v. Belk, 76 N. C. 10 ; Raf- ferty v. People, 69 111. Ill ; S. C. 72 111. 37 ; Galvinu. State, 6 Cold. (Tenn.) 283. " Nisbitt, ex parte, 8 Jur. 1071 ; Money v. Leach, 1 W. Bl. 555. In People V. Phillips, 1 Parker C. R. 104, Judge Edmonds said: "In describing the offence, a mere compliance with the terms of the statute will not suffice, for if a magistrate merely states the facts of the offence, in the words of the act, when the evidence does not war- rant the conclusion, he subjects him- self to a criminal prosecution. R. o. Thomifeon, 2 T. R. 18 ; R. v. Pearse, 9 East, 358 ; R. v. Davis, 6 T, R. 178 ; Avery u. Hoole, Coop. 825." See to this effect, 2 Rob. Jus. 54. That a warrant in larceny must state value of stolen property, see People v. Belcher, 58 Mich. 325. 6 Caudle v. Seymour, 1 G. & D. 454 ; 1 Q. B. 889. ' Com. V. Crotty, 10 Allen, 403 ; Alford V. State, 8 Tex. Ap. 545. 8 R. V. Hood, 1 Moody, 281. ° Whart. Crim. Law, 9th ed. §§ 402, 444; Com. v. Martin, 98 Mass. 4; People V. Mead, 92 N. Y. 415 ; State v. Jones, 88 N. C. 671 ; State v. Toll, 56 Wis. 577 ; Johnson v. State, 73 Ala. 21. See fratt v. Bogardus, 49 Barb. 89 ; State v. Rowe, 8 Rich. 17. As requiring greater exactness, see State V. Lowder, 85 N. C. 664; State V. Whitaker, 85 N. C. 566. §8.] PLEADING AND PRACTICE. [chap. I. proof on which it issues.* But the filling up of a blank warrant, after it is issued, by an unauthorized person, does not cure the de- fect.^ And the warrant must have a seal to it,* if required by statute or local usage, though at common law it seems that the signature of the magistrate is enough,* or at all events, a wafer or scroll.' § 7. It is not necessary at common law for a bailiff or constable Not necee ^® ®^°^ ^^^ warrant in making an arrest, even though it sary for be demanded, provided he state its substance to the party show war- arrested.* And, indeed, to show and read such warrant ^^^ ' before arrest might make an arrest impossible. The de- fendant, knowing the arresting party to be an oflScer, is bound to submit to the arrest, reserving the right of action against the ofiScer in case the latter be in the wrong.' But in Massachusetts, by sta- tute, the officer is bound, if requested, to exhibit the warrant.* 2. By Officers without Warrant. § 8. Sheriffs, constables, and officers of the police, are not only authorized to arrest public offenders without warrant, but cers may are required to do so, if there be reasonable ground for wuifout suspicion.' For all offences committed or attempted*' in 1 State V. James, 80 N. C. 370. ' Rafferty v. People, 69 111. 111. ' Stookley's case, 1 East P. C. o. 5, B. 58; State v. Drake, 36 Me. 366 Welch V. Soott, 5 Ired. 72. * Davis V. Clements, 2 N. H. 390 State V. Vaughan, Harper (S. C.) 314, 5 State V. McNally, 34 Me. 210 Dewling v. Williamson, 9 Watts, 311 State V. Thompson, 40 Mo. 188 ; R. v. St. Paul's Gov. Gar. 9 Jur. 442 ; 7 Q, B. 232. In New York, by statute " public seals may be made by a mere stamp on paper." Whart. on Evid. § 693. 6 2 Hawk. P. C. c. 13, § 28 ; though see State v. Garrett, 1 Wins. (N. C.) No. 1, 144 ; and Gen. Stat. Mass. c. 158, § 1. Infra, § 10. That some noti- fication is necessary, see Codd v, Cabe, 13 Cox, 202. When the offence is flagrant and ob- vious on the spot, it need not be stated by the officer. Shevlin v. Com., 106 Penn. St. 362. ' See R. V. Allen, 17 L. T. N. S. 222 ; R. V. Woolmer, ut supra ; Com. u. Cooley, 6 Gray, 350 ; Drennan v. People, 10 Mich. 169 ; Arnold u. Steeves, 10 Wend. 514 ; State v. Townsend, 5 Barring. 487 ; Boyd ». State, 17 Ga. 194; Whart. Crim. Law, 9th ed. § 647. 8 Gen. Stat. o. 158. ' This does not authorize State arrest by police officers without military war- rant of a deserter from service.- Kurtz u. Moffitt, 115 U. S. 487. i» R. V. Hunt, R. & M. 207 ; R. v. Howarth, R. &. M. 207 ; Handcock v. Baker, 2 B. & P. 260. Infra, §§ 493-4. As to "attempts," see Greaves's view, note to infra, § 17. CHAP. I.] ARREST. [§8. the presence of an officer, this power exists ;* though for J^^^^^ past offences the power is limited to outrageous crimes in their of the type of felony.'' In the case of such crimes, aneffor' however, it is the duty of the officer to begin immedi- P?g*oj^°" ately after notice the pursuit of the person charged with similar the offence, provided only that there be at the time rea- sonable ground of suspicion.' And the better view is, that the right, even as to offences committed in the officer's presence,* is limited to felonies, breaches of the peace,' and such misdemeanors ' Fost. 310, 311 ; R. v. Mabel, 9 C. & P. 474; Dereoourt o. Corbisliley, 5 El. & Bl. 188 ; Galliard v. Laxton, 2 B. & S. 363 ; Com. v. Deacon, 8 S. & R. 47 ; State v. Brown, 5 Barring. 505 ; Wolf V. State, 19 Oh. St. 248 ; People V. Wilson, 55 Mioh. 506 ; State v. Fer- guson, 2 Hill S. C. 619 ; State v. Bowen, 17 S. C. 52 ; Staples v. State, 14 Tex. Ap. 136. 2 By the English practice, the officer is not limited, even in misdemeanors, to the actual moment of the commis- sion of the misdemeanor. He may arrest after the misdemeanor (e. g., an assault) is committed, if all danger of continuance of the misdemeanor has not ceased. R. v. Light, 7 Cox C. C. 389 ; Dears & B. 332. See Shanley o. Wells, 71 111. 78. As limiting power see Donovan v. Jones, 36 N. H. 246. See article in Cent. L. J., Oct. 28, 1880, p. 321 ; 4 Crim. Law Mag. 193. " By the common law of England, neither a civil officer nor a private citizen had the right, without a war- rant, to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate." Gray, J., Kurtz V. Moffitt, 115 U. S. 487. See Cora. V. Carey, 12 Gush. 246 ; Com. v. McLaughlin, 12 Cush. 615 ; Shanley v. ■Wells, 71 111. 78 ; People v. Cahill, 106 111. 621 ; State v. Grant, 76 Mo. 236. For offences against license laws arrests cannot be made without war- rant. Meyer u. Clark, 41 N. Y. Sup. Ct. 105. A constable may be resisted for at- tempts to arrest without warrant ex- cept in the cases above mentioned. R. V. Spencer, 3 F. & F. 857 ; R. v. Lock- ley, 4 F. & F. 155 ; Galliard v. Laxton, 2 B. & S. 363. As to arrests generally see Whart. Crim. Law, 9th ed. §§ 404- 429 ; R. V. Marsden, L. R. 1 C. C. R. 131 ; R. V. Chapman, 12 Cox C. C. 4 ; State V. Oliver, 1 Houst. 585 ; Tiner v. State, 44 Tex. 128. As to Massachu- setts statute of 1876 see Phillips v. Fadden, 125 Mass. 198. ' Butolph V. Blust, 5 Lansing, 84. See State v. Russell, 1 Houst. 122: * Whatever is in sight and reach is in presence. People v. Bartz, 53 Mich. 493. 5 Com. V. Kennedy, 136 Mass. 152. See Quinn v. Heisel, 40 Mich. 576 ; R. V. Hunt, 1 Ry. & M. 93 ; R. o. Howarth, Ibid. 207 ; People v. Bartz, ut sup. That the breach of peace must be in the "immediate presence," see Ster- nack V. Brooks, 7 Daly (N. Y.) 142. As to Texas limitation, see Johnson V. State, 5 Tex. Ap. 43. That the breach of the peace must substantively exist, see Quinn v. Heisel, 40 Mich. 576. § 9.] PLEADING AND PRACTICE. [CHAP. I. as cannot be stopped or redressed except by immediate arrest.* Why, if the misdemeanor is completed, and the offender is not likely to escape, should the check and safeguard of a warrant be waived? Constables and other minor officials are apt enough to abuse their powers ; and the policy of the law not only requires that they should be kept under strict control,* but that in prosecutions for private misdemeanors there should be responsible private prosecutors. In conformity with this view, it was rightly held in New York, in 1871, that neither a justice of the peace nor a constable can, at common law, arrest without warrant, a person committing an illegal act in his presence, unless such act be a felony or involve a breach of the peace ; and that cruelty to an animal, though a statutory misde- meanor, is not such an offence as authorizes arrest without war- rant.^ Nor can a police officer who arrests without proper cause, and is resisted, treat this, resistance as a substantive offence which will justify an arrest. It is, however, within the power of a muni- cipal corporation to authorize its police officers to arrest without warrant for breach of health or police ordinances.* And when an arrest is made without warrant, it is not essential that the officer should inform the accused of the charge, and of the officer's official position when both charge and officer are known to the accused.* § 9. What is reasonable ground of suspicion ? The fact that an indictment is found against an individual is in itself sufficient justi- fication for an officer to arrest him though without warrant.* But > R. V. Spencer, 3 F. & F. 859 ; R. v. Carey, 12 Cash. 246 ; Com. v. Mo- Lookley, 4 F.&F. 155 ; State 17. Crocker, Laughlin, 12 Cush. 615; Quinn v. 1 Houst. 122 ; People i>. Haley, 48 Heisel, 40 Mich. 576. Mich. 495 ; State v. Bacon, 17 S. C. ' Butolph v. Blust, 5 Lansing, 84. 58. In State v. Sims, 16 S. C. 486, it See also Boyleston v. Kerr, 2 Daly was held that the right is extended (N. Y.) 220 ; Ross v. Leggatt, 61 Mich, to an assault committed immediately 445. before the arrest, though not in the * Mitchell v. Simon, 34 Md. 176 ; 43 officer's presence. In Donavan v. Md. 490 ; Tliomas v. Ashland, 12 Ohio Jones, 36 N. H. 246, it was held that St. 127 ; Roberts v. State, 14 Mo. 158 ; a person insisting on putting a nui- Boyan v. Bates, 15 111. 87 ; Man v. Mc- sance on a road could be arrested with- Carty, 15 111. 422. See Com. v. Hast- out warrant. , ings, 9 Mete. (Mass.) 251. As to va- ' Whart. Crim. Law, 9th ed. § 648. grants, see infra, § 80. See Cent. Law Jour., Oct. 22, 1882, p. 6 Wolf «. State, 19 Ohio St. 218. See 321. And see 2 Hawk. P. C. c. 12, § Whart. Crim. Law, 9th ed. § 428. 80 ; R. V. Curran, Ry. & M. 132 ; Bow- « Whart. Crim. Law, 9th ed. §§ 402- ditch V. Battin, 5 Exch. 387 ; Com. o, 444. Infra, § 920. 8 CHAP. I.] ARREST. [§ 10. the question before us goes beyond this, and may be treated as convertible with that of probable cause, as laid down in Reasonable civil actions of malicious prosecution. Had the officer suspicion good grounds to believe a felony has been, or is about with proba- to be committed? If so, it is his duty to arrest the *'i^<=^"^^- offender, nor has the latter a cause of action against the officer, if the officer acted without malice, and upon such probable cause.^ Thus in a remarkable English case, a constable was held not to be justified in shooting at a man whom he had seen stealing wood growing in a copse (which is, when a first offence, only a misde- meanor, though for a second offence, after conviction, a felony), although the constable had no means of arresting the culprit with- out firing, and although the latter had been previously convicted of the same offence, the constable not being aware of such prior con- viction. The question here was whether the constable had to his own mind probable cause ; and as he had not, the attempt to arrest without warrant was held illegal.* Mere manner in a party when accused of crime is not probable cause ;' nor are the private suspi- cions of the arresting officer.^ III. BY PERSONS NOT OFFICERS. 1. Persons called on hy Officers, Pursuers, ^c. § 10. At the outset it must be noticed that a consta- Peace offl- ble, sheriff, or police officer has the right to call in the requi'rYaid aid of private individuals,* either to arrest persons charged ^''°™ P"' i ' r a vate per- with past felony, or to prevent impending violation of the sons. 1 See E. V. Woolmer, 1 Moody, 634 ; ' SummervlUe v. Richards, 37 Mich. Hogg V. Ward, 3 H. & N. 417 ; Davis v. 299. Russell, 2 Moody, P. C. 607 ; Lawrence The officer must follow the statute as V. Hedgar, 3 Taunt. 140 ; Com. v. Carey, to the magistrate to whom the defend- 12 Cush. 246 ; Com. v. Presby, 14 Gray, ant is to be taken ; and in default of so 65 ; Burns v. Erben, 40 N. Y. 463 ; doing is a trespasser. Papineau v. Ba- Brooks 'v. Com., 61 Penn. St. 352; Eames con, 110 Mass. 319. V. State, 6 Humph. 53 ; State v. Under- * Hale P. C. 90 ; 4 Crim. Law Mag. wood, 75 Mo. 230. 196 ; People v. Burt, 51 Mich. 199. z R. V. Dadson, T. & M. 385 ; 2 Den. ^ ^s to how far the officer must be C. C. 35 ; see Nicholson v. Hardwiok, present in command of his unofficial 5 C. & P. 495 ; People v. Grant, 79 Mo. assistants see Coyles v. Hurtin, 10 113. Johns. 85. 9 §13.] PLEADING AND PRACTICE. [chap. I. law. To refuse to render such assistance is an indictable offence.' And the warrant to the oflScer protects his assistants.* § 11. It has been seen that private persons thus acting must be either actually or constructively under an officer's com- mand.' But the officer may have special private assist- ants temporarily in charge, especially when he goes for further aid.* ' By the common law, when a felony has been committed, arrest may be attempted by pursuers, the. county being raised, who start with hue and cry after the felon. In such case, though there be no warrant of arrest, nor any constable in the pursuit, yet, the felony being proved, it is murder for One of the defendants to kill one of the pursuers.' 2. Powers of such as to Arrests. A private person may arrest without warrant or official authority persons concerned, in his presence, in riot, or fel- ony, or other heinous crime ; and, in cases of crimes of the type of felony, if he has reasonable ground to sus- pect another of being a guilty party, he may, if acting without malice, and in good faith, arrest such other, in order to bring the case to a magistrate ; and for such arrest he can- not be made responsible, though the arrested person be shown to have been innocent.* It has been said, however, that in order to excuse such arrest, and to protect the arresting person, it must appear that the offence was in fact committed, and that there was reasonable ground to suspect the arrested person f though if there be probable Officers may have special as- sistants. § 12. Pursuers of felon are pro- tected. §13. Private person may inter fere on probable cause. ' Infra, § 16; Whart. Crim. Law, 9tli ed. §§ 402-444, 1555 ; R. u. Sher- lock, L. R. 1 C. C. 20. 2 State V. James, 80 N. C. 370. s See R. v. Patience, 7 C. & P. 775 ; People V. Moore, 2 Douglass (Mich.) 1 ; State a. Shaw, 3 Ired. 20 ; Mitchell v. State, 7 Eng. 50. * Coyles V. Hurtin, 10 Johns. 85 ; 1 Chitty C. L. 16. 5 Jackson's case, 1 East P. C. 298 ; Brooks V. Com., 61 Penu. St. 352. See Galvin v. State, 6 Cold. (Tenn.) 283 ; Whart. Crim. Law, 9th ed. § 433. " Reuok V. McGregor, 3 Vroom (N. J.), 70 ; Holly v. Mix, 3 Wend. 350 ; Ruloff V. People, 45 N. Y. 213 ; Com. v. Deacon, 8 S. & R. 47 (citing Wakly v. Hart, 6 Binn. 316) ; Brooks v. Com., 67 Penn. St. 352; Smith v. Donelly, 66 111. 464 ; State v. Roane, 2 Dev. 58 ; Brockway v. Crawford, 3 Jones N. C. 434 ; Wilson v. State, 11 Lea, 310. See Whart. Crim. Law, 9th ed. §§ 405-iO. That a fugitive felon from another State may be arrested without warrant, see Savina v. State, 63 Ga. 513; infra, § 29. In Texas the right is limited to ofiFences in presence of the party arrest- ing. Alford V. State, 8 fax. Ap. 545. ' Burns v. Erben, 40 N. Y. 463 ; Brooks V. Com., 61 Penn. St., 352; CHAP. I.] ARREST. [§ 15. cause of the commission of the offence, this would seem enough. But when the question arises whether it is murder for an innocent person to kill the person arresting him on an untrue charge (though the pers(jn arresting have probable ground), we are to consider the hot blood naturally aroused in an innocent person believing himself to be unjustly arrested. In such case the killing would be but manslaughter.* But a private person so interfering should give notice of his object, lest his purpose be mistaken;^ though this notice may be implied from the circumstances.' § 14. Certainly a person endeavoring to prevent the consumma- tion of a felony by others may properly use all necessary force for that purpose,^ and resist all attempts to inflict bodily in- j^ ^^^ jury upon himself, and may lawfully, according to the force nec- law, as expressed in New York in 1870, detain the fel- prevent ons and hand them over to the oflScers of the law. The tton of ^^ law, it is said, will not be astute in searching for such felony, line of demarcation in this respect as will take the innocent citizen, whose property and person are in danger, from its protection, and place his life at the mercy of the felon.* Hence the felon may be arrested after the commission of the offence, if he can be in no other way secured.' But an arrest cannot be justified on the ground of conjecture." § 15. It is also ruled that a private person may arrest a felon who, after conviction upon his plea of guilty, has, with- jj^ out actual breaking or force, escaped from the place of felon after imprisonment to which he was sentenced.* Hawley v. Butler, 54 Barb. 490 ; Adams refusing to indictment. See Whart. o. Moore, 2 Selw. N. P. 934. That an in- Crim. Law, 9th ed. §§ 241 et seg. diotment found is probable cause, see 1 ^ EulofF v. People, 45 N. Y. 213. See East P. C. 301; Krous, ex parte, 1 Baru. Com. v. Deacon, 8 S. & R. 47 ; Ryan v. & C. 261. Donelly, 71 111. 100 ; State v. James, ' Whart. Crim. Law, 9th ed. §§ 433-4. 80 N. C. 370 ; Dill v. State, 25 Ala. 15 ; 2 Foster 311 ; Brooks v. Com., utsup.; Gary v. State, 76 Ala. 78 ; Carr v. State, State V. Bryant, 65 N. C. 327 ; Long v. 43 Kan. 100 ; Whart. Crim. Law, 9th ed. State, 12 Ga. 293. § 495. 3 Wolf V. State, 19 Ohio St. 248 ; see « Simmerman o. State, 16 Neb. 615. R. V. Howarth, Ry. & Moo. 207. Supra, § 8. * 2 Hale P. C. 77 ; 2 Hawk. P. C. ' Davis v. Russell, 5 Bing. 364 ; 120 ; Ruloff V. People, 45 N. Y. 213 ; 3 Mood. & P. 590 ; Hobbs v. Branscomb, Keenan v. State, 8 Wis. 132. To refuse 3 Camp. 420. to interfere to prevent the execution of ^ state v. Holmes, 48 N. H. 377 a felony may even subject the party (Smith, ,1., 1868). 11 § 17.] PLEADING AND PRACTICE. [CHAP. I. 3. Prevention of Offences. § 16. Is, however, a private person justified in interfering to Mav inter- Prevent or suppress a misdemeanor ? This question has fere to pre- been not infrequently considered in cases of riotous homicide ; and the law undoubtedly is, that every good citizen, when a breach of the peace is threatened, is bound to inter- vene, and to render his assistance to the constituted authorities ; and when the riot is raging he is justified in arresting any persons con- cerned in it, first notifying them that his object is the preservation of the peace.* When a magistrate or duly authorized public officer is on the spot, citizens engaged in the preservation of the peace should obey his orders ; and a mere oral direction from him will authorize them to arrest without warrant.^ When, however, the riot has ceased, and order is restored, the right of arrest without war- rant by private individuals ceases.' § 17. In respect to other misdemeanors, the rule is that while it is not the duty of non-official persons to arrest offenders, And so as , . , , , • i i i to other yet a right so- to arrest exists, when the act cannot be o ences. otherwise stopped. Thus it has been held that a private person may without warrant arrest a notorious cheat, or persons using fals$ weights or tokens.* But this is supposing there is no opportunity to obtain a warrant. If there be, the claim of a private person to arrest without warrant must be denied, as this claim is based exclusively on the failure of justice that would otherwise occur. But this rule is not to be stretched so as to preclude a private person^from detaining an offender attempting a crime until an officer be obtained." 1 R. V. Wigan, 1 W. Bl. 47 ; Res. v. ' See Whart. Crim. Law, 9th ed. § Montgomery, 1 Yeates, 419 ; Whart. on 410. Homicide, Trial of Kensington Rioters, * 2 Hawk. P. C. c. 12, § 301. etc., Appendix ; Phillips v. Trull, 11 ^ Grant v. Moser, 5 M. & (J. 125 ; Johns. 486 ; Pond o. People, 8 Mich. Wooding v. Oxley, 9 C. & P. 1. See 150,; Whart. Crim. Law, 9th ed., §§ Com. v. Carey, 12 Gush. 246 ; and see 1544, 1555 ; and see Price v. Seeley, 10 Mr. Grreaves's note, published in Cox's CI. & F. 28. Crim. Consolid. Acts, p. Ixii., where he 2 See Whart. Crim. Law, § 1555 ; argues that as an attempt to commit a State V. Shaw, 9 Ired. 20 ; see Judge felony is only a misdemeanor, the right King's charge in 8th edition of this of a private person to arrest in cases of work, § 17. such attempts, is a right to arrest for a 12 CHAP. I.] ARREST. [§ 19. IV. BREAKING DOORS, AND SEARCH-WARRANTS. 1. Right to search in general. § 18. The first point to be here noticed is the right, when a war- rant has duly issued for the arrest of a person, to break open the door of his house. The law in this respect is, te'broken^ that this may be done, if the offender cannot otherwise open to ex- •^ ' _ ^ ecute war- be taken, in cases of felony, of imminent breach of the rant in fei- peace, or of the reception of stolen goods ; and in such ' cases a warrant is a justification if there be no malice.' Admit- tance into the house must, however, be first asked and refused ; but the officer cannot be treated as a trespasser because he failed to notify the owner who the person to be arrested was, no inquiry having been made in relation thereto.^ In cases of misdemeanors, unaccompanied with breach of the peace, this power, according to the old law, cannot be exercised.^ But when there is probable immediate danger of a felony or breach of the peace, or other grave offence, the officer, giving notice of his character, may enter without warrant.* 2. It» Exercise ly Private Persons, § 19. When a felony has been committed, or there is good reason to believe it to have been committed, then, if the offender j^ felonies take refuge in his own house, even a private individual this may be ' ... done by may, without warrant, break into the house and arrest even pri- the offender. In case of the party arrested proving inno- wUhou""" cent, however, an action of trespass may be sustained arrant, against the party so breaking open the doors without warrant, there being no probable cause. But the probability of the com- mission of a felony must be very strong to justify this extreme remedy being used by a private person. Mere suspicion will not justify its being employed by such.' As will be seen,* after indict- ment found, no place is a sanctuary for" the offender. misdemeanor, citing Fox v. Gaunt, 3 B. " Com. v. Reynolds, 120 Mass. 190. & Ad. 798. But see supra, § 8. 'As to practice in issuing warrant 1 4 Bl. Com. 290 ; Foster, 320 ; 1 see Elsee v. Smith, 1 D. & E. 97 ; 2 East P. C. 322 ; 2 Hale P. C. 117; 2 Chit. 304. Hawk. P. C. c. 13, § 11. For a full ' Whart. Crim. Law, 9th ed. § 439. statement or authorities see Whart. « 4 Bl. Com. 292 ; 2 Hale P. C. 82, 83. Crlm. Law, 9th ed. § 439. 6 jnfra, § 23. 13 § 22.] PLEADING AND PRACTICE. [CHAP, I. 3. Its Exercise hy Constables or Peace Officers. § 20. A constable or peace officer may, on reasonable suspicion and without warrant, break open doors ; and he has this Peace oflB- ? r ? cermayon additional protection, that it is his duty in the case of a suspicion^ felony being committed, so to act.* Certainly, if he break open jj^g j-eason to believe a felony or an affray is impending, doors with- ■' j r at out war- he has a right to break into a house to prevent it.* ■ Whether, in cases of felony, he must first demand en- trance, has been doubted. It is always best, however, to take this precaution ; and in misdemeanors it has been considered requisite. Doors may be broken open to re-arrest a person who has escaped.^ 4. What is " Suspicion.^' § 21. It should be kept in mind that a " bare suspicion" is to be Private distinguished from what is called by Blackstone a " prob- pereon re- g^jjjg suspicion."* To act ofiSciously and intrusively on stronger " bare Suspicion" inmlies recklessness if not malice ; grounds ~.--.. . ... ., for inter- and cven a peace officer (a fortiori a private individual) erence. cannot shelter himself from the consequences if he break into the house of a private person on such bare suspicion. Here, again, we strike at the reason of the distinction between a peace officer and a private person in such respects. There are degrees of suspicion which would justify a peace officer in thus interfering which would by no means justify a private person. It is the duty of the former to ferret out crime ; such duty is not assigned to the latter. What, therefore, in the peace officer is a meritorious though distasteful service, in the performance of which the law would save him harmless, may be in the private person an officious imperti- nence, for which damages in a civil action will be awarded. 5. Search-warrants ; their Issue and Effect. § 22. Search-warrants may be granted by justices of the peace on oath made before them that certain goods feloniously acquired 1 1 Hale P. C. 583. arrest. Com. v. McGahey, 11 Gray, 2 So, also, he may break doors to 194. arrest a person who has escaped from ' Cahill v. Enfe, 106 111. 621. * See supra, 5 8. 14 CHAP. I.] ARREST. [§ 25. are probably in the defendant's possession, or that certain articles, necessary to the course of public justice, are secreted ggg^^^jj. in such a way as to make such a procedure essential warrant ■' , may be is- to obtaih them.' When legal in form, such warrant is sued on a justification to the officer using it, though it was granted on evidence that subsequently appeared inadequate, and though there were other latent defects in its concoction. But a prosecutor who maliciously and without probable cause, resorts to such instru- ments is liable for damages in an action of malicious prosecution.^ And a warrant must accurately specify the building to be searched.* § 23. Rouses of third persons may be broken into, after the usual demand, to secure the offender, or his alleged spoils ; though the probable cause necessary to justify such an twrd^per- invasion of private rights should be of a higher degree ^°°^ °?^y than that which is sufficient to justify a breaking into open to the offender s own house. After indictment found, how- offender ever, the defendant may be pursued and seized wherever ^00^°^^" he takes refuge ; no house being a sanctuary to him.* § 24. In executing search-warrants, it is proper, before break- ing open boxes or trunks, to demand the keys. Not until these have been refused is it lawful to force a to^befirft .lock.* But the right to such a preliminary demand, on "*^™^°<^«^- the part of the owner or custodian, is considered as waived, when there is no person left in charge on whom the demand could be made.* § 25. The warrant must be strictly followed. If it authorizes the searching of a specified building, no other building can be searched under such warrant.^ So, when the muetbe officer is directed to seize a particular article, he can foijo^^^a under the warrant seize no other article without being 1 See Elsee v. Smith, 1 D. & E. 97 ; * 2 Hale P. C. 117 ; 5 Co. 91 ; 4 2 Chit. 304. Inst. 131 ; 2 Hawk. P. C. c. 14, § 3. 2 2 Hale P. C. 151. s 2 Hale P. C. 157 ; and see Entick 3 Com. V. Intox. Liquors, 109 Mass. v. Carrington, 19 St. Tr. 1067. 371-373; Ibid. 118 Mass. 145 ; Fla- « Androscoggin r. Richard, 41 Me. 234. herty v, Longley, 62 Me. 420 ; State v. ' State v. Spencer, 38 Me. 30 ; Jones Whiskey, 54 N. H. 164. See Santo v. v. Fletcher, 41 Me. 254; McGlinchy v. State, 2 Iowa, 165. Barrows, 41 Me. 74; State «. Thomp- To open letters, a warrant in the son, 44 Iowa, 399 ; Reed v. Rice, 2 J. J. nature of a search-warrant is required. Mar. 44. See Dwinnells v. Boynton, 3 Jackson, ex parte, 96 U. S. 727. Allen, 310. 15 § 27.] PLEADINa AND PRACTICE. [CBAP. I. exposed to an action of trespass, unless such other article appear necessary to substantiate the proof of the felony.' The practice as to searching the person in this respect will be hereafter specifically discussed.* 6. Constitutionality of Search-warrants, § 26. Search-warrants, by the constitutions and bills of rights of Search *^® several States of the American Union, are strictly warrants limited, it being generally provided that they cannot is- Constitu- sue except upon oath setting forth probable cause ; and '°"' in some instances it being required that they should specify the place, person, or things to be searched. But this is in substance what is required at common law.' 7. Illegality of Arrest as Q-round for Release. § 27. Where a party, who has been illegally arrested, is brought on Jidbeas corpus before a judge, having the power of a was'iUegai' Committing magistrate, or when such a party sets up his is '"si^- illegal arrest as a defence, the question of the legality issue of of the arrest is not at issue, the only question being whether the party charged should be tried on the merits.^ Nor is it any ground for relief that the party had been kidnapped in a foreign country (though he might be surrendered by the executive on demand of the sovereign of such country), the courts, on the question whether he should be held to trial, or, if tried, should be subjected to sentence, having nothing to do with the mode of his arrest.' Civil service, however, against a party so 1 Crozier v. Cund7, 9 D. & B. 224 ; ruled by the Supreme Court of Penn- 6 B. & C. 232. sylTania that as the limitation in the ' Infra, § 60. federal Constitution applied only to ' See State o. Spencer, 38 Me. 30 ; federal process, under the Constitution Allen ti. Colby, 47 N. H. 544; Com. v. of Pennsylvania "jewelry and other Dana, 2 Met. (Mass.) 329 ; Dwinnells personal effects" is a sufficient desorip- «. Boynton, 3 Allen, 310 ; Com. v. Cert. tion. Intox. Liquors, 6 Allen, 596 ; Ibid. 13 * R. v. Marks, 3 East, 157 ; Kraus, ex Allen, 52; Downing v. Porter, 8 Gray, parte, 1 B. & C. 258; B. v. Weils, 9 Q. 539 ; Robinson v. Richardson, 13 Gray, B. D. 701. 454 ; Com. v. Ducey, 126 Mass. 269 ; ^ Scott's case, 9 B. & C. 446 ; R. v. Grumon v. Raymond, 1 Conn. 40 ; House, 6 Cr. L. Mag. 354 ; R. v. Rich- Santo «. State, 2 Iowa, 165. In Moore ards, 5 Q. B. 926 ; Ker v. People, 119 V. Coxa, 10 WeekV?^ Notes, 135, it was U. S. 436 ; aff. S. C. 110 111. 631 ; 18 16 CHAP. I.] EXTRADITION. [§28. kidnapped into the jurisdiction will be set aside.* And, in inde- pendent proceedings, criminal and civil, his remedy against those who unlawfully arrested him remains open. V. FUaiTIVES. 1. As between the several United States. § 28. By the second section of the fourth article of the Constitu- tion of the United States, " a person charged in any State with treason, felony, or other crime, who shall flee ^"f Con-^* from justice, and be found in another State, shall, on de- stitution mand of the executive authority of the State from which fugitives he fled, be delivered up, and be removed to the State ^'rested having jurisdiction." when flee- ing from By the Act of February 12, 1793, § 1," " Whenever state to the executive authority of any State in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice of the executive authority of any such State or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found or an affidavit made before a magistrate of any State or ter- ritory as aforesaid, charging the person so demanded with having committed treason, felony, or other crime,^ certified as authentic Fed. Eep. 167 ; U. S. v. Lawrence, 13 Blatoh. 306 ; Noyes, in re, 17 Alb. L. J. 407 ; Mahone, in re, 34 Fed. Eep. 525; State v. Brewster, 7 Vt. 118; People V. Eowe, 4 Park. C. E. 263; Balbo V. People, 80 N. Y. 484 ; Palter, in re, 3 Zab. 311 ; State v. Smith, 1 Bailey, 283 ; Morrell v. Quarrels, 35 Ala., 544 ; State v. Chys, 92 Mo. 395 ; State V. Brooks, 92 Mo. 562 ; State v. Eoss, 21 Iowa, 469 ; State v. Stewart, 60 Wis. 587. See Com. v. Shaw, 6 Cr. L. Mag. 245. " I doubt much whether a policeman is not justified in arresting a man with- out a warrant on reasonable grounds of suspicion of his having done that (abroad) which would be a felony if committed in this country." Brett, J., E. V. Well, 9 Q. B. D. 706. ' See Wells v. Gurney, 8 B. & C. 769 ; Adriance v. Legreve, 59 N. Y. 116 ; 14 Abb. (N. Y.) Pr. (N. S.) 343 ; Compton V. Wilder, 40 Ohio St. 139 ; Fly V. Oatley, 6 Wis. 42 ; Whart. on Ev. § 384. Cf. Wauzer v. Bright, 52 111. 35 ; Townsend v. Smith, 47 Wis. 623. 2 IT. S. Eev. Stat. § 5278. ' Although the act of Congress re- quires the executive of the demanding State to produce to the governor of the State on which the demand is made " a copy of an indictment found or affi- davit made," this has been held not to exclude an information as to the basis of a demand. State v. Hufford, 28 Iowa, 391 ; In re Hooper, 52 Wis. 702. 17 § 28.] PLEADING AND PRACTICE. [CHAP, I. by the governor or chief magistrate of the State or territory from which the person so charged fled, it shall be the duty of the execu- tive authority of the State or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear ; but if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or territory making such demand, shall be paid by such State or territory. " Sec. 2. Any agent appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the State or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent, while transporting as aforesaid, the person or persons so ofiiending shall, on conviction, be fined not ex- ceeding five hundred dollars, and be imprisoned not exceeding one year."' By a subsequent statute, the chief justice of the District of Columbia has in this respect the functions of a governor of a 1 The history of this statute will be The rulings in cases of international found in Spear on Extradition, 226 et extradition are not necessarily in point. seg.; Rorer on Inter-State Law, 218; " The supposed analogy between a sur- and in article in 13 American Law render under a treaty providing for Eev. 181 ; 3 Crim. Law Mag. 788 ; 31 extradition, and the surrender here in Alh. L. J. 4. See, generally, Briscoe, question, has been earnestly pressed in re, 61 How. Pr. 422 ; People v. upon our attention. There, the act is Brady, 56 N. Y. 184 ; Hibler v. State, done by the authorities of the nation — 43 Tex. 197 ; Cubreth, ex parte, 49 in behalf of the nation — ^pursuant to a Cal. 436 ; White, ex parte, 49 Cal. national obligation. That obligation 442 ; Rosenblat, ex parte, 51 Cal. 285. rests alike upon the people of all the The provision applies to governors of States. A national exigency might re- territories, but not to the chief of the quire prompt affirmative action. In Cherokee Nation. Morgan, in re, 20 making the order of surrender, all the Fed. Rep. 298. States, through their constituted agent, A requisition may be maintained for the general government, are repre- an oflFenoe in the District of Columbia, sented and concur, and it may well be Buell, in re, 3 Dill. 116. That the act said to be the act of each and all of of Congress is constitutional in respect them. Not so here." Swayne, J., to territories, see Morgan, ex parte, 20 Taylor v. Taintor, 16 Wall. 366. Fed. Rep. 298. 18 CHAP. I.] EXTRADITION. [§29. State.* It is no defence that the defendant was induced by strat- agem to come to a place where he could be arrested." § 29. In several States statutes have been passed authorizing the arrest of fugitives in advance of the reception of a requi- ^j,j,gg^ j^^^ sition. In other States the practice is to sustain, on be had in 1111 anticipa- grounds of comity, such arrests, although there be no tion of re- local enabling statute.' ^ quisition. But in either case, where, instead of an indictment, an affidavit is taken as the basis of application, in proceedings in anticipation of demand, it must be as explicit and full as would justify a mag- istrate in issuing a warrant of arrest. It must specify the crime, aver its commission and indictability in the requiring State, and state that the party required is a fugitive.* In any view, there can be no technical surrender without a formal requisition." > See Buell v. State, 3 Dill. 116 ; Perry, in re, 2 Crim. Law Mag. 84. 2 Brown, ex parte, 28 Fed. Kep. 653. See supra, § 27. •' Hurd. Hab. Corp. § 636 ; Ross, ex parte, 2 Bond, 252 ; People v. Schenck 2 Johns. R. 470 ; qualified, however, in People v. Wright, 2 Caines, 213 Heyward, in re, 1 Sandf. (N. Y.) 701 Leland, in re, 7 Abb. Pr. (N. S.) 64 Fetter, in re, 3 Zabr. 311 ; Com. v. Deacon, 10 S. & R. 125 ; (where the practice was put on the ground of comity independent of statute) ; State V. Buzine, 4 Barring. 572 ; State v. Howell, R. M. Charlt. 120 ; Cubreth, ex parte, 49 Cal. 436 ; Rosenblatt, ex parte, 51 Cal. 285. See contra, People V. Wright, 2 Caines, 213; TuUis v. Fleming, 69 Ind. 15. That such statutes are constitutional see Smith, ex parte, 3 McLean, 121 ; Com. v. Tracy, 5 Met. 536 ; Com. v. Hall, 75 Mass. 262. That an arrest of such a fugitive may be made by a private person without warrant, see Savina v. State, 63 Ga. 513 ; Morrell v. Quarrels, 35 Ala. 544 ; see 3 Crim. Law Mag. 798. As to " fleeing ' ' from j ustice, see Rob- erts V. Reilly, 116 U. S. 80 ; Brown, ex parte, 28 Fed. Rep. 653. Infra, § 31. * See Smith, ex parte, 3 McLean, 121 ; People u. Brady, 56 N. Y. 184 ; Solomon's case, 1 Abb. Prao. (N. S.) 347; Rulter's case, 7 Ibid. 67; Hey- ward, in re, 1 Sandf. (N.. Y.) 701; Fetter's case, 3 Zabr. 311 ; Degant v. Michael, 2 Carter, 396 ; Pfitzer's case, 28 Ind. 450 ; State v. Swope, 72 Mo. 399 ; Romaine, in re, 23 Cal. 585 ; White, ex parte, 49 Cal. 442. As to arrests without warrants, see supra, § 27. 5 Botts V. Williams, 17 B. Monr. 687. The practice, however, of permitting extra-territorial arrests, and even of captures and removals, has been per- mitted in several States. " It was formetly the practice," says Gibson, C. J. (Dow's case, 18 Penn. St. 37), " of the executive of this State to act in the matter by the instrumen- tality of the judiciary ; and though I have issued many warrants, none of them has ever been followed by an arrest. The consequence of the ineffi- ciency of the constitutional provision has been, that extra-territorial arrests 19 § 31.] PLEADING AND PRACTICE. [CHAP. I. § 30. It is suflScient, to sustain a requisition, that the oft'ence is „ „ . , one that is indictable in the State in which it was alleged Sufflcient _ ... if offence to have been committed, and from which the requisition demanding proceeds. Nor.is it necessary that it should be an of- state. fence at common law. It is sufficient if it be such by statute. The constitutional provision includes every offence pun- ishable in the State making the requisition.' In matters of formal pleading the indictment is to be construed according to the rules of the demanding State, and is to be determined by the courts of such State.'' § 31. In the requisition the governor must certify that the copy J, . . of the indictment or affidavit required by the statute is tion must true, and that the fugitive claimed is charged with the be duly , . - r» i -n- i • i ... proved, Crime therein specified. Either in the requisition or m onfy'for ^ Separate warrant the name is given of the person to fugitives. whom the fugitive is to be delivered. It is sometimes argued that unless the party demanded was in the demanding State at the time of the commission of the offence no requisition would lie. If this rule rests on the ground that the place of the commis- sion of a crime is the place where the offender was at the time, it cannot be sustained. Many crimes, as we have elsewhere seen, may be committed by a person at the time in another State ; and such person may be made responsible in the State of commission.' But the rule may be placed on another ground which is unassailable. have been winked at in every State ; 123 ; State v. Stewart, 60 Wis. 584 ; but an arrest at sufferance would be Hughes, in re, Phill. N. C. (L.) 57 ; useless if its illegality could be set up Johnston v. Riley, 13 Ga. 97 ; Opinions by the culprit." See supra, § 27. of Governor Mifflin and Atty.-0en.Ean- > Kentucky v. Dennison, 24 How. dolph, 20 State Papers U. S. 39 ; 13 66 ; Reggel, ex parte, 114 U. S. 642 ; Am. Law Rev. 192. Taylor v. Taintor, 16 Wall. 366 ; Rob- As denying the position in the text, erts V. Reilly, 116 U. S. 80 ; Opinion of see Governor Seward's Opinion, ii. Judges in Maine, 24 Am. Jurist, 233 ; Seward's Works, 452. With the lat- 18 Alb. L. J. 166 ; Com. v. Green, 17 ter opinion coincides the action of Mass. 515 ; Brown's case, 112 Mass. Governor Dennison in Lago'^s case, 18 409 ; Davis's case, 122 Mass. 324 ; Alb. L. J. 149 ; Spear on Extrad. 234. Clark's case, 9 Wend. 212 ; People 2 Reggell, ex parte, 114 U. S. 642 ; V. Brady, 56 N. Y. 182 ; Fetter's Roberts, ex parte, 24 Fed. Rep. 132. case, 3 Zabr. 311 ; Voorhees's case, 3 People v. Byrnes, 33 Hun, 98. Vroom, 141 ; Wilcox v. Nolze, 34 Oh. » Whart. Crim. Law, 9th ed. § 278. St. 520; Morton v. Skinner, 48 Ind. 20 CHAP. I.] EXTRADITION. [§32. The Constitution provides only for the extradition of persons who " flee" from justice. None can be, therefore, demanded who have not " fled" from or left the demanding State " in flight."' It is not necessary, indeed, that the "flight" should have been after in- dictment found. It is enough if the party left after the commission of the crime.* That he was at the time domiciled in the asylum State is no defence.^ But the law is that he must have "fled," or left, the State after the crime. It is not enough if he was called away by public duty: e. g., attendance on Congress.* The inference to be drawn from a commission of a crime in one State and then a presence in another is not conclusive as to fleeing.* § 32. We have elsewhere seen that it is a question of grave mo- ment, whether the federal legislature can impose upon jg^g^g^j State magistrates any duties not assigned to them by the courts can- Constitution.* In most States, however, the difficulty is governor obviated by statutes making the performance of the duty ^°p_"""" ' Reggell, in re, 114 U. S. 642 ; Jack- son's case, 12 Am. L. Rev. 602 ; Grree- nough, in re, 31 Vt. 279 ; Adams, in re, 7 N. Y. 386 ; People v. Sonnott, 20 Alb. L. J. 230 ; 3 Crim. Law Mag. 807 ; Voorhees, in re, 3 Vroom, 141 ; Wilcox V. Nolze, 34 Oh. St. 520;, Gaffigan's case, cited Spear on Extradition, 2d ed. § 385 ; Jones v. Leonard, 50 Iowa, 106 ; Hughes, in re, Phill. N. C. 57 ; Mohr, in re, 73 Ala. 503. To this ef- fect is a Pennsylvania statute of 1878. In Jones v. Leonard, 50 Iowa, 106, the court held that " a citizen and re- sident of one State charged in a requi- sition with constructive commission of crime in another State from which in fact he has never fled, is not a fugitive from justice, and the determination of the governor as to the sufficiency of the facts alleged is not conclusive." That the fleeing must be specifically asserted and proved, see Jackson, in re, 2 Flip. 183 ; Hall's case, 6 Penna. L. J. 412. 2 Hurd on Habeas Corpus, 606 ; Rob- erts w. Reilly, 116 U. S. 80 ; Brown, ex parte, 28 Fed. Rep. 653 ; Mohr, ex parte, 73 Ala. 503 ; 5 Crim. Law Rep. 539 ; U. S. V. O'Brian, 3 Dill. 381. See remarks of Withey, J., quoted 13 Am. Law Rev. 205; Leary's case, 6 Abb. (N. Y.) N. C. 43. 8 Kingsbury's case, 106 Mass. 223. * Patterson's case, cited 18 Alb. L. J. 190. In Brown's case, 8 Crim. Law Mag. 313, it was ruled by Governor Hill that the fact that a fugitive from justice in Pennsylvania was inveigled from Can- ada into New York, coming, however, voluntarily, was no reason why the Governor of New York should refuse to deliver him on a demand from the Governor of Pennsylvania. ' See cases in prior notes to this sec- tion. Spear on Extrad. 2d ed. 393. 6 Whart. Crim. Law, 9th ed. § 265. See Kentucky v. Dennison, 24 How. 66 ; Taylor v. Taintor, 16 Wall. 366 ; People 0. Brady, 56 N. Y. 182 ; Voor- hees, in re, 3 Vroom, 146 ; Hughes, in re, Phill. N. C. 67 ; Johnston v. Riley, 13 Ga. 97. 21 § 34.] PLEADING AND PRACTICE. [CHAP. I. obligatory on the executive ;* in other States it is accepted as one of those discretionary courtesies that it is usual for one sovereign to render to another. Were this not the uniform practice, it would be the duty of Congress, as it is indubitably within its power, to pro- vide a distinctively federal agency for the enforcing of the constitu- tional provision.' § 33. It has been said that the executive of the asylum State is not bound to deliver a person amenable to the penal law tion°that^ of such State.^ But the better opinion is that the mere fugitive 18 fa^gt ^ija,t the offender is so amenable ("no proceedings amenable ... . to asylum against him having been commenced) is no bar to a re- quisition.* On the other hand, if a prosecution has al- ready commenced in the asylum State, then this State has jurisdic- tion of the person of the fugitive for this particular purpose, and the proceedings should go on until their judicial determination.* If the offence is the same as that for which the requisition has issued, then the first State commencing proceedings, if both have jurisdic- tion, has precedence.® § 34. We have already observed that there is nothing in the Con- stitution of the United States to require a governor of a o "asylum State to issue his warrant for the arrest of a furtive ; state can- 3,^^ ^jjat if he does SO, it is either in obedience to local not im- _ _ ' peach re- law or in the exercise of a discretion which the courts cannot compel. It is otherwise, however, when the governor accepts the office proposed to him by the statute, for in this case he is bound to execute the commission he undertakes. It is, indeed, a prerequisite to his action, that it should be proved to his satisfaction that the person against whom he is asked to issue a warrant is the same as the one charged in the requisition, that 1 For an analysis of these statutes ton v. Wilder, 3 Ohio L. J. 642 ; aff. see 13 Am. L. R. 235 et seq. 40 Ohio St. 130 ; cited, supra, § 28. 2 Kentucky v. Dennison, 24 How. ' Taylor v. Taiutor, 16 Wall. 866 ; 66. 36 Conn. 242 ; Briscoe, in re, 51 How. » Briscoe, in re, 51 How. Pr. 422 ; (N. Y.) Pr. 422 ; Troutman's case, 4 State V. Allen, 2 Humph. 258. See Zab. 634 ; Work o.Corrington, 34 Ohio Taylor v. Taintor, 16 Wall. 366. St. 64 ; State v. Allen, 2 Humph. 258. * Work u. Corrington, 34 Oh. St. See 13 Am. Law Rev. 227. 64 ; Ex parte Sheldon, 34 Oh. St. 319. « See Whart. Crim. Law, 9th ed. See Roberts u. Reilly, 116 U. S. 80; 293. Briscoe, in re, 51 How. Pr. 422 ; Comp- 22 CHAP. I.] EXTRADITION. [§ 34. such person is a fugitive from the demanding State, and that the affidavit was authenticated by the demanding governor.^ But be- yond this he cannot go. If the requisition is duly backed by indict- ment or affidavit, a certified copy of which is attached, he has no right to inquire whether the person demanded was guilty of the ofience charged,' or whether the object of the requisition was other than it apparently seemed. The only cases in which the requisition, if regular and duly backed, can be assailed, are those in which judgments of sister States, under an analogous provision of the Con- stitution, can be assailed. It may be shown that the requisition fails from want of jurisdiction,' or was fraudulently obtained, and hence void, or was of a character such as stripped it of conclusiveness. But when once its genuineness and its technical conformity to law are ascertained, its averments cannot be disputed.* A requisition can no more be impeached on the ground that improper collateral motives cooperated in obtaining it, than can a judgment of a sister State be impeached on the same grounds, supposing there was no fraudulent imposition on or by the executive issuing it.* If there was jurisdiction — if the governor in the one case, or the judgment court in the other, were not fraudulently imposed upon — then the averments of the record in either case cannot be assailed in the State in which execution is sought.* But the requisition must be accom- 1 Powell, ex parte, 20 Fla. 806. (Judge Cooley, in Princeton Rev., Jan. 2 Infra, § 35 ; Clark, in re, 9 Wend. 1879, p. 165.) 212 ; Leary's case, 6 Abb. (N. Y.) N. C. It may be added, that if he accepts 43 ; 10 Ben. 197, modifying People v, the commission he must hold to it. He Brady, 56 N. Y. 182 ; and see article in cannot accept it, and then, on the 31 Alb. L. J. 24. ground that he .is the executive of a ' Supra, § 31. sovereign State (he undertaking at the • Ibid. ; Leary, in re, 6 Abb. (N. Y.) time to act as a federal commissioner), N. C. 43 ; 10 Ben. 197 ; Voorhees, in dispute its facts, re, 3 Vroom, 141 ; Swearingen, ex In opposition to the text may be parte, 13 S. C. 74 ; see, however. Hart- noticed Kimpton's case, Aug. 1878 (18 man w. Aveline, 63 Ind. 344. Alb. L. J. 298. ; Spear on Ex. 434), in 5 Work V. Corrington, 34 Ohio St. which the governor of Massachusetts, 64. See 31 Alb. Law J. 24. on the advice of the attorney-general, s " The executive has no general held that he was justified in refusing a power to issue warrants of arrest, and warrant on the grounds that the prose- when he proceeds to do so in these outiou had been long delayed, and that cases, his whole authority comes from an offer had been made to the defendant the Constitution and the act of Con- to enter a nolle prosequi in case he would gress, and he must keep within it." turn State's evidence. But this cannot 23 §35.J PLEADING AND PKACTICE. [CHAP. I. panied by an indictment or affidavit, specifying the crime. A mere statement that the crime has been committed is not enough.' § 34 a. The requisition being in due form, and being presented to the governor of the asylum State, the practice is for ^suM war- ^^™ *° '\^i\iiQ a warrant of arrest containing the proper rant of recitals and averments. In several States statutes have arrest. been passed prescribing the terms of such warrants ; which statutes, so far as they are supplementary to federal legisla- tion, are constitutional.* The warrant must set forth facts necessary to jurisdiction.^ § 35. To examine the grounds of imprisonment, in this, as well as Habeas ^^ Other cases of arrest, a writ of habeas corpus may be eorpm obtained ; this writ being within the iurisdiction of State cannot go , m ■ i ■ i behind courts to issuc* The points which may be thus raised ^"'■'^•'*- are as follows:— be sustained, as the goyernor of Massa- chusetts could no more inquire into the motives of the governor of South Carolina than can a Statp court when acting on a judgment of a sister State, under the parallel constitutional pro- vision as to judgments of other States, hold that it is entitled to inquire what were the motives of the plaintiff in the judgment, or of the court by whom the decision was made. As concurring in this conclusion, see reasoning of Ch. .J. Cooley, in Princeton Rev. for Jan. 1879 ; Cooley's Const. Lim. 16, n. 1 ; Walker's Am. Law, § 64 ; and article in 13 Am. Law Rev. 181 ; Kentucky v. Dennison, 24How. 66 ; Compton w. Wil- der, 3 Ohio L. J. 642 ; 40 Ohio St. 130; cited supra, § 28 ; Johnston ». Riley, 13 Ga. 97 ; Romaine, in re, 23 Cal. 585. See, however, Perry, in re, 3 Crim. Law Mag. 84, and note thereto. The question in the text, it should be remembered, is very different from that which arises when it is attempted to use extradition process to enforce the collection of a debt. No doubt the courts will refuse their aid to such a perversion of justice, when the attempt is made to enforce such debt. See 24 supra, § 27. Rorer on Inter-State Law, 222. Bat such collateral motive, ex- tortionate as it may be, is no more a bar to extradition process than it would be a bar to ordinary proceedings of arrest for a crime. It should be added that the position in the text is in no respect inconsistent with the position that a governor may revoke his warrant after it has been issued. This he may undoubtedly do, for the reason that he is at liberty to decline to accept the agency in this respect that the Federal government tenders him. See Wyeth v. Richard- son, 10 Gray, 240 ; Work v. Corrington, 34 Oh. St. 319. But if he undertakes the agency he must execute it accord- ing to the terms of the mandate. 1 Doo Woon, in re, 18 Fed. Rep. 898 ; 1 West. Coast R. 333 ; Solomon's case, 1 Abb. Pr. N. S. 347 ; Pfitzer, ex parte, 28 Ind. 451, and eases cited supra. 2 Smith, ex parte, 3 McLean, 121 ; Ammons, ex parte, 34 Ohio St., 518; Robinson v. Flanders, 29 Ind. 16. ' Infra, § 35; In re Doo Woon, 1 West Coast Rep. 333 ; 18 Fed. Rep. 898. * Robb V. Connolly, 111 U. S. 624 ; cited infra, § 37 a. CHiP. I.] EXTRADITION. [§35. Arrest prior to requisition. If there be a local statute authoriz- ing this, and if proper ground be laid, the prisoner will be remanded, and the same course will be taken when the arrest, under the local practice, is sustainable on grounds of comity.' Defects in warrant. The first point is, is there a warrant on which the court can act ? To the legality of the warrant there are the following prerequisites : — (1.) The prisoner must hav? been a fugitive.^ If not, the gov- ernor had no jurisdiction, and on proof that the prisoner was not a "fugitive," and had not been in the State from which the requisi- tion issues, there must be a discharge.* But a probable case is enough to sustain the warrant in this relation.^ (2.) The identity of the prisoner as the party charged must ap- pear ;* and this is a matter of parol proof." (3.) The warrant must be based on an indictment or aflSdavit, which is essential to the validity of the requisition.'^ But behind indictment or afSdavit the court will not go, nor can their averments, except for the purpose of showing fraud or non-identity, be contra- dicted by parol.' And the warrant of the governor is '■^primd facie 1 Supra, § 29 ; see as to practice, Leary, ex parte, 10 Ben. 197 ; Miles, in re, 52 Vt. 609. 2 Supra, § 31. 3 Wilcox V. Nolze, 34 OLio St., 520 ; Jones V. Leonard, 50 Iowa, 106. Parol evidence is admissible to show where crime was committed. Wilcox V. Nolze, supra. * Reggel, ex parte, 114 U. S. 642 ; People V. Byrnes, 33 Hun, 98; infra, § 55. 5 In Butler, ex parte, Luzerne Co. C. P., it was held that the Pennsylvania statute authorizing examination for identification was not unconstitutional. 18 Alb. L. J. 369. ^ Leary, ex parte, 10 Ben. 197; 6 Abb. N. Y. (N. C.) 43 ; see Eobb, in re, 64 Cal. 431. ' People V. Brady, 56 N. Y. 182 ; Peo- ple V. Donahue, 84 N. Y. 438 ; Hooper, in re, 52 Wis. 699 ; Lorraine, ex parte, 16 Nev. 63. That an information is sufficient, see supra, § 28. 8 Learjr's case, 10 Ben. 197-8 ; 6 Abb. N. C. 441 ; Kingsbury's case, 106 Mass. 223 ; Davis's case, 122 Mass. 324 ; Clark, in re, 9 Wend. 212 ; People w. Pinkerton, 77 N. Y. 245 ; S. C, 17 Hun, 199; Com. v. Daniel, 6 Penn. L. J. 417 ; 4 Clark, 49 ; State v. Buzine, 4 Harring. 572; State v. Sohlemm, Ibid. 577 ; Norris v. State, 25 Ohio St. 217 ; Work V. Corrington, 34 Ohio St. 64, 319. See Bull, in re. Cent. L. .J. 255 ; 4 Dill. 323 ; 4 South. L. Rev. N. S. 676, 702 ; Sedg. Const. Law, 395 ; Hurd on Hab. Corp. §§ 327-38, 606; Cooley's Const. Lim. 16. As to habeas corpus in such cases, see infra, § 993. The certificate of the demanding gov- ernor, that a copy of a complaint, made before a justice, is authentic, sufioi- ently authenticates the capacity of the justice to receive the complaint. Kings- bury's case, 106 Mass. 223 ; Donaghey, ex parte, 2 Pitts. L. J. 166. See Man- chester, in re, 5 Cal. 237. " Theft," in 25 § 36.] PLEADINa AND PRACTICE. [CHAP. I. evidence, at least, that all necessary legal prerequisites have been complied with, and, if previous proceedings appear to be regular, is conclusive evidence of the right to remove the prisoner to the State from which he fled."' It is enough, therefore, if the return to the writ of haJbeag corpus aver an indictment or aflBdavit to its legal effect without annexing a copy.* When, however, the indictment or affidavit is annexed, it may be examined on Tiabeag corpus for the purpose of determining how far it sets forth a crime under the federal statute.* Whether the federal courts can discharge in such cases on habeas corpus is elsewhere discussed.* § 35 a. It has been held in Texas that bail cannot be taken in extradition process, even when the State Constitution be taken!" provides that all prisoners shall be bailable by sufficient sureties." But by title IV., ch. I. of the New York Criminal Code, § 831, a person arrested on State extradition process may be admitted to bail by a judge of the Supreme Court. § 36. We have just seen that a court, on habeas corpus, will not inquire as to formal defects of the indictment or other documents on which the requisition is based.' It is otherwise when the the warrant, is synonymous with " lar- cases are to be such as obtain in the ceny." People v. Donahue, 84 N. Y. demanding State. Reggel, ex parte, 438. 114U. S. 642. j1 /orftori when a warrant of surren- * Infra, §§ 981, 993; Whart. Crim. der is issued by the governor of the Law, 9th ed. 288. asylum State, upon an indictment ^ Erwin, ex parte, 7 Tex. ap., 788 ; found in the demanding State, the citing ex parte Ezell, 40 Texas, 451. courts of the asylum State will not, on ^ Davis's case, 122 Mass. 324 ; Bris- habeas corpus, inquire into formal de- coe's case,' 57 How. (N. Y.) Pr. 422. fects of the indictment. Davis's case. Under the New York statute the 122 Mass. 324. complaint must be sworn to, and must That an information may take the show that the accused had been place of an indictment, see Hooper, in duly charged with the crime, and that re, 52 Wis. 699. he had' fled to the asylum State. Hay- 1 Davis's case, 122 Mass. 324. ward, in re, 1 Sandf. 701 ; Leland, in 2 People ti. Pinkerton, 77 N. Y. 245 ; re, 7 Abb. Pr. N. S. 164. People w. Donahue, 84 N. Y. 438 ; Rob- That "crime" is used in its gene- inson u. Flanders, 29 Ind. 10 ; aff., ral sense, so as to include such misde- Nichols V. Cornelius, 7 Ind. 611. meanors as false pretences, see Reg- 3 As an extreme case of such scru- gel, ex parte, 114 U. S. 642 ; State v. tiny, see People v. Brady, 56 N. Y. Stewart, 60 Wis. 587. 182. The rules of pleading in such 26 CHAP. I.] EXTRADITION. [§37. Indict- ment or affidavit must set forth a crime, and must be in indictment or affidavit fails to set forth a crime in the demanding State ,^ though an indictment duly found or affidavit duly certified is sufficient primd facie proof that the offence was indictable in such State.' When the de- mand is based on affidavits they must have been pre- viously filed in a court of justice as a preliminary to pro- secution, since the executive of the demanding State is judicial " not authorized to make the demand unless the party fngg^^*^" was charged in the regular course of judicial proceed- ings."" The affidavit must be sworn to before a magistrate ; a notary not being sufficient.* It must be distinctly averred that the fugitive has been guilty of some specific offence against the demanding State." § 37. It will be noticed* that in cases where a fugitive is arrested on a demand from a foreign State, he can only, accord- ing to the better view, be tried for the offence for which the demand has been made. It is otherwise under the clause of the Federal Constitution now before us. The Constitution in this respect is supreme over the whole country, and hence when a fugitive is transferred from State to State under its provisions, he is open in the second State to any prosecutions that may be brought against him 'ia such State.'^ And Fugitive may be tried for other than requisition offence. 1 Smith, ex parte, 3 McLean, 121 ; People V. Brady, 56 N. Y. 182 ; People 0. Brady, 1 Abb. Pr. (N. S.) 347; Rutter's case, 7 Ibid. 67 ; Heyward, in re, 1 Sandf. (N. Y.) 701 ; Fetter's case, 3 Zabr. 311 ; Degant u. Michael, 2 Carter, 396 ; Pfitzer's case, 28 Ind. 450 ; Romaine, in re, 23 Cal. 585 ; White, ex parte, 49 Cal. 442. * Opinion of Maine Judges, 24 Am. Jur. 233 ; 18 Alb. L. J. 150 ; Brown's case, 112 Mass. 409 ; Davis's case, 122 Mass. 324; Morton u. Skinner, 48 Ind. 123; Clark, in re, 19 Wend. 212; White, ex parte, 49 Cal. 434. ' Kentucky v. Dennison, 24 How. 66 ; White, ex parte, 49 Cal. 434. * As to State statutes imposing ad- ditional requisites, see Work v. Cor- rington, 34 Ohio St. 64; Jones v, Leonard, 50 Iowa, 106. So far as these statutes limit the constitutional pro- cess, their constitutionality may be questioned. Moore v. People, 14 How. 13. 5 Snyder, ex parte, 64 Mo. 58 ; State u. Swope, 72 Mo. 99. See Morgan, in re, 20 Fed. Rep. 298. 5 Infra, § 49. ' Noyes, in re, U. S. Dist. Ct. N. J. May, 1878, 17 Alb. L. J. 407 ; 11 Chic. Leg. News, 9. Supra, § 27 ; State v. Stewart, 60 Wis. 584 ; Miles, in re, 52 Vt, 609 ; Ham v. State, 4 Tex. App. 645. See also State v. Brewster, 7 Vt. 118 ; Browning v. Abrams, 51 How. Pr. 172 ; Dow's case, 18 Penn. St. 37, cited supra, § 27. Compare, however, contra, remarks of Judge Cooley, Prince- ton Rev. 1879, p. 176 ; Cannon, in re, 47 Mich. 481. 27 §876.] PLEADING AND PRACTICE. [chap. I.- Offlcers ex- ecuting such pro- cess pro- tected by federal courts. it has been held that he may be arrested and delivered on a requisi- tion from another State.* § 37 a. We have already noticed numerous cases in which the action of the officers of a State in arresting alleged fugitives from justice have been reviewed by the judiciary of such State.^ While this jurisdiction cannot be right- fully disputed, it being now settled that an agent ap- pointed by State authority to receive or deliver a fugitive is not a federal officer,' it may also be maintained that an officer who is arrested by State authorities when hona fide employed in ex- ecuting extradition process may be released by federal courts on a writ of habeas corpus.* But so far as concerns the arrested party, it is now settled by the Supreme Court of the United States that the States have the concurrent right to inquire into the legality of the arrest, notwithstanding the fact that the question arises under the federal Constitution." § 37 h. Under the Revised Statutes of the United States, it is made the duty of judges, when oflFences against the United States are charged, to issue, under certain con- ditions, warrants for the arrest and removal of the offender for trial before such United States court as has cognizance of the offence.* In such cases the practice is For federal offences warrants may be is- sued in all districts. ' People V. Senott, 20 Alb. L. J. 230. In this case Judge McAllister's ruling was afterwards approved by Judge Drummond. Chic. Leg. News, Deo. 13, 1879. Contra, Daniel's case, cited 1 Brightly 's Fed. Dig. 294. See criticism in 20 Alb. L. J. 425 ; 3 Grim. Law Mag. 808. 2 Supra, § 35. ' See argument of Supreme Court of Alabama in Mohr, in re, 73 Ala. 503 Eorer on Inter-State Law, 221, 222 article by Dr. Spear in 29 Alb. L. J, 206 ; note to 5 Crim. Law Mag. 548, Cf. Hoyle, in re, 1 Crim. Law Mag. 472, The point in the text has been finally sustained by the Supreme Court of the United States in Robb v. ConoUy, 1884, 111 U. S. 624 ; 16 Chic. Leg. N. 291, affirming S. C. in Sup. Ct. of 28 California. See Robb, in re, 64 Cal. 431, where the United States Circuit Court in California (differing from the action of the Supreme Court of Califor- nia in the same case, Robb, in re, 1 Pac. Rep. 881 ; 1 West. Coast Rep. 255) held that a State court had no right to review on habeas corpus the action of officers on extradition process. » Bull, in re, 4 Cent. L. J. (1877) 255 ; 4 Dill. 323. See infra, § 993, for other cases ; U. S. i>. McClay, 23 Int. Rev. Rec, 80. See U. S. v. Booth, 21 How. 507 ; Prigg v. Com., 16 Pet. 608 ; Clark, in re, 9 Wend. 212 ; People v. Pinkerton, 77 N. Y. 245 ; 17 Hun, 199. 5 Robb V. CouoUy, ut sup., and see 29 Alb. L. J. 206. 6 See 2 Burr's Trial, 483 ; U. S. v. Hamilton, 3 Dall. 17 ; Rhodes, ex CHAP. I.] EXTRADITION. [§38. to bring the defendant before a judge or other committing magistrate in the district of arrest, subject to the action of such magistrate, who may discharge or surrender.* The order is an exercise of a judi- cial function, and the court in considering it can go behind the indictment or information, and decide the question on the merits.^ & 37 c. A State is not authorized, under the Constitu- « . state has tion of the United States, to denver fugitives to a foreign no power sovereign. The exclusive cognizance of international ex- tioDaf ex-' tradition is given to the government of the United States.* tradition. 2. A» between the Federal Grovernment and Foreign States. § 38. Extradition, as a general rule, as between foreign States, is limited to cases provided for by treaty ;* nor, as will hereafter be seen, when there is a treaty, will a requi- ^rJaty!*^ *° sition be sustained for an offence which the treaty does not include." It has, however, been held by eminent jurists that, independently of the cases provided for by treaty, it is by the law parte, 2 Wheel. Crlm. Cas. 550. See discussion in 17 West. Jur. 209. In a case determined in 1873 (Dana's case, 7 Ben. 1), Judge Blatchford declined to issue in New York a warrant, under the Act of September 24, 1789, for the arrest of Mr. Dana, editor of the Sun, to answer an information filed in the Police Court of Washington, that court being authorized by act of Congress to try without juries, which act the court held unconstitutional. 1 See Alexander, ex parte, 1 Low. 53 ; Clark, ex parte, 2 Ben. 240 ; U. S. V. Haskin, 3 Sawyer, 262 ; 3 Dillon, 116 ; 1 Woolworth, 422, cited 17 West. L. Jur. 210. 2 Conk. Tr., 4th ed. 582 ; Buell, in re, 3 Dill. 116; U. S. v. Volz, 14 Blatch. 15 ; U. S. v. Haskins, 3 Sawy. 262; Doig, in re, 4 Fed. Rep. 193; Brawner, in re, 7 Fed. Rep. 86 ; James, in re, 18 Ibid. 854. " Ex parte Holmes, 12 Vt. 631 ; People V. Curtis, 50 N. Y. 321 ; and see Holmes v. Jennison, 14 Pet. 540 ; Read v. Bertrand, 4 Wash. C. C. 556. That the clause in the Constitution securing grand juries and " due pro- cess of law" in criminal cases does not apply to offences against foreign Sta|tes, for which extradition is claimed, see 4 Op. Atty.-Gen. 201 ; Giaoomo's case, 12 Blatch. 391. In Metzger's case, 1 Barb. 248, it was held by Judge Edmonds, on habeas corpus, that the French treaty of 1843 was not self-executing, and did not, therefore, without legislation, author- ize arrest and extradition. See, how- ever, S. C, 1 Edm. Sel. Ca. 399. This was followed by the act of Congrfess directing the process of extradition. See Spear on Extradition, 2d ed. 59. * Whart. Confl. of L. § 835 ; Whart. Dig. Int. Law, § 268, and authorities there cited ; Rauscheru. U. S., 119 U. S. 407. In the same work the treaties are given. = Infra, § 47. 29 §38.] PLEADING AND PRACTICE. [CHAP. I. of nations within the discretion of the executive to surrender a fugitive from another land when there is reasonable proof showing such fugitive to be guilty of any offence regarded jure gentium as a gross crime.' This jurisdiction was assumed by the President of the United States, in 1864, though without the opportunity of judi- cial revision.' But the weight of authority is against such a course.* 1 Washburn, in re, 4 Johns. Ch. R. 106. * Argnelles' case, Whart. Confl. of L. §§ 835 et seq. Whart. Dig. Int. Law, § 268. " See Clarke's Extradition, 2d ed. ; Spear on Extradition, 1 et seq. ; Letters from W. B. Lawrence in 15 Alb. L. J. 44 ; 16 Alb. L. J. 365 ; 19 Alb. L. J. 329 ; Article by Mr. Lawrence in Revue de Droit Inter, x. 285 ; Letter of Mancini in Lond. Law Mag. Feb. 1882. In Stupp's case, in 1873, the United States refused to surrender to Belgium on the ground of want of treaty stipulation. Infra, § 46. As coinciding with this conclusion, see U. S. v. Davis, 2 Sumn. 482 ; Dos Santo's case, 2 Brook. 493 ; British Privateers, 1 Wood. & M. 66 ; Adrian v. Lagrave, 59 N. Y. 110; State V. Hawes, 13 Bush. 697 ; 14 Cox C. C. 135. Mr. Jefferson in his corre- spondence with Mr. Genet, in 1793 (Am. St. Papers, I. 175) denied the right aside from treaty ; and he' took the same position in his letter to the Presi- dent of Nov. 7, 1791. To the same effect js the opinion of Atty.-Gen. Lee, in 1797 (1 Op. Atty.-Gen. 68), of Atty.- Gen. Wirt (Ibid. 509), and of Atty.- Gen. Taney (2 Ibid. 559), and of Atty.- Gen. LegarS (3 Ibid. 661), and of Atty.- Gen. Gushing (6 Ibid. 431). In England, by the third section of the extradition act, a fngi,tive criminal is not to be surrendered to a foreign State unless provision is made by the 30 law of that State, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to the Queen's dominions, be detained or tried in that foreign State for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded. A clause embodying this principle is contained in the English extradition treaties concluded since 1870 with Germany, Belgium, Austria, Italy, Denmark, Brazil, Switzerland, Hon- duras, and Hayti. The treaty of 1842 with the United States contains no such restriction. As to extradition treaty between Switze'rland and Great Britain, see R. v. Wilson, L. R. 3 Q. B. D. 42. For report of the Royal Commission on Extradition, in 1878, reviewing the position, see a comprehensive review by Mr. Lawrence, 19 Alb. L. J. 329. For English practice see Terraz' case, L. R. 4 Ex. D. 63 ; 14 Cox C. C. 153. Compare discussion in 11 Revue de Droit Int. (1879) 88 ; Dnorocq. Th6o- rie de I'Extradition ; Faustin Hfilie, t. 1, 5 964. For notice of decision of Mexican Supreme Court, sustaining extradition from Mexico to the United States, see 18 Alb. L. J. 141. The diplomatic authorities on this topic are given in Whart. Dig. Int. Law, § 268. CHAP. I.] EXTRADITION. [§ 41. § 39. Eyen supposing that extradition is to be granted, irre- spective of treaty, it only lies for offences jure gen- tium, and which are therefore punishable alike in the must be country granting the arrest^ and that making the requi- cognized by sition.'' The extradition treaties executed by the gj^J."™ United States contain generally the provision that the surrender " shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and com- mitment for trial, if the crime or offence had been there com- mitted."* Under this provision it has been held that it is suffi- cient if the offence charged be a crime in the asylum State at the time of its commission, though it was not so at the time of the execution of the treaty.* The offence must also be indictable as such in the demanding State ; and if the facts do not show such an offence, within the treaty, the defendant will be discharged in the asylum State on habeas corpus.^ § 40. An extradition treaty, it has been held, covers cases of crimes committed before its adoption, so that under it ^ .. process may issue to arrest fugitives charged with such are retro- , ' spectiye. crimes.* § 41. The sole object of extradition being to secure the due and effective 'administration of justice, a surrender can- j; * j- not be rightfully made, apart from treaty obligation, tion refused to a State in which a fair trial cannot be had ; nor will can be no treaties in this respect be executed when the demand- ^*" *"*^* ing State proposes to subject the fugitive to an oppressive trial not within the contemplation of the parties at the time of the adoption of the treaty.' A surrender will also be refused when the effect is to expose 1 TuUy, in re, 20 Fed. Eep. 812 ; 22 forgery, see Whart. Crim. Law, 9th Blatch, 213. ed. § 667. 2 Whart. Confl. of L. § 836. See « Whart. Dig. Int. Law, § 282 ; Gia- Bar, § 149; Berner, p. 188. Sir R. oomo, aZias Ciocariello, in re, 12 Blatch. Phillimore speaks positively to this C. C. 891 ; Miiller's case, ut sup. eflFeot. Int. Law, i. 413. A contrary view is taken by Bar, ' Whart. Confl, of L. § 835 et,seq. an eminent German jurist, in an ar- * Miiller's case, 5 Phil. Eep. 289 ; tide in the Revue de Droit Interna- 10 Opin. Atty.-Gen. 501. tional for 1877. 5 See infra, § 47 ; for oases of discharge ' Whart. Confl. of L. 838. because the facts did not constitute 31 §43.] PLEADING AND PRACTICE. [chap. I. the fugitive to a barbarous punishment, or one revolting to a civilized jurisprudence.' And the surrendering sovereign may impose conditions as to the way in which the surrendered fugitive is to be tried.* § 42. Notwithstanding the authority of Grotius,* there is a general consent of modern jurists to the effect that political between independent sovereignties there should be no offences. extradition for political offences.* It is import3.nt, however, to remember that there may be cases nominally political, which, nevertheless, are essentially distin- guishable from those in which the gist of the offence is opposi- tion to government, and as to which extradition is to be refused. § 43. " The delivering up by one State," says Mr. Wheaton,* " of deserters from the military or naval service of an- other, also depends entirely upon mutual comity, or upon special compact between different nations ;" but so far as concerns the extension of such surrender to any cases not provided for by convention, this may now be viewed aS too broad a statement 6f the law. With regard to the extradition of the persons flying from threatened conscription, it is now con- ceded that no surrender should be made by the State of refuge.* So far as concerns deserters, no doubt cartel conventions for mutual extradition may, in some cases, be effective. But without such con- ventions, such surrenders are not now made ; and under any circum- stances there should be satisfactory proof that the deserter demanded And so for persons escaping from mili- tary ser- vice. » Whart. Confl. of L. § 838. See Dana's case, 7 Ben. 1, cited supra, §37i. 2 Ibid. 3 II. 0. 21, §§ 4-6. ' Whart. Dig. Int. Law, § 272 Lawrence's Wheaton, 245, note ; Wool sey, § 79 ; Lewis, p. 44 ; Phil. i. 407 Heffter, § 63 ; Foelix, ii. No. 609 ; Mohl p. 705 ; Marquardsen, p. 48 ; Bar, § 150 ; Geyer, in Holtzendorff's Ency. Leipzig, 1870, p. 540; Kluit, p. 85, cited Whart. Confl. of L. § 948. In the extradition treaties negotiated by the United States political offences are either implicitly excluded, by non- 32 specification among those for which extradition will be granted, or are ex- cepted in express terms. Nor can an independent extradition able offence be used as a mask to cover a reserved political prosecution. No government, independent of treaty provisions, should surrender a fugitive without a guarantee that he is to be tried only for the offence specified in the de- mand. Infra, § 49. 6 Lawrence's Wheaton, p. 237. ^ Eotteck, in Staatslex. ii. p. 40 ; Mohl, die Volkerrechtliche Lehre vom Asyl. cited Whart. Confl. of L. § 951. CHAP, I.] EXTRADITION. [§45. was not led to enlist by wrong means, and will not be subjected, on his return, to a barbarous punishment. In the United States, con- ventions of this kind are rare.* § 44. The practice in the United States and in England has been not to refuse the extradition of a subject when demanded by the sovereign of a foreign State, for a crime commit- because the ted in such State.* It is otherwise in Germany ;' and manded fs an exception to this effect exists in our treaties with » object ^ of the Prussia and the Nqlrth German States, with Bavaria, asylum with Baden, with Norway and Sweden, with Mexico, and with Hayti. No such exception appears in the treaties with Great Britain, France, Hawaiian Islands, Italy, Nicaragua, or with the Dominican Republic. The true rule is, that wherever, by the jurisprudence of a particular country, it is capable of trying one of its subjects for an offence alleged to have been committed by such subject abroad, the extradition in such case may be refused ; the asylum State then having the right of trying its own subject by its own laws. When, however, it does not assume jurisdiction of extra-territorial crimes' committed by such subject, then extradition should be granted. § 45. Supposing that the State in which the defendant has sought an asylum has, with the prosecuting State, admiralty jurisdiction of the offence, as where the offence was com- asylum mitted on the high seas, ought a surrender to be made ? jurfBdil^^ For several reasons, to pursue the argument of the last *|°° *®^^ section, it should not.^ In the first place, by refusing to no surren- surrender; a needless circuity of process involving great cost is arrested. In the second place, a defendant's personal rights would be needlessly imperilled by his forcible removal to a foreign 1 Dana's Wheaton, § 121, note 79. " Whart. Dig. Int. Law, § 273. See Robbins's case, Wharton's St. Tr. 392 ; Bee, 266 ; Jour. Jur. 13 ; E. v. Ganz, 9 a. B. D. 93 ; Kingsbury's case, 106 Mass. 223. This subject is discussed by the com- mission on extradition, appointed by the British government in 1877, which concludes as follows : — " On the whole, the eommission 3 unanimously were of opinion that it is inexpedient that the State should make any distinction in this respect between its own subjects and foreigners ; and stipulations to the contrary should be omitted from all treaties." Central Law Journal, 1878, 40 ; 19 Alb. L. J. 329. ' Dana's Wheaton, § 120, note ; Lawrence's Wheaton, p. 237, note. * See Whart. Dig. Int. Law, § 271. 33 M6.] PLEADING AND PRACTICE. [CHAP. I. forum. And again, if a surrender could be made in one case of admiralty jurisdiction, it could be made in another ; and if the rule be admitted at all, there would be few admiralty prosecutions that might not, at executive discretion, be removed to a foreign land un- der a foreign law. Even, therefore, should a surrender of such a party, in a case of admiralty jurisdiction, be granted, a court under the English common law, on a writ of habeas corpus, would direct his discharge.' § 46. A cognate question arises when the dffence was committed by a subject of the demanding State in the territory of an independent foreign State. The only admissible in- terpretation, it has been argued, of the term " jurisdic- tion," is to treat it as convertible with country, so as to make it necessary for the offence, in order to sustain a requisition, to have been committed within the territory of the demanding, State. Such is the view, as has been noticed, of Sir R. Phillimore, and so, also, was it held in England in 1858, by the eminent law officers of the crown, when consulted by the government as to whether the American govern- ment could be asked to surrender to England a British subject who had been guilty of homicide in France.* In 1873 the question arose in New York whether Prussia could demand the extradition of a prisoner for alleged crimes committed out of the territory of Prussia, but punishable by its laws. The prisoner was remanded by Judge Blatchford to the custody of the marshal, after an opinion by that learned judge in which it was elaborately argued that the term Conflict of opinion as to whether a, foreign State can claim a subject who has committed a crime in a third State. ' As sustaining this view, see R. v, Tivnan, 5 B. & S. 645 ; S. C, under name of " Turnan," 12 W. R. 848. On the other hand, in Sheazle, in re, 1 Wood. & Min. 66, it was held that the extradition treaty with England re- quired the surrender by the U. S. of a British subject who committed, on a British ship, on the high seas, piracy which was such by act of parliament, but not by the law of nations. Com- pare Bennett, in re, 11 Law T. R. 488. In R. K. Nlllins, 63 Law Journ. 157 (1858), it was held that extradition would be sustained in a case where 34 the defendant, when in England, sent letters containing false pretences to Hamburg, and then went to Hamburg, where the money was obtained. See, also, R. V. Jacobs, 46 L. T. 695. It is stated by Sir R. Phillimore, that " the country demanding the criminal must be the country in which the crime is committed." 1 Phil. Int. Law, 413. ' Allsop's case, cited by Atty.-Gen. Williams, 14 Opin. Atty-Gen. 281 ; 11 Blatch. 129 ; given more fully infra. See, also, Whart. Dig. Int. Law, § 271. CHAP. I.] EXTRADITION. [§ 46. "jurisdiction" in the treaty covers cases such as that before the court.^ When, however, the question of issuing a warrant of sur- render came before the Secretary of State, he called upon Attorney- General Williams for an opinion on the question as to whether the surrender could be lawfully made. The question was answered in the negative by the attorney-general, on the ground that, so far as concerns the extradition treaties, "jurisdiction" by the demanding State cannot be held to exist over the territory of an independent civilized State.* Restricting the opinion of the attorney-general to this narrow statement, it may be accepted as a suitable rule for the guidance of the federal executive in the delicate question of deter- mining to which of two foreign civilized States a fugitive, in case of conflict, is to be surrendered.' But so far as concerns the mean- ing of the term "jurisdiction" the reasoning of Judge Blatchford is unanswerable. " Jurisdiction" cannot, in our international dealings with other States, be restricted to " territory," without abandon- ment, not only of our right to punish for offences on the high seas, and in barbarous lands, but of that authority over American citi- zens in foreign lands which we have uniformly claimed,* and which our imperial position as one of the leading powers of Christendom demands.* ' Stupp, in re, 11 Blatoh. 124. general, Sir Fitzroy Kelly, since chief 2 This is the only point necessarily baron of the exchequer, and Sir Hugh involved, and it is just to the attorney- Cairns, since lord chancellor, and they general to limit his argument to this recorded their judgment as follows : — point, though some expressions used " 'We are of the opinion that All- hy him have a wider scope. sop is not a person charged with the " From the opinion we take the fol- crime of murder committed within the lowing : — jurisdiction of the British crown, with- " Thomas AUsop, a British subject, in the meaning of the treaty of 1842, was charged as an accessory before the and that his extradition cannot prop- facts to the murder of a Frenchman in erly be demanded of the United States Paris, in 1868, and escaped to the under that treaty.' Forsyth's case, p. United States, and as he was punish- 268." 11 Blatch. 128. able therefore by the laws of Great See, also, opinion of Atty.-Gen.Cush- Britaiu, the question as to whether he ing, 8 Opin. Atty.-Gen. 215. could be demanded by Great Britain of * See Whart. Crim. Law, 9th ed. §§ the American government, under the 273 et seq. extradition treaty of 1842, was submit- 6 whart. Crim. Law, 8th ed. §§ 273 ted to Sir J. D. Harding, the queen's et seq. advocate, the attorney and solicitor 35 §49.] PLEADIN& AND PKACTICE. [chap. I. §47. Extradi- tion does Bot He for a case not included in a treaty. We have already noticed that, as a rule, there can he no extradition without treaty.^ Where a treaty exists mak- ing certain offences the subject of extradition, this must be regarded as declaring that only such offences shall be the subject of extradition between the countries in ques- tion, and that consequently extradition is not to be granted for other offences.* Thus in Vogt's case, which has been just discussed, the attorney-general, after arguing that the case was not within the treaty with Prussia, properly held that if the claim was not within that treaty, it could not be based generally on the law of nations.* Whether there can be extradition under a treaty without legisla- tion has been much discussed. That there can be is plain when the treaty is not conditioned on future legislation.* § 48. Where the defendant is already in custody, or under recognizances for trial in the State on which the requisition is made, the requisition will be refused, at least until the defendant's discharge.' § 49. Whether, when a fugitive is demanded to meet a particular offence, included in the treaty under which the proceed- Nor where the defend- ant is in custody for another offence. 1 Supra, § 38. Whait. Dig. Int. Law, § 270. 2 See Windsor's case, 34 L. J. M. C. 163; 13 W. R. 655; 12 L. T. N. S. 307; Letter of Mr. Bancroft Davis of July 28, 1873, to the Belgian ministry ; 10 Cox C. C. 118 ; 6 B. & S. 552 ; dis- cussed Whart. Crim. Law, 9th ed., § 667 ; Counhaye, ex parte, L. R. 8 Q. B. 410. See, also. Hall, in re, 8 Onta- rio App. 31 ; Eno's case, 30 Alb. L. J. 144, where the restricted sense given hy the Canada court to forgery is ably criticised. Cf. Tully, in re, 20 Fed. Rep. 812 ; 22 Blatch. 213. ' On this point the attorney-general said: "Able writers have contended that there was a reciprocal obligation upon nations to surrender fugitives from justice; though now it seems to be generally agreed that this is alto- gether a matter of courtesy. But it is 36 to be presuuied where there are trea- ties upon the subject that fugitives are to be surrendered only in cases and upon the terms specified in such trea- ties." Vogt, in re. See supra, § 46, for the other questions arising in this case. * Robbins's case, Whart. St. Tr. 392; Bee's R. 266. This ruling was defended by Judge Marshall, when in the House of Representatives, on rea- soning which Mr. Gallatin thought un- assailable. Adams's Qallatin, 231-2. See contra, Spear on Extrad. 53. But so far as concerns Judge Bee's decision to deliver Robbins to the British consul, this is not sustained by Judge Mar- shall's argument, which denies this right to the judiciary and asserts it for the president. 5 Whart. Confl. of L. § 845. Supra, § 33. See Miller, in re, 23 Fed. Rep. 32. CHAP. I.] EXTRADITION. [§ 49. inga take place, he can be tried for another offence, has been the subject of, much discussion.' It was held by Mr. Fish, when sec- retary of state, that the government of the United States could give no stipulation to that of Great Britain that a party extradited to the United States under the treaty then in force, would not be tried for any offence other than that for which he was extradited ; and it was further maintained by him " that the treaty and the practice between the two countries would allow the prosecution for an offence distinct from that for which he (the fugitive) was surren- dered." In December, 1886, the question came before the Supreme Court of the United States on a certificate of division from the Circuit Court of New York on a motion to arrest judgment on a conviction for inflicting cruel and unusual punishment of a sailor, this not being an extraditable defence, the offence for which the defendant was extradited being murder. It was held by the Supreme Court of the United States that the defendant could be tried, under the proceedings, for no other offence than murder, Waite, C. J., dis- senting.^ This ruling, therefore, decides that a party brought into the United States by extradition cannot be convicted of any other crime than that for which he was extradited. This view is sus- tained by high independent authorities ; . and is right as a principle of international law. It is an abuse of this high process and an in- fringement of those rights of asylum which the law of nations rightly sanctions, to permit the charge of an offence for which extra- dition lies to be used to cover an offence for which extradition does not lie, or which it is not considered politic to introduce in the demand.' At the same time when the defendant is brought over on an extraditable offence which contains another extraditable offence (e. g., as murder contains manslaughter), there is no reason why the defendant, the proof failing of the higher crime, should not be con- victed of the lower, both being extraditable.* But mere irregularities 1 SeeWhart. Dig. Int. Law, 2 270. Lowell, J., in 10 Am. Law J., 617, 2 U. S. V. Rauscher, 119 U. S. 407. 620 ; U. S. ... Watts, 8 Sawyer, 370 ; 3 See Bouvier, ex parte, 12 Cox C. C. 14 Fed. Rep. 130 ; Hibbs, ex parte, 26 303 ; 27 L. T. R. 844. Fed. Rep. 421, 431 ; Com. u. Hawes, * See article by' W. B. Lawrence, 14 13 Bush, 697 ; State v. Vanderpool, 39 Alb. L. J. 96 ; 19 Ibid. 329 ; Lord Ohio St. 273 ; Cannon, in re, 47 Mich. Cairns, quoted U. S. For. Eel. 1876, 487 ; Blandford v. State, 10 Tex. Ap. 286, 296 ; Spear on Extrad. chap. vi. ; 627 ; London Law Mag. for 1875, 37 §51.] PLBADINa iND PRACTICE. [chap. I. in the extradition process will not be ground of defence in the trial court.' § 50. In several treaties it is provided that after a requisition made on the President, he may issue a mandate, so that maVhear *^® fugitive may be subjected to judicial examination.^ case before But the present practice is that, unless required by treaty or law, an executive mandate is not a condition precedent of a judicial examination.* § 51. The complaint should set forth the substantial and material _ features of the offence, though it need not aver personal and warrant knowledge on the part of the affiant.^ It will be suflS- speciai. cient if it plainly set forth an offence under the treaty.* 139 ; Renault, Etude sur I'Extradition ; Field's Int. Code, § 237 ; Clarke on Ex- trad. 38. See, however, contra, Cald- well's case, 8 Blatoh. 131 ; U. S. v. Lawrence, 13 Blatch. 295 ; Adrianoe V. Lagrave, 59 N. Y. 110; Miller, in re, 6 Crim. Law Mag. 511 ; 9 Rep. 514 ; Paxton's case, 10 Low. Can. Rep. 212 ; Von Aernam's case, 11 Ibid. 352 ; Up. Can. Rep. 4 C. P. 288 ; House Ex. Doc. 173, 44th Cong. 1st sess. In Ker v. People, 110 111. 627, aflF. Ker v. Illinois, 119 U. S. 436, it was held that the principle in the text does not apply where the fugitive was kidnapped and not extradited from the foreign country. 1 Kelly V. State, 13 Tex. Ap. 158. 2 See 6 Opin. Atty.-Gen. 91 ; Hen- rich, in re, 5 Blatch. 425 ; Farez' case, 7 Blatch. 34 ; Castro v. De Uriarte, 16 Fed. Rep. 93. » Thomas, in re, 12 Blatoh. 370 ; Ross, ex parte, 2 Bond, 252 ; Herres, in re, 33 Fed. Rep. 165 ; Calder's case, 6 Opin. Atty.-Gen. 91 ; and see remarks of Lowell, J., in Kelley'a case, 2 Lowell, 339 ; Dugan, in re, 2 Low. 367 ; Castro V. De Uriarte, 16 Fed. Rep. 93 ; Spear on Extrad. 211. See Maodonnell, in re, 11 Blatch. 72. As to English prac- tice see R. V. Weil, L. R. 9 Q. B. D. 701 ; 4 Crim. Law Mag. 49. In Kaine, in re, 14 How. 103, this 38 question came up before the Supreme Court of the United States, and it was held by Catron, Wayne, McLean and Grier, JJ., that the mandate is not a prerequisite to the arrest ; Taney, C. J., and Nelson and Daniel, JJ., dissenting, and Curtis, J., giving no opinion. The point, however, was not decided, the case going off on a question of jurisdic- tion. That the mandate is essential was held by Judge Nelson, in Kaine, ex parte, 3 Blatch. 1 ; Judge Shipman in Henrich, in re, 5 Blatch. 414, and by Judge Nelson (of the District Court of Minnesota), in Van Hoven, ex parte, 4 Dill. 411. * Farez' case, 2 Abbott, U. S. 346 ; 7 Blatch. 34. See Macdonnell, in re, 11 Blatch. 79 ; Whart. Dig. Int. Law, § 276 a. As to English practice see Tiot, in re, 46 L. J. N. S. 120. The complaint "need not be drawn with the formal precision and nicety of an indictment for final trial, but should set forth the substantial and' material features of the offence. ' ' Hen- rich, in re, 5 Blatch. 414. But the offence must be substantially stated. Van Hoven, in re, 4 Dill. 411. Nor need the complaint aver prior crimi- nal proceedings against the defendant. Dane, ex parte, 6 Fed. Rep. 34. 6 Roth, in re, 15 Fed. Rep. 506. CHAP. I.] EXTRADITION. [§53. Any person authorized by the demandant government may appear and file complaint.' Whether the party making the complaint was authorized is for the commissioner,' but such authority must appear to the satisfaction of the commissioner.^ The warrant must recite the title of the commissioners,^ and specify the crime," though it is said that this specification need only be in the terms of the treaty.' § 52. The warrant of arrest may he returnable before -^ the judge issuing it, or before a commissioner previously may be designated under the act of Congress, by the Circuit tocommis- Court for that purpose.' ''°"^'"- § 53. Documentary evidence from abroad "should be accom- panied by a certificate of the principal diplomatic or j, .^^^^ consular officer of the United States resident in the should be foreign country from which the fugitive shall have es- thenti- caped, stating clearly that it is properly and legally ^'^^^ ' authenticated, so as to entitle it to be received in evidence in support of the same criminal charge by the tribunals of such foreign country."' But in default of such proof, authentication can be made by an expert.' 1 Kelly, in re, 26 Fed. Rep. 852. 2 Kelly, in re, 26 Fed. Rep. 852. s Ferrelle, in re, 28 Fed. Rep. 878. * Kelly, in re, 25 Fed. Rep. 268. 5 Hibbs, ex parte, 26 Fed. Rep. 421. * Castro V. De Uriarte, 16 Fed. Rep. 93. ' Kaine, in re, 14 Howard, 142 ; though see Farez' case, 2 Abbott U. S. 346 ; 7 Blatch. U. S. 84. Cf. Mao- donnell, in re, 11 Blatch. 79. As to duty of judge in issuing warrant, see Kelley, in re, 2 Low. 339 ; Dugan, in re, 2 Low. 367. That a warrant to all marshals and deputies can he executed in Wisconsin by a deputy marshal of the southern district of New York, see In re Henrich, 5 Blatch. 414. See, also, Whart. Dig. Int. Law, § 276a. In 6 Eng. R. 138, will be found a copy of papers carefully prepared by Mr. Moak to procure the extradition of a fugitive from Canada. 8 U. S. Rev. Stat. § 5271 ; Kaine, in re; Farez' case, ut supra; and 10 Opin. of Atty.-Gren.501. See Bahrendt, in re, 22 Fed. Rep. 699. As to English practice see Counhaye, ex parte, L. R. 8 Q. B. 410 ; Terraz' case, 14 Cox C. C. 161 ; L. R. 4 Ex. D. 63. The nature of the requisite documentary evidence is considered in Fowler, in re, 18 Blatch. C. C. 430 ; 4 Fed. Rep. 303 ; and see Charleston, in re, 34 Fed. Rep. 531 ; McPhun, in re, 30 Fed. Rep. 57 ; Her- ris, in re, 32 Fed. Rep. 583. Authentication by a vice-consul tem- porarily in charge is enough. Herres, in re, 33 Fed. Rep. 165. 9 Benson, in re, 34 Fed. Rep. 649 ; citing Fowler, in re, 18 Blatch. 437 ; 4 Fed. Rep. 303 ; see R. v. Ganz, 9 Q. B. D. 93 ; Whart. Dig. Int. Law, § 277. See, also, Kelly, in re, 26 Fed. Rep. 852. 39 § 55.J PLEADING AND PRACTICE. £CHAP. I. The commissioner should keep a record of the oral evidence, with the objections made to it or to the documentary evidence, briefly stating the grounds of such objections. The parties seeking the extradition should be required by the commissioner to furnish an accurate translation of every foreign document, such translation to be verified by affidavit.* Accord- ing to the practice under the United States statute, depositions, on a hearing for extradition, are to be allowed the same weight as if the witness were present at the hearing.'' § 54. When in a treaty a particular crime is specified, this Terms to Crime must be construed in the general sense in which it be con- ig us^d in the asylum country. Thus, it was held by the in asylum English Queen's Bench in 1866, that the term fraud- * ^' ulent bankruptcy, in the French treaty, would be con- strued according to the rules applicable to fraudulent bankruptcy in England.^ The same court ruled in 1865 that "forgery," in the treaty with the United States, would not be construed to include embezzlement.* And it is admissible for the defence to show that the case is not one included in the treaty." At the same time, if the offence is not one which in the demanding State would be held to be within the treaty, surrender may be refused.* § 55. The process of extradition being a process of arrest for Evidence '^^ purposes of trial, and not a process of trial, the must prevalent opinion is that it is enough in order to probable justify a giving up for trial, that the evidence should cause. show a probable case of guilt.' 1 Henrioh, in re, 5 Blatch. 425. See ^ Supra, § 47. as to translation of foreign terms, Piot, ^ This was the position taken in ex parte, 48 L. T. (N. S.) 120. Phipp's case, Ontario Q. B. 865 ; 8 2 Farez' case, 7 Blatch. 491 ; 2 Abb. Ontario App. 77 ; 4 Grim. Law Mag. U. S. 346 ; see Wadgo, in re, 16 Fed. 685. The court, however, heard the Kep. 332 ; 21 Blatch. 300. testimony of experts to prove that the 3 Widermanu's case, 12 Jurist N. offence was forgery in Pennsylvania, S. 536; Clark on Extrad. 87; WUart. the Zocus delicti, and decided accordingly. Confl. of L. § 972. In Terraz, ex parte, ' Farez, in re, Reggel, ex parte, 114 U. L. R. 4 Ex. D. 63 ; 14 Cox C. C. 161, S. 642; 2 Abbot U. S. 351; 7 Blatch. 388, the rule as to bankruptcy offences is citing 1 Burr's Trial, 11 ; see infra, § further discussed. 73. That after discharge for insuficient * Windsor's case, 34 L. J. M. C. evidence defendant may be rearrested 163 ; 13 W. R. 655 ; 10 Cox, 118 ; 6 B. without a second mandate, see Kelly, & S. 552 ; supra, § 47. in re, 26 Fed. Rep. 852 ; Whart. Dig. 40 CHAP. I.] EXTRADITION. [§ 57. § 56. The practice both of England and of the United States, is for the asylum State, through its proper tribunals, to hear evidence for the defence.' Where the local laws nmy bT^ allow it, he is entitled to be personally examined.* If on ^^^'^ *^^°™ the whole case, there is probable cause that the defen- dant was guilty of an offence under the provisions of a treaty, he should be surrendered.' Such appears to be the rule in England, under the Extradition Act of 1870.* § 57. The Circuit Court has power to review the Circuit decision of the commissioner on questions of law, but power of* not of fact :° and the court will not reverse the commis- review. Int. Law, § 277. See also same case rich's case, 5 Blatohf. C. C. 414 ; before Judge Woodruflf, 7 Blatch. 491 ; Nelson, J., and Shipman, J., over- wh.ere the requisite evidence is spoken ruled Veremaitre's case, 9 N. Y. Leg. of as prima facie ; and see infra, § 71 ; Obs. 137, where Judge Judsou held Herres, in re, 33 Fed. Rep. 165. that he had no power to revise the 1 Macdonnell, in re, 11 Blatch. 79 ; judgment of the commissioner on ques- hut see Wadge, in re, 15 Fed. Rep. tions of fact ; see Heilbronn's case, 12 864 ; aff. 16 Fed. Rep. 332 ; 21 Blatch. N. Y. Leg. Obs. 65 j and Van Aer- 300 ; -Where it was said that a continu- nam's case, 3 Blatch. C. C. 160, where ance would not be granted to enable the latter view was expressed by Judge the defendant to produce depositions ; Betts. Cf. Kelly, in re, 26 Fed. Rep. and also as denying the defendant's 852. right to a hearing, see Dugan, in re, 2 On the other hand, in Stupp's case. Low. 367. In Catlow, in re, 16 Op. 642 12 Blatch. 501, Judge Blatchford held (1879), it was held that evidence of the that there could be no reviewal on the defendant's insanity was admissible, effect of the evidence when legally See, also, Woodhall's case, 20 Q. B. D. admitted. This is affirmed in Van- 883. dervelpen's case, 14 Blatch. 137. In 2 Farez' case, 2 Abb. U. S. 346 ; 7 Wiegand's case, 14 Blatch. 370, Blatch. 345 ; see contra, Dugan, in re, Blatchford, J., said : " In a case of 2 Low. 367. r extradition before a commissioner, s Dugan, in re, 2 Low. 367. The when he has before him documentary accused is not entitled, under the evidence from abroad, properly au- treaty with England, to be confronted theuticated under the act of Con- with the adverse witnesses. Ibid. ; gross, and such is made evidence by Whart. Dig. Int. Law, § 278. such act, it is the judicial duty of the * 1 Phil. Int. Law, ed. 1871, App. commissioner to judge of the effect of ix. 39 ; Law Jour. 1870, N. S. Stat, such evidence, and neither the duty 786 ; see however, contra, Clarke on nor the power to review his action Extrad. 188 ; London Law Times, July thereon is imposed on any judicial 23, 1881, p. 206 ; Whart. Dig. Int. Law, officer. This province of the commis- § 277. sioner extended to a determination ° In Eaine's case, 3 Blatch. 1 ; Hen- as to whether the embezzlement , was 41 § 58.] PLEADINa AND PRACTICE. [CHAP. I. sioner's action upon trifling grounds or matters of form ; and only for substantial error in law, or for such manifest error in proce- dure as would warrant a court of appeals in reversing.^ And as was subsequently ruled, it is not enough to charge a conclusion at law, e. g., " forgery." The time and place, and nature of the crime, and it ssubject-matter, should be set out.* Nor will the court discharge absolutely on account, of an error of the commissioner in admission or rejection of evidence.' The practice is, in such case, simply to discharge from the first commitment, leaving the examina- tion to proceed anew.* The practice as to habeag corpus in other relations is hereafter discussed." 3. Final Surrender hy Executive.^ § 58. Yet, even after the final commitment by the commissioner, and the remanding, in case of a habeas corpus before the at Sscrfr.^ Circuit Court, of the prisoner to the custody of the mar- tion of ex- ghal, the final warrant of the executive must be obtained before the prisoner is surrendered to the custody of the demanding State. This warrant the executive may refuse to issue, on grounds of law as well as of policy.^ Such was the course taken by the President in 1873, in Vogt's case.* In England, the surrender, after remander on habeas corpus, may be made without such final executive warrant.' a continuing embezzlement." See court will not on habeas corpus review decisions reviewed by Judge Woodruff, his decision. in Maodonnell, in re, 11 Blatch. 79. * Supra, § 55. Farez' case, ut supra. In R. V. Maurer, L. R. 10 Q. B. D. 513, See as to Aaieas corpus, Wliart. Dig. it was held that the High Court would Int. Law, § 279 ; Kaine, ex parte, 14 not review, in conflicting questions of How. 103 ; 1 Robins. Pr. 430. fact, the ruling of the committing ^ Infra, § 993. magistrate. ^ See Whart. Dig. Int. Law, § 280. 1 Henrich, in re, 5 Blatch. C. C. ' Stupp, in re, 12 Blatch. 501 ; 14 425. Opiu. Atty.-Gen. 281. ' Farez' case, 7 Blatch. 35. s Supra, § 46 ; see more fully Whart. » Macdonnell,inre,ll Blatch.79. In Dig. Int. Law, § 280. Fowler, in re, 18 Blatch. 430, it was ^ A statement of the English practice held that when the commissioner had is given by the London Times of Feb. before him legal and competent evi- 17, 1873, and see Terraz' case, 14 Cox dence relevant to the issue, the circuit C. C. 161. 42 CHAP. I.] ABREST. [§61. VI. PRIVILBQE FROM ARREST. § 59. The privilege from arrest belonging to certain officers of our own government, in civil proceedings, does not ex- tend to criminal prosecutions.^ Foreign ministers and mtallters their families are, however, privileged from even crimi- privileged ' ; 1 a from arrest. nal arrest.* But this privilege does not extend to con- suls.^ VII. RIGHT TO TAKE MONEY PROM THE PERSON OF THE DEFENDANT. § 60. Those arresting a defendant are bound to take from his person any articles which may be of use as proof in the p^^ofg ^{^ trial of the offence with which the defendant is charged, crime may , _ be talcen These articles are properly to be deposited ' with the from per- committing magistrate, to be retained by him with the ^°"' other evidence in the case, until the time comes for their return to the prosecuting authorities of the State. Sometimes, however, they are by local usage given at, once to the prosecuting authorities. However this may be, they should be carefully preserved for the purpose of the trial ; and after its close returned to the person whose property they lawfully are. § 61. The right of the arresting officer to remove money from the defendant's person is limited to those cases in which the money is connected with the offence with which the money defendant is charged. Any wider license would not only "°^!^| '^°°" be a violation of his personal rights, but would impair his with of- means for preparing for his defence.* When money is taken in violation of this rule, the court will order its restoration to the defendant.' That where property is identified as stolen, or is in any way valuable as proof, it may be sequestrated, is neverthe- less plain.* 1 See U. S. V. Kirby, 7 Wall. 482 ; Penny v. Walker, 64 Mo. 430. 2 Comte de Garden, Traits oomplet de dlplomatie ; Holtzend. Encycl. 1. 798 ; Cabrera, ex parte, 1 Wash. C. C. 232 ; U. S. V. Benner, Bald. 234 ; D. S. V. Lafontaine, 4 Cranoh, 173. 3 U. S. V. Ravara, 3 Dall. 299, note. * R. V. McKay, 3 Cr. & Dix, 205 ; R. V. O'Donnell, 7 C. & P. 138 ; R. o. Kin- sey, 7 C. & P. 447 ; R. v. Jones, 6 C. & P. 343 ; R. V. Burgiss, 7 C. & P. 488 ; R. V. Frost, 9 C. & P. 129. 5 R. V. Bass, 2 C. & K. 822 ; R. v. Coxon, 7 C. & P. 651. ^ See Houghton v. Bachman, 47 Barb. 388. 43 §62.] PLEADIN& AND PRACTICE. [chap. I. VIII. RIGHT OF BAIL TO ARREST PRINCIPAL. § 62. The bail has the right, at his own discretion, to arrest his principal, and to deliver him to the custody of the mag- istrate before whom the bail was entered, or to the court to whom the case is returned.' It is sometimes the practice for the bail, when he desires to so arrest, to apply to the magistrate, or to any other justice, for a warrant ; but the right to arrest exists without such a warrant. The principal is supposed to be in the bail's constant custody, and the former being the latter's jailer, may at any time surrender him to the custody of the law.' Bail may arrest and surrender principal. > Harp V. Osgood, 2 Hill N. Y. 216 ; State V. Lazarre, 12 La. An. 166 ; State V. he Cerf, 1 Bailey, 410 ; Com..ti. Bron- son, 14 B. Monr. 361. See Milburn, ex parte, 9 Pet. 704. The practice is the same in the Roman law. L. 4. D. de cnstodia reor, Feuerbaoh's Pein. Reoht, § 533. " When bail is given the principal is regarded as delivered to the custody of his sureties. Their dominion is a, continuance of the original imprison- ment. Whenever they choose to do so, they may seize him and deliver him up in their discharge ; and if that cannot be done at once, they may im- prison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State ; may arrest him on the Sabbath ; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. 3 Black- stone's Commentaries, 290 ; NicoUs v. IngersoU, 7 Johnson, 152 ; Ruggles «. Corry, 3 Conn. 84, 421 ; Respublica v. Gaoler, 2 Yeates, 263; 8 Pick. 140; Boardman v. Fowler, 1 Johns. Cas. 443; Com. v. Riddle, 1 Serg. & R. 311 ; Wheeler v. Wheeler, 7 Mass. 169. In 6 Modern (page 231, case 339, 44 Anon.) it is said t ' The bail have their principal on a string, and may pull the string whenever they please, and ren- der him in their discharge.' The rights of the bail in civil and criminal cases are the same. Harp v. Osgood, 2 Hill, 218. They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so ; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee. Devine u. State, 5 Sneed, 625 ; U. S. u. Van Fossen, 1 Dillon, 410 ; Resp. v. Gaoler, 2 Yeates, 265, cited supra. " In the case of Devine v. State, 5 Sneed, 625, the court, speaking of the principal, say, ' The sureties had the control of his person ; they were bound at their peril to keep him within their jurisdiction, and to have his person ready to surrender when de- manded In the case before us, the failure of the sureties to surrender their principal was, in the view of the law, the result of their own negligence or connivance, in suffering their prin- cipal to go beyond the jurisdiction of the court and from under their con- trol.' The other authorities cited are to the same effect." Swayne, J., Tailor v. Taintor, 16 Wall. 366. 8 State V. Mahon, 3 Harring. 568. CHAP. I.] AKKEST. [§ 62. That a bail can arrest his principal in a foreign State, to which the principal has fled, has been sometimes asserted ; but there is no ground for this opinion, as the bail only represents the court from which his authority emanates, and where the court has no power to arrest the bail has no power to arrest. The proper course in such case is to apply for a warrant for extradition. But, as has been seen, the fact of the irregularity of an arrest does not entitle the prisoner, when brought to a court having jurisdiction of the crime, to a release.* A party on bail on a State charge cannot be taken out of the custody of the bail by federal process for an ofi'ence against federal law.^ ' See supra, § 27. * James's case, 5 Crim. Law Mag. 216. 45 §70.] PLEADING AND PRACTICE. [chap. II. CHAPTER II. HEARING BEFORE MAGISTRATE. I. Commitment fob ptibtheb Heae- ING. Waiver. Hearing may be ad- journed from time to time, § 70. II. Evidence bequisite. Practice not usually to hear wit- nesses for defence, § 71. Exception in cases of identity, or of one-sidednesB in prosecution's case, § 73. Probable cause only need be shown , §73. III. Final Commitment and Binding OVEE. At common law bail to be taken in all but capital cases, § 74. Excessive bail not to be required, § 75. Proper course is to require such bail as will secure attendance, §76. After continuance bail may be granted, § 77. And so in cases of sickness, § 78. Bail to keep the peace may be re- quired, § 79. IV. Vagbants, Disoederlt Pebsons, and Pbofessional Cbiminals. Magistrates have power to hold vagrants, etc., to bail, § 80. V. Bail, aftbb Habeas Cobpus. On habeas corpus court may adjust bail, § 81. VI. Bail aftek Vebdict oe Quashing. In exceptional cases bail permis- sible after verdict, § 83. After quashing, bail may be re- quired, § 83. I. COMMITMENT FOR FURTHER HEARING. § 70. The delinquent having been arrested, the next step is to have the case heard before a magistrate or justice of the peace,' unless the hearing should be waived f and this hearing should be prompt.' It is not essential that the hearing should take place at once. The arresting officer may, if requisite, put the person arrested in the county prison or other place of temporary confinement, until a hearing can Waiver. Hearing maybe adjourned from time to time. 1 The statute in this respect must be strictly followed. Papineau v. Bacon, 110 Mass. 319. As to Virginia, in cases of felony, see Jackson v. Com., 23Grat. 919; and infra, § 339. The " Pre- liminary Investigation of Crime" is the subject of an article in the London Law Magazine for February, 1882. 2 As to effect of waiving defects of process, or hearing, see State v. Cobb, 46 71 Me. 198 ; Stuart v. People, 42 Mich. 265 ; Butler v. Com., 81 Va. 159 ; State V. Longton, 35 Kan. 375 ; People v. Vil- larino, 66 Cal. 228 ; McCoy v. State, 46 Ark. 141 ; State v. Mays, 24 S. C. 190 ; Gandy v. State, 81 Ala. 68. 3 By § 118 of N. J. Penal Code of 1882, delay in this respect is made a misdemeanor. CHAP. II.] HEARING BEFORE MAGISTRATE. [§ 72. be secured. But thia should be with all possible dispatch ; should there be any undue delay, a justice of the Supreme or of any Superior Court having jurisdiction for the purpose may, by a writ of habeas corpus, exact an immediate examination before himself. And the issue of such a writ, on due cause shown, is obligatory.' It has been also held that if the commitment be for an indefinite or unreasonable time, the warrant is virtually void, and an action for trespass lies for the imprisonment.^ If requisite, the hearing, on due cause shown, may be adjourned from day to day.' But, in any view, the hearing should be prompt and continuous, and without the consent of the accused, delay should only be granted for strong reasons.* II. EVIDENCE REQUISITE. § 71. Must the magistrate hear the case of the defence as well as for the prosecution, so far as it may he tendered ? The p^ ^^j^g English practice, as stated by Blackstone, was for the not usually justice, " by statute 2 & 3 Ph. & M. c. 10, to take in nesses for ' writing the examination of such prisoner, and the infer- ^^ ^°'^^" mation of those who bring him." This statute was repealed by 7 Geo. 4, which provides that the justices at the preliminary hearing " shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or so much thereof as shall be material, in writing," etc. In several of the United States, among which Pennsylvania may be mentioned, the statute 2 & 3 Ph. & M, has not been viewed as in force ; nor has the practice of taking the prisoner's examination been generally adopted." § 72. Yet it must be conceded that there are cases in which, to avoid circuity and oppression, a magistrate should hear Exception evidence for the defence. Suppose, for instance, the 1° cases of identity, prosecution calls only a part of the witnesses to the res or of one- gestae, and the defendant oflFers to call the other wit- jn prose- cution's case. nesses, could the magistrate rightfully refuse to require ' See State v. Kruise, 3 Vroom, N. J. » Hamilton v. People, 29 Mich. 173. 313. < Peoples, in re, 47 Mich. 626. 2 Davis V. Capper, 10 B. & Cr. 28 ; 6 ab to New York, see 2 R. S. 709, §§ Cave V. Mountain, 1 Man. & Gr. 257 ; 22-24 ; Wendell's Black, iv. 296. S. C, 1 A. & E. N. S. 18. See Reese v. U. S., 9 Wall. 13. 47 § 73.] PLEADING AND PRACTICE. [CHAP. II. the other witnesses of this class to be called?* Or suppose the defendant, in a liquor prosecution, tenders a license, would it not be an absurdity as well as an oppression to refuse to receive it ? Such a distinction, indeed, has not been unrecognized by the courts ;' nor is it inconsistent with the principles above stated that it should be definitely accepted. If so, the magistrate may call for such evidence as may enable him to come to a right conclusion, or may receive such evidence when offered, applying to the whole case the test of probable cause. ^ And the same distinction is applicable to questions of identity.* It is within the province of the magistrate, also, when sitting as a justice of the peace, to hear any evidence tending to throw light on the corpus delicti.^ § 73. As has already been stated,* the better opinion is that on a preliminary hearing the magistrate is to hold the de- cauee only fondant for trial in case there is made out a probable case need be of guilt ; nor is it necessary, at common law, that the binding over shall be for the specific charge for which the warrant issued, if, on the hearing, the offence takes another shape.' By Blackstone it is stated,' that if " it manifestly appears dtJier that no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it law- ful totally to discharge him. Otherwise he must either be commit- ted to prison or give bail, that is, put in securities to answer the charge against him." By Chief Justice Marshall, on a great his- torical occasion, in which his judicial sympathies were certainly not enlisted for the prosecution, the doctrine that probable cause is suffi- ' See Infra, § 565 ; U. S. v. White, 2 and examined on his part. The mag- Wash. C. C. 29. istrate, however, is required to hold ' See R. V. Tivnan, 5 Best & Smith, the defendant for trial, if upon exami- 645 ; Whart. Confl. of L. § 967. Su- nation of the whole matter it appears to pra, §§ 45 et seq. the magistrate that an offence has been 3 See remarks of Lord Denman, C. committed, and that there is probable J., 2 C. & K. 845. cause to believe the prisoner to be * See, as to the uncertainty of evi- guilty thereof, dence on this point, Whart. Crim. Ev. s ggg supra, § 54. §§ 20, 27, 806. ' See Redmond v. State, 12 Kans. 6 See infra, § 565. 172. Contra, under Michigan statute, In New York, as we have just seen, Yaner v. People, 34 Mich. 286. this rule is so far modified as to enable ^ yoi. jy. p. 296, Wendell's ed. the defendant to have witnesses sworn 48 CHAP. II.] HEARING BEPOflB MAGISTRATE. [§ 73. cient was declared with still greater precision.' Nor can it be de- nied that the view that the case is to be fully heard by the magis- trate, and that he is then to decide on its entire merits, would be prejudicial to those personal rights which this view is sometimes supposed to favor. For if we accept this, the defendant, instead of being subject to one trial, would be subject to two. The rule ne bis idem — no man to be tried twice for the same offence — would be overridden. The defendant would go to the jury oppressed by the presumption that upon his whole case he ha,d already been con- demned. Nor is this all. It is proper, in view of the immense power a government is capable of exercising in the influencing and intimidating of witnesses, as well as of the importance on other grounds to the defendant of keeping his case in reserve until the period of its final disclosure, that he should not be compelled to ex- hibit it at a preliminary hearing, subject to the mercies of whatever magistrate the prosecution might select. And then, again, it would lead to many complications to adopt at preliminary hearings before magistrates a rule as to the volume of proof different from that which obtains on habeas corpus and before grand juries. But both on habeas corpus and on hearings before grand juries, it is on all sides agreed, probable cause is the test.^ And the rule has to the defendant this double advantage. It enables him, first, to inspect and prepare for the case of the prosecution without disclosing his own. It enables him, secondly, when the case comes on to be tried by a jury, to say, " I come before you as an innocent man, against whom no judicial condemnation is on file." For, on this hypothe- sis, the holding of a defendant to trial by a magistrate is not a de- cision that he is guilty, but only that on the prosecution's testimony there is probable cause that he should be tried.^ 1 Burr's Trial, 11, 15 ; and to same peti, ex parte, Ibid. 419 ; State v. Roth, point U. S. V. Walker, 1 Crumr. 17 Iowa, 336 ; Yaner v. People, 34 (Pitts.) 437. See infra, §§,361-2. Mich. 286. That the magistrate's pro- 2 See infra, §§ 360-1. ceedings are presumed to be regular, 3 See Cox v. Coleridge, 1 B. & C. 37 ; see infra, § 779 a; Boynton v. State, 77 State V. Hartwell, 35 Me. 129 ; U. S. v. Ala. 30. Bloomgart, 2 Benedict, 356 ; Van Cam- 4 49 § 75.] PLEADING AND PRACTICE. [CHAP. IT. III. FINAL COMMITTAL AND BINDING OVER. § T4. The common law rale is stated by Blackstone to be, that " wherever bail will answer the same intention" (that of mon law Safe custodj), " it ought to be taken,, as in most of the taken°iu^ inferior crimes ; but in felonies, and other offences of a all but cap- capital nature, no bail can be a security equivalent to the ital cases. i . , actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life ? And what satisfaction or indemnity is it to the public to seize the effects of those who have bailed a murderer, if the murderer himself be suf- fered to escape with impunity ?"' Pushing this rule to its practical consequences, it has been the practice of American courts to take bail in all cases not capital, where the trial is to be in the jurisdic- tion in which the bail is given. And indeed the enactment of ex- tradition treaties should lead, in all cases of doubt, to a still further liberalization of the rule. For no longer exist those strong tempta- tions to break bail and fly which existed when Blackstone wrote. A fugitive from justice, if his bail bonds are forfeited, is pursued to his place of refuge, not merely by government, which may be languid, but also by his sureties, who may be incensed and deter- mined. At all events, through the ubiquitousness of extradition police, the probabilities of eventual escape are much diminished. § 75. By the eighth amendment to the Constitution of the United States, " excessive bail shall not be required ;" and by bau not the Act of September 24, 1789, " upon all arrests in quired.^ Criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the Supreme or a Circuit Court, or by a justice of the Supreme Court or a judge of the District Court, who shall exercise their discretion therein, regarding the nature and" circum- stances of the offence, and of the evidence, and the usages of law." Similar provisions exist in most of the several States.^ • Blackstone, ut supra. be refused. See U. S. v. Stewart, 2 2 See State v. James, 37 Conn. 355. Dall. 343 ; State v. McNab, 20 N. H. The general ttfst is, is the offence 160 ; Dunlap v. Bartlett, 10 Gray, 282 ; with which the defendant is charged Tayloe, ex parte, 5 Cow. 39 ; People v. punishable with death ? If so, and if Oixson, 4 Parker C. R. 651 ; People v. the proof of guilt is strong, bail will Godwin, 5 City Hall Eec. (N. Y.) 11; 60 CHAP. 11.] HEARIN9 BEFORE MAGISTRATE. [§76. § 76. It has been sometimes argued that bail should be arbi- trarily graded to meet the heinousness of the offence, p j. But this is a dangerous principle, as it tends to show course is to that on the rich, who can find bail and afford to forfeit suchbaUas it, there is no necessary corporal punishment imposed. attenV"'^ Far wiser is it to adopt the principle, that, in determin- ^^'^''• jng and adjusting bail, the test to be adopted by the court is the probability of the accused appearing to take his trial.' This pro- bability is to be tested in part by the strength of the evidence against the defendant ; in part by the nature of the crime charged, and by the severity of the punishment which may be imposed ; and in part by the character and means of the defendant. What to one is oppressive bail, to another is light ; and of this the court is to judge.'' As a general rule, the action of the court in this respect, unless great oppression is shown, is not revisable in error.' Even People V. Perry, 8 Abb. (N. Y.) Pr. N. S. 27 ; State v. Eockafellow, 1 Halst. 332; Lynch v. People, 38 111. 494; HefFren, ex parte, 27 Ind. 87 ; Beall v. State, 39 Miss. 715 ; Thompson v. State, 25 Tex. (Supp.) 395 ; Zembrod v. State, 25 Tex. 519 ; Mosby, ex parte, 31 Tex. 566; Bird, ex parte, 24 Ai'k. 275 ; Car- roll, ex parte, 36 Ala. 300 ; Bryant, ex parte, 34 Ala. 270 ; R. v. Soaife, 9 D. P. C. 553 ; E. v. Williams, 8 D. P. C. 301. In most States the limits as to bail are fixed by Constitution or statute. Bail was refused in England after a commitment under a coroner's ver- dict of wilful murder in a duel, al- though there were strong affidavits to the effect that the " duel was fair," as the question of the capital crime was to be settled, on the ultimate proofs given, by the court and jury alone. Barronet, in re, 1 El. & Bl. 1 ; Dears. C. C. 51 ; Barthelemy, in re, Dears. C. C. 60 ; 1 El. & Bl. 1. If after protracted trials a jury is unable to agree, the court, at its dis- cretion, may permit the defendant to be discharged on bail. People v. Perry, ut supra, where there had been two abor- tive trials. And bail will be taken even in capital cases where there is a well-founded doubt of guilt. Bride- well, ex parte, 56 Miss. 39 ; People u, Perry, ut supra. 1 See Tayloe, ex parte, 5 Cow. 39 People V. Dixon, 4 Parker C. R. 651 People K. Lohman, 2 Barb. 450 ; Com V. Keeper of Prison, 2 Ash. 227 ; Com V. Lemley, 2 Pitts. 362 ; Bryant, ex parte, 34 Ala. 270 ; Perry, in re, 19 Wis. 676. 2 R. V. Badger, 4 Q. B. 468. See 1:emarks of Coleridge, J., in Robinson, in re, 23 L. J. Q,. B. 286 ; People v. Dixon, 4 Park. C. R. 651 ; People, o. Van Home, 8 Barb. 158 ; People v. Smith, 1 Cal. 9. See article in London Law Times, Nov. 3, 1883, p. 5. ' People V. Perry, 8 Abb. (N. Y.) Pr. N. S. 27 ; Lester v. State, 33 Ga. 192. See infra, § 777. Otherwise, where there is a constitutional right. Wray, ex parte, 30 Miss. 673. See as to discretion of justice, Burke, ex parte, 58 Miss. 50. 51 § 80.] PLEADING AND PRACTICE. [OHAP. II. ■where there can be no question as to facts, there may be capital cases in which the government may consent to discharge on bail. A striking illustration of this is the admission to bail of Jefferson Davis, -when under indictment for treason, with the consent of the President of the United States.* § 77. Continuances on the part of the prosecution, especially after two sessions, will lead the court, even in capital Mnuance"" cases, to admit to bail.' But a single continuance, ne- baii may cessitated bv absence of witnesses, does not have this be granted. „ ^ , •' eflFect.* § 78. Banger to life from sickness caused by imprisonment has been held sufficient cause to justify the defendant's cases of release on bail, under proper and peculiar sanctions.* 81C nesB. -g^j. g^^j^ danger must be serious.* § 79. After conviction, and indeed in extraordinary cases of „ ., threatened crime, after acquittal, the court may hold the keep the defendant, in addition to other penalties prescribed by be re- law, over to keep the peace, and commit him on default quired. ^^ bail.* When an indictment is quashed on, technical grounds, the court, a fortiori, will direct that the defendant be held on the original charge." IV. VAGRANTS, DISOBDERLT PERSONS, AND PROFESSIONAL CRIMINALS. § 80. By statutes which may now be viewed as part of Anglo- Magis- American common law, justices of the peace have power trates have ^.^ jj^}^ ^q )^^^ f^j. ^j^gj,. „qq^ behavior, or in default to power to o ' 1 See Chase Dec. 124. As to bail Harvey's case, 10 Mod. 334 ; U. S. v. after conviction, and before sentence, Jones, 3 Wash. C. C. 224. see infra, § 82j ^ U. S. v. Kie, 1 West. Coast R. 653 ; 2 Fitzpatrick's case, 1 Salk. 103 ; Pattison, ex parte, 56 Miss. 161 ; Crosby's case, 12 Mod. 66 ; People v. Thomas v. State, 4 Tex. 6 ; see People Perry, ut supra. See State v. Hill, 3 v. Coles, 6 Park. C. R. 695, 701 ; 20 Brev. 89. Cent. L. J. 103. 3 U. S. V. Jones, 3 Wash. C. C. 224 ; « Infra, §§ 82, 941 ; Dunn v. R., 12 R. V. Andrews, 2 D. & L. 10 ; 1 New Q. B. 1031 ; O'Connell ». R., 11 CI. & Cas. 199. F. 155 ; State v. Coughlin, 19 Eans. ■* R. V. Wyndham, 1 Strange, 2 ; R. 637 ; State v. Chandler, 31 Kans. 201. V. Aylesbury, Holt, 84; 1 Salk. 103; ' Nichols v. State, 2 South. 539; 52 Young V. Com., 1 Robt. Va. 744. CHAP, II.] HEARING BEFORE MAGISTRATE. [§ 81. commit, for definite periods, vagrants and disorderly per hold va- sons.* Similar statutes have been adopted in the United etc., to States, and have frequently been held constitutional, though with the caution that the defendant should be duly sum- moned, and should have a fair hearing,^ and that the statutes should be strictly construed.* In several States analogous power has been given in respect to professional thieves and other habitual crimi- nals ; and these statutes have been held constitutional. Sureties to keep the peace can also be required at common law from a per- son against whom oath is made that by him another person is put in fear or danger of life. In all these cases the sureties or commit- ment must be for a limited time.* V. BAIL AFTER HABEAS CORPUS. § 81. The writ of habeas corpus may be appealed to for the pur- pose, not only of determining the liability of the defend- ant to prosecution at all, but of settling the question of 2)rmf'*"' bail, supposing there be probable cause against him." court may The court, on fixing the amount of bail, is guided by the considerations we have just noticed as governing the practice before magistrates.* The question as to ^he courts which may thus deter- 1 Whart. Crim. Law, 9th ed. § 442 ; 78 ; see Way, in re, 41 Mich. 299 ; Paley on Convictions, chap. 1 ; Com. infra, § 942 ; unless authorized by V. Carter, 108 Mass. 17 ; Brown u. statute, State v. Newton, 59 Ind. 173. State, 2 Lea, 158; Com. Dig. Just.; As to what are vagrants see Pointon u. Burn*s Just. Vagrant. R. o. Jus- Hill, L. R. 12 a. B. D. 306. tices, 10 L. R. Jr. 294. "Idle 2 People v. Phillips, 1 Park. C. R. and disorderly persons, vagrants, 95 ; People v. Gray, 4 Park. C. R. 616 ; are terms often occurring in the old People v. Forbes, 4 Park. C. R. 611 ; statutes. They have been from time State v. Maxcy, 1 McMuU. 501 ; Rob- immemorial, in England, subject to erts v. State, 14 Mo. 138. the summary jurisdiction of justices of " R. v. Waite, 4 Burr. 780 ; 2 Ld. the peace." Earle, J., in State u. Ken. 511, and other cases cited in Fish- Maxoy, 1 McMullen, 503. The history er's Crim. Dig. tit. "Practice." See of the law is well given in Gneist, infra, § 942. Englische Communalverfassung (3d * Prickett v. Gratrex, 8 Q. B. 1021 ; ed. 1871), p. 225, and the power traced see Com. v. Doherty, 137 Mass. 245. to 34 Ed. 3, c. 1. See, also, Black- ^ infra, § 1007. stone, iv. c. 18. " Mohun's case, 1 Saik. 104; R. v. Arrests are not allowable unless Barronet, Dears. 51 ; 1 E. & B. 2 ; when the vagrancy was in the ofSoer's Com. u. Keeper of Prison, 2 Ashm. 227 ; presence ; Shanley v. Wells, 71 111. Com. v. Lemley, 2 Pitts. 362 ; Com. v. 53 §83.] PLEADINQ AND PRACTICE. [chap. II. mine bail is a matter of local practice. In England no court that has not jurisdiction to try can thus interpose.* In Pennsylvania such is substantially the law as to the adjudication of the merits, though the Supreme Court will, on such a writ, see if the record is right.* In New York the judges of the Supreme Court assert the jurisdiction generally.' But as a rule no court which has not juris- diction of the oflFence can take cognizance of it in this way.* At the same time, a court having supreme criminal jurisdiction over a particular State or territory, has, in matters within such jurisdic- tion, power to release on bail, the amount of which it is entitled to fix." VX. BAIL AFTER VERBICT OR AFTER QUASHING. § 82. In cases involving no high degree of turpitude, and in cases in which the court has serious doubts as to the tk)naf case question of the rightfulness of the verdijct, or of the suf- ''"' "tted*^ ficiency of the proceeding in point of law, bail may be after ver- taken after verdict of conviction,* or even after sentence, while the case is under review in a superior court.^ When an indictment has been quashed, or when judgment has been entered for the defendant, the court, when its action has been based on merely technical defects, may refusTd^ *'® hold the defendant to answer further proceedings.* diet. §83. After quaBhing Rutherford, 5 Rand. 646; Com. v. Semmes, 11 Leigh, 665 ; State i^. Hill, 3 Brev. 89 ; State v. Everett, Dudley S. C. 296 ; Lnmm v. State, 3 Ind. 293 ; Henson, in re, 24 Tex. Ap. 308. As to the practice of looking into the coroner's or magistrate's depositions see R. V. Pepper, Comb. 298 ; R. v. Horner, 1 Leach, 270 ; People v. Beig- ler, 3 Park. C. R. 316. In this coun- try the practice is for the court to hear the witnesses afresh. Com. v. Keeper of Prison, 2 Ashm. 227. See People v. Dixon, 4 Park. C. R. 651. For a learned article on this topic by Judge S. D. Thompson, see 14 Cent. L. J. 264. 1 R. V. Piatt, 1 Leach C. L. 187 ; R. V. Mackintosh, 1 Stra. 308. 2 Walton, ex parte, 2 Whart. 501 ; 54 see, also, Belgard v. Morse, 2 Grray, 406. 3 People V. Jeffords, 5 Park. C. R. 518. ' People V. Harris, 21 How. Pr. 83 ; Com. V. Taylor, 11 Phila. 386 ; Irwin, ex parte, 7 Tex. Ap. 288. ' See oases cited infra, § 1007. 6 Archb. C. P. 187 ; R. v. Barronet, Dears. 51 ; 1 E. & B. 2 ; Com. v. Field, 11 Allen, 788 ; McNiel's case, 1 Caines, 72; Res. v. Jacob, 1 Smith's Laws (Penn.), 57 ; Com. v. Lowry, 14 Leg. Int. 332 ; State v. Levy, 24 Minn. 362 ; Dyson, ex parte, 25 Miss. 356 ; though see R. V. Waddington, 1 East, 143. Supra, § 79. ' Supra, § 79 ; Anon. 3 Salk. 68 ; though see R. v. Bird, 5 Cox C. C. 11 ; Corbett u. State, 24 Ga. 391. 8 Infra, § 392. CHAP. III.] FORM OF INDICTMENT. CHAPTER III. FORM OF INDICTMENT!. I. Indictment as distinguished FBOM InFOSMATION. Under federal Constitution trials of all capital or infa- mous crimes must be by In- dictment, § 85. Presentment is an informa- tion by grand jury on which indictment may be based, § 86. . Information is ex officio pro- ceeding by attorney-general, §87. Is not usually permitted as to infamous crimes, § 88. "Infamous crimes" are such as involve disgrace or ex- pose to penitentiary, § 89. II. Statutes of Jeofails and Amendment. By statutes formal mistakes may be amended and formal averments made unneces- sary, § 90. III. Caption and Commencement. Caption is no part of indict- ment, being explanatory prefix, § 91. Substantial accuracy only re- quired, § 93. Caption maybe amended, § 93. Commencement must aver of- fice and place of grand ju- rors and also their oath, § 94. Each count must contain aver- ment of oath, § 95. IV. Name and Addition. 1. As to Defendant. Name of defendant should be specifically given, § 9fi. Omission of surname is fatal, §97. Mistake as to either surname or Christian name may be met by abatement, § 98. Surname may be laid as alias, §99. Inhabitants of parish and cor- porations may be indicted in corporate name, § 100. Middle names to be given when essential, § 101. Initials requisite when vmei by party, § 103. Party cannot dispute a name accepted by him, § 103. Unknown party may be ap- proximately described, § 104. At common law, addition is necessary, § 105. Wrong addition to be met by plea in abatement, § 106. Defendant's residence must be given, § 107., "Junior" must be alleged when party Is known as such, § 108. 3. M to Parties injured and Third Parties. Name, only, of third person need be given, § 109. Corporate title must be special, §110. Third person may be described as unknown, § 111. But this allegation may be tra- versed, § 113. The test is whether the name was unknown to grand jury, §113. Immaterial misnomer may be rejected as surplusage, § 114. Sufficient if description be sub- stantially correct, § 115. 55 PLEADING AND PRACTICE. [chap. III. Variance in third party's name is fatal, § 116. Name maybe given by initials, §117. Repntative name is sufficient, §118. Idem sonans is sufficient, § 119. V. Time. Time must be averred, but not generally material, § 130. When " Sunday" is essence of offence, day must be speci- fied, § 131. Videlicet may introduce a date tentatively, § 132. Blank as to date is fatal, § 133. Substantial accuracy is enough, § 124. Double or obscure dates are inadequate, § 135. Date cannot be laid between $ two distinct periods, § 126. Negligence should have time averred, § 127. Time may be designated by historical epochs, § 138. Recitals of time need not be accurate, § 129. Hour not necessary unless re- quired by statute, § 130. Repetition may be by "then and there," § 131. Other terms are insufficient, §132. "Then and there" cannot cure ambiguities, § 133. Repugnant, future, or impos- sible dates are bad, § 134. Record dates, must be accu- rate, § 135. And 60 of dates of documents, §136. Time should be within limita- tion, § 137. In homicide death should be within a year and a day, §138. VI. Place. Enough to lay venue within jurisdiction, § 139. When act is by agent, prin- 56 cipal to be charged as of place of act, § 140. When county is divided, juris- ' diction is to be laid in court of locus delicti, § 141. When county Includes several jurisdictions, jurisdiction must be specified, § 142. Name of State not necessary to indictment, § 143. Sub-description in transitory offences immaterial, § 144. But not in matters of local de- scription, § 145. "County aforesaid" is enough " then and there," § 146. Title, when changed by legis- lature, must be followed, § 147. Venue must follow fine, § 148. In larceny venue may be laid in place where goods are taken, § 149. Omission of venue is fatal, §150. VII. Statement of Offence. Offence must be set forth with reasonable certainty, § 151 . Omission of essential incidents is fatal, § 152. Terms must be technically ex- act, § 153. Not enough to charge conclu- sion of law, § 154. Excepting in cases of " com- mon barrators," '' common scolds," and certain nui- sances, § 155. Matters unknown maybe prox- imately described, § 156. Bill of particulars may be re- quired, § 157. Surplusage need not be stated, and if stated may be disre- garded, § 158. Videlicet is the pointing out of an averment as a probable specification, § 158 a. Assault maybe sustained with- out specification of object, §159. CHAP. III.] FORM OF INDICTMENT. Act of one confederate may be averred as act of the other, § 159 a. Descriptive averment must be proved, § 160. Alternative statements are In- admissible, § 161. Disjunctive offences in statute may be conjunctively stated, §162. Otherwise as to distinct and substantive offences, § 163. Intent when necessary must be averred, § 163 o. And so of guilty knowledge, §164. Inducement and aggravation need not be detailed, § 165. Particularity is required for identlflcatlon and protection , §166. Vin. WeITTEN iBTSTBtTMENTS. 1. Where, as in Forgery and 14- iel, Instrument must be set forth at full. When words of document are material, they should be set forth, § 167. In such cases the indictment should purport to set forth the words, § 168. "Purport" means effect; " tenor" means contents, §169. " Manner and form," " pur- port and effect," " sub- stance," do not import ver- bal accuracy, § 170. Attaching original paper is not adequate, § 171. When exact copy is required, mere variance of a letter is immateiial, § 173. Unnecessary document need not be set forth, § 174. Quotation marks are not su£S- clent, § 175. Document lost or In defend- ant's hands need not be set forth, § 176. And so of obscene libel, § 177. Prosecutor's negligence does not alter the case,,§ 178. Production of document al- leged to be destroyed is a fatal variance, § 179. Extraneous parts of document need not be set forth, § 180. Foreign or insensible docu- ment must be explained by averments, § 181. Innuendoes can explain but cannot enlarge, § 181 a. 2. Where, as in Larceny, general Designation is sufficient. Statutory designations must be followed, § 182. Though general designation he sufficient, yet if indictment purport to give words, vari- ance is fatal, § 183. 3, WJiat general Designation will suffice. If designation is erroneous, variance is fatal, § 184. " Receipt" Includes all signed admissions of payment, §185. "Acquittance" includes dis- charge from duty, § 186. "Bill of exchange" is to be used in its technical sense, §187. " Promissory note" is used in a large sense, § 188. " Bank notes" include notes issued by bank, § 189. " Treasury notes and federal currency," § 189 a. " Money" is convertible with currency, § 190. " Goods and chattels" include personalty exclusive of choses in action, § 191. " Warrant" is an instrument calling for payment or de- livery, § 192. " Order" Implies mandatory power, § 193. " Request" includes mere in- vitation, § 194. Terms may be used cumula- tively, § 195. Defects may be explained by averments, § 196. A " deed" must be a writing 57 PLEADING AND PRACTICE. CHAP. III. under seal passing a right, §197. "Obligation" la a unilateral engagement, § 198. And so is "undertaking," §199. A guarantee and an " I. O. U" are undertakings, § 200. " Property" is whatever may he appropriated, § 201. " Piece of paper" is subject of larceny, § 202. "Challenge to fight" need not be specially set forth, § 202 a. IX. WOKDS SPOKEN. Words spoken must be set forth exactly, though sub- stantial proof is enough, §203. In treason it is enough to set forth substance, § 204. X. Personal Chattels. 1. Indefinite, Insensible, or Lumping Descriptions. Personal chattels, when sub- jects of an offence, must be specifically described, § 206. When notes are stolen in a bunch, denominations may he proximately given, § 207. Certainty must be such as to individuate ofi'ence, § 208. "Dead" animals must be averred to be such ; " living" must be specifically de- scribed, § 209. When only specified members of a class are subjects of ofi'ence, then specifications must be given, § 210. Minerals and vegetables must be averred to be severed from realty, § 211. Variance in number or value is immaterial, § 212. Instrument of injury may be approximately stated § 212 a. a. Value. Value must be assigned when larceny is charged, § 213. Larceny of "piece of paper" may be prosecuted, § 214. 58 Value essential to restitution, and also to mark grades, § 215. Legal currency need not be valued, § 216. When there is lumping valua- tion, conviction cannot be had for stealing fraction, §217, 8. Money and Coin. Money must be specifically de- scribed, § 218. When money is given to change and change is kept, indict- ment cannot aver stealing change, § 219. XI. Offences created bt Statute. Usually sufficient and neces- sary to use words of statute, § 220. Otherwise when statute gives conclusion of law, § 221. And so if indictment professes but fails to set forth statute, § 222. Special limitations are to be given, § 223. Private statute must be pleaded in full, § 224. Offence must he averred to be within statute, § 225. Section or title need not be stated, § 226. Where statute requires two de- fendants, one is not suffi- cient, § 227. When statute states object in plural it may be pleaded in singular, § 227 a. Disjunctions in statute to be averred conjunctively, § 228. At common law defects in statutory averment not cured by verdict, § 229. Statutes creating an offence are to be closely followed, § 280. When common law offence is made penal by title, details must be given, § 231. When statute is cumulative, common law may be still pursued, § 232. CHAP. III.] FORM OP INDICTMENT. When Btfttute assigns no penalty, punishment is at common law, § 383. Exhaustive statute absorbs common law, § 234. Statutory technical averments to be introduced, § 235. But equivalent terms may be given, § 236. Where a statute describes a class of animals by a general term, it is enough to use this term for the whole class ; otherwise not, § 237. Provisos and exceptions not part of definition need not be negatived, § 238i Otherwise when proviso is in same clause, § 239. Exception in enacting clause to be negatived, § 240. Question in such case is whether the statute creates a general or a limited offence, §241. XII. Duplicity. Joinder in one count of two offences is bad, § 243. Exception when larceny is in- cluded in burglary or em- bezzlement, § 244. And so where fornication is included in major offence, §245. When major offence includes minor, conviction may be for either, § 246. "Assault" is included un- der "assault with intent," § 247. On indictment for major there can be conviction of minor, §348. Misdemeanor may be inclosed in felony, § 249. But minor offence must be accurately stated, § 350. Not duplicity to couple alter- nate statutory phases, § 251. Several articles may be joined in larceny, § 253. And BO of cumulative overt acts, intents and agencies, § 253. And so of double batteries, li- bels, or sales, § 254. Duplicity is usually cured by verdict, § 25S. XIII. Repugnancy. Where material averments are repugnant, indictment is bad, § 256. XIV. Technical Avebments. In treason, " traitorously" must be used, § 257. " Malice aforethought" essen- tial to murder, § 258. " Struck" essential to wound, §359. "Feloniously" essential to felony, § 360. " Feloniously" can be rejected as surplusage, § 361. In such cases conviction may be had for attempt, § 263. " Ravish" and " forcibly" are essential to rape, § 363. " Falsely" essential to per- jury, § 264. " Burglariously" to burglary, §265. " Take and carry away " to larceny, § 266. " Violently and against the will" to robbery, § 267. "Piratical" to piracy, § 368. " Unlawfully" and other ag- gravative terms not neces- sary, § 369. " Forcibly" and with a strong hand essential to forcible entry, § 370. Vi et armis not essential, § 271. "Knowingly" always prudent, §273. XV. Clerical Ebeoks. Verbal inaccuracies not af- fecting sense are not fatal, § 273. Question as to abbreviations, §274. Omission of formal words may not be fatal, § 375. 59 PLEADING AND PRACTICE. [chap. III. Signs cannot be substituted for words, § 276. Erasures and Interlineations not fatal, § 277. Tearing and defacing not necessarily fatal. Lost in- dictment, § 278. Pencil writing may be suffi- cient, § 278 a. XVI. Conclusion op Indictments. Conclusions must conform to Constitution, § 279. Where statute creates or modi- fies an offence, conclusion must be statutory, § 280. Otherwise when statute does not create or modify, § 281. Conclusion does not cure defects, § 282. Conclusion need not be in plural, § 283. Statutory conclusion may be rejected as surplusage, § 284. XVn. Joinder op Oppences. Counts for offences of same character and same mode of trial may be joined, § 285. Assaults on two persons may be joined, § 28fi. Conspiracy and constituent misdemeanor may be joined, and assault with assault with ' intent, § 287. And so of common law and statutory offences, § 288. And so of felony and misde- meanor, § 289. Cognate felonies may be join- ed, § 290. And so of successive grades of offence, § 291. Joinder of different offences no ground for error, § 292. Election will not be compelled when offences are connected, §293. Object of election is to reduce . to a single issue, § 294. Election is at discretion of court, § 295. May be at any time before ver- dict, § 396. 60 Counts should be varied to suit case, § 297. Two counts precisely the same are bad, § 298. One bad count cannot be aided by another, § 299. Counts may be transposed after verdict, § 300. XVIII. Joinder op Dependants. 1. Who may he joined. Joint offenders can be jointly indicted, § 301. But not when offences are several, § 302. So as to officers with separate duties, § 303. Principals and accessaries can be joined, § 304. In conspiracy at least two must be joined, § 305. In riot three must be joined, § 306. Husband and wife may be joined, § 306 a. Misjoinder may be excepted to at any time, § 307. Death need not be suggested on the record, § 308. 2. Severance. Defendants may elect to sever, §309. Severance should be granted when defences clash, § 310. In conspiracy and riot no sev- erance, § 311. 3. Verdict and Judgment. Joint defendants may be con- victed of different grades, § 312. Defendants may be convicted severally, § 313. Sentence to be several, § 314. Offence must be joint to jus- tify joint verdict, § 315. XIX. Statutes op Limitation. Construction to be liberal to defendant, § 316. Statute need not be specially pleaded, § 317. Indictment should aver offence within statute, or exclude exceptions, § 318. CHAP. III.] FOEM OF INDICTMENT. [§86. Statute, unless/ general, ope- ates only on specified of- fences, § 319. Statute is retrospective, § 320. Statute teglns to run from commission of crime, § 321. Indictment or information saves statute, § 322. In some jurisdictions statute saved by warrant or present- ment, § 333. When fliglit suspends statute, it is not revived by tempo- rary return, § 324. Failure of defective indict- ment does not revive statute, § 325. Courts look with disfavor on long delays in prosecution, §326. Statute not suspended by fraud, §337. Under statute indictment un- duly delayed may be dis- charged, § 328. Statutes have no extra-terri- torial effects, § 329. ■ I, INDICTMENT AS DISTINGUISHED FROM INFORMATION. § 85. " No person shall be held to answer for a capital or other- wise infamous crime, unless on a presentment or indict- xJnder fed- ment of a grand jury, except in cases arising in the land t^tlon""^*^' or naval forces, or in the militia when in actual service, trials of all capital or in time of war, or public danger ; nor shall any person infamous be subject, for the same ofiFence, to be twice put in must^beby jeopardy of life or limb ; nor shall he be compelled in indictment. 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 without compensation."^ § 86. " The first clause," to adopt the language of Judge Story, in commenting on this article, " requires the interposition present- of a grand jury, by way of presentment or indictment, "gugation before the party accused can be required to answer to ]>y grand any capital or infamous crime charged against him, which in- This is regularly true, at the common law, of all offences may™be'' above the grade of common misdemeanor. A grand ^^s^d. jury, it is well known, are se^lected jn a manner prescribed by law, and duly sworn to make inquiry, and present all offences committed against the authority of the State government within the body of 1 Const. V, S. Amend, art. 5. That without either indictment or informa- tion a prosecution cannot be main- tained, see State v. First, 82 Ind. 1. That a de facto grand jury satisfies the constitutional rule, see People v. Petrea, 92N.Y. 128 ; infra, § 350. That " due process of law," in the 14th Amendment, does not necessitate a grand jury, see Hurtado v. California, 110 U. S. 516, approving Kallooh v. Sup. Ct., 56 Cal. 229 ; Rowan v. State, 30 Wis. 129. 61 § 87.] PLEADING AND PRACTICE. [CHAP. III. the county for which they are empanelled. In the national courts they'are sworn to inquire and present all ofiFences committed "against the authority of the national government within the State or dis- trict for which they are empanelled, or elsewhere, within the juris- diction of the national government. A presentment, properly speaking, is an accusation made ex mero motu by a grand jury, of an offence, upon their own observation and knowledge, or upon evi- dence before them, and without any bill of indictment laid before them at the suit of the government. An indictment is a written accusation of an offence preferred to and presented upon oath as true, by a grand jury at the suit of the government. Upon a pre- sentment, the proper ofiScer of the court must frame an indictment, before the party accused can be put to answer to it."^ § 87. Informations are official criminal charges presented usually by the prosecuting officers of the State, without the in- ti°n™^ terposition of a grand jury ;* nor can an affidavit or "ed*" ^b^ charge by an unofficial person amount to an information.' attorney- An information, it is said, resembles not only an indict- ment, in the correct and technical description of the offence, but also an action qui tarn, in which the informer must show the forfeiture, and its appropriation, or at least the proportion given him by the statute.^ So far as the structure of an informa- tion is concerned, the same rules apply as obtain in cases of indict- ment.* In respect to amendment, however, there is a difference at common law, arising from the fact that an information emanates exclusively from the attorney-general, without the interposition of • story on the Constitution, § 657. also, Yanatta v. State, 31 Ind. 220 ; 2 The district attorney may proceed Vogel v. State, 31 Ind. 64. by information, althongh an indict- ^ r. „_ Steel, L. R. 2 Q. B. D. 40 ; ment for the same offence has been State v. Beebe, 83 Ind. 171 ; Gallagher quashed. U. S. u. Nagle, 17 Blafch. ». People, 120 111. 179 ; Avery u. People, 258 ; 8 Rep. 772. 11 ni. App. 332 ; Thomas v. State, 58 ' People V. Keim, 79 Mo. 515. Ala. 365 ; State v. Anderson, 30 La. • 1 Ch. C. L. 841 ; Archbold's C. P. Ann. 657 ; Antle v. State, 6 Tex. App. by Jervis, 66 ; Burn's Justice, 20th ed. 202 ; Leatherwood v. State, Ibid. 244. by Ch. Bears, title Information ; Com. An Information must conform to the V. Messenger, 4 Mass. 462, 465 ; Com. v. affidavit on which it is based, Dyer v. Cheney, 6 Mass. 347 ; Hill v. Davis, 4 State, 85 Ind. 525. But the special Mass. 137 ; Brimmer v. Long Wharf, reason why information is adopted in- 5 Pick. 131 ; Evans v. Com., 3 Met. 453 ; stead of indictment need not be stated. Welde V. Com., 2 Met. Mass. 408. See, Hodge v. State, 85 Ind. 561. 62 CHAP. III.] INFORMATIONS. [§88. a grand jury ; and hence he alone, with leave of court, is authorized to amend it, the assent of a grand jury not being required.' § 88. The limitation in the federal Constitution restricting prose- cutions for infamous crimes to presentments or indict- ments by a grand jury applies distinctively to federal usually prosecutions.* In Pennsylvania there is a constitutional as™ta-* provision against proceeding by information in any case famous where an indictment lies ;' and the same restriction ex- ists in several of the other States.* In the United States courts, as has been seen,'' in New York,' and in Virginia,' the limitation is con- fined to cases of infamous crime. In New Hampshire, it obtains in all cases where the punishment is death or confinement at hard labor.* In Vermont, a distinction of the same character is made .' In Indiana,'" and in California,*' a larger range is given ; and so as to Georgia.'* It may, in fact, be stated as a general rule, that the provision in the fed- eral Constitution, given at the head of this chapter, applies only to cases in the United States courts." In Massachusetts, it was at one time held that all public misdemeanors which may be prosecuted by indictment may be prosecuted by information on behalf of the Com- 1 R. V. Seawood, 2 Ld. Ray. 1472 ; R. V. Stedman, Ibid. 1307; State v. Row- ley, 12 Conn. 101 ; State v. Stebbins, 29 Conn. 463 ; State v. Weare, 38 N. H. 314 ; Com. u. Rodes, 1 Dana, 595. That an information may be granted on the basis of a quashed indictment see U. S. V. Ronzone, 14 Blatch. 69. That it does not require either prior heaHng or finding see U. S. v. MoUor, 16 Ibid. 65. Contra in Michigan, Brown v. State, 34 Mich. 37. Under the Texas practice an infor- mation must be supported by an affi- davit, with which the information must be in substantial conformity, though technical conformity is not required ; Pittman v. State, 14 Tex. Ap. 576. The information must be in itself sufficient, and cannot be helped out by reference to the affidavit. Ibid. ; Lackey v. State, 14 Tex. Ap. 164. ' Story on Const. § 653. ' Const, art. 9, § 10. * State 1^. Mitchell, 1 Bay, 267; Cleary v. Deliesseline, 1 MoCord, 35. 5 U. S. V. Shepard, 1 Abb. U. S. 431. 6 Const, art. 7, § 7. ' Davis' Cr. Law, 422. 8 Rev. Stat. N. Hamp. 457. ' Rev. Stat. Verm. chap. cii. 1" As to limitation in Indiana, see Davis V. State, 69 Ind. 130 ; Lindsey v. State, 72 Ind. 40 ; Heanly v. State, 74 Ind. 99. " People V. Carlton, 57 Cal. 551. 12 Groves v. State, 73 Ga. 205. « State V. Keyes, 8 Vt. 57 ; Rowan V. State, 30 Wis. 129 ; State v. Shum- pert, 1 Richards (S. C), N. S. 85; Noles V. State, 24 Ala. 672. As to Lou- isiana, see State v. Jackson, 21 La. An. 574; State v. Anderson, 30 La. An. 557 ; State v. Woods, 31 La. An. 267. As to Illinois see Parris v. People, 76 111. 274. As to Michigan, McNamee v. People, 31 Mich. 473 ; Turner v. Peo- ple, 33 Mich. 363. 63 § 89.] PLEADING AND PRACTICE. [CHAP. III. monwealth, unless the prosecution be restricted by the statute to indictment.' But now by the Gen. Stat. c. 158, § 3, all criminal prosecutions must be by indictment, except (1.) When informations are expressly authorized by statute ; (2.) In cases before police justices ; and (3) In courts-martial. In Connecticut all offences not punished by death or by imprisonment for life are prosecuted by information." In California there is no longer any restriction.* In the United States courts, crimes against the elective franchise may be prosecuted by information filed by the district attorney.* § 89. In the United States courts it was once said that, for mis- demeanors, which do not, at common law, preclude the "Infamous" . , n i • • i v crimes person convicted from being a witness, there can be a involve m- proceeding by information,' and hence that a person lx*ose°to ™*y ^® prosecuted by information for a violation of the penitenti- revenue laws.* Severity of imprisonment, it has been argued, does not by itself create infamy." But where at common law disgrace attaches, then the offence is infamous. On principle, informations, under the federal Constitution, should be restricted to quasi civil offences not mala in re, or involving moral turpitude.' And it may now be held that in all cases in which 1 Com. V. Waterborough, 5 Mass. stealing from the mail was not "infa- 257, 259. mons ;" U. S. v. Burgess, 3 MoCr. 2 2 Swift's Dig. 371. 278, where it was held not " infamous" ' People V. Campbell, 59 Cal. 243. to conspire to counterfeit coin ; 0. S. * Eev. Stat. § 1022. v. Field, 21 Blatch. 330 ; 16 Fed. Rep. 5 U. S. V. Mann, 1 Gall. C. C. 3 ; 778, where it was held not " infamous" U. S. V. Isham, 17 Wall. 496 ; U. S. v. to pass counterfeit coin ; U. S. v. Black, Bozzo, 18 WaU. 125 ; U. S. v. Waller, 4 Sawy. 211 ; 15 Bank. Reg. 325, 1 Sawyer C. C. 701 ; U. S. v. Ebert, where the same was held of secreting 1 Cent. L. J. 205. See also Stockwell goods by bankrupt ; D. S. u. Reilley, V. U. S., 13 Wall. 531 ; U. S. o. Max- 20 Fed. Rep. 46, where it is held that well, 3 Dill. 275; U. S. v. Block, 15 embezzlement is not "infamous." Bank. Reg. 325 ; 4 Sawy. 211. In U. S. v. Butler, 4 Hughes, 514, s U. S. V. Maxwell, 21 Int. Rev. Rec. conspiracy was held infamous ; in U. S. 148. V. Cross, 1 McArth. 149, the term was ' R. V. Hickman, 1 Mood. C. C. 34 ; limited to cases where there is a for- People V. Whipple, 9 Cow. 707; Com. feiture of civil rights. S. P., U. S. v. V. Shaver, 3 W. & S. 338. See Reddick Brady, 3 Crim. Law Mag. 69. See also V. State, 4 Tex. Ap. 82. U. S. p. Blackburn, 1 N. Y. Week. 8 U. S. V. Brady, 3 Crim. Law Mag. Dig. 276. In D. S. v. Yarborough, 110 69 and note thereto. In conflict with U. S. 651, the statute making it indict- the text may be cited U. S. v. Wyun, able to conspire to abridge another's 3 McCr. 266, where it was held that civil rights was held constitutional ; 64 GHAP. III.] JEOFAILS AND AMENDMENT. [§90. penitentiary imprisonment is imposed, it is within the contemplation of the Constitution that the safeguard of a grand jury should be secured.' II. STATUTES OF JEOFAILS AND AMENDMENT. § 90. No inconsiderable portion of the diflSculties in the way of the criminal pleader, at common law, have been removed By statutes in England by the 7 Geo. 4, c. 64, ss. 20, 21 ; 11 & l^f^^' 12 Vict. c. 46 ; and 14 & 15 Vict. c. 100, and in most of t)e amend- . , ed, and the States in the American Union, by statutes containing formal similar provisions.* In some jurisdictions, also, it is pro- made^un-^ vided that as to certain oifences certain prescribed forms necessary, shall be sufficient.* Whether such statutes conflict with constitu- tional provisions providing that the indictment should notify the defendant of the character of the oflfence depends in part upon the words of the Constitution, in part upon the degree in which the rights of the defendant are abridged by the indictment as to which the question arises. Supposing that the constitutional provision. and in U. S; u. Waddell, 112 U. S. 76, it was applied to a conspiracy to drive a citizen of the United States from a homestead entry and was held within the statute, but it was doubted whether the proceeding In such cases could be by information. But now all crimes punishable by imprisonment in the penitentiary are infamous under this clause,; Maokin v. U. S.', 117 U. S. 348 ; see U. S. v. Tod, 25 Fed. Rep. 815. A person, imprisoned on a conviction in such a case on which there has been no presentment by a grand jury, will be discharged on a habeas corpus. Wilson, ex parte, 114 U. S. 417. 1 See Maekin v. U. S., 117 tJ. S. 348. 2 As English cases may be mentioned E. V. Larkin, 1 Dears. C. C. 365 ; 6 Cox, C. C. 377 ; R. v. Frost, 1 Dears. C. C. 427 ; R. v. Walton, 9 Cox C. C. 297 ; R. V. Sturge, 3 E. & B. 734 ; R. v. Gumble, 12 Cox C. C. 248 ; R. v. Bird, 12 Cox C. C. 257. 5 As to how far verdict cures, see infra, § 759. Merely clerical errors, as will be seen, may be disregarded in error, or in motions of arrest of Judgment. Infra, § 273. An unauthorized mate- rial amendment is fatal ; State v. Vest, 21 W. Va. 796. ' See, as to liquor prosefeutions, Whart. Crim. Law, 9th ed. § 1530; and see State v. Comstook, 27 Vt. 563 ; State V. Amidon, 58 Vt. 524 ; Hewitt v. State, 25 Tex. 722. That after there has been an amend- ment, imprudently granted, there will be a new trial, see Com. v. Foynes, 126 Mass. 267. As to limits, see State v. Doe, 50 Iowa, 541 ; McCarthy v. State, 56 Miss. 294 ; State v. Finn, 31 La. An. 40'8. As to waiver of constitutional rights see Whart. Crim. Law, 9th ed. § 145 a. Infra, § 733. 65 §90.] PLEABING AND PRACTICE, [chap. in. as is sometimes the case, is simply a presentation of the common law rule, that the defendant is entitled to notice in the indictment of the charge against him,' we can adopt the following conclusions : — 1. Statutes which merely facilitate the pleading in a case, such as those providing that technical objections are to be taken by demurrer, or that defects of process must be met by motion to quash, or that formal statements as to time, place, tenor, name, and value, are open to amendment on trial, or that a substantial accuracy of statement shall be suflScient, are constitutional.* In such cases, however, the court may, if conducive to justice, require additional particulars to be given by the prosecution.^ 2. Statutes which authorize forms which give no substantial notice of the offence are unconstitutional,* and such is also the case, as to all amendments, in jurisdictions in which the Constitution makes ' See, to this effect, Com. v. Phil- lips, 16 Pick. 211; Com. v. HoUey, 3 Gray, 458. 2 State V. Comstock, 27 Vt. 553; Com. I/. HoUey, 3 Gray, 458 ; People v. Couroy, 97 N. Y. 62 ; Crown a. Com., 78 Penn. St. 122; Goersen v. Com., 99 Penn. St. 388 ; Com. u. Seymour, 2 Brewst. 567 ; State v. Graves, 45 N. J. L. 347 ; Cochrane v. State, 9 Md. 400 ; Hawthorne v. State, 56 Md. 530 ; Slymer V. State, 62 Md. 237 ; Trimble v. Com., 2 Va. Cas. 143 ; Lasure v. State, 19 Ohio St. 44 ; People v. Cook, 10 Mich. 164 ; Marvin v. People, 26 Mich. 298; Mc- Laughlin V. State, 45 Ind. 338 ; Rowan t>. State, 30 Wis. 129 ; State v. Hart, 4 Ired.' 246 ; State v. Schricker, 29 Mo. 265 ; State v. Craighead, 32 Mo. 561 ; State V. Krull, 5 Mo. Ap. 589 ; Noles V. State, 24 Ala. 672; Thompson v. State, 25 Ala. 41 ; Tatum v. State, 66 Ala. 465 ; Eocco v. State, 37 Miss. 357 ; Peebles v. State, 55 Miss. 454 ; State v. Mullen, 14 La. An. 570 ; State v. Chris- tian, 30 La. An. Pt. I. 367 ; State v. Sullivan, 35 La. An. 844; People u. Kelly, 6 Cal. 210 ; State v. Manning, 14 Tex. 402 ; Townsend b. State, 6 Tex. Ap. 574 ; Bates v. State, 12 Tex. Ap. 66 26. A statute making it unnecessary to set forth the means by which the death occurred is constitutional. State V. Schnelle, 24 W. Va. 767 ; Noles v. State, 24 Ala. 672 ; Thompson v. State, 25 Ala. 41 ; Newcomb v. State, 37 Miss. 397 ; Wolf V. State, 19 Ohio St. 248 ; Goerson v. Com., 99 Penn. St. 388 ; Rowan v. State, 30 Wis. 129. Contra, State V. Mott, 29 Ark. 147 ; Clavy v. State, 33 Ark. 561. As amendments sustained as going to foi'm, see State v. Freeman, 59 Vt. 661 ; State v. Amidon, 58 Vt. 524 ; People v. Johnson, 104 N. Y. 213 ; State v. Fonsnette, 38 La. An. 61 ; Huff V. State, 23 Tex. Ap. 291. As to amendments of records under Rev. Stat. § 1037, see Kelly v. U. S., 27 Fed. Rep. 616. That the statutory simplifi- cation of criminal pleading does not abrogate the judicial construction pre- viously attached to the terms ordinarily used in such pleading. ' People v. Con- roy, 97 N. Y. 62. 3 Infra, § 702. • State V. Learned, 47 Me. 426 ; State V. Mace, 76 Me. 399; Com. v. Harrington, 130 Mass. 135 ; People v. Campbell, 4 Parker C. R. 386; Kil- row r. Com. 89 Penn. St. 480 ; Goerson CHAP. III.] CAPTION AND COMMENCEMENT. [§91. a bill found by a grand jury a pre-requisite to a trial.* And such is the effect of a ruling, in 1887, of the Supreme Court of the United States.* III. CAPTION AND COMMENCEMENT. § 91. The caption is no part of the indictment.^ It is made up from the record of the court, generally by the clerk or c^pygn jg other proper oflScer of the court, and its office is to state no part of . , indlct- the style of the court, the time and place of its meeting, ment, be- the time and place where the indictment was found, and the ^fna"ory' jurors by whom it was found. These particulars it must prefix, set forth with reasonable certainty for the use, as will presently be seen, of a superior or appellate court to which it may be removed.* V. Com., 99 Penn. St. 388 ; Miller v. State, 3 Ohio St. 476 ; Williams v. State, 35 Ohio St. 175 ; Com. v. Buzzard, 5 Grat. 694 ; Blumenherg v. State, 55 Miss. 628 ; State v. Wilburn, 25 Tex. 738 ; State v. Daugherty, 30 Tex. 360 ; Brinster v. State, 12 Tex. Ap. 612; Williams v. State, 12 Tex. Ap.' 395 ; Allen V. State, 13 Tex. Ap. 28. ' See cases cited in last note. This question, supposing the consti- tutional provisions are mere expres- sions of the common law in this re- spect, will he found elaborately dis- cussed in Bradlaugh v. R., L. R. 3 Q. B. D. 607 ; 14 Cox C. C. 68 ; cited in- fra, § 760. As to effect of verdict in curing formal errors, see infra, §§ 400, 759. See, however, a Pennsylvania ruling that the name of the owner in larceny can be stricken out, and "persons un- known" inserted. Com. v. O'Brien, 2 Brewster, 566. See Phillips u. Com., 44 Penn. St. 197; Myers v. Com., 79 Penn. St. 308, cited infra, § 120. And see, to same general effect, Mulrooney V. State, 26 Ohio St. 326. As to other amendments, see State v, Arnold, 50 Vt. 731 ; People v. Mott, 34 Mich. 80 ; Garvin v. State, 52 Miss. 207. 2 Bain, ex parte, 121 U. S. 1. In this case there was no federal statute authorizing the amendment, but the reasoning of the court strikes at stat- utory amendments. The constitutional amendment in question "does not limit the States, applying only to the national government. Spies v. Illinois, 123 U. S. 131. See U. S. u. Conant, 9 Rep. 36 ; 9 Cent. L. J. 2 ; Abb. Nat. Dig. 686, per Lowell, J. ' 1 East P. C. 113 ; Post. 2 ; Ch. C. L. 327 ; 1 Saund. 250 d, n. 1 ; 1 Stark. C. P. 238 ; R. v. Marsh, 6 A. & E. 236 ; State V. Gary, 36 N. H. 359; State v. Gilbert, 13 Vt. 647 ; State v. Thibeau, 30 Vt. 100 ; People v. Jewett, 3 Wend. 319 ; People v. Bennett, 37 N. Y- 117 ; State V. Price, 6 Halst. 203 ; Berrian v. State, 2 Zab. 9 ; State v. Smith, 2 Bar- ring. 532 ; State v. Brickell, 1 Hawks, 354 ; State v. Haddock, 2 Hawks, 261 ; Noles V. State, 24 Ala. 672 ; State v. Blakely, 83 Mo. 359. See other cases, infra, § 93. In Whart. Prec vol. i. pp. 1 et seq., several forms of captions are given. See Caldwell v. State, 3 Baxter, 429. * U. S. ii. Thompson, 6 McLean, 56 ; State V. Conley, 39 Me. 78 ; McClure v. State, 1 Yerg. 206, per White, J. ; 67 §91.J PLEADING AND PRACTICE. [chap. III. It must show that the venire facias was returned, and from whence the jury came, or it will be fatal on demurrer.' When the indictment is returned from an inferior court, in obe- dience to a writ of certiorari, the statement of the previous proceed- ings sent with it is termed the schedule, and from this instrument the caption is extracted.^ When taken from the schedule it is en- tered upon the record, and prefixed to the indictment, of which, however, it forms no part, but is only the preamble which makes the whole more full and explicit.* When there has been a removal by certiorari, its principal object, as we have seen, is to show that the inferior court had jurisdiction, and, therefore, a certainty in that respect is particularly requisite. Care must be taken duly to set it forth, for if there be no caption, or one that is defective, the error. English V. State, 4 Tex. 125 ; Reeves v. State, 20 Ala. 33. ' State V. Hunter, Peck's Tenn. R. 166. See State v. Fields, Ibid. 140 ; State V. Williams, 2 McCord, 301. in England, the caption in general does not *appear until the return to a writ of certiorari, or a writ of error ; yet in cases of high treason the de- fendant is entitled to a copy of it in the first instance after the finding of the indictment, in order that he may he acquainted with the names of the jurors by whom it was presented. 1 East P. C. 113; Post. 2; Ch. C. L. 327. As it forms no part of the indict- ment it has been held no ground for ar- resting judgment that the indictment does not show, in its caption, that it was taken in the State ; for, it is said, while it stood on the records of the court below, it appeared to be an indictment of that court, and when sent to the Supreme Court, the caption of the record, of which it is a part, officially certified, renders it sufficiently certain. State V. Brickell, 1 Hawks, 354 ; 1 Saunders, 250 d, n. 1. If wholly omit- ted in the court below, it is said the indictment may nevertheless be suffi- 68 oient, as the minute of the clerk upon the bill, at the time of the presentment, and the general records of the term, will supply any defect in such preface. State V. Gilbert, 13 Vt. 647 ; State v. Smith, 2 Harring. 532. InJ^orth Carolina, it was held that a caption to an indictment is only neces- sary where the court acts under a special commission. State v. Wasden, N. C. Term, 163. Giving only the initials of the first names of the grand jurors is no defect. Stone V. State, 30 Ind. 115. In Massachusetts practice, it seems, each indictment is framed with its own special caption, instead of leaving the caption to be made up, as is the usual and better course, from the records of the court, by the clerk, when the record is taken into another court. Yet even in Massachusetts, this "caption," if it is so to be called, is purely formal, and is amendable. See Com. ». Edwards, 4 Gray, 1. See also State v. Gonley, 39 Me. 78. 2 1 Saund. 309. 3 2 Hale, 165 ; Bac. Ab. Indictment, J. ; Burn, J., Indictment, iz. ; Wil- liams, J., Indictment, iv. CHAP. III.] CAPTION AND COMMENCEMENT. [§92. in England, may be taken advantage of on arrest.' But ordinarily its caption is not vitiated by mere surplusage.' § 92. A formal statement in the indictment that it was found by the authority of the State is not necessary, if it appear, from the record, that the prosecution was in the name wai'a&eura- of the State.* The caption must set forth the court cyoniy 1 • ^1 r^ in- required, where the indictment was found, as a " General Session of the Peace," " the Court of Oyer and Terminer," etc., " for N. Y. County," etc., so that it may appear to have jurisdiction.* Next to the statement of the court follows the name of the plaoe and county where it was holden, and which must always be inserted ;* and tliough it may be enough, after naming a place, to refer to " the county aforesaid," yet, unless there be such express reference to the county in the margin, or it be repeated in the body of the cap- tion, it will be insufficient.* This is necessary in order to show that the place is within the limits of the jurisdiction ;' and, there- fore, whether the caption wholly omit the place, or do not state it with sufficient certainty, the proceedings will be alike invalid, though amendable ;' as, if it state it to be taken only at the town, without adding " the county aforesaid," the omission will vitiate.* But though the name of the county be left blank in the margin of an indictment for misdemeanor, it is enough, in Virginia, if the county be stated in the body of the indictment." > 2 Sessions oases, 316 ; 1 Ch. C. L. 327. See State v. "Wasden, 2 Taylor N. C. 163 ; State w. Haddock, 2 Hawks, 461. 2 Winn 0. State, 5 Tex. Ap. 621. ' Grreeson v. State, 5 Howard's Miss. 33. * 2 Hale, 165 ; 2 Hawk. c. 25, ss. 16, 17, 118, 119, 120; Burn's Justice, 29th ed. by Chitty & Bears, Indict, ix. ; Dean v. State, Mart. & Yer. 127 ; State V. Zule, 5 Halst. 348. 5 Dyer, 69, A. ; Cro. Jao. 276 ; 2 Hale, 166 ; 2 Hawk. o. 25, s. 128 ; Ba- con Ab. Indictment, i. e 2 Hale, 180 ; 3 P. Wms. 439 ; 1 Saund. 308, n. ; Cro. Eliz. 137, 606, 738. ' R. V. Stanbiiry, L. & C. 128. As to venue see fully infra, § 139. 8 Cro. Jao. 276 ; 2 Hale, 166 ; 2 Hawk. c. 25, s. 128 ; Bao. Ab. Indict- ment, i. 9 Cro. Eliz. 137, 606, 738, 751 ; 2 Hale, 166 ; 2 Hawk. c. 25, s. 128 ; Bac. Ab. Indictment, i. ; Williams, J., In- dictment, iv. ; U. S. V. Wood, 2 Wlieel. C. C. 336. I" Teft V. Com., 8 Leigh, 721. For North Carolina cases see State v. Lane, 4 Ired. 113 ; State v. Haddock, 2 Hawks, 461. In Massachusetts, an indictment, with this caption : " Commonwealth of Massachusetts, Essex, to wit : At the Court of Common Pleas, begun §93.] PLEADING AND PRACTICE. [chap. III. § 93. Defects in the caption of the indictment, as not naming the judges, the jurors, and the county, which would be fatal if the and holden at Salem, within and for the county of Essex," on a certain day, sufficiently shows that it was found at a court held in this Common- wealth. • Com. V. Fisher, 7 Gray, 492. See also Jeffries v. Com., 12 Allen, 145 ; Com. V. Mullen, 13 Allen, 551. In the same State, an indictment which pur- ports by its caption to have been found at a Court of Common Pleas for the county of Hampshire, and in the body of which " the jurors of said Common- wealth on their oath present," suffi- ciently shows that it was returned by the grand jury for the county of Hamp- shire. Com. u. Edwards, 4 Gray, 1. In- fra, § 134. And in Maine, where the record commenced: "State of Maine, Cumberland, ss. At the Supreme Court begun and holden at Portland, within the county of Cumberland," it was held that this was sufficient to show that the court at which the in- dictment was found was holden for that county in the State of Maine. State v. Conley, 39 Me. 78. Infra, § 139. For other rulings on captions see Davis v. State, 19 Ohio St. 270 ; Lovell v. State, 45 Ind. 550; Woodsides o. State, 2 How. Miss. 655 ; Reeves v. State, 20 Ala. 33. See further, Davis v. State, 39 Md. 353. In England an indictment purport- ing to be presented by the grand jurors "upon their oath and affirmation" need not state the reasons why any of the jurors affirmed instead of being sworn. Mulcahy u. R., 3 L. R. H. L. Cas. 306 ; Com. v. Brady, 7 Gray (Mass.), 320. See, however, contra. State V. Harris, 2 Halst. 361. Whether "oath" or "oaths" is averred is immaterial. Com. v. Sholes, 11 Allen, 554 ; State v. Dayton, 3 Zab. 49. Infra, § 277. 70 It must appear on the face of the record, that the bill was found by at least twelve jurors, or it will be insuffi- cient. Cro. Eliz. 654 ; 2 Hale, 167 ; 2 Hawk. c. 25, ss. 16, 126 ; 1 Saund. 248, II. 1 ; 4 East, 175, 176 ; Andr. 230 ; Bac. Ab. Indictment, i. ; Burn, J., In- dictment, ix. ; Williams, J., Indict- ment, iv. Where the statute requires more than twelve, the requisite num- ber must be averred. Fitzgerald u. State, 4 Wis. 395. They are usually described, also, as " good and lawful men," which is sufficient ; 2 Hale, 167 ; Cro. Eliz. 751 ; 1 Keb. 629 ; Cro. Jac. 635 ; State v. Price, 6 Halst. 203. See State v. Jones, 4 Halst. 357 ; but this is not in England absolutely es- sential, especially when the indict- ment is found in a superior court, be- cause all men shall be so regarded until the contrary appear. 2 Keb. 366 ; 2 Hawk. c. 25, ss. 16, 126 ; Bac. Ab. In- dictment, i. ; Burn, J., Indictment, ix. ; Williams, J., Indictment, iv. ; Stark. C. P. 236-7 ; R.'». Butterfield, 2 M. & R. 522. See Jerry t>. State, 1 Blackf. 395 ; Beauchamp v. State, 6 Blackf. 299 ; Bonds v. State, Mart. & Yerg. 143 ; State v. Glasgow, Conf. 38 ; State V. Yancy, 1 Tread. 237. The caption then must state that they are " of the county aforesaid," or other vill or pre- cinct for which the court had jurisdic- tion to inquire ; and if these words are omitted the whole will be vicious. Tipton V. State, Peck's R. 8 ; Cornwell v. State, Mart. & Yerg. 147 ; Cro. Eliz. 667 ; 2 Keb. 160 ; 2 Hale, 167 ; 2 Hawk. c. 25, ss. 16, 126 ; Bac. Ab. Indictment, i. ; Burn, J., Indictment, ix. ; Williams, J. , Indictment, iv. The caption, by im- plication at least, must show that the grand jury were of the county where the indictment was taken. Tipton v. CHAP. III.J COMMENCEMENT OF INDICTMENT. [§ 93. indictment were removed into a superior court, may be supplied in the court in which it is taken, by reference to other re- ^ ,,.",. ... Caption cords there,* since when the indictment remains in the may be court of finding a caption is unnecessary.* And it is also held that the caption may be amended in the Supreme Court, State, Peck's Tenn. R. 308 ; per Hay- wood and Beck, JJ., contra, White,' J- ; Woodsides v. State, 2 How. (Miss.) 655. It is not, under the present praotiqe, requisite to give the names of the grand jurors. R. v. Aylett, 6 A. & E. 247 ; R. v. Marsh, 6 A. & E. 236. If the names are given, a variance as to one of them is not fatal. State v. Norton, 3 Zab. 33 ; State v. Dayton, Ibid. 49. Where it appeared by the record that a foreman was appointed, and the indictment was returned, signed by him, and the caption stated that the grand jury returned the bills into court by their foreman, it was held sufficient evidence that the bill was returned by the authority of the grand jury. Gree- son V. State, 5 How. Miss. R. 33. See infra, § 368. When an indictment purports to be on the affirmation of some of the grand jurors, it is said, in New Jersey, that it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or it will be fatally de- fective ; State v. Harris, 2 Halsted, 361 ; but such is not the usual prac- tice ; the indictment going no further, in most States, than to aver the fact of its being made on the oaths and affir- mations of the grand jurors. Com. v. Fisher, 7 Gray, 492. If the caption omit to state the grand jury were sworn, it will be presumed they were sworn ; at least the recital in the record that " the grand jury were elected, empanelled, sworn, and charged," will be sufficient. McClure V. State, 1 Yerg. 206, per Catron, J. In New York, it was ruled that an indictment taken at the sessions must, in the caption, state that the grand jury were, then and there, sworn and charged ; the omission of the words " then and there" being fatal on mo- tion in arrest of judgment ; People v. Guernsey, 2 Johns. Cas. 265 ; but the contrary was held in Mississippi, where it was said that, if it appear from the record that the grand jurors were sworn, it will be presumed that they .were then and there sworn. Wood- sides V. State, 2 How. Miss. R. 655. ' Faulkner's case, 1 Sannd. 249 ; R. V. Davis, 1 C. & P. 470; Broome v. R., 12 Q. B. 838 ; U. S. v. Thompson, 6 McLean, 156 ; State v. Brady, 14 Vt. 353 ; Com. v. Mullen, 13 Allen, 551 ; Com. V. Hines, 101 Mass. 33 ; Dawson V. People, 25 N. Y. 399 ; State v. Useful Man. So., 42 N. J. L. 504; Pennsyl- vania V. Bell, Add. 173 ; Com. v. Beeh- tell, 1 Am. L. J. 414 ; Brown v. Com., 78 Penn. St. 122 ; Mackey v. State, 3 Ohio St. 362 ; State «. Creight, 1 Brev. 169 ; State v. Murphy, 9 Port. 487; Reeves v. State, 20 Ala. 33 ; Kirk V. State, 6 Mo. 469 ; State v. Freeman, 21 Mo. 481 ; Cornelius v. State, 7 Eng. 782 ; Allen v. State, 5 Wis. 329. As to Massachusetts practice see Com. v. Gee, 6 Cush. 174 ; Com. „. Stone, 3 Gray, 453 ; Com. v. CuUon, 11 Gray, 1. As to particularity required in Indiana see State v. Connor, 5 Blackf. 325. As to Wisconsin see Fitzgerald V. State, 4 Wis. 395 ; and see cases cited supra, § 91. 2 Wagner v. People, 4 Abl^. App. Dec. 509. 71 §95.] PLBADINa AND PRACTICE. [chap. III. Commence- ment must aver office and place of grand jurors, and also their oath. on proper evidence of the facts ; or the certiorari may be returned to the court below, and the amendment made there.' § 94. It is ordinarily sufficient for the commence- ment to state that the grand jurors of the State or Commonwealth, inquiring for the particular county or city, as the case may be, on their oaths or affirmations respectively,' find the special facts making up the charge.' The authority of the sovereign is in this way vouched.* § 95. It must appear in the commencement of each count of an J, ^ . indictment that it was found by the jurors of the parti- muet con- cular jurisdiction, on their oaths or affirmations,* and a ment of want of such allegation in a subsequent count will not be °^ ■ aided by such allegations in a former count, where the word " aforesaid," or other words of reference, are not introduced.* It • State V. Jones, 4 Halst. 357 ; State V. Norton, 3 Zabr. 33 ; State v. Wil- liams, 2 McCord, 301 ; Vandyke v. Dare, 1 Bailey, 65. See infra, § 368. ' This is essential. Vanvickle v. State, 22 Tex. Ap. 625. ' The commencement of an indict- ment in these words, "The grand jurors for the people of the State of Vermont, upon their oath, present," etc., is sufficient, on motion, in arrest of judgment. State v. Nixon, 18 Vt. 70. Sowhen "oaths" and not "oath" is used. Com. v. Sholes, 13 Allen, 554 ; State v. Dayton, 2 Zabr. 49. In Texas the statutory form of com- mencement "in the name and by the authority of the State of Texas" is essential, and cannot be varied. Saine V. State, 14 Tex. Ap. 144. * Savage v. State, 18 Fla. 909. ■■ 2 Hale, 167 ; 2 Hawk. c. 25, s. 126 ; Burn, J., Indictment, ix. ; State v, Conley, 39 Me. 78 ; State v. Nixon, 18 Vt. 70 ; Com. ' v. Fisher, 7 Gray, 492 ; Young V. State, 6 Ohio, 435 ; Burgess V. Com< 2 Va. Cas. 483 ; Clark v. State, 1 Carter, Ind. 263 ; State v. Williams, 2 McCord, 301; Morgan v. State, 19 72 Ala. 556 ; Byrd v. State, 1 How. (Miss.) 163; Abram v. State, 25 Miss. 589. That this should be shown by caption, see Potsdamer v. State, 17 Fla. 895. As to inserting "good and lawful men," see Weinzorpflin v. State, 7 Blackf. 186. The usual form is, "The grand jurors for the State (or Commonwealth) of A., inquiring for the city (or town) of B., upon their oaths and affirmations re- spectively do present." To this, as a title, is prefixed the statutory name of the court. See, for forms in full, Whart. Preo. vol. i. pp. 8 et seq. " Oath" may supply the place of "oaths." State v. Dayton, 3 Zab. 49 ; Jerry o. State, 1 Blackf. 395. That the commencement may be amended, see Com. V. Colton, 11 Gray, 1 ; State v. Mathis, 21 Ind. 277 ; State v, England, 19 Mo. 481. The distinction between " caption" and "commencement" is not main- tained by some of our courts, both, by such courts, being called " caption." But as both are purely formal, and are open to amendment by the record, they should be so amended when faulty. 6 R. V. Waverton, 17 Q. B. 562 ; 2 CHAP. III.] INDICTMENT: PLEADING OF NAMES. [§ 98. is not necessary that the commencement should use the term " grand" before jurors, when the rest of the record shows that it was " grand jurors" that was meant.' The indorsement upon an indictment is no part of it.^ IV. NAME AND ADDITION OF DEFENDANT AND NAME OF PROSECUTOR AND THIRD PARTIES. 1. As to Defendant. § 96. The indictment must be certain as to the defendant's name.' The name should be repeated to every distinct allegation ; j^^^^ ^^ but it will suffice to mention it once as the nominative defendant snoulu be case in one continuing sentence. epeciflcaiiy When once given in full, the name need only be re- ^^®°" peated by the Christian title as " the said John" or " James," as the case may be.* But each count must describe the defendant by his full name." § 97. If the surname of the defendant be omitted in the pre- senting portion of an indictment, the defect is fatal, though the full name be mentioned in subsequent al- legations referring to the name as their antecedent.* § 98. A plea in abatement, in the language of Mr. Chitty, has always been allowed when the Christian name of the defendant is mistaken,^ but it seems for- merly to have been supposed that an error in the sur- be met in name was not thus pleadable.* But it is now the set- abatement. Omission of sui-name is fatal. Mistake as to either surname or Christian Den. C. C. 347 ; State v. McAllister, 26 Me. 374. Aliter when the second and subsequent counts refer to the first count by the word " aforesaid." State V. Dufour, 63 Ind. 567 ; Chase v. State, 50 Wis. 510. 1 U. S. V. Williams, 1 Cliflf. C. C. 5 ; Com. V. Edwards, 4 Gray, 1 ; State v. Pearce, 14 Fla. 153. 2 Collins V. People, 39 111. 233. ' Bac. Abr. Misn. B. ; 2 Hale, 175 ; Chitty's C. L. 167 ; Enwright v. State, 58 Ind. 567. See 22 Cent. Law J., 220. * State V. Pike, 65 Me. 111. 6 R. V. Waters, 1 Den. C. C. 356 ; CoiB. V. Sullivan, 6 Gray, 478. An indictment against " Edward Toney Joseph Scott," laborers, in- tended for Edward Toney and Joseph Scott, is bad. State v. Toney, 13 Tex. 74. « State V. Hand, 1 Eng. (Ark.) 165. ' 2 Hale, 176, 237, 238 ; 2 Hawk. o. 25, s. 68 ; Bac. Ab. Ind. G. 2, Misn. B. ; Burn, J., Indict. ; Gilb. C. P. 217, Washington v. State, 68 Ala. 85 ; Infra, § 423. 8 2 Hale, 176 ; 2 Hawk. c. 25, s. 69 ; Burn, J., Indict. ; Williams, J., Misn. Bac. Ab. Misn. B. ; Com. v. Demain, Brightly R. 441. 73 § 100.] PLEADING AND PRACTICE, [chap. III. tied law that a mistake in the latter is equally fatal with one in the former.^ A plea in abatement is the only way to meet the misnomer of the defendant ; and this plea is too late after the general issue.* When the issue is tried on plea in abatement, if the sound of the name is not affected by the misspellings, the error will not be material.* If two names are, in original derivation, the same, and are taken promiscuously in common use though they differ in sound, yet there is no variance.* A blank in either Christian name or surname is ground for a motion to quash, or plea in abatement.' § 99. The surname may be such as the defendant has usually gone by or acknowledged; and if there be a doubt which one of two names is his real surname, the second may be added in the indictment after an alias dictus,* thus, " Richard Wilson, otherwise called Kichard Layer." Proof of either will be enough. T § 100. The inhabitants of a parish, in England, may be indicted for not repairing a highway, or the inhabitants of a county, for not repairing a bridge, without naming any of them.* And in Pennsylvania it was determined, Surname may be laid as an aliaa. Inhabi- tante of parish and corpora- > 10 East, 83 ; Kel. 11, 12. 2 Infra, §§ 106, 423, 426 ; State v. Bishop, IS Me. 122 ; State v. Nelson, 29 Me. 329 ; Smith u. Bowker, 1 Mass. 76 ; Com. v. Levfrls, 1 Met. 151 ; Com. V. Fredericks, 119 Mass. 199 ; State v. Drury, 13 R. I. 540 ; Com. v. Cherry, 2 Va. Caa. 20 ; State v. White, 32 Iowa, 17 ; Miller v. State, 54 Ala. 155 ; Foster v. State, 1 Tex. Ap. 531. • 10 East, 84 ; 16 East, 110 ; 2 Haw- kins, 0.27, s. 81. Infra, §119; Whart. Crim. Ev. §§ 94 et seg. As to plea, see infra, § 423. * 2 Eol. Ah. 135 ; Bao. Ab. Misn., where the instances of this principle are stated at large. « Infra, §§ 385, 425. 6 Bro. Misn. 37. ' State V. Graham, 15 Rich. (S. C.) 310. Evans v. State, 62 Ala. 6. 74 It was once doubted whether there could be an alias of the Christian name. 1 Ld. Raym. 562 ; Willes, 554; Burn, J., Indict.; 3 East, 111. This doctrine, Mr. Chitty well argues, is not well founded ; for, admitting that a person cannot have two Chris- tian names at the same time, yet he may be called by two such names, which is sufficient to support a decla- ration or indictment, baptism being immaterial. B. T. H. 26 ; 6 Mod. 116; 1 Camp. 479. And Lord Ellen- borough said that for all he knew, on a demurrer, " Jonathan, otherwise John," might be all one Christian name. Scott v. Soana, 3 East, 111. 8 2 Roll. Abr. 79 ; Archbold's C. P. 25. CHAP. III.] INDICTMENT: PLEADING OF NAMES. [§ 101. that, where an act of assembly directed " the president, t'O" ™ay , „ n ■ -11 be indicted managers, and company of a certain turnpike road to in corpo- remove a gate on the road, an indictment would not for^di'sobe- lie against the president and managers, individually, "i'^^^^- for not removing the gate.' In Maine, however, it is said, that where an offence is committed by virtue of corporate authority, the individuals concerned in its commission, in their personal capacity, and not as a corporation, must be indicted ;* and in Virginia it has been ruled, still more broadly, that a corporation cannot be impleaded criminaliter by its artificial name at common law." But for all disobedience to statutes and derelictions of duty, the better opinion is that a corporation aggregate may be indicted by its corporate name ; which name must, as a rule, be correctly alleged as it existed at the time of the offence.f § 101. In several jurisdictions it has been determined that the law does not recognize more than one Christian name, jj-a^, and, therefore, when the middle names of the defendant names to are omitted, the omission is right." And the same view when es- is taken in Ohio and Tennessee, with the qualification ^^°"*i- that if a middle name is nevertheless set out, it must be proved as laid.* It was held a misnomer, however, in Massachusetts, when T. H. P. was indicted by the name of T. P.^ The omission of the first name, giving Only the middle, is fatal, unless the party is only 1 Com. V. Demuth, 12 Serg. & Rawle, 389. 2 State v„ Great Works, 20 Me. R. 41. ' Com. V. Swift Run Gap Turn- pike Co., 2 Va. Cas. 362. See Whart. Crim. Law, 9tli ed. §§ 91-2. ' Whart. Crim. Law, 9t}i ed. §§ 91-2 ; E. V. Great North of England R. R. Co., 9 Q. B. 315; R. v. Mayor, etc., of Manchester, 7 El. & Bl. 453 ; Ri (/. Birm. & Glou. Railway Co., 3 Ad. & El. Q. B. 223 ; 9 C. & P. 478 ; State V. Vermont C. R. R., 28 Vt. 583 ; Com. II. Phillipsburg, 10 Mass. 78 ; Com. V. Dedham, 16 Ibid. 142 ; Com. V. Demuth, 12 S. & R. 389. See Mo- Garry V. People, 45 N. Y. 153, and oases cited Whart. Crim; Law, 9th ed. §§ 91-2.- 5 R. V. Newman, 1 Ld. Raym. 562 ; State V. Funy, 13 R. I. 623 ; Roozevelt w. Gardiner, 2 Cow. 463 ; People v. Cook, 14 Barb. 259 ; Edmondson v. State, 17 Ala. 179 ; State v. Manning, 14 Texas, 402 ; State v. Williams, 20 Iowa, 98. See State V. Smith, 7 Eng. 622 ; West v. State, 48 Ind. 483 ; State u. Martin, 10 Mo. 391. 8 Price V. State, 19 Ohio, 423 ; State v. Hughes, 1 Swan. (Tenn.) 261 ; but see contra, People v. Lookwood, 6 Cal. 205 ; Miller v. People, 39 111. 457. ' Com. V. Perkins, 1 Pick. 388. See to same effect, State v. Homer, 40 Me. 438 ; Com. v. Hall, 3 Pick. 362. 75 § 102.] PLEADING AND PRACTICE. [chap. III. known by the middle name.* The better view is that when a party is known by a combination of names, by these he should be described ; though it is otherwise when he is only known by a single name.' § 102. Where names are ordinarily written with an abbreviation, this will be sufficient in an indictment.* And where a man is in the habit of using initials for his Christian name, and he is so indicted, and the fact whether he was so known is put in issue,' and he is convicted, the court will not interfere on that ground.* Even a motion to quash will be Initials sufficient ■when used by party himself. ' State V. Hughes, 1 Swan. 266 ; State V. Martin, 10 Mo. 391. See Hardin v. State, 26 Tex. 113. 2 Whart. Crim. Eir. § 100. See Pace V. State, 69 Ala. 231. 3 State .-. Kean, 10 N. H. 347. See Com. V. Kelcher, 3 Meto. (Ky.) 484, where " Mrs. Kelcher" was held sufficient on demurrer. See contra, Gatty V. Field, 9 Ad. & El. (N. S.) 431. * R. V. Dale, 17 Q. B. 64 ; Tweedy v. Jarria, 27 Conn. 42 ; Vandermark v. People, 47 111. 122 ; City Conn. v. King, 4 McCord, 487 ; State v. Anderson, 3 Rich. 172 ; State v. Bell, 65 N. C. 313 ; State V. Johnson, 67 N. C. 58 ; State v. Johnson, 93 Mo. 73, 317 ; State v. Black, 31 Tex. 560 ; and cases cited infra, §§ 115-7. In Texas initials are sufficient under statute. McAfee v. State, 14 Text Ap. 668. "Lord Campbell, when an objection was made to a recognizance taken be- fore Lee B. Townshend, Esq., and I. H. Harper, Esq., that only the initials of the Christian names of the justices were mentioned, remarked : ' I do not know that these are initials ; I do not know that they (the justices) were not baptized with those names ; and I must say that I cannot acquiesce iu the dis- tinction that was made iu Lomax v. Tandels, that a vowel may be a name, but a consonant cannot. I allow that a vowal may be a Christian name, and why may not a consonant ? Why might 76 not the parents, for a reason good or bad, say that their child should be baptized by the name of B, C, D, F, or H. ? lam just informed, by a person of most credible authority, that within his own knowledge a person has been baptized by the name of T.' And in this opinion of the chief. Justices Pat- terson, Wightman, and Erie concurred. R. V. Dale, 15 Jur. 657 ; 5 E. L. & E. 360." 18 Alb. L. J. 127 ; S. P., Tweedy V. Jarvis, 27 Conn. 42. In Kinnersley v. Knott, 7 C. B. 980, Mr. Sergeant Talfourd contended that a defendant called "John M. Knott" was not legally and properly desig- nated, saying that the letter M, stand- ing by Itself, could not be pronounced and meant nothing, but that in this connection it meant something, and that that something ought to be stated, for the law forbade the use of initials in pleadings. The court, however, held that M was not a name. Maule, J., said that vowels might be names, and that in Sully's Memoirs a Monsieur D'O is spoken of ; but that consonants could not be so alone, as they require in pro- nunciation the aid of vowels ; and the chief justice said that the courts had decided that they would not assume that a consonant expresses a name, but that it stood for an initial only, and that the insertion of an initial instead of a name was a ground of demurrer. In this country, as we have seen, single CHAP. III.] INDICTMENT : PLEADING OP NAMES. [§ 104. refused when based simply on the adoption of initials for Christian names.' § 103. If a man, by his own conduct, renders it ^^^^ doubtful what his real name is, he cannot defend himself not dispute on the ground of misnomer, if he be indicted by a name cepted by commonly accepted by him.* "^" § 104. Where the name of the defendant is unknown, and he refuses to disclose it, he may be described as a person nnknown whose name is to the jurors unknown, but who is per- party may sonally brought before them by the keeper of the prison ;^ mateiy de- but an indictment against him as a person to the jarors ^*'" ^ " unknown, without something to ascertain whom the grand jury meant to designate, will be insufficient.* The practice is to indict the defendant by a specific name, such as John No-name, and if he pleads in abatement, to send in a new bill, inserting the real name which he then discloses, by which he is bound. This course is in some States prescribed by statute." A known party cannot be indicted as unknown,* and if it appear that the grand jury knew the name, the indictment may be quashed.'' The Christian name may, if necessary, be averred to be un- known.* The pleading as to unknown co-conspirators is elsewhere dis- cussed.' consonants maybe names. 18 Alb. L. v. Leong Quong, 60 Cal. 107 ; Whart. J. 127. See Mead u. State, 26 Oh. St. Crim. Ev. § 95. 505 ; State v. Brite, 73 N. C. 26. But » State v. Angell, 7 Iredell, 27. If the record show that the Initial is * E. v. -, R. & R. 489. not the full name, the variance may be ' See Geiger v. State, 5 Iowa, 484, fatal. State v. Webster, 30 Ark. 166. where, under such a statute, it was In Gerrish ». State, 53 Ala. 476, the held necessary to give a fictitious name, defendant was indicted by the name of ^ infra, § 112 ; Whart. Crim. Ev. 9th F. A. Gerrish, and he pleaded that his ed. § 97. Geiger v. State, 5 Iowa, 484. name was not F. A. Gerrish, but Frank See, as to Christian name. Stone v. Augustus Gerrish, and that he was - State, 30 Ind. 115 ; Wilcox v. State, generally known as Prank A. Gerrish, 81 Tex. 586. and that this was known to the grand ' Jones v. State, 63 Ala. 27. jury that indicted him. The plea was s Kelley v. State, 25 Ark. 392,; Bry- held good. ant v. State, 36 Ala. 270 ; Smith v. 1 U. S. u. Winter, 13 Blatch. 276. Bayonne, 23 La. An. 78. * Newton v. Maxwell, 2 Crompt. & ^ whart. Crim. Law, 9th ed. § Jer. 2, 15 ; State v. Bell, supra ; People 1393. 77 § 106.] PLEADING AND PRACTICE. [chap. III. At com- mon law addition Is necessary. § 105. Stat. 1 Henry 5, c. 5, in force in most of the United States, specifies the following additions : " Estate or de- gree, or mystery;" and also the addition of the "towns, or hamlets, or places, and counties of which they were or be, or in which they be or were conversant."* The construction given to the statute in England has been, that the words " estate or degree" have the same signification, and include the titles, dignities, trades, and professions of all ranks and descrip- tions of men.* The omission of the addition is at common law fatal,' but in most jurisdictions additions are no longer necessary.* § 106. Though, when there is no addition, the correct course at w oDff d common law is to quash, yet^when there is a misnomer, dition to be the only method of meeting the error is by plea in abate- piea in ment.' The error, however, must be one of substance ; a atemen . j^gjjgg g^ pjgg^ jjj abatement that James Baker is a hus- bandman, and not a laborer, being demurred to, was adjudged bad.* • See, as to Pennsylvania, Roberts' Dig. 2d ed. 374. 2 2 Inst. 6@6. This statute is in force in Pennsylvania. Com. v. France, 3 Brewster, 148. 3 State V. Hughes, 2 Har. & McH. 479 ; Com. v. Sims, 2 Va. Cases, 374. As to Indiana, see State v. McDowell, 6 Blackf. 49. * Mystery means the defendant's trade or occupation ; such as merchant, mercer, tailor, schoolmaster, husband- man, laborer, or the like. 2 Hawk. o. 33, s. 111. Where a man has two trades, he may be named of either. 2 Inst. 658. But if a man who is a "gen- tleman" in England be a tradesman, he should be named by the addition of gentleman. 2 Inst. 669. In all other cases he may be indicted by his addi- tion of degree or mystery, at the op- tion of his prosecutor. See Mason V. Bushel, 8 Mod. 51, 52; Horspoole J). Harrison, 1 Str. 556 ; Smith a. Mason, 2 Str. 816; 2 Ld. Eaym. 1541. 6 State V. Bishop, 15 Me. 122 ; State V. Nelson, 29 Me. 329 ; Smith v. Bow- 78 ker, 1 Mass. 76 ; Com. v. Lewis, 1 Met. 151 ; Com. v. Demain, Brightly R. 441 ; Lynes v. State, 5 Port. 236 ; Com. v. Cherry, 2 Va. Cas. 20 ; State v. White, 32 Iowa, 17. Infra, §§ 385, 423. 6 Haught V. Com., 2 Va. Cas. 3. See, however. Com. v. Sims, 2 Va. Cas. 374. In ordinary cases it has been held sufficient to give the addition of yeo- man or laborer. 8 Mod. 51, 52 ; 1 Str. 566; 2 Str. 816; 2 Ld. Raym. 1541. Or to tradesmen, etc., the addi- tion of the mystery ; to widows, the addition of widows ; to single women, the addition of spinster or single wo- man ; to married women, usually thus: "Jane, the wife of John Wilson, late of the parish of C, in the county of B., laborer," though "matron" is not fatal. State v. Nelson, 29 Me. (16 Shep.) 329. Laborer (R. v. Franklyn, 2 Ld. Raym. 1179), or yeoman (2 Inst. 668), is not a good addition for a wo- man . Servant is not a good addition in any case. R. v. Checkets, 6 M. & S. 88. Any addition calculated to cast con- tempt or ridicule on the defendant is CHAP. III.] INDICTMENT: PLEADING OF NAMES. [^ 108. Defend- ant's resi- dence must be given. § 107. The defendant must be described as of the town or ham let, or place and county, of which he was or is, or in which he is or was, conversant.* In most States, the forms in common use give the addition of place, as " late of the said county," or "of the county of ." The place may be averred to be that of the commission of the crime.' § 108. Where a father and son have the same name, and are both indicted, the English rule was to distinguish them by naming one as the elder, the other as the younger ;* niust°bT al- though such seems no longer requisite ;* and the general ^^^^ ^^^^ rule in this country is that junior is no necessary part of known as the name,* though it has been held that when L. W. and L. W., Junior, being father and son, lived in the same place, and the indictment avers certain acts to be done by L. W., evidence is inadmissible to show that they were done by L. W., Junior, it being presumed L. W. in the indictment meant L. W., Senior.^ In New York, in an early case, it was said that if a man be known by the addition of ^^ junior" to his name, an indictment against him with- out that addition is not conclusive that he is the person indicted.' The question is one of usage. If a party is commonly known as "Junior" or as "2d," as such he must be indicted ; otherwise not.' bad ; and it has been held, in Maine, that the addition, "lottery vender," when the defendant was, in fact, a lottery broker, is bad on abatement. State V. Bishop, IS Me. 122. Where, in an indictment against a woman, she is described as A. B., " wife of C. D.," these latter words are mere additions, or descriptio personw, and need not be proved on trial. Com. v. Lewis, 1 Met. 161. 1 Arch. C. P. 27. 2 Com. V. Taylor, 113 Mass. 1. ' 1 Bulst. 183 ; 2 Hawk. c. 25, s. 70 ; Salk. 7. * Hodgson's case, 1 Lewin C. C. 23B ; Peace's case, 3 Barn. & Aid. 579 ; Gev- aghty B. State, 110 Ind. 103. But see R. V. Withers, 4 Cox C. C. 17. ' State V. Grant, 22 Me. 171 ; State V. Weare, 38 N. H. 314 ; Allen v. Tay- lor, 26 Vt. 599 ; Com. v. Perkins, 1 Pick. 388 ; Com. v. Parmenter, 101 Mass. 211 ; People v. Cook, 14 Barb. 259 ; People v. Collins, 7 Johns. 549 ; McKay v. State, 8 Tex. 376 ; San Fran- cisco V. Randall, 54 Cal. 408. See Colt V. Starkweather, 8 Conn. 289 ; Com. v. East Boston Ferry Co., 13 Allen, 589. 6 State V. Vlttum, 9 N. H. 519 ; R. v. Bailey, 7 C. & P. 264 ; contra, R. v. Peace, 3 Barn. & Aid. 579. In Com. v. Parmenter, 101 Mass. 211, it was held that "W. R., Jr.," might be Indicted as " W. R.," the second of that name. ' Jackson ex dem. Pell v. Provost, 2 Caines, 165. 8 Whart. Crim. Ev. § 100. 79 § 110.] PLEADING AND PRACTICE. [CHAP. III. Name only of third person - need be given. 2. Description of Parties Injured and Third Parties. § 109. The statute of additions extends to the defendant alone, and does not at all affect the description either of the prosecutor, or any other individuals whom it may be ne- cessary to name ;' and therefore no addition is in such case necessary, unless more than two persons are re- ferred to whose names are similar.^ It is enough to state a party injured, or any person except the defendant, whose name neces- sarily occurs in the bill, by the Christian and surname ; as, for in- stance, " on John Slycer did make an assault, or, the " goods of John Nokes did steal." The name thus given must be the name by which the person is generally known,' including Christian as well as surname.^ & 110. When the name of a corporation is given, the Corporate ^ . , , . , ■, , -^ title must Corporate title must be strictly pursued, unless speciii- e epeciai. pj^jjo^ jg made unnecessary by local statute.* 1 2 Leaoh, 861 ; 2 Hale, 182 ; Burn, J., Indictment ; Bac. Ab. Indictment, G. 2 ; R. V. Uraham, 2 Leach, 547 ; E. V. Ogilvie, 2 C. & P. 230 ; Com. v. Varney, 10 Cush. 402 ; though see R. V. Deeley, 1 Mood. C. C. 303 ; 4 C. & P. 578. " Ibid. 3 Infra, §§ 116, 119 ; E. v. Norton, Eus. & Ey. 510 ; E. v. Berriman, 5 C. & P. 601 ; E. ... Williams, 7 C. & P. 298 ; State v. Haddock, 2 Hayw. 162 ; Walters v. People, 6 Park. C. E. 16. * Morningstar v. State, 52 Ala. 405 ; State V. Taylor, 15 Kans. 420 ; Collins V. State, 43 Tex. 577. But when an addition is stated descriptively, a va- riance may be fatal. E. v. Deeley, 1 Mood. C. C. 303 ; 4 C. & P. 579 ; Whart. Crim. Ev. § 100. 6 Supra, § 100 ; Whart. Crim. Law, 9th ed. § 941 ; E. v. Birmingham R. E. 3 Q. B. 223 ; State v. Vt. R. R., 28 Vt. 583 ; Fisher v. State, 40 N. J. L. 169 ; McGary v. People, 45 N. Y. 153 ; Lith- gow V. State, 2 Va. Cas. 296 ; Smith v. 80 state, 28 Ind. 321 ; Wallace v. People, 63 111. 481. Whether at common law, in an in- dictment for stealing the goods of a cor- poration, it is requisite to aver that the corporation was incorporated, has been much disputed. That it is necessary is ruled in State v. Mead, 27 Vt. 722 ; Cohen v. People, 5 Parker C. R. 330 ; Fisher v. State, 40 N. J. L. 169 ; Wal- lace V. People, 63 111. 451 ; People v. Schwartz, 32 Cal. 160. That it is un- necessary, unless made so by statute, is ruled in R. v. Patrick, 1 Leach, 253 ; Com. V. Phillipburg, 10 Mass. 70 ; Com. ti. Dedham, 16 Mass. 141 ; People v. McCloskey, 5 Parker C. C. 57, 334; People V. Jackson, 8 Barb. 637 ; Mc- Laughlin V. Com., 4 Eawle, 464 ; Fisher V. State, 40 N. J. L. 169 ; Johnson ». State, 65 Ind. 204. See Whart. Crim. Law, 9th ed. § 716. The question de- pends upon whether the court takes Judicial notice of the charter. Whart. on Ev. §§ 292-3. CHAP. III.] INDICTMENT : PLEADING OP NAMES. [§ 111. § 111. Where a third person cannot be described by name, it is enough to charge him as a " certain person to the jurors aforesaid unknown,"* which, as will presently be seen, is g^^l ^^j' correct, if the party was at the time of the indictment *'®?.^" unknown to the grand jury, though he became known as " un- afterwards.* A deceased person may thus be described as " unknown," when the grand jury have no knowledge of his name f and so may the owner of stolen property ;* or an assaulted 1 2 Hawk. 0. 25, s. 71 ; 2 East P. C. 651, 781 ; Cro. C. C. 36 ; Plowd. 85 b ; Dyer, 97, 286 ; 2 Hale, 181 ; State o. Higgins, 53 Vt. 191 ; Com. v. Tomp- son, 2 Cush. 551 ; Com. v. Hill, 11 Cush. 137 ; Com. v. Stoddard, 9 Allen, 280 ; Goodrich v. People, 3 Parker C. R. 622; Com. v. Sherman, 13 Allen, 248 ; Willis u. People, 1 Scam. 399 ; State V. Irvin, 5 Blackf. 343 ; Brooster V. State, 15 Ind. 190 ; State v. MoCon- key, 20 Iowa, 574 ; State v. Bryant, 14 Mo. 340 ; Mackey v. State, 20 Tex. Ap. 603. SeeWhart. Prec. (2) n. (0. A Christian name may be averred to be unknown. Bryant v. State, 36 Ala. 270 ; Smith v. Bayonne, 23 La. An. 68. 2 Stra. 186, 497 ; Com. v. Hendrie, 2 Gray, 503 ; Com. v. Intoxicating Liq- uors, 116 Mass. 21. See, as to vendee in liquor sales, Whart. Crim. Law, 9th ed. § 1511. 3 R. V. Campbell, 1 Car. & K. 82 ; State V. Haddock, 2 Hayw. 348 ; Reed V. State, 16 Ark. 499. In Wade v. State, 23 Tex. Ap. 308, it was held that giving the name of the deceased as " Smutty my Darling," though pecu- liar, was not bad. * 2 East P. C. 651, 781 ; 1 Ch. C. L. 212 ; 1 Hale, 181 ; 2 B. & Aid. 580 ; Com. V. Morse, 14 Mass. 217 ; Com. v. Manley, 12 Pick. 173 ; Whart. Crim. Law, 9th ed. § 949. To support the de- scription of " unknown," remarks Mr. Sergeant Talfourd, " it must appear that the name could not well have 6 been supposed to have been known to the grand jury." R. v. Stroud, 1 C. & K. 187. A bastard is sufficiently identified by showing the name of its parent, thus : " A certain illegitimate male child then lately born of the body of A. B. (the mother.)" R. v. Hogg, 2 M. & Rob. 380. See R. v. Hicks, 2 Ibid. 302, where an indictment for child-murder was "held bad for not stating the name of the child, or ac- counting for its omission. A bastard must not be described by his mother's name til] he has acquired it by reputa- tion. R. V. Clark, R. & R. 358 ; Wake- field V. Mackey, 1 Phill. R. 134, contra. A bastard child, six weeks old, who was baptized on a Sunday, and down to the following Tuesday had been called by its name of baptism and mother's surname, was held by Er- skine, J., to be properly described by both those names in an indictment for its murder ; R. v. Evans, 8 C. & P. 765 ; but where a bastard was baptized "Eliza," without mentioning any sur- name at the ceremony, and was after- wards, at three years old, suffocated by the prisoner, an indictment styling it " Eliza Waters," that being the moth- er's surname, was held bad by all the judges, as the deceased had not ac- quired the name of Waters by reputa- tion. R. V. Waters, 1 Mood. C. C. 457 ; 2 C. & K. 862. (N. B. No bap- tismal register, or copy of it, was pro- duced at either trial. Semb.i "Eliza" 81 § 112.] PLEADING AND PRACTICE. [chap. III. person.^ Unless there be such an averment, an indictment in which the injured party is not individuated cannot be sustained.* § 112. But if the third party's name be known to the grand jury, or could have been known by inquiry of witnesses at hand, the allegation will be improper, and the defen- dant must be acquitted on that indictment, though he may be afterwards tried upon a new one, in which the But this allegation may be traversed. would have sufficed. See R. v. Stroud, 1 C. & K. 187, and cases collected ; Williams v. Bryant, 5 M. & W. 447.) In the previous case of R. v. Clark, R. & R. 358, an indictment stated the murder of " George Lakeman Clark, a base-born infant male child, aged three weeks," by the prisoner, its mother. The child had been christened George Lakeman, being the name of its reputed father, and was called so, and not by any other name known to the witnesses. Its mother called it so. There was no evidence that it had been called by or obtained its mother's name of Clark. The court held that the child was in- correctly described as Clark, and as nothing but the name identified him in it, the conviction was held bad. See, also, R. V. Sheen, 2 C. & P. 634. How- ever, in R. V. Bliss, 8 C. & P. 773, an indictment against a married woman for murder of a legitimate child, which stated " that she, in and upon a cer- tain ir^ant male child of tender years, to wit, of the age of six weeks, and- not baptized, feloniously and wilfully, etc., did make an assault," etc., was held insufficient by all the judges, as it neither stated the child's name, nor that it was " to the jurors unknown." It is, however, sufficient to describe the child " as a certain male child, etc., of tender age, that is to say, about the age of six weeks, and not baptized, born of the body of C. B." See 2 C. & P. 635, n. ; R. v. Willis, 1 C. & K. 722 ; see, also, R. v. Sheen, 2 C. & P. 634 ; 82 Dickins, Q. S. 6th ed. 213. Junior and. Senior. The law as to defendants on this point has been already stated, § 108. In England, it is said that where the party injured has a mother or father of the same name, it is better to style the prosecutor " the younger," as it may he presumed that the parent is the party meant ; for George Johnson means G. J. the elder, unless the con- trary is expressed. Singleton v. John- son, 9 M. & W. 67. But this was held immaterial when it is sufficiently proved who Elizabeth Edwards, the party described assaulted, was, viz., the daughter of another Elizabeth Ed- wards. R. V. Peace, 3 B. & Aid. 579. Where the defendant was indicted for the murder of her bastard child, whosename was to the jurors unknown, and it appeared that the child had not been baptized, but that the mother had said she would like to have it called Mary Ann, and little Mary, the indict- ment was held good. R. v. Smith, 1 Mood. C. C. 402 ; 6 C. & P. 151. An indictment for the murder of " a certain Wyandott Indian, whose name is unknown to the grand jury," is valid, and sufficiently descriptive of the deceased, without an allegation that the words "Wyandott Indian" mean a human being. Reed v. State, 16 Ark. 499. 1 Grogan v. State, 63 Miss. 147. 2 Parker v. State, 9 Tex. Ap. 351 ; Rutherford v. State, 13 Tex. Ap. 92. CHAP. ni.J INDICTMENT : PLEADING OP NAMES. [§ 113. mistake is corrected.* Discovery of the name subsequently to the finding of the bill, however, is no ground for acquittal,* or arrest of judgment.' But the allegation that co-defendants are " unknown" is material, and may be traversed under the plea of not guilty.* Thus, an indictment will be bad against an accessary, stating the principal to be unknown to the grand jury, contrary to the truth, and the judge will direct an acquittal.* § 113. The test is, had the grand jury notice, actual or con- structive, of the name ; for if so, the name must be averred.* But it is not enough to defeat the bill that the same grand jury found another bill specifying the "person unknown" as "J. L.,"^ and the burden is on the defendant to prove knowledge at the time by the grand jury.* It is the approved practice, in cases of doubtful ownership, to lay the ownership in one count in persons unknown, and in other counts in several persons tentatively. The test is whether the name was un- known to the grand jury. ' 2 East'P. C. 561, 781 ; 3 Camp. 265, note ; 1 Hale, 512 ; 2 Hawk. c. 25, s. 71 ; 2 Leach, 678 ; R. v. Robinson, 1 Holt, 595 ; R. v. Stroud, 2 Mood. 270 ; State V. Wilson, 30 Conn. 500 ; White V. State, 35 N.Y. 465 ; Guthrie «. State, 16 Neb. 601 ; Williamson v. State, 13 Tex. Ap. 514. See Buck v. State, 1 Ohio St. 61 ; Jorasco v. State, 6 Tex. Ap. 283 ; Whart. Crim. Ev. § 97. As to unknown conspirators, see Whart. Crim. Law, 9th ed. §§ 1393, 1511. That proof of a "person unknown" will not sustain an averment of " persons un- known," see Moore v. State, 65 Ind. 213. 2 Whart. Crim. Ev. § 97 ; R. v. Campbell, 1 C. & K. 82 ; R. v. Smith, 1 Mood. C. C. 402; Com. u. Hill, 11 Cush. 137 ; Com. v. Hendrie, 2 Gray, 503 ; Zellers v. State, 7 Ind. 659 ; Cheek n. State, 38 Ala. 227.; State v. Bryant, 14 Mo. 340. ' People V. White, 55 Barb. 606 ; S. C, 32 N. Y. 465 ; Whart. Crim. Er. §97. * Barkmau v. State, 8 Eng. (13 Ark.) 703 ; Cameron v. State, Ibid. 712 ; Eeed V. State, 16 Ark. 499. See Whart. Crim. Ev. § 97 ; Whar. Crim. Law, 9th ed. § 948. 5 3 Camp. 264, 265 ; 2 East P. C. 781. 6 E. V. Stroud, 1 C. & K. 187 ; R. v. Robinson, Holt N. P. 595 ; Com. v. Sherman, 13 Allen, 249 ; Com. i^. Glover, 111 Mass. 401 ; Blodget v. State, 3 Ind. 403. See Atkinson v. State, 19 Tex. App. 462. ' E. V. Bush, E. & R. 372. See 1 Den. C. C. 361 ; Com. v. Sherman, 13 Allen, 250. 8 Whart. Crim. Ev. § 97; Com. v. Hill, 11 Cush. 137 ; Com. v. Gallagher, 126 Mass. 54. As to liquor cases, see Whart. Crim. Law, 9th ed. §§ 1510, 1511. 83 § 118.] PLEADING AND PRACTICE. [chap. III. Immaterial misnomer may be re- jected as surplusage. Sufficient if descrip- tion be sub- stantially correct r §116. § 114. If the allegation in which the misnomer ap- pears is immaterial, it may be rejected as surplusage.' § 115. A mere statement of the Christian name, without any addition to ascertain the precise individual, is bad, because uncertain.' But where the pleader undertakes to set out the names of a firm, a variance in the proof of these names is fatal.' A variance or an omission in the name of the person aggrieved is much more serious than a mistake in the name or addition of the defendant, as the latter can only be taken advantage of by the plea in abatement, while the former will be ground for arresting the judg- ment when the error appears on the record, or for acquittal, when a variance arises on the trial .^ § 117. Initials, it seems, are a sufficient designation of the Christian name, if the party uses and is known by such initials ;' and at all events cannot be excepted to after verdict.* § 118. As has been already incidentally noticed, a description of Eeputative ^ person in legal proceedings by the name acquired by "uffi^'^t reputation has been held sufficiently certain.'' Thus Variance in third party's name is fatal. Name maybe given by Initials. > Com. V. Hunt, 4 Pick. 252 ; U. S. V. Howard, 3 Sumner, 12; State v. Farrow, 48 Ga. 30 ; Whart. Crim. Ev. § 138. Infra, § 158. 2 2 Hawk. c. 25, s. 71 ; Bac. Ab. Indictment, G^. 2. But see Starkie, 171, 172 ; 6 St. Tr. 806 ; Moore, 466 ; Dyer, 285 a ; Keilw. 25 ; 1 Leach, 248 ; 2 Leach, 861 ; 2 East P. C. 990 ; 2 Haw- kins, 0. 25, s. 72 ; Martin v. State, 6 Humph. 204. Infra, § 118 ; Harue v. State, 39 Md. 552. See Stockton v. State, 25 Tex. 772. 3 Doane v. State, 25 Ind. 495 ; Whart. Crim. Ev. §§ 94 et seq. * 1 East P. C. 514, 651, 781 ; 2 Leach, 774 ; 1 Ch. C. L. 217 ; State v. Sherrill, 81 N. C. 550; Graham v. State, 40 Ala. 669 ; Haworth v. State, Peck. 89 ; Osborne v. State, 14 Tex. Ap. 225. See fully Whart. Crim. Ev. 84 §§ 94 et seg. That variance as to middle name may he fatal, see Ibid. ; Com. ». O'Hearn, 132 Mass. 653 ; Com. v. Bud- eley, 145 Mass. 181. 6 Mead v. State, 26 Ohio St. 605 ; State V. Bell, 65 N. C. 313 ; State v. Brite, 73 N. C. 26 ; Thompson v. State, 48 Ala. 165 ; State v. Seely, 30 Ark. 162 ; State v. Anderson, 3 Rich. 172 ; State V. Black, 31 Tex. 560 ; Vander- mark v. People, 47 111. 122. See su- pra, § 102. As to variance see Whart. Crim. Ev. §§ 94 ei seq. 6 Smith V. State, 8 Ohio, 294. ' R. V. Norton, R. & R. 509 ; R. v. Berriman, 5 C. & P. 601 ; Anon., 6 C. & P. 408 ; State v. Bundy, 64 Me. 507 ; Waters v. People, 6 Parker C. R. 16 ; Com. V. Trainor, 123 Mass. 414 ; State V. Bell, 65 N. C. 313; Jones v. State, CHAP. III.] INDICTMENT : PLEADING OP NAMES. [§ 119. where, in a case of homicide, an indictment charges the name of the person slain as Marie Gardiner, alias Maria Bull, and the proof shows her real name to have been Maria Frances Bull, though generally known by the name in the indictment, it is sufficient.^ § 119. Should the name proved be idem sonans with that stated in the indictment, and different in spelling only, the variance will be immaterial.' Thus, Segrave for Sea- nam is grave ;» McLauglin for McGloflin •* Chambles for ^"fi^ent. Chambless ;* Usrey for Userry ;* Authron for Autrum ;^ Benedetto for Beniditto f Whyneard for Winyard, pronounced Winnyard ;' Petris for Petries, the pronunciation being the same ;'" Hutson for Hudson," form no variance. But it has been decided that when the sound differs, the variance is fatal," and that McOann and McCarn,'' Shakespear and Shakepear," Tabart and Tarbart," Shutliff and Shirtlifif," Comyns and Cummins ;" are not the same in sound." What is idem sonans is for the jury," 65 Ga. 147 ; McBeth v. State, 50 Miss. 81 ; Whart. Crim. Ev. § 95. Hence tlie omission of an initial middle name is not fatal. People v. Ferris, 56 Cal. 142. 1 State V. Gardiner, Wright's Olaio R. 392. See, also, R. v. Willis, 1 Car. & K. 722 ; O'Brien v. People, 48 Barb. 274; Kriel v. Com., 5 Bush (Ky.), 362 ; People V. McGilver, 67 Cal. 55. 2 Whart. Crim. Ev. § 96. See R. v. Wilson, 2 C. & K. 527 ; 1 Den. C. C. 284 ; 2 Cox C. C. 426 ; State v. Bean, 19 Vt. 530 ; State .;. Hare, 95 N. C. 682 ; Point v. State, 37 Ala. 148 ; Don- nelly V. State, 78 Ala. 453 ; State v. Pullens, 81 Mo. 387 ; State v. Lincoln, 17 Wis. 579 ; State v. Witt, 34 Kan. 488 ; see 22 Cent. L. J. 247, 249, where a number of illustrations are given. 3 Williams v. Ogle, 2 Str. 889. * McLauglin v. State, 52 Ind. 476. = Ward V. State, 28 Ala. 53. ' Cresham v. Walker, 10 Ala. 370. ' State V. Scurry, 3 Rich. 68. 8 Ahibol V. Beniditto, 2 Taunt. 401. 3 R. V. Foster, R. & R. 412. '" Petries v. Woodworth, 3 Caines, 219. See State w. Upton, 1 Dev. 513. " State V. Hutson, 15 Mo. 512. 12 Clements v. State, 21 Tex. Ap. 258 ; Neiderluck v. "State, Ibid. 320 ; Mc- Devro v. State, 23 Tex. Ap. 429. See cases in 22 Cent. L. J. 247-8. " R. „. Tannett, R. & R. 351. M R. V. Shakespear, 10 T. R. 83. 15 Bingham v. Dickie, 5 Taunt. 814. 16 1 Chit. C. L. 216 ; 3 Chit. Burn, 341. 1' Cruickshank v. Comyns, 24 111. 602. 18 See Com. v. Gillespie, 7 Serg. & R. 469. 19 R. V. Davis, 2 Den. C. C. 231 ; T. & M. 557; 5 Cox C'C. 238; Com. u. Donovan, 13 Allen, 571 ; Com. v. Jen- nings, 121 Mass. 47. See People v. Cooke, 6 Park, C. R. 31. See fully Whart. Crim. Ev. §§ 94 e« seq. ; 22 Cent. L. J. 247. It may be stated in brief : — 1st. A variance in defendant's name 85 § 120.] PLBADINa AND PBACTICE. [OHAP. III. The decisions on the subject of variance will be found fully col- lated in the treatise on Criminal Evidence with which this work is to be taken in connection.* V. TIME. 1. Time must be avbkbed, but not geneballt material, § 130. 2. What Pbecision ib necessabt in ITS Statement, § 123. 3. Initials and Numekals, § 124. 4. Double and Obscube Dates ; Con- tinuandos, § 125. 5. Histobical Epochs, § 128. 6. Hour, § 130. 7. Then and There, § 131. 8. Repugnant Future oe Impossible Dates, § 134. 9. Cases where Date is material, § 136. § 120. Time and place must be attached to every material fact averred",* but the time of committing an offence (except where the time enters into the nature of the offence, or Time must be averred generally becomes material under a statute of limitations), may be material. j^^^j^ ^^ ^^^ ^^^ previous to the finding of the bill,' dur- ing the period within which it may be prosecuted.* or addition can only be taken advan- tage of. by plea in abatement. Supra, §106. 2d. A blank in either Christian name, surname, or addition of defendant can be taken advantage of by plea in abate- ment, though the proper course is by motion to quash. Ibid. 3d. Any variance in sound in the name of material third parties is fatal at common law, it being the duty of the court to order an acquittal, though such acquittal is no bar to a second and correct indictment. Supra, §§ 116, 119. The court will determine by inspec- tion what is the name as written in the indictment. O'Neil v. State, 48 Ga. 66. 1 Whart. Crim. Ev. 9th ed. § 96. " 1 Chit, on Pleading, 4th ed. In- dex, tit. Time ; R. v. HoUond, 5 T. R. 607 ; R. V. Aylett, 1 T. R. 69 ; Stand. 95 a; R. v. Haynes, 4 M. & S. 214 ; State ». Baker, 4 Reding. 52 ; State v. Hanson, 39 Me. 337 ; State v. Day, 74 Me. 220 ; Criohton v. People, 6 Park. C. R. 363 ; State v. Lyon, 45 N. J. 272 ; State V. Brown, 24 S. C. 224 ; Roberts u. State, 19 Ala. 526 ; State v. Walker, 14 Mo. 398 ; State v. Beckwith, 1 Stew- art, 318 ; Sanders v. State, 26 Tex. 119 ; State V. Slack, 30 Tex. 354 ; People v. Littlefield, 5 Cal. 355 ; though see State V. Barnett, 3 Kans. 250. ' Williams v. State, 12 Tex. Ap. 226. ' Whart. Crim. Ev. § 102 ; U. S. v. Bowman, 2 Wash. C. C. 328 ; State v. Williams, 76 Me. 480 ; State v. Havey, 58 N. H. ^77 ; State v. Ingalls, 59 N. H. 88 ; Com. v. Dillaue, 1 Gray, 483 ; Com. «. Sego, 125 Mass. 210 ; People v. Van Santvoord, 9 Cow. 660 ; Turner v. People, 33 Mich. 363 ; State i>. Swaim, 97 N. C. 462 ; Cook v. State, 11 Ga. 53 ; State V. Gibbs, 6 Baxt. 238; State v. Davis, 6 Baxt. 605 ; State v. Bell, 49 Iowa, 440 ; State v. Ferrell, 20 W. Va. 759 ; Wingard «. State, 13 Ga. 396 ; Shelton v. State, 1 Stew. & Por. 208 ; M'Dade v. State, 20 Ala. 81 ; MoBryde V. State, 34 Ga. 202 ; State v. Magrath, 19 Mo. 678. CHAP. III.] INDICTMENT: TIME. [§ 122. To assign the day as that of the finding of the bill (unless there be a specific averment that the ofience was prior to the finding),* or subsequent thereto, is bad.' If a day certain be laid before the finding, other insensible dates may be rejected as surplusage.^ Where there is a statute authorizing amendments of formal errors, and there is no constitutional impediment, dates when formal may be amended.* § 121. The statement of the day of the month, in an indictment for an offence on Sunday, though the doing of the act on that day is the gist of the offence, is not more material "Sunday" than in other cases ; and hence, if the indictment charge geDce of' the offence to have been committed on Sunday, though it °^^^^' names the day of the month which does not fall on Sun- must be day, it is good, or though the Sunday averred is not the Sunday proved." But " Sunday" or " Sabbath" must be averred.' " Sabbath" for " Sunday" is said to be no variance.^ § 122. A videlicet (i. e, " that afterwards, to wit," etc.) was used by the old pleaders when they wished to aver a date ay^i- ,<, or other fact tentatively, for information, without bind- ™ay intro- ing themselves to it as a matter of essential description, date tenta- a variance in respect to which would be fatal. Hence it *"^ ^' has been held in England (though there is some confusion in the authorities in this respect) that the videlicet can, if repugnant, be stricken out as surplusage, when there is enough remaining to make 1 Com. V. Miller, V9 Ky. 451. 2 State V. Hunger, 15 Vt. 291 ; State V. Litoh, 33 Vt. 67 ; Com. v. Doyle, 110 Mass. 103 ; Jacobs a. Com., 5 S. & R. 316 ; State v. Noland, 29 Ind. 212 ; Joel V. State, 28 Tex. 642 ; Kinoald v. State, 8 Tex. Ap. 465 ; Lee v. State, 22 Tex. Ap. 547 ; Williams v. State, 12 Tex. Ap. 226 ; Goddard v. State, 14 Tex. Ap. 566. Infra, § 134. » Wells V. Com., 12 Gray, 326 ; State V. Fletcher, 13 B. I. 522 ; State t>. Wood- man, 3 Hawks, 384 ; Cook v. State, 11 Ga. 53. Infra, § 125. ' Myers v. Com., 79 Penn. St. 308. But see supra, § 90. 5 E. V, Trehearne, 1 Mood, C. C. 298; Com. v. Harrison,, 11 Gray, 308; People V. Ball, 42 Barbour, 324 ; Hoover V. State, 56 Md. 584 ; State v. Eskridge, 1 Swan (Tenn.), 413 ; State v. Drake, 64 N. C. 589 ; State v. Wood, 86 N. C. 708 ; State v. Bryson, 90 N. C. 747. But see Werner v. State, 51 Ga. 426. For proof see Wliart. Crim. Ev. § 106.. See Com. v. Hoyer, 125 Mass. 209 ; Pan- cake V. State, 81 Ind. 630. 6 See R. V. Trehearne, 1 Mood. C. C. 298 ; Com. v. Harrison, 11 Gray, 308 ; McGowan v. Com., 2 Meto. (Ky.) 3; Frazier v. State, 19 Mo. 678 ; State v. Land, 42 Ind. 311 ; Rohinson v. State, 38 Ark. 548. I State V. Drake, 64 N. C. 589. 87 § 123.] PLBADINa AND PEACTIOB. [CHAP. III. out the charge.* And as a rule the videlicet relieves the pleader from the necessity of proving a non-essential descriptive averment.* After verdict, to support an indictment, and to show that the provisions of a statute have been complied with, dates laid. under a videlicet may be taken to be true,' and as properly averred.* Before verdict, however, and at common law, dates laid in a videlicet, when time is material, may be traversed ; and hence, if laid insensibly, will vitiate the context. In other words, when an allegation is material, accuracy in stating it cannot be dispensed with by thrusting it into a videlicet.'^ § 123. It is requisite, with some exceptions, to name both the day and year. The month without the year is insuffi- Blank as . . i ... , , , . to date Is Went,' and so when the month is given but the day is atai. jg£j. ya^QJjT If tiie date be laid in blank the judgment will be arrested.' But in Pennsylvania, it has been determined that where the commencement of the indictment was " Decem- ber Session, 1818," and the offence was charged to have been committed on the twelfth day of August, in the year aforesaid., the time was sufficiently expressed.' And it was said in another case that it was not fatal to aver the " first March," instead of the first day of March.'" On the other hand, an indictment, not containing the year, but referring to the caption (which does contain the year) in this manner, "in the year of our Lord aforesaid," has been held to be bad, as the caption is no part of the indictment." 1 Infra, § 158 a; Eyalls v. R. (in " Com. Dig. Ind. s. 2; Com. v. Grif- error), 11 Q,. B. 781; 18 L. J. M. C. fin, 3 Cush. 523. 69— Exch. Cham. But see People v. ' Clark v. State, 34 Ind. 436. Jackson, 3 Denio, 101 ; and Mallett v. * State v. Beckwith, 1 Stew. 318 ; Stevenson, 26 Conn. 428 ; where the State v. Roache, 2 Hayw. 352 ; Jane videlicet was held to narrow the preced- v. State, 3 Mo. 45. Under the Ten- ing averment. Whart. Crim. Ev. § 141. nessee statute a blank as to day of 2 1 Green. Ev. § 60 ; 1 Ch. PI. 317 ; month is not fatal. State v. Parker, 5 State V. Heck, 23 Minn. 551. Lea, 568. s Infra, § 158 a; R. v. Scott, D. & ' Jacobs v. Com., 5 S. & R. 315; B. C. C. 47. though see Com. v. Button, 5 Gray, 89. ' State V. Murphey, 55 Vt. 547. ^° Simmons v. Commonwealth, 1 6 See State v. Phinney, 32 Me. 440 ; Rawle, 142. Paine v. Fox, 16 Mass. 129 ; State v. » State v. Hopkins, 7 Blaokf. 494. Haney, 1 Hawks, 460 ; 2 Saund. 291 ; 1 Ch. C. L. 226. CHAP. III.] INDICTMENT: TIME. [§ 125. § 124. It has been said that the omission of the phrase, " the year of our Lord," is fatal,* though it is ruled that A. D., in initials, will be sufficient ;^ and the better tiai accu- opinion is that both may be dispensed with.^ The enough. dates may be given in Arabic figures.* It should be averred which figures designate the year. It is not enough to say " the fifteenth of June, 1855."" . In Massachusetts, a complaint which charges, in words at length, the time of the commission of an offence, is not affected by the addi- tion, in figures, of the date when the complaint is made.* § 125. To aver that the defendant, on divers days, committed an offence, is bad; and so where two distinct days are Double or averred •? but it is sufficient to state that on a day speci- obscure • 1 1 . dates are fied, as well as on certain other days, he kept a gaming- inade- house, a tippling-house, or a common nuisance ; the "^"^ ^' allegation, " certain other days," being rejected as surplusage.* ' Whitesides v. People, 1 Breese, R. 4 ; though see State v. Haddock, 2 Hawks, 461 ; State v. Dickens, 1 Hayw. 406. Infra, § 274. ! State b. Reed, 35 Me. 489 ; State V. Hodgeden, 3 Vt. 481. > Broome v. R., 12 Q. B. 834; State V. Gilbert, 13 Vt. 647 ; Hall v. State, 3 Kelley, 18; Engleman v. State, 2 Carter (Ind.), 91 ; State v. Munch, 22 Minn. 67. Infra, § 274. * Infra, § 274 ; State v. Reed, 35 Me. 489; State v. Hodgeden, 3 Vt. 481 ; State v. Jericho, 40 Vt. 121 ; Com. V. Hagarman, 10 Allen, 401 ; Com. V. ■ Adams, 1 Gray, 48 ; Lazier V. Com., 10 Grat. 708 ; Cady o. Com., 10 Grat. 776; State ». Dickens, 1 Hayw. 406 ; State v. Haddock, 2 Hawks, 461 ; State v. Lane, 4 Ired. 113; State v. Raiford, 7 Port. 101; State V. Smith, Peck, 165 ; State v. Egan, 10 La. An. 699 ; Kelly v. State, 3 Sm. & M. 518 ; State v. Seamons, 1 Iowa, 418 ; though see contra, at com- mon law in New Jersey and Indiana, Berrian o. State, 2 Zabriskie, 9 ; State V. Voshall, 4 Ind. 590 ; Finch v. State, 6 Blackf. 533. In both States this is corrected by statute. Johnson v. State, 2 Dutch. (N. J.) 313. See^ also, as to Indiana, Hizer v. State, 12 Ind. 330. 5 Com. V. McLoon, 5 Gray, 91. 6 Commonwealth v. Keefe, 7 Gray, 332. ' 1 Ld. Raym. 581 ; 10 Mod. 249 ; 2 Hawk. 0. 25, s. 82 ; Cro. C. C. 36 ; 4 Mod. 101 ; Com. v. Adams, 1 Gray, 481 ; State v. Brown, 3 Murph. 224 ; State V. Weller, 3 Murph. 229 ; State V. Hayes, 24 Mo. 358 ; corrected by statute, 1852, p. 368 ; Hampton v. State, 8 Ind. 336 ; State v. Hendricks, Conf. 369. Aliter under N. Y. stat- ute. New York u. Mason, 4 E. D. Smith, 142. And to aver a series of blows on successive days, resulting in death, is not bad. Com. v. Stafford, 12 Cush. 619 ; and so as to successive adulterous acts. State v. Briggs, 68 Iowa, 416. See Hutchinson v. State, 62 Ind. 553. In Kansas " on or about" a specified day does not vitiate ; State V. Harp, 31 Kan. 496 ; and so in Mis- souri, State V. Findlay, 77 Mo. 338. 8 Starkie's C. P. 60 ; U. S. v. La 89 § 125.] PLKADING AND PRACTICE. [chap. III. In cases in which it is necessary that a oontinuando should he averred (e. g., in cases of continuous bigamy, or continu- ar^r^ °"S nuisance') the periods between which the offence ia charged to continue should be specified.* In such cases it is enough to say that the offence was committed on a day named, and on certain other days between two days named, or (when the statute requires) that the offence continued between two named days.^ And it has been ruled that the offence must he proved to have been committed within the period specified.* Nor is a continu- ando necessary unless for an essentially continuous offence." Without the allegation of a eontinuando, or a tantamount allega- tion of continuance, there can, on indictments for nuisance, be no abatement.* The contimmndo, if unnecessary, may be rejected as surplusage.^ Costa, 2 Mason, 129 ; State v. Cofren, 48 Me. 365; Com. v. Pray, 13 Pick. 359; Wells v. Com., 12 Gray, 326; People V. Adams, 17 Wend. 475 ; State V. Jasper, 4 Dev. 823 ; State v. May, 4 Dev. 328 ; Cook v. State, 11 Ga. 53. » See infra, § 321. 2 As to effect of one convicted of con- tinuous offence, see infra, §§ 474, 5. 3 See 2 Hawk. P. C. «. 25, s. 62 ; U. S. V. Fox, 1 Low. 301 ; U. S. v. La Costa, 2 Mason, 140 ; State v. Miinger, 15 Vt. 290 ; State v. Temple, 38 Vt. 37 ; Wells V. Com., 12 Gray, 326 ; Com. v. Tower, 8 Met. 527 ; Com. v. Travers, 11 Allen, 260 ; People v. Adams, 17 Wend. 475. The limit may be fixed at the day of finding the bill. Com. v. Stone, 3 Gray, 453 ; but see Com. v. Adams, 4 Gray, 27. Cf. State v. Nagle, 14 R. I. 331 ; State v. Briggs, 68 Iowa, 416. * Com. V. Briggs, 11 Mete. 574. 6 Swanooat v. State, 4 Tex. Ap. 105. As to continuous offences, see infra, §321. 6 Whart. Crim. Law, 9th ed. § 1426 ; R. V. Stead, 8 T. R. 142. An allegation that the offence therein 90 charged was committed on a certain specified "day of September now passed," is not stated with sufficient certainty ; Com. ». Griffin, 3 Cush. 523 ; and so of an indictment which charges the defendant with being a common seller of spirituous and intoxicating liquors from a day named " to the day of the finding, presentment, and filing of this indictment." Com. v. Adams, 4 Gray, 27. In some jurisdictions, when the of- fence is stated to have been committed on a particular day, the words " on or about" are treated as mere surplusage. They could have made no difference, it has been argued, in the proof required, and could in no way have prejudiced the defendant's rights. State v. Tuller, 34 Conn. 280 ; Hampton v. State, 8 Ind. 336. This, however, cannot be accepted at common law. U. S. v. Crittenden, Hemp. 61 ; U. S. v. Winslow, 3 Sawyer, 337; State v. O'Keefe, 41 Vt. 691; State V. Land, 42 Ind. 311 ; Effinger v. State, 47 Ind. 256 ; Barnhouse v. State, 31 Ohio St. 39; Morgan v. State, 13 Florida, 671. ' State V. Nichols, 58 N. H. 41. CHAP. III.] INDICTMENT: TIME. [§130. § 126. As a general rule, In other cases, it is incorrect to lay the offence between two days specified;^ and, not be laid therefore, an indictment for battery, setting forth that twodfs- the defendant beat so many of the king's subjects between ti^ct peri- two specified days, is insufficient.^ § 127. In alleging a mere neglect or non-performance, it has been held to be unnecessary to specify either time or j^ y. place.' But this, as a general principle, cannot be sus- senees tained. The proper course is to aver that the defend- have time ant, at an assigned time, had a particular duty imposed ^^®"® on him, and that he, at that time, neglected to discharge that duty.* § 128. In England, it is the practice to specify the year of the king's reign, but it is enough if the time be designated ,j^^^ ^^^ by the calendar date.* And by the common law either be desig- ~ ,1111 natedby the year of the reign, or the calendar date, has been historical sustained.* With us the uniform practide is to give the ^^°'^ ' day and year of the Christian era according to the calendar ren- dering.' § 129. The wrong recital of the date of a statute is immaterial f and such is the case with all erroneous ^^l ^ged recitals except those of written or printed documents. "°* ^® ^"^ "^ . . ^ curate. § 130. As a rule, it is unnecessary to state the hour at which the act was done, unless rendered so by the Hour not statute upon which the indictment is framed.' In bur- unless re- glary, indeed, it is usual to state it ; but alleging the g'^atufe^^ offence to have been committed " in the night" without 1 1 Ld. Raym. 581 ; 10 Mod. 249 ; 2 84 N. C. 798 ; State v. Behm, 72 Iowa, Hawk. 0. 25, s. 82 ; Cro. C. C. 36 ; Burn, 533; Caldwell v. State, 14 Tex. Ap. J., Indict. ; Williams, J., Indict, ir. ; 127, 171. U. S. V. Patty, 9 Bias. 429; State v. s gel. 10, 11 ; 2 Hawk. c. 25, s. 8; Baker, 34 Me. 52 ; State v. Beaton, 79 Burn, J., Indict. ; Williams, J., Indict. Me. 314 ; State v. Temple, 38 Vt. 37. iv. 2 4 Mod. 101 ; 2 Hawk. c. 25, s. 82 ; • Com. Dig. Indict. G. 2 ; 2 Hawk. Burn, J., Indict. ; Williams, J., Indict, co. 25, 26, s. 78. iv. ; 1 Chitty's C. L.-216. ' Bao. Ab. Indict. G. 4. 3 2 Hawk. e. 25, s. 79 ; Starkie's C. P. « People v. Reed, 47 Barb. 235. 61. ButseeArchbold'sC. P. 34; Com. 9 2 Hawk. u. 25, s. 76. And see V. Sheffield, 11 Cush. 178. Combe v. Pitt, 3 Burr. 1434 ; R. v. * See Whart. Crim. Law, 9th ed. §§ Clarke, 1 Bulst. 204 ; 2 Inst. 318. 125, 329, for oases. State v. McDowell, 91 § 131.] PLEADING AND PRACTICE. [CHAP. III. mentioning the hour, has been held to be sufficient,* though at com- mon law the practice is to aver the hour.* If an hour in the night be stated, proof of any hour of the night will sustain the allega- tion.' In an indictment upon stat. 9 Gr. 4, c. 69, for unlawfully entering, or being in a close by night for the purpose of taking game, armed, it is not necessary to state the hour of the night.* § 131. When the time has been once named with certainty, it is afterwards sufficient to refer to it by the words then and may^be'"'^ ^Aere, which have the same effect as if the day and year by " then^^ were actually repeated.' The mere conjunction and, wi-thout adding then and there, is insufficient to constitute an adequate independent averment, though it may be otherwise when the sense is certain without the repetition.* Thus, in an in- dictment for robbery, the allegation of time must be attached to the robbery, and not merely to the assault ;' and in a case of murder, it is not sufficient to allege that the defendant on a certain day made an assault and struck the party killed, but the words then and there must be introduced before the averment of the stroke, which will suffice.* If the words " then and there" precede every material allegation, it is sufficient, though these words may not precede the conclusions drawn from the facts.' But " then and there" have been held only » Com. V. WUliams, 2 Gush. 582 Com., 11 S. & R. 177; State v. Cotton, (under statute) ; People v. Burgess, 35 4 Foster, 143 ; State v. Bailey, 21 Mo. Cal. 115. 484 ; State v. Williams, 4 Ind. 235 ; 2 1 Hale, 549 ; R. v. Waddington, 2 Fisk ». State, 9 Neb. 62. " There East P. C. 513 ; ^ Hawk. c. 25, ss. 76, situate" is a good description. State 77 ; State w. G. S., 1 Tyler, 295. And v. Reid, 20 Iowa, 413. see Whart. Crim. Law, 9th ed. § 817 ; « state «. Willis, 78 Me. 70. Whart. Crim. Ey. § 106. ' Ibid. ; 2 Hale, 173, 178 ; 2 Hawk. ' Whart. Crim. Law, 9th ed. § 817; c. 23, s. 88; Cro. Eliz. 739. See State State V. Padgett, 58 N. H. 377. «. Johnson, 12 Minn. 476 ; State v. * R. V. Davis, 10 B. & C. 89 ; Arch- Slack, 30 Tex. 354. hold's C. P. 35. When the hour is ' Though see Com. v. Bugbee, infra ; given " afternoon" is not error, though Resp. v. Honeyman, 2 Dall. 228 ; State the hour shows the time to have been v. Price, 6 Halst. 210. night. People v. Husted, 52 Mich. = 1 Leach, 529 ; Dougl. 412 ; State 624. V. Johnson, 1 Walker, Miss. R. 392. 5 2 Hale, 178 ; 2 Stra. 901 ; Keil. See infra, § 146. 100 ; 2 Hawk. o. 23, s. 88 ; o. 25, s. 78 ; If the indictment alleged that the Bao. Ab. Indict. G. 4; Williams, J., defendant feloniously and of malice Indict, iv. ; Comyns, 480 ; Stout v. aforethought made an assault, and 92 CHAP. Ill,] indictment: time. [§ 132. to relate to the day and place first stated, and not to a noctanter afterwards introduced.* And " then and there" is insufficient where it is necessary to prove, as part of the description of the ofience, an act at some specific portion of a day, as where it is necessary to aver the possession of ten or more counterfeit bills at one time.* § 132. The word hdng (existens) will, unless necessarily con- nected with some other matter, relate, to the time of the ^ other indictment rather than of the oflience ; and, therefore, an terms in- indictment for a forcible entry, on land heing the prose- ^" "^° " cutor's freehold, without saying " then being," was held insuf- ficient.^ It is otherwise when part of an independent adequate averment.* Neither " instantly,"* nor " immediately,"' nor " whilst,"" being ambiguous terms, can supply the place of " then and there." with a certain sword, etc., then and there struck, the preyious omission will not be material, for the words feloni- cmslyand with malice aforethought, pre- viously connected with the assault, are by the words then and there adequately applied to the murder.- See 4 Co. 41, b ; Dyer, 69, a ; 1 East P. C. 346 ; 1 Ch. C. L. 221 ; Whart. Crim. Law, 9th ed. § 529. In an indictment for breaking a house with intent to ravish, ' ' then and there" is not necessary to the in- tent. Com. 17. Doharty, 10 Cush. 62. An indictment which avers that the defendant, at a time and place named, feloniously assaulted A. B., and being then and there armed with a dangerous weapon, did actually strike him on his head with said weapon, is sufficient, without repeating the words " then and there" before the words " did ac- tually strike ;" the court rejecting the English rule above stated requiring such repetition. Com. v. Bugbee, 4 Gray, 206. This rule also applies to the averment of wounding. State v. Freeman, 21 Mo. 481 ; State i-. Bailey, 21 Mo. 484. It is adopted in Indiana by statute. Thayer v. State, 11 Ind. 287. In North Carolina it has been held that an indictment may contain enough to induce the court to proceed to judg- ment, if the time and place of making the assault be set forth, though they he not repeated as to the final blow. State V. Cherry, 3 Murph. 7. See Jack- son V. People, 18 111. 264. 1 Davis V. R., 10 B. & C. 89. 2 Edwards v. Com., 19 Pick. 124. 3 Bac. Ab. Indict. G. 1 ; Cro. Jao. 639 ; 2 Lord Raymond, 1467, 1468 ; 2 Rol. Rep. 225 ; Com. Dig. Indict. G. 2. ' R.v. Boyall, 2 Burr. 832. s 1 Leach, 4th ed. 529 ; Chitty C. L. 221 ; R. V. Brownlowjll A. & E. 119 ; Lester v. State, 9 Mo. 666 ; State v. Lakey, 65 Mo. 217 ; State v. Tester- man, 68 Mo. 408. See Com. v. Ailstock, 3 Grat. 650 ; State v. Cherry, 3 Mur- phy, 7 ; State v. Ward, 74 Mo. 253. 5 R. i). Francis, Cunning. 275 ; 2 Strange, 1015. ' R. V. Pelham, 8 Q. B. 959. 93 § 135.] PLEADING AND PRACTICE. [chap. III. "Then and there" can- not cure ambigui- ties, §134. Repug- nant, future, or impoBBible dates are bad. § 133. If, however, two times and places have been previously mentioned, and afterwards comes the reference " then and there," or if the antecedent averment is in any way ambiguous as to time or place, the indictment is defective, because it is uncertain to which it refers.' If the material facts be stated, as to the time or place, with repugnancy or uncertainty, the indictment will be bad.* " The tenth of September last past," as we have ■ seen, is inadequate, where there is nothing in the indictr ment designating the year.* And an indictment charg- ing the offence to have been committed in November, 1801, and in the twenty-fifth year of American Independence, has been held defective, and the judgment arrested, because the ofiience was charged to have been committed in two different years.* And an indictment alleging the offence to have been committed on an im- possible day,* or a day subsequent to the finding of the bill," is defective. But an indictment may be found for a crime committed after the term commenced to which it is returned.^ § 135. When, as in case of perjury, the time of the alleged false oath enters into the essence of the ofience, and is to be dateTmust shown by the records of the court where the oath was be accu- taken, a variance in the day is fatal ;^ thus, if the perjury is averred to have been committed at the Circuit Court on the 19th of May, and the record shows the court to have been 1 R. V. Devett, 8 C. & P. 639 ; State V. Jackson, 39 Me. 291 ; Edwards v. Com., 19 Pick. 124 ; Com. v. Butteriok, 100 Mass. 12 ; Com. v. Goldstein, 114 Mass. 272 ; Storrs v. State, 3 Mo. 9 ; Jane v. State, 3 Mo. 61 ; State v. Hayes, 24 Mo. 358. « See Jeffries v. Com., 12 Allen, 145 ; Hutchinson v. State, 62 Ind. 556 ; Ser- pentine V. State, 1 How. (Miss.) 260 ; MoMath V. State, 65 Ga. 303. 3 Com. V. Griffin, 3 Cush. 523. Supra, §123. * State V. Hendricks, Con. (N. C.) 369. In Serpentine v. State, 1 How. Miss. 260, an indictment giving the date of A. D. 1033 as that of the commission of the offence was held bad in error. 94 5 People V. Mather, 4 Wend. 229 ; Markley v. State, 10 Mo. 291. See Col- lins V. State, 5 Tex. Ap. 37 ; Brewer v. State, 5 Tex. Ap. 248. ° State V. Munger, 15 Vt. 291 ; State V. Litoh, 33 Vt. 67 ; Com. v. Doyle, 110 Mass. 103 ; Penns. v. MoKee, Add. 36 ; Jacobs V. Com., 5 S. & R. 316 ; State v. Noland, 29 Ind. 212 ; State v. David- son, 36 Tex. 325. See supra, § 120. ' Allen V. State, 5 Wis. 329. 8 .Whart. Crim. Law, 9th ed. § 103 a; Green v. Rennett, 1 T. R. 656 ; Free- man V. Jacob, 4 Camp. 209 ; Pope v. Foster, 4 T. R. 590 ; Woodford v. Ash- ley, 11 East, 508 ; Restall v. Stratton, 1 H. Bl. 49. Time should be CHAP. III.] INDICTMENT: PLACE AND VENUE. [§139. holden on the 20th day of May, the indictment is . had ;* and so where the assignment is pointed at an offence on a specific date.* § 136. Bates of bills of exchange, and other written instruments, must be truly stated when necessarily set out.* ^ . ^ Deeds must be pleaded either according to the date documents they bear, or to the day on which they were delivered.* correctly Sunday, as a designation, has been already noticed.* siven. § 137. Where a time is limited by general statute for preferring an indictment, the time laid should ordinarily appear to be within the time so limited, or aver that the case falls within statutory exceptions.* Whether, when an excep- within lim- tion takes the case out of the statute, this should be averred, will be hereafter discussed.^ § 138. As is noticed more fully in another work,' the in homi- death in homicide should be laid on a day within a year ghoufd t,* and a day from the time at which the stroke is alleged to within a •' . ° year and have been given. a day. VI. PLACE. [J.S to conflict in cases of venue, see Whart. Crim. Law, 9th ed. §§ 269 et seq.; and as to whether the venue is to he in the place where the offence was consummated, or in the place where the offender was at the consummation, see particularly Ibid., § 284, note. As to change of venue, see infra, § 602.] § 139. In England, at common law, it was held necessary to lay as the place of the commission of the offence, beside the Enough to county, some particular vicinage, of such dimensions l^^y venue that all living in it might be supposed to have knowledge risdictiou of court. ' U. S. V. M'Neal, 1 Gallis. 387 ; U. 9 Foster, 274 ; Hatwood v. State, 18 S. V. Bowman, 2 Wash. C. C; R. 328. lud. 492 ; Lamkin v. People, 94 111. 2 Com. V. Monahan, 9 Gray, 119. 101 ; People v. Gregory, 30 Mich. 371 ; » Whart. Crim. Ev. § 103a; Arch- People v. Miller, 12 Cal. 291 ; MoLane bold's C. P. 9th (jd. § 90. „. State, 4 Ga. 335 ; Sheltou v. State, * Iliid. 1 St. & P. 208 ; State v. McGrath, 19 6 Supra, § 121. Mo. 678 ; GUI v. State, 38 Ark. 624 ; 6 Whart. Crim. Ev. § 105 ; see K. v. Anderson v. State, 20 Fla. 381 ; Shoe- Brown, M. & M. 163 ; U. S. v. Wins- fercater v. State, 5 Tex. Ap. 207. low, 3 Sawy. 337 ; State v. Hobbs, 39 ' Infra, § 318 ; see Whart. Crim. Ev. Me. 212 ; State t;. Ingalls, 59 N. H. 88 ; § 105. State V. J. P., 1 Tyler, 283 ; State v. s gee Whart. Crim. Law, 9th ed. § Bust, 8 Black. 195 ; State v. Robinson, 577. 96 § 139.] PLEADING AND PRACTICE. [CHAP. III. of the transaction to be inquired into.* By statute, however, it is now enough to aver the county as the place of the com- mission.* In the United States, the latter practice is generally accepted wherever the county is conterminous with the jurisdiction of the court,' though it is otherwise when the jurisdiction of the court embraces but a fraction of the county.* It is sufi5cient if the place stated correspond with the jurisdiction of the court." This, however, is essential.* In several jurisdictions, by statute, when an offence is committed near the boundary line between two counties, it may be averred to be in either county.^ The jurisdiction of the federal courts, where crimes have been committed at sea or abroad, is discussed at large in another work.* The indictment, when the offence is alleged to have been committed on the high seas, must be averred to have been out of the jurisdic- tion of any State of the United States.* In such cases the trial of the offence is, by Act of April 30, 1790, to be " in the district where the offender is apprehended, or into which he may first be brought." Under this statute a person is triable in the Southern District of New York who, on a vessel owned by citizens of the United States, has committed on the high seas an offence made penal by act of Congress ; has been then put in irons for safe keeping ; has, on the arrival of the vessel at anchorage at the lower quarantine in the Eastern District of New York, been delivered to oiEcers of the State of New York, in order that he may be forthcoming on trial ; and has been by them carried into the Southern District, and there delivered to the marshal of the United > 2 Hawk. c. 22. Texas, see Criticism on Chivarrio v. 2 Stat. 6 Geo. 4 ; 14 & 15 Vict. State, 16 Tex. Ap. 335. As to venue in caption, see supra, ^ E. v. Stanbury, L. & C. 128 ; Peo- § 92. pie ti. Barrett, 1 Johnson R. 66 ; State » Infra, § 146 ; Whart. Crim. Ev. v. G. S., 1 Tyler, 295; State v. Jones, § 107 ; Thomas v. State, 71 Ga. 44 ; 2 Halated, 357. Supra, § 92. People V. Lafuente, 6 Cal. 202. Supra, « Ibid. Cook v. State, 20 Fla. 804 ; §§ 92, 107. That " county" is neces- State «. Hinkle, 27 Kan. 308 ; Torr v. sary, see People v. Gregory, 30 Mich. Do, 1 Ariz. 507. 371. ' People v. Davis, 56 N. Y. 95 ; * Infra, §§ 141-2 ; 2 Hale, P. C. Whart. Crim. Law, 9th ed. § 290. 166 ; McBride v. State, 10 Humph. * Whart. Crim. Law, 9th ed. §§ 266, 615. So, mutalis mutandis, as to towns. 269 et seq. Com. V. Springfield, 7 Mass. 9. As to ' U. S. i>. Anderson, 17 Blatch. 338. 96 CHAP. III.] INDICTMENT : PLACE AND VENUE. [§ 140. States for that district, to whom a warrant to apprehend and bring him to justice was first issued.' But where the indictment charged that an assault with a dangerous weapon was committed on board a vessel in the harbor of Guantanamo, in the Island of Cuba, but there was no allegation that the place was out of the jurisdiction of any of the States, it was ruled that the omission of such an allegation was fatal, as whether the place of the offence was without the juris- diction of any State was material in determining the question of jurisdiction, and was a question of fact for the jury.* " In Jack- elow's case, 1 Black, 484," said Benedict, J., " it was held by the Supreme Court of the United States that the question whether a particular place be out of the jurisdiction of any State, when material in determining the question of the jurisdiction of a court, is a question of fact to be passed on by the jury ; and in that case the Supreme Court set aside a special verdict, which found the offence to have' been committed in the water adjoining the State of Con- necticut, between Norwalk Harbor and Westchester County in the State of New York, at a point five miles eastward of Lyons' Point (which is the boundary between the States of New York and Con- necticut), and one mile and a half from the Connecticut shore at low- water mark, on the ground that, in the absence of a finding by the jury that the place so described was out of the jurisdiction of any State, it was impossible for the court to determine such to be the fact." § 140. We have discussed, in another volume,' the important question whether it is necessary to jurisdiction that the ^i, „ ^ct offender, at the time of the offence, should have been is by agent, within the jurisdiction. We may here notice that where to be an offence is committed within a State by means of an ^f pilceof agent, the employer is guilty as a principal, though he such aet. ■did not personally act in that State, and at the time the offence was committed was in another State. In such case, the forum delicti commissi has jurisdiction of the offence, and, if the offender comes within the limits of the State, has also jurisdiction of his person, and he may be arrested and brought to trial.* And the better I U. S. », Arwo, 19 Wall. 486. « Whart. Crim. Law, 9tli ed. §§ 278, " U. S. V. Anderson, 17 Blatch. 238 ; 284. 8 Eeporter, 677 (1879). * See Whart. Crim. Law, 9th ed. §§ 278 et seq., 282. 7 97 ^ 143.] PLEADING AND PKACTICE. [chap. III. opinion is that the place of the commission of the offence, as dis- tinguished from the place where the offender at the time stood, is, in cases of conflict, the proper venue.' § 141. Where an offence is committed within the county of A., and after the commission of the offence the county is divided, and the part' of the county in which the offence was committed is created a new county called B., the latter county has jurisdiction over the offence.^ In such case, however, the indictment may charge the perpetra- tion in the former county while the trial is in the latter.' § 142. Where there are distinct judicial districts in the county, it is not sufficient that the indictment names the county. Therefore, where the offence in a District Court in North Carolina was laid to have been committed in Beaufort County, without adding in the - District of Newbern, judgment was arrested.^ And so in all cases where the jurisdiction is less than the county." And when several counties are in the town, it is not enough to allege the town.^ The court will take judicial notice of statutory subdivisions of counties.^ § 143. Where the caption gives the name of the State, it need N m of ^^^ ^® repeated in the indictment. And a complaint state not made "in behalf of the State," alleging an offence in a in indicts particular city and county (corresponding in name to a ™^°*' city and county of the State), against a statute the title and date of which are stated, and rightly describing a statute When county IB divided ju- risdiction to be laid in court of locus de- licti. When county in- cludes sev- eral juris- dictions particular jurisdiction must be specified. 1 See this fully discussed, Whart. Crim. Law, 9th ed. § 284, note ; and see Roberts v. People, 9 Col. 458. 2 State V. Jones, 4 Halst. 35S ; Searcy V. State, 4 Tex. 450. See U. S. v. Daw- son, 15 How. U. S. 467 ; State v. Jack- son, 39 Me. 291 ; State u. Fish, 4 Ired. 219. Infra, § 147. As differing from text see McElroy v. State, 13 Ark. 708. 3 Jordan v. State, 22 Ga. 545 ; Mc- Elroy V. State, 13 Ark. 708. See infra, §146. * State V. Adams, 2 Battle's Dig. 729. 8 Taylor i>. Com., 2 Va. Cas. 94; 98 McBride v. State, 10 Humph. 615. Su- pra, § 139. ^ Com. V. Springfield, 7 Mass. 9. ' Ibid.; Com. a. Springfield, 7 Mass. 9 ; State v. Powers, 25 Conn. 48.- But it is said that averring a place to be at "W.," and not at the "city" or "town," of "W.," is not enough. Com. V. Barnard, 6 Gray, 488. See, however. Tower v. Com., Ill Mass. 117, where it was held that it was enough, in error, to aver the town; the court taking notice that the town was in a particular county. Compare comments in Heard's Pleading, 81. CHAP. III.] INDICTMENT : PLACE AND VENUE. [§ 145. passed by the legislature of the State, sufficiently shows that the offence was committed within the State, without any caption, or venue in the margin.^ And, generally, as the name of the State is assumed, in all the proceedings, it need not be given in the indict- ment.' § 144. Of transitory offences as they are called Qe. g., ^^^ ^^ offences of which the object of the offence is not neces- seriptioD in ■ 1 .111 • 1 .X • , transitory sarily attached to a particular spot), a variance as to offences specification is not fatal if jurisdiction be correctly J^^^"*^ given.* § 145. But where the case is stated by way of local description and not as a venue merely, a variance in what are called g^^. ^^ local offences (e. g., where the object is necessarily at- to matters tached to a place) is fatal ;* as where, in an indictment descrip- for arson, the tenement was averred to be in the sixth *'°"' ward, whereas it was in the fifth.* The same particularity is required in cases of stealing in a dwelling-house, of burglary,^ of forcible entry and detainer, of arson, and in all cases where a stat- ute makes a special locality essential. In such cases, where the situation of the premises is especially laid, the description must be strictly proved.^ Under the same head are to be included injuries to machinery permanently fixed, and buildings ;* nuisances, when 1 Commonwealth v. Quin, 5 Gray, State, 32 Ind. 55; Heikes v. Com., 26 478. Penn. St. 531 ; State v. Rath, 14 Mo. 2 State V. Wentworth, 37 N. H. 196 ; Ap. 226. Whart. Crim. Ev. § 109. State V. Lane, 4 Ired. 113. < State v. Cotton, 4 Foster (N. H.), 8 In the city of New York, the practice 143; Moore v. State, 12 Ohio St., 387; has been to charge the ward as part of Dennis t/. State, 91 Ind. 291 ; Drone- the venue, thus : " In the First Ward of berger v. State, 112 Ind. 105 ; State v. the oityof New York ;" in New Orleans, Crogan, 8 Iowa, 523 ; Whart. Crim. Ev. to name the parish. The same practice § 109. ^ obtains elsewhere. If, however, the = infra, § 148 ; People v. Slater, 5 offence is shown to be within the juris- Hill, N. Y. R. 401. diction of the court, the special place « R. v. St. John, 9 C. & P. 40. averred, if unnecessary, need not, when ' R. v. Redley, Russ. & R. 515; the offence is transitory, be proved. 2 Archbold's C. P. 38 ; State v. Cotton, Hale, 179, 244, 245 ; 4 Bla. Com. 306 ; 4 Foster (N. H.) 143 ; Grimme v. Com., 2 Hawk. u. 25, s. 84 ; c. 46, ss. 181, 5 B. Mon. 263. See Chute v. State, 19 182 ; 1 East P. C. 125 ; Holt, 534 ; R. Minn. 271 ; Norris v. State, 3 Greene V. Woodward, 1 Mood. C. C. 323 ; Com. (Iowa), 513. V. Gillon, 2 Allen, 502 ; Carlisle v. s r. t,. Richards, 1 M. & E. 177. 99 § W7.] PLEADIN& AND PRACTICE. [chap. III. "Comity aforesaid" generally enough. "Then and there." emanating from local sites ;* houses of ill-fame.* Such specifica- tions, though unnecessary, must he proved.^ § 146. It is sufiScient if the place he averred simply as " the county aforesaid," when the county is named in the commencement or caption as that for which the grand jurors were sworn.* It is otherwise when two counties are named.* Even " county" may he left out in the statement of place, when it can he presumed from prior averments.' Thus it has been held enough, in an indictment against A. B., of the town of C, County of D., to aver that the offence was committed at GJ " County" or " town" or " city," however, must somewhere ap- pear ; and it is not enough to aver the offence to have been com- mitted in C. The indictment must say, either directly or by refer- ence to the caption, that 0. is a town or city or county.' The effect of " then and there" has been already noticed. It implies identity of place as well as of time.' § 147. A change of local title, when enacted by the legislature, must be followed by the pleader. Thus in North Carolina, by an 1 Com. V. Heffron, 102 Mass. 148. s State w. Nixon, 18 Vt. 70. » Whart. Crim. Ev. § 109. As to averment of place of death in murder, see Chapman v. People, 39 Mich. 549. • Com. V. Edwards, 4 Gray, 1 ; State V. Smith, 5 Harring. 490 ; Wingard v. State, 13 Ga. 396 ; State u. Ames, 10 Mo. 743 ; State v. Simon, 50 Mo. 370 ;. State V. ShuU, 3 Head (Tenn.), 42; Evarts v. State, 48 Ind. 422; Noe v. People, 39 111. 96 ; Harrahan v. State, 91 111. 142 ; State u. Lillard, 59 Iowa, 479. See, to same eflfect, State v. Baker, 50 Me. 45 ; State v. Roberts, 26 Me. 263 ; State v. Conley, 39 Me. 78; Haskins v. People, 16 N. Y. 344 ; State V. Lamon, 3 Hawks, 175 ; State v. Bell, 3 Ired. 506 ; State v. Tolever, 5 Ired. 452. Compare 1 Wms. Sannd. 308. ' State V. McCracken, 20 Mo. 411. 6 See State v. Walter, 14 Kans. 375. 100 Where it was alleged that the defend- ant broke and entered "the city hall of the city of Charlestown ;" this was held a sufficient averment that the property of th© building alleged to be broken and entered is in the city of Charlestown. Com. v. Williaias, 2 Cush. 583. ' Com. V. Cummings, 6 Gray, 487. 8 Com. V. Barnard, 6 Gray, 488. Supra, § 142. An indictment for burning a barn situate at a certain place, which, was within the jurisdiction of the court, and alleged to be " within the curti- lage of the dwelling-house of A.," need not also aver that the dwelling- house was at that place. Common- wealth V. Barney, 10 Cash. 480. ^ Supra, § 131 ; State i>. Hurley, 71 Me. 354 ; Sullivan v. State, 13 Tex. Ap. 462. CHAP. III.] INDICTMENT: PLACE AND VENUE. [§ 150. act of assembly, passed in 1842, a part of the county of Burke, and a part of the county of Rutherford were constituted a new county, by the name of M'Dowell ; and by a sup- changed'*" plemental act, iurisdiction of all criminal offences com- byiegisia- * 'J - ture, must mitted in that part of M'Dowell taken from Burke was t>e foi- given to the Superior Court of Burke. It was held that an indictment for a criminal offence, alleging it to have been committed in Burke County, could not be supported by evidence showing the offence to have been committed in M'Dowell, after the establishment of the latter county.* By the same rule, it is not error to describe a county within which the offence was committed by the name belonging to it at the time of trial, even though it went by another name at the time when the act was committed.* § 148. Where a fine is payable, or penalty is special, to a sub- division of county, it has been said that the pleading should aver such subdivision, so as to guide the court in need not the application of the fine or penalty.' But it has been *'°^^°^ ^°®' held in Pennsylvania, with better reason, that in an indictment for adultery, it is not necessary to mention the township in which the defendant resided, though of moment in the sentence, because the court may ascertain the place of the defendant's residence other- wise than by the verdict of the jury.* § 149. In larceny, the venue may be laid in any county in which the thief was possessed of the stolen venue may „ j„ > be in place goods." ^here § 150. Where an indictment omits to lay a venue or f °^fn ^^^ place of the offence charged, this is at common law a fatal defect on demurrer, on motion to quash, in arrest of judg- of°venue ment, or in error." is fatal. In another volume the proof of place is discussed at large ; and it is shown that the place of the offence must be proved to be within » state V. Fish, 4 Ired. 219. 5 See Whart. Crim. Law, 9th ed., 2 MoElroy v. State, 8 Eug. (13 Ark.) §§ 391, 930 ; and see R. o. Peel, 9 Cos 708; and see Jordan v. State, 22 Ga. C. C. 220 ; Whart. Crim. Ev., § 111. 545. Supra, § 141. 6 infra, § 385 ; State v. Hartnett, 75 » Botto V. State, 26 Miss. 108. See Mo. 251 ; State v. Burgess, 75 Mo. 541 ; Legori v. State, 8 Sm. & M. 697 ; State Thompson v. State, 51 Miss. 353 ; V. Smith, 5 Earring. 490, and cases Searcy v. State, 4 Tex. 450 ; Morgan v. cited supra, § 145. State, 13 Flor. 671 ; People v. Craig, * Duncan v. Com., 4 B. & E. 449. 59 Cal. 370. 101 § 151.J PLEADING AND PRACTICE. [chap. 1X1. the jurisdiction of the court,^ though the proof of this may he infer- ential.^ It will also be seen that when a place is stated as matter of description, a variance may be fatal.^ The venue in homicide may be placed by statute in the place of death ;* and that of con- spiracy in the place of any overt act.' VII. statement of offence. 1. orpence must ee made judicially to appbak, § 151. 2. Statement mtjst be Technically Exact, § 153. 5. Not enough to charge a Conclu- sion OP Law, § 154. 4. Common Bahbatob and Common Scold, etc., § 155. 6. Matters Unknown, § 156. 6. Bill op Paktioulabs, § 157. 7. Surplusage need not be stated, §158. 8. Alternate or Disjunctive State- ments, § 161. 9. Knowledge and Intent, § 164. 10. Inducement and Aggravation, § 165. 11. Objects for which Particularity IS required, § 166. §151. Offence must be set forth with rea- sonable certainty. It is a general rule that the special matter of of the whole offence should be set' forth in the indictment with such certainty, that the offence may judicially appear to the court.* When special facts are an essential part of an offence, they must be set out.^ Thus, in indictments for 1 Whart. Crim. Ev. § 107. 2 Ibid. § 108. " Ibid. § 109 ; see supra, § 145. ' Ibid. § 110 ; see Whart. Crim. Law, 9th ed. § 292. 5 Whart. Crim. Ev. § HI ; Whart. Crim. Law, 9th ed. § 1397. 6 U. S. V. Cruikshankj 92 U. S. 542 ; U. S. v. Simmons, 96 U. S. 360 ; Mes- senger V. State, 58 N. H. 348 ; Com. v. Perry, 114 Mass. 263 ; State v. Stiles, 40 Iowa, 148; State v. Murray, 41 Iowa, 580 ; State v. Fanoher, 71 Mo. 460 ; Garcia v. State, 19 Tex. Ap. 383. Thus in U. S. v. Crulkshank, 92 U. S. 542, it was held that an indictment under the Act of May 31, 1870, pro- hibiting the intimidation of citizens, must contain the avOTmeut that the right hindered was one secured by the Constitution and laws of the United States. 102 See, to same effect. People v. Taylor, 3 Denio, 91 ; Biggs v. People, 8 Barb. 547 ; State t. Philbriok, 81 Me. 401 ; Kit V. State, 11 Humph. 167. The doctrine of this branch of plead- ing is well stated by Judge Kane, in U. S. V. Almeida, Wh. Prec. 1061-2. An indictment for procuring another to do a, particular thing must give the name of such other person, or aver that the name was unknown. U. S. v. Sim- mons, 96 U. S. 360. When, under statute, a general form is substituted for the prior special forms, the court may require the pro- secution to give notice of such special matter as is requisite for hia informa- tion. Infra, §§ 157, 711 ; see Goersen V. Com., 99 Penn. St. 388. ' Com. V. Washburn, 128 Mass. 421 State V. Hodges, 55 Md. 127. CHAP. III.] INDICTMENT : STATEMENT OF OFFENCE. [§ 151. murder or manslaughter, it is necessary to state that the death en- sued in consequence^of the act of the prisoner,* and in perjury it is necessary to set out the oath as an oath taken in a judicial proceeding, and before a proper person, in order to see whether it' was an oath which the court had jurisdiction to administer.^ And in the prosecution of a constable for not serving, it is requisite to set out the mode of his election, because if he was not legally elected to the office, he cannot be guilty of a crime in refusing to execute his duties.' Certainty to common intent, it is said, is what is re- quired ; perfect certainty is unattainable, and the attempt to secure it would in almost every case lead to a variance.* An illustration of the degree of certainty required may be found in indictments for bigamy. In such indictments a variance as to the second wife's name is fatal, it being necessary to individuate her, in order to de- termine the offence." But the weight of authority is that it is not necessary to set forth the name of the first wife.® And if we lean on the analogy of indictments for receiving stolen goods, we should hold that the more general statement is enough. If we are forced to state in detail the marital relations of the parties, it would be necessary to go still further, and aver that the first wife or husband of the defendant was capable of consenting to marriage, and was not bound by other matrimonial ties. As, however, the first marriage in all its relations is simply matter of inducement, it is enough to state it in general terms, 'without specifying the details. If these are needed for justice, they can be supplied by a bill of particulars.' Where, however, the details of the first marriage are given, a va- riance in the name is fatal.' The certainty, in other words, must be such, so far as concerns the substance ,of the offence, as exhibits the truth according to its ordinary general acceptation ; not the truth with its differentia scientifically and exhaustively displayed.* 1 state V. Wimberly, 3 McCord, 190. «. Whaley, 6 Bush, 266 ; State v. Lof- 2 Cro. Eliz. 137; Cowp. 683 ; Whart. tin, 2 Dev. & Bat. 31. Crim. Law, 9tli ed. §§ 1245 et seq. ' Contra, State v. La Bore, 26 Vt. 1 Cowp. 683 ; 5 Mod. 196. 265. * See U. S. V. Ferro, 18 Fed. Rep. s r. „. Gooding, C. & M. 297. 901. 9 See BuUer, J., R. v. Lynne Regis, " R. V. Deeley, 4 C. & P. 579 ; 1 1 Doug. 159 ; State v. Nioholson, 77 Mood. C. C. 303. Md. 1. . « Hutchins v. State, 28 Ind. 34 ; Com. 103 § 153.] PLEADIN& AND PRACTICE. [CHAP. III. § 152. We may hold it to be a general rule that, where the act is not in itself necessarily unlawful, but becomes so by of^eesentiai ^^ peculiar circumstances and relations, all the matters incidents must be set forth in which its illegality consists.* Hence, the omission of any fact or circumstance necessary to con- stitute the offence will be fatal ; as, in an indictment for obstruct- ing an oiEcer in the execution of process, without showing that he was an officer of the court out of which the prosecution issued, and the nature of the official duty and of the process.^ An indictment, also, for contemptuous or disrespectful words to a magistrate is de- fective without showing that the magistrate was in the execution of his duty at the time ;' and an indictment against a public officer for non- performance of a duty without showing that he was such an officer as was bound by law to perform that particular duty ;* though the title of an officer need not be alleged unless it be at issue ; and any unnecessary averment-s of this class may be rejected as sur- plusage." It is necessary, also, in an indictment for obtaining money under false pretences, to show whose money it was.* At the same time it is not necessary, when a minor offence is in- closed in a greater, to introduce the averments showing the defend- ant to have been guilty of the greater offence, though these should be proved by the evidence. The defendant, however, on such an indictment, can be convicted only of the minor offence.'' § 153. Not only must all the circumstances essential to the of- fence be averred, but these averments must be so shaped Terms • must be as to include the legal characteristics of the offence. *^'j,"'^*^y Thus, an indictment charging the defendant with forging 1 2 Hawk. 0. 25, s. 57 ; Bao. Ab. In- averred that on he obtained a dictment, G. 1 ; Cowp. 683 ; People v. judgment In favor of one J. R. v. A. C, Martin, 52 Cal. 201. and that he did extort and receive from ' E. V. Osmer, 5 East, 304 ; see R. v. the said A. C. Ill over and above the Everett, 8 B. & C. 114 ; State v. Burt, fees usually paid for such service, and 25 Vt. 373 ; MoQuoid v. People, 3 Gil- due in the suit aforesaid, etc., it was man, 76 ; Cantrill v. People, Ibid. 356. held that the indictment was not suffi- ' R. V. Lease, Andr. 226. ciently precise, it not specifying how * 5 T. R. 623. ' much he received on his own account, ' Infra, § 158. i, and how much on that of the officers 6 R. V. Norton, 8 C. & P. 196. and members of the court. People v. In New York, where an attorney of Rust, 1 Gaines's R. 133. the Court of Common Pleas was charged ' See State v. Bowling, 10 Humph.« with extortion, and the indictment 52 ; Whart. Crim. Law, 9th ed. § 27. 104 CHAP. III.] indictment: statement of offence. [§ 154. a receipt against a book-account is defective when it does not bring the facts up to the definition of forgery.* So an indict- ment for fornication and bastardy must use the technical expressions which the statutes prescribe." The main charges of guilt must be categorically made ;^ and cannot be thrown into a participial form.* It is otherwise as to incidental assertions, e. g., scienter, which, though material, are in the nature of qualifications of such material charges." § 154. As the indictment must contain a specific description of the offence, it is not enough to state a mere conclusion of law.' Thus, it would be insufficient to charge the defend- to charge ant with " stealing" or " murdering."" So it is bad to 0?°^^.''°" accuse him of being a common defamer, vexor, or oppres- sor of many men,* or a common disturber of the peace, and having stirred up divers quarrels,' or a common forestaller,*" or a common thief," or a common evil-doer,*" or a common champertor,*' or a com- mon conspirator, or any other such vague accusation." On the same reasoning, in an indictment for obtaining money by false pretences, it will not suffice merely to state that the defendant falsely pre- tended certain allegations, but it must also be stated by express averment what parts of the representation were false, for otherwise the defendant will not know to what circumstances the charge of ' 1 Infra, §§ 154, 220; State v. Dalton, » 1 Roll. Rep. 79 ; 2 Roll. Ab. 79 ; 2 Murph. 379. 2 Stra. 699 ; 2 Hawk, c. 25, s. 59 ; Com. ' Com. V. Plntard, 1 Browne, 59 ; Dig. Indictment, Gr. 3 ; Bao. Ab. In- Simmons v. Com., 1 Rawle, 142. dictment, G. 1. Infra, § 230. » That the introduction of popular s 2 Roll. Ab. 79 ; 1 Mod. 71 ; 2 Stra. terms does not vitiate if these terms 848, 1246, 1247 ; 2 Hale, 182 ; 2 Hawk, are surplusage or may be susceptible c. 25, s. 59 ; Com. Dig. Indict. G. 3 ; of a definite meaning, see Began's Bac. Ab. Indict. G. 1. case, 12 R. I. 309 ; Baker v. People, " Ibid. Infra, §§ 230, 231. 105 111. 402. 10 Moore, 302 ; 2 Hawk. c. 25, s. 59 ; * State V. Higgins, 53 Vt. 191. Bao. Ab. Indict. G. 1. 6 R. V. Lawley, 2 Stra. 904 ; Com. v. " Ibid. ; 2 Roll. Ab. 79 ; 2 Hale, 182 ; Daniels, 2 Va. Ca. 402. Cro. C. C. 37, 6 Infra, § 230 ; and see U. S. «. 12 2 Hawk. c. 25, s. 59 ; Bao. Ab. In- Cruikshank, 92 U. S. 544; State w. diet. G. 1. Infra, §§ 230, 231. Record, 56 Ind. 107 ; People v. Heflfron, ^ ? Hale, 182 ; 2 Hawk. c. 25, s. 59 ; 53 Mich. 527; State v. Boverlin, 30 Bao. Ab. Indict. G. 1. Kan. 611 ; State ». Foster, 30 Kan. 365 ; " Ibid. ; Com. v. Wise, 110 Mass. 181. Insall ■;. State, 14 Tex. Ap. 145, 154; See Whart. Crim. Law, 9th ed. §§ Pinch V. State, 64 Miss. 461. 1429, 1442-8. 105 § 155.J PLEADING AND PRACTICE. [chap. III. falsehood is Intended to apply.^ It is also not suflScient,, generally, to charge " malicious mischief" or " malicious injury ;" the facts of the injury must be given.* An indictment, on the same principle, charging a man with being a common cheat, or a common swindler or defrauder, is bad, and is not helped by an averment that, by divers false pretences and false tokens, he deceived and defrauded divers good citizens of the said State.' A count, also, in an indict- ment charging that the defendant sold a lottery ticket, and tickets, in a lottery not authorized by the laws of the Commonwealth, is bad, not being sufficiently certain ;* and so of a count charging the defendant with voting without having the legal qualifications of a voter ;* and so of a count which charges the defendant with un- lawfully and fraudulently adulterating " a certain substance intended for food, to wit, one pound of confectionery."* § 155. There are, however, several marked exceptions to the rule requiring the offence, in each case, to be specifi- cally set forth. Thus, an indictment charging one with being a " common barrator ;"' or, a " common scold ;"* or, a " common night-walker ;"' is good, and certain The same rule applies to certain lines of nuisance, to describe which generic terms are adequate, as is the case with a " house of ill-fame ;" a " disorderly house,""* and a " tippling- house. "1^ So an indictment for betting at faro bank need not set out the particular nature of the game, nor the name Exceptions in case of " common barrators," " common scolds," ' 2 M. & S. 379. See Whart. Crim. Law, 9th ed. § 1213. 2 Whart. Crim. Law, 9tli ed. § 1080 ; and see Ibid. § 1841. 1 Wliart. Crim. Law, 9tli ed. §§ 1129, 1442-8, ,1450 ; 0. S. v. Royall, 3 Cranch C. C. R. 618. • Com. u. Gillespie, 7 S. & R. 469. 5 People V. Wilber, 4 Parker C. R. 19 ; Pearce v. State, 1 Sneed, 63 ; Quinn v. State, 35 Ind. 485 ; but see State V. Lookbaum, 38 Conn. 400 ; and see infra, §§ 230, 231. 6 Com. V. Chase, 125 Mass. 202. . ' 6 Mod. 311; 2 Hale, 182; 1 Rus- sell, 185; 1 Ch. C. L. 230; Whart. Crim. Law, 9th ed. §§ 1442-8, 1450 ; 106 State V. Dowers, 45 N. H. 543 ; Com. V. Davis, 11 Pick. 432. See Penn. Rev. Act, 1860, tit. ii. » 6 Mod. 311 ; 9 Stra. 1246 ; 2 Keb. 409 ; 1 Russell, 302 ; U. S. v. Royall, 3 Cranch C. C. 618 ; Com. v. Pray, 13 Pick. 362; James v. Com., 12 Serg. & Rawle, 220 ; Whart. Crim. Law, 9th ed. §§ 1442-8, 1450. s State V. Dowers, 45 N. H. 543. 1° State V. Patterson, 7 Ired. 70 ; Whart. Crim. Law, ut supra. " State V. Collins, 48 Me. 217. See Com. i,. Pray, 13 Pick. 359 ; State v. Russell, 14 R. I. 506 ; 1 Term R. 754; 1 Russell, 301. CHAP. Ill,] INDICTMENT : STATEMENT OP OFFENCE. [§ 157. of the person with -whom the bet was made.' But an indict- ment, as has just been seen, charging the defendant as a common cheat, is bad.'' § 156. If a particular fact, or condition, which is one of the com- ponent parts of the offence, cannot be accurately described, the indictment will be good, if it state that such fact or condition is unknown to the grand jury, provided that the unknown fact or condition in question be described as accurately as ™^y .''^ , ^ _ ■' proximate- possible.' But " this allegation, that the name or other ly de- particular fact is ' unknown to the grand jury,' is not merely formal ; on the contrary, if it be shown that it was, in fact, known to them, then, the excuse failing, it has been repeatedly held that the indictment was bad, or that the defendant should be acquitted, or the judgment arrested or reversed."^ § 157. As will hereafter be more fully seen, whether a bill of particulars or specification of facts shall be required is exclusively within the discretion of the presiding judge .^ BiUofpar- In many cases of general charges (e. g., conspiracy, maybere- where the indictment merely avers a general conspiracy to cheat), such a specification on the part of the prosecution will be 1 State V. Ames, 1 Mo. 372. See unknown" was not sufficient with- Whart. Crim. Law, 9th ed. § 1466. out averring the country in which the Pemberton v. State, 85 Ind. 507. note was currency. And this holds 2 Supra, § 154; infra, §§ 230, 231; good in all cases where there were means Whart. Crim. Law, 9th ed. §§ 1128, of ascertaining such country. As to 1129, 1442. names, see supra, § 104. 3 Whart. Crim. Ev. §§ 91 et seq. * Christiancy, J., in Merwin v. Peo- State V. Wood, 53 N. H. 484 ; Com. v. pie, 26 Mich. 298, citing E. v. Walker, Ashton, 125 Mass. 384 ; Com. v. Fenno, 3 Camp. 264 ; 1 Chitty's Cr. Law, 213 ; 125 Mass. 387; Com. v. Martin, 125 R. v. Robinson, Holt N. P. 595, 596; Mass. 394; Com. t. Webster, 5 Cush.*^ Blodget «. State, 3 Ind. 403 ; and see 295 ; People ?;. Taylor, 3 Denio, 91. Com. u. Hill, 11 Cush. 137 ; Hays v. State V. Gray, 29 Minn. 142. As to in- State, 13 Mo. 246 ; Reed v. State, 16 strument of death, see Whart. Crim. Ark. 499. ' Law, ath ed. § 525 ; Com. w. Webster, 6 Com. v. Snelling, 15 Pick. 321; ut supra; Com. v. Fox, 7 Gray, 585 ; Com. v. Giles, 1 Gray, 466. See Wh. Cox u. People, 80 N. Y. 500 ; State v. Preo. 615, n. for form. See more fully Williams, 7 Jones (N. C.) 446. Whart. infra, §§ 702, 711, et seq. As to embeiz- Crim. Law, 9th ed. § 525. As to lost zlement, see Whart. Crim. Law, 9th writings, see infra, § 175 ; Com. v. Mar- ed. § 1048. As to conspiracy see Ibid, tin, 125 Mass. 394. In Winston v. § 1386; and see, generally, Com. a. State, 9 Tex. Ap. 251, it was held that Davis, 11 Pick. 432 ; Com. v. Wood, 4 a certain " currency note to the jurors Gray, 11. 107 § 158.] PLEADINa AND PRACTICE. [OHAP. III. exacted.' As a general rule, the counsel for the prosecution are to be restricted, after such an order, to proof of the particulars stated in the bill, though this limitation may, in extraordinary cases, be relaxed at the discretion of the court.* § 158. It is not requisite to charge in the indictment anything more than is necessary to accurately and adequately ex- need notlfe pi'ess the offence ; and when unnecessary averments or If stated*"* aggravations are introduced, they can be considered as maybedis- surplusage, and as such disregarded.* The following may be given as illustrations of sur- plusage : — The averment of " goods and chattels," when used to describe ownership of ohoses in action when this ownership is independently described ;* Ownership when immaterial ;* Intent, when unnecessary to the offence ;* Conclusions of law, summing up the offence unnecessarily ; as where an indictment for taking a voluntary false oath, not amount- ing to perjury, concludes, and " so the said A. B. did commit per- jury," etc. ;7 Unnecessary aggravation ;' Falsity of the charge, in cases where the indictment is for con- spiracy to charge with an indictable offence, and when the question of falsity is not at issue ;* Unnecessary terms of art, such as " feloniously ;"" ' R. t!. Kendriok, 5 A. & E. (Q. 26 W. Va. 110 ; State v. Belville, 7 B.) 49; B. V. Hamilton, 7 C. & P. Baxt. 548; Rivers v. State, 10 Tex. 448; B. V. Brown, 8 Cox C. C. 69; Ap. 177; State v. Ballard, 2 Murph. Goeraen v. Com., 99 Penn. St. 388 ; Peo- 186 ; State v. Muncli, 22 Miun. 67. pie V. MoKinney, 10 Mioh. 54. « R. v. Radley, 1 Den. C. C. 450 ; 2 R. V. Esdaile, 1 F. & P. 213 ; R. v. Com. o. Bennett, 118 Mass. 452. Infra, Brown, 8 Cox C. C. 69. § 191. 3 See Whart. Crim. Ev. §§ 138 et « Pye's ease, East P. C. 983 ; U. S. seq. ; U. S. v. Claflin, 13 Blateh. 178 ; ti. Howard, 3 Sumu. 19. U. S. V. Goodwin, 20 Fed. Rep. 237 ; " R. ». Jones, 2 B. & Ad. 611. State V. Murphy, 55 Vt. 547 ; People ' R. u. Hodgkiss, L. R. 1 C. C. 212. V. Casey, 72 N. Y. 393 ; People v. « Com. v. Randall, 4 Gray, 36 ; Scott Polinsky, 73 N. Y. 65 ; Kennedy v. v. Com., 6 S. & R. 224 ; Lacefield w. State, 62 Ind. 136 ; Feigel v. State, 85 State, 34 Ark. 275 ; infra, § 159. Ind. 589 ; Myers v. State, 92 Ind. 390 ; » R. ». HoUingberry, 4 B. & C. 329 ; Trout V. State, 111 Ind. 499 ; Ford 6 D. & R. 345. V. State, 112 Ind. 373 ; State v. Miller, » Infra, § 261. 108 CHAP. III.] INDICTMENT : STATEMENT OP OFFENCE. [§ 158 a. Redundant divisible offences, one of which can be discharged, leaving the other sufficient ;* Specifications of ways of resisting an officer or of the authority under which he acted ;' All but a particular article in larceny, when this is relied on to the exclusion of others stated ;* Unnecessary predicates if divisible ;* Superfluous assignments in perjury and false pretences ;" Cumulative intents ;' Cumulative descriptions of a person" or a thing ;^ Cumulative averments of instruments.* Surplusage is not ground for demurrer.'" But even though an averment is more particular than it need be, yet if it cannot be stricken out without removing an essential part of the case, it can- not be regarded as surplusage ; and if there be a variance in prov- ing it, the prosecution fails." § 158 a. A videlicet, in reference to statement of time, has been already considered." The obiect of the videlicet, which Videlicet is may be extended to allegations of quantity, of distance, the point- of localization, of differentiation, is to annex a speci- an^aver-° fication, by way of definition, to a clause immediately ™^?*^j^ preceding, and thus to separate, by a kind of bracketing, speciflca- this specification from other clauses.'^ This " is a pre- caution which is totally useless when the statement placed after the 1 Whart. Crim. Ev. § 144. Infra, §§ 247, 742 et seq. Smith v. State, 85 Ind. 183 ; Dunham v. State, 9 Tex. Ap. 330. 2 Stater. Copp, 15 N. H. 212; State V. Goss, 69 Me. 22 ; Gunyon v. State, 68 Ind. 70. 8 Whart. Crim. Ev. §§ 135, 145. See infra, § 470. * Whart. Crim. Ev. § 134. State ». Newson, 13 W. Va. 859 ; Ferrell v. State, 2 Lea, 25; Burke v. State, 5 Tex. Ap. 74. " Whart. Crim. Ev. § 131. 6 R. V. Hanson, 1 C. & M. 334. ' Supra, §§ 96 et seq. MoCarney v. People, 83 N. Y. 408. 8 Ibid. s Whart. Cr. Law, 9th ed. § 519. State V. Adams, 78 Me. 486 ; Trout v. State, 111 Ind. 554. Infra, § 212 a. w Steph. PI. 376. " R. I'. Deeley, 1 Mood. C. C. 303 ; U. S. V. Foye, 1 Curt. C. C. 364 ; State V. Noble, 15 Me. 476 ; Com. v. Welling- ton, 7 Allen, 299 ; Whart. Crim. Ev. §§ 109, 146. ^ Supra, § 122. " 1 Stark. C. P. 251-2 ; Ryalls v. R., 11 Q. B. 781, 797; Com. v. Hart, 10 Gray, 468 ; People v. Jackson, 3 Denio, 101 ; Crichton v. People, 6 Park C. R. 363; State v. Heek, 23 Minn. 551. See supra, § 123. 109 § 159.] PLEADING AND PRACTICE. [CHAP. III. videlicet is material, but which, in other cases, prevents the danger of a variance by separating the description from the material aver- ment, so that the former, if not proved, may be rejected, without mutilating the sentence which contains the latter."* But a videlicet cannot be admitted to contradict, increase, or diminish the allega- tions with which it is connected.^ § 159. Where an assault is duly averred, then the intent with which this assault was committed is matter of surplusage, and need not be proved in order to secure a conviction of the assault.' Even an assault with intent need not specify the facts necessary to constitute an offence whose actual and complete shape was not at the time matured.^ Thus, an indictment for an assault with an intent to steal from the pocket, without stating the goods or money intended to be stolen, is good ;^ nor is it necessary to aver that the prosecutor had anything in his pocket to be stolen.* In an indictment, also, for an assault with intent to murder, it is not necessary at common law to state the means made use of by the assailant, to effectuate the murderous intent,^ though when required by statute and when the instrument is Assault may be sustained without specilica- tion of ob- ject. ' Heard's PI. 141 ^ citing 1 Smith's Lead. Caa. (16th Eng. ed.) 592. ^ Gould's Pleading, p. 68. State v. Brown, 51 Conn. 1. * R. V. Higgins, 2 East, 5 ; though see R. V. Marsh, 1 Den. C. C. 505; Whart. Crim. Law, 9th ed. § 637. Even the word "assault" is not neces- sary, hut may be supplied by terms by which it is implied. Murdock v. State, 65 Ala. 520. See Cole v. State, 11 Tex. Ap. 67. But see Hays v. State, 77 Ind. 450. * See Whart. Crim. Law, 9th ed. § 644 ; Cross v. State, 55 Wis. 262 ; State V. Montgomery, 7 Baxt. 100 ; People v. Girr, 53 Cal. 629 ; Morris «. State, 13 Tex. Ap. 65. 6 Com. V. Rogers, 5 S. & R. 463; Whart. Crim. Law, 9th ed. § 637. e Com. V. McDonald, 5 Cush. 365 ; Durand v. People, 47 Mich. 332. See Com. V. Doherty, 10 Cush. 52. 110 ' Whart. Crim. Law, 9th ed. § 644; U. S. V. Herbert, 5 Cranch C. C. 87 ; State V. Daley, 41 Vt. 564 ; State «. Dent, 3 Gill. & John. 8 ; Rice v. People, 15 Mich. 9; Kilkelly v. State, 43 Wis. 604 ; but see State v. Johnson, 11 Tex. 22 ; State v. Jordan, 19 Mo. 213 ; Trex- ler V. State, 19 Ala. 21 ; State v. Chand- ler, 24 Mo. 371 ; State v. Hubbs, 58 Ind. 415. See cases in Whart. Crim. Law, 9th ed. § 644. The question, it is to be observed, depends on the statute constituting the offence. See State v. Munch, 22 Minn. 67. In North Caro- lina it has been held that specification of weapon is necessary. State v. Moore, 82 N. C. 659 ; State v. Hooper, 82 N. C. 663 ; State v. Benthall, 82 N. C. 664. But in State v. Gainus, 86 N. C. 632, it was held that in an indictment for an assault with intent to murder the weapon need not be averred. CHAP. III.] INDICTMENT : STATEMENT OF OFFENCE. [§ 159. known to the pleader, it should be averred.' So in an indictment for breaking and entering a dwelling-house, with intent to commit a rape, it need not be alleged that the defendant " then and there" intended to commit the rape, nor need the offence of rape be fully and technically set forth .^ The means of effecting the criminal in- tent, or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to the jury to demonstrate the intent, and not necessary to be incorporated in an indictment.* It is otherwise, however, when the charge is a status tory aggravated assault, in which case the aggravation must be. specially averred.* When, however, an attempt is averred, it is necessary that some act constituting such attempt (e. ^.,an assault) should be laid,® as the attempt is not per se indictable, and needs ex- traneous facts to make it the subject of an indictment, while it ia otherwise with an assault.^ It is not necessary, however, to aver that which the grand jury could not have known; e. g., what were 1 See Porter v. State, 57 Miss. 300 ; State V. Miller, 25 Kan. 699. In sonae States this is required by statute. 2 Com. V. Doherty, 10 Gush. 52. An indictment for an assault witU intent to commit a rape need not al- lege that the intent was to " carnally and unlawfully know." Singer v. People, 13 Hun, 418; aff. 75 N. Y. 608. ' Mackesey v. People, 6 Park. C. R. 114 ; State v. Dent, 3 Gill. & J. 8 ; ap- proved in U. S. V. Simmons, 96 U. S.' 360 ; citing also U. S. v. Gooding, 12 Wheat. 473 ; U. S. o. Ulriel, 3 Dillon, 535. * State V. Beadon, 17 S. C. 55 ; Griffin v. State, ,12 Tex. Ap. 423. 5 Randolph v. Com., 6 S. & R. 398 ; Clark's case, 6 Grat. 675 ; State v. Womaok, 31 La. An. 635. See State v. Wilson, 30 Conn. 503. See, as tending to a laxer view, U. S. v. Simmons, 96 U. S. 360 ; People v. Bush, 4 Hill N. Y. 132. As to precision necessary in in- dictments for attempts, etc., see Whart. Crim. Law, 9th ed. §§ 173 et seq., 190. In U. S. V. Simmons, 96 U. S. 360, it is held that where a defendant is not charged with using a still, holler, or other vessel himself, but with caus- ing and procuring some person to use them, the name of such person must be given in the indictment. The indictment, when for distilling vinegar illegally, must set out that the apparatus was used for that purpose, and in the premises described, and the vinegar manufactured at the time the apparatus described was being used. The averment that defendant caused and procured the apparatus to he used for distilling implies with sufficient certainty that it was so used ; it is not essential that its actual use shall be set out. See U. S. v. Claflin, 13 Blatch. 178. 6 See U. S. V. Wentworth, 11 Fed. Rep. 52 ; Thompson v. People, 96 111. 158. Ill § 161.J PLEADING AND PRACTICE. [chap. III. the specific goods the party attempted to steal,' or, it may be, par- ticular poison the defendant intended to employ.^ Act of one ^ 159 a, As we shall have occasion to see at length confederate when the proof of variance is discussed,* the act of an may be averred as agent may be averred as the act of the principal, and act of the other. Descriptive averment must be proved. Alternative statements are inad- missible. that of one confederate as the act of the other.* § 160. When an averment is descriptive, it may so far enter into the designation of the offence -that it must be specifically proved." § 161. The certainty required in an indictment pre- cludes the adoption of an alternative statement.' Thus, if the indictment charge the defendant with one or other of two offences, in the disjunctive, as that he murdered or caused to be murdered, forged or caused to be forged," burned or caused to be burned,* sold spirituous or intoxicating liquors f levavit, vel levari caumvit^'^ conveyed or caused to be conveyed, etc., it is bad for uncertainty ;" and the same, if it charge him in two different characters, in the disjunctive, as quod A. existens servus sive de- putatus, took, etc. ;*^ and so where the defendant is charged with having broken into a " barn or stable,"** with having sold "spiritu- ous or intoxicating liquors," or with having administered a poison 1 State V. Utley, 82 N. C. 556. 2 Watson V. State, 9 Tex. Ap. 237. In such cases the term feloniously must ordinarily be used when the ob- ject is felonious. Infra, § 260. 3 Whart. Grim. Ev. § 102 ; State v. Basserman, 54 Conn. 89. * Supra, § 140. 5 Supra, § 158 ; Whart. Crim. Ev. §§ 109, 146 ; State v. Sherbum, 59 N. H. 99 ; Dennis <,. State, 91 Ind. 291 ; Gray v. State, 11 Tex. Ap. 411. See Com. V. Moriarty, 135 Mass. 540. 8 See State v. Stephenson, 83 Ind. 246; State o. Charlton, 11 W. Va. 332; Tompkins v. State, 4 Tex. Ap. 161 ; Hammel v. State, 14 Tex. Ap. 326 ; Thompson v. State, 37 Ark. 408. That for this reason disjunctive state- ments in statutes are to be given con- junctively so. Infra, § 228. 112 ' 2 Hawk. 0. 35, s. 58 ; E. w. Stoeker, 1 Salk. 342, 371 ; Com. a. Perrigo, 3 Mete. (Ky.) 5 ; People v. Tomlinson, 35 Cal. 503. As to averment of such disjunctive allegations, see infra, § 228. That such averments are divisible, see infra, §§ 228, 251. 8 People V. Hood; 6 Cal. 236. s Com. V. Grey, 2 Gray, 501. But see Cunningham v. State, 5 W. Va. 508. i« R. V. Stoughton, 2 Str. 900. " R. V. Flint, Hardw. 370. See R. V. Morley, 1 Y. & J. 221 ; State v. Gary, 36 N. H. 359 ; State v. Naramore, 58 N. H. 273 ; State v. Drake, 1 Vroom, 422 ; Noble v. State, 59 Ala. 73. 12 Smith V. Mall, 2 Roll. Rep. 263. " Horton v. State, 60 Ala. 72 ; see Pickett V. State, 60 Ala. 77. CHAP. III.] indictment: statement of offence. [§162.. or drug.' So, generally, an indictment which may apply to either of two different oifences, and does not specify which, is bad.* On the other hand, alternatives have been permitted when they qualify an unessential description of the particular offence, and do not touch the offence itself." Thus, in Vermont, it was held not to be a fatal objection, that an indictment charged the defendant with the larceny of a horse, described as being either of a " brown or bay color."* In Pennsylvania, indictments averring certain trees cut down not to be the property of the defendants " or either of them,"' and laying a nuisance to be in the " highway or road," etc., have been held good, the alternative being rejected as surplusage.* In several precedents in Massachusetts, the expression " as an innholder or victualler" formally occurs.' And in the U. S. Circuit Court for Michigan, it has been held that " cutting or causing to be cut" is not fatal.* The principle seems to be, that "or" is only fatal when it renders the statement of the offence uncertain, and not so when one term is used only as explaining or illustrating the other.' " Or," also, may be introduced in enumerating the negative averments re- quired to exclude the exceptions of a statute."* And ordinarily the objections, if good, cannot be taken after verdict." § 162. Where a statute disjunctively enumerates offences, or the intent necessary to constitute such offences, the indictment can- 1 state V. Drake, 1 Vroom, 422 ; 125 ; Com. v. Thayer, 5 Metcalf, 246. Com. V. France, 2 Brewst. 568 ; State The paragraph also, " did cause to he a. Green, 3 Heisk. 131 ; Whiteside o. published, etc., in a certain paper or State, 4 Cold. 183. See Wingard v. publication," seems to have escaped State, 13 Ga. 396. the vigilance of counsel who were con- 2 R. V. Marshall, 1 Mood. C. C. 158 ; cerned in the great case of People v. State V. Harper, 64 N. C. 129 ; Johnson Crosswell, 3 Johnson's cases, 338. V. State, 3^2 Ala. 583 ; Horton v. State, « U. S. v. Potter, 6 McLean, C. C. 60 Ala. 73. 186. See, also, State v. Ellis, 4 Mo. 3 Barnett v. State, 54 Ala. 579 ; 474 ; State v. Richards, 23 La. An. State V. Newsom, 13 W. Va. 859. 1294. Infra, § 228. ^ State V. Gilbert, 13 Vt. 647. In- 9 Com. v. Grey, 2 Gray, 501 ; Brown fra, § 228. a. Com., 8 Mass. 59; People v. Gilkin- 5 Moyer v. Com., 7 Barr, 439. See son, 4 Park. C. C. 26 ; State v. Ellis, 4 McGregor v. State, 16 Ind. 9. Mo. 474. Infra, § 228. 6 Res. V. Arnold, 3 Yeates, 417 ; and i" Ibid. ; State v. Burns, 20 N. H. see State v. Corrigan, 24 Conn. 286 ; 550 ; People v. Gilkinson, 4 Park. Cr. Kaisler o. State, 55 Ala. 64 ; State v. 25 ; Com. v, Hadscraft, 6 Bush, 91 ; Ellis, 4 Mo. 474. State v. Sundley, 15 Mo. 513. ' Com. V. Churchill, 2 Metcalf, 119, " Johnson v. State, 50 Ala. 456. 8 113 § 163.] PLEADING AND PRACTICE, [CHAP. III. not charge them disjunctively.* Thus, where a statute against un- Disiunc- lawful shooting afSxes a penalty when the act is done with tive of- intent to maim, disfigure, disable, or kill (in the disjunc- 6tatute tive), the disjunctive statement of intent is bad.^ Under junctiveiy'' Statutes also, describing the several phases of forgery stated. disjunctively, it is held fatal to say that the defendant forged, or caused to be forged, an instrument,^ or that he carried and conveyed, or caused to be carried and conveyed, two persons having the small-pox, so as to burden a certain parish.* It is there- fore error to state the successive gradations of statutory offences disjunctively ; and to state them conjunctively, when they are not repugnant, is allowable." § 163. When a statute in one clause makes several distinct and otherwise Substantive offences indictable, neither of which is in- as to dis- eluded in the other, it has been held better to specify substantiye the actual offence committed.' Thus, where the language offences. ^j ^^^ statute was, " any person who shall presume to keep a tippling-house, or sell rum, brandy, whiskey, tafia, or other spirituous liquors, etc., shall be liable," etc.; and the indictment charged the defendant with selling the particular liquors in the aggre- gate without a license, it was held that the indictment was deficient in not defining the offence with suflBicient precision.' Whether different designations of an object (e. ^.," warrant," " order," " re- quest") can be coupled will be hereafter noticed.^ • U. S. u. Armstrong, 5 PWl. Eep. State v. Meyor, 1 Speers, 305 ; Wingard 273 ; State v. Colwells, 3 R. I. 284 ; v. State, 13 Ga. 396 ; State v. MoCol- State V. Price, 6 Halst. 203 ; Jones v. lum, 44 Mo. 343 ; Keefer v. State, 4 State, 1 McMuUan, 236 ; Whiteside v. Ind. 246 ; State v. Stont, 112 Ind. 245 ; State, 4 Colds. 183. Infra, § 228. People v. Ah Woo, 28 Cal. 205 ; and 2 Angel u. Com., 2 Va. Cas. 231. cases cited, supra. For other cases see s 1 Burr. 399 ; 1 Salk. 342, 371 ; 8 infra, § 251. Mod. 32; 5 Mod. 137. . « But see Com. v. BaUou, 124 Mass. * 1 Sess. Cases, 307. 26 ; State u. Looklear, Busbee, 205. 5 Infra, § 251 ; R. v. North, 6 D. & Supra, § 151 ; infra, § 228. E. 143 ; U. S. V. Hull, 4 MoCr. 273 ; U. ' State v. Eaiford, 7 Porter, 101 ; S. V. Armstrong, 5 Phil. Rep. 273; and see R. v, Middlehurst, 1 Burr. Com. V. Grey, 2 Gray, 501 ; State v. 400 ; Miller v. State, 5 How. (Miss.) Price, 6 Halst. 203 ; Angel u. Com., 2 250. Va. Cas. 231 ; Rasnick v. Com., Ibid. s infia, §§ 195, 251. 356 ; Jones v. State, 1 McMuUan, 236 ; 114 CHAP. III.] INDICTMENT : INTENT : KNOWLEDGE. [§ 164. § 163 a. The cases in reference to intent may be grouped under the following heads : — intent (1.) Where the intent is to be proved in order to when ne- C6B63il*V indicate the character of the act, as when there is an must be attempt or assault to commit an offence, in which cases ^'^"^ • the intent must be averred ;' and must be attached to all the mate- rial allegations.* And so as to the intent in forgery.^ (2.) Where the intent is to be primd fade inferred from the facts stated, in which case intent, unless part of the statutory defi- nition, need not be specifically averred.* Thus, while intent must be averred in an indictment for an attempt to steal, it need not be averred in an indictment for larceny." (3.) Where intent is part of the statutory definition of the offence it must be averred, though it is otherwise in cases where it is not part of such statutory definition, and when the offence is punishable, no matter what was the intent.* (4.) In negligent offences, to allege intent is a fatal error, unless the allegation be so stated as to be capable of discharge as surplusage.' § 164. Where guilty knowledge is not a necessary ingredient of the offence, or, where the statement of the act itself . , . ' ' And so of necessarily includes a knowledge of the illegality of the guuty act, no averment of knowledge is necessary.^ It is "" s ■ 1 Com. V. Hersey, 2 Allen, 173 ; §§ 125 et seg. As to surplusage see State u. Gaxvey, 11 Minn. 154 ; State supra, § 158. V. Davis, 26 Tex. 201 ; People v. Con- The Ohio statute which declares that gleton, 44 Cal. 92. See U. S. v. Went- it shall be sufficient in any indictment, worth, 11 Fed. Rep. 52 ; Bartlett v. where it is necessary to allege an in- State, 21 Tex. Ap. 500. tent to defraud, to allege that the party 2 R. u. Rushworth, R. & R. 317 ; accused did the act with intent to de- Com. ». Boynton, 12 Cush. 500 ; Com. fraud, without alleging an intent to de- V. Dean, 110 Mass. 64. fraud any particular person, is not in ' See Whart. Crim. Law, 9th ed. conflict with § 10 of the Bill of Rights, § 744; though see State v. Lurch, 12 which requires the accused, ou de- Or. 99. mand, to be furnished with "the na- * See State a. Hurds, 19 Neb. 816. ture and cause of the accusation against ° Ibid. him." Turpin v. State, 19 Ohio St. " Infra, § 220; State v. McCarter, 98 540, 1869. As to similar provision in N. C. 637. As to indictments for cheats Pennsylvania statute see MoClure v. and false pretences, see Whart. Crim. Com., 86 Penn. St. 353. Whart. Crim. Law, 9th ed. § 1226 ; Stringer v. State, Law, 9th ed. § 742. 13 Tex. Ap. 520. s i Hale P. C. 561 ; 2 East P. C. 51 ; ' See Whart. Crim. Law, 9th ed. 6 East, 474 ; 1 B. & P. 86 ; U. S. v. 115 § 164.] PLEADING AND PRACTICE. [chap. III. otherwise where guilty knowledge is not so implied and is a substan- tive ingredient of the oifenee.^ Thus, in an indictment for selling an obscene book, a scienter is necessary,^ and so in indictments for selling unwholesome water ;' for illegal voting ;* for subornation of perjury ;* for passing counterfeit money ;* and for assaulting offi- cers ;'' though it has not been held necessary in an indictment for adultery. 8 Under a statute, where the guilty knowledge is part of the statu- tory definition of the offence, it must be averred.* But in the large and important class of cases elsewhere particularly discussed,'" in which an act is made indictable irrespective of the scienter, the scienter is not to be averred in the indictment, since if it were it might be regarded as a descriptive allegation, which it is necessary to prove." Malone, 20 Blatch. 137 ; Com. v. Elwell, 2 Met. (Mass.) 190 ; Com. v. Boynton, 12 Cush. 499 ; Com. v. Stout, 7 B. Monr. 247 ; Turner ». State, 1 Ohio St. 422 ; State V. Freeman, 6 Blackf. 248 ; State V. Bnrgson, 63 Iowa, 318. See State *. Haines, 23 S. C. 170. Infra, § 272. ■ U. S. V. Buzzo, 18 Wall. 125 ; State V. Card, 34 N. H. 510 ; Com. v. Dean, 110 Mass. 64; People v. Lohman, 2 Barb. 216 ; Com. i^. Blumenthal, Whart. Prec. 528, n. ; Powers v. State, 87 Ind. 97 ; Gabe v. State, 1 Eng. (Ark.) 519 ; Norman v. State, 24 Miss. 54 ; Stein v. State, 37 Ala. 123. As to counterfeit money, see Whart. Cr. L., 9th ed. §722. 2 Com. V. McGarrigall, cited 1 Ben- nett & Heard's Lead. Cas. 551. See, also, State v. Carpenter, 20 Vt. 9 ; Com. V. Kirby, 2 Cush. 677 ; State v. Brown, 2 Speers, 129. , s Stein v. State, 37 Ala. 123. " U. S. V. Wadkinds, 7 Sawy. 85 ; S. C. 11 Rep. 560. " U. S. V. Dennee, 3 Woods, 39. 6 Whart. Crim. Law, 9th ed. § 722 j U. S. I. Carll, 105 D. S. 611 ; Powers v. State, 87 Ind. 97. ' Whart. Crim. Law, 9th ed. § 649 ; 116 State V. Maloney, 12 R. I. 251 ; Horan V. State, 7 Tex. Ap. 183. See, however, People V. Haley, 48 Mich. 496, a case of doubtful authority. 8 Com. V. Elwell, 2 Met. 190 ; Whart. Crim. Law, 9th ed. § 1731. 9 R. V. Jukes, 8 Term R. 625 ; R. v. Myddleton, 6 Term R. 739 ; 1 Starkie C. P. 196 ; State v. Gove, 34 N. H. 510 ; People V. Lohman, 2 Barb. 216 ; State V, Stimson, 4 Zabr. 478 ; State v. Bloe- dow, 45 Wis. 279. See U. S. v. Schuler, 6 McLean, 28. As to receiving stolen goods, see Whart. Crim. Law, 9th ed. § 999. As to false pretences. Ibid. § 1225. As to adultery. Ibid. § 1731. As to incest, etc.. Ibid. § 1752. As to poisoning, Ibid. § 524. As to offences on the high seas, Ibid. §§ 1871, 1886. As to perjury. Ibid. § 1286. 1" Whart. Crim. Law, 9th ed. § 88. " R. V. Gibbons, 12 Cox C. C. 237 ; R. V. Hicklin, L. R. 3 Q. B. 360 ; R. v. Prince, L. R. 1 C. C. R. 154 ; State v. Goodenow, 65 Me. 30 ; State v. Bacon, 7 Vt. 219; Com. v. Elwell, 2 Met. 110; Com. V. Thompson, 11 Allen, 23 ; Com. V. Smith, 103 Mass. 444; Phillips v. State, 17 Ga. 459. In U. S. V. Bayaud (21 Blatch. 217, CHAP. III.] INDICTMENT : INTENT : KN0WLED9B. [§ 166. Induce, ment and aggrava- tion need not be ije- talled. Scienter, in case of poisoning, is implied, under the Massachusetts statute, from " wilfully and maliciously" with " intent to injure and kill C."i § 165. Matters of inducement or aggravation, as a general rule, do not require so much certainty as the statement of the gist of the offence.* And where the oifence cannot be stated with complete certainty, it is sufficient to state it with such certainty as it is capable of. We have this rule illustrated in cases of assaults already noticed. And in conspiracy to defraud a person of goods, it is not necessary to describe the goods as in an indictment for stealing them ; stating them as " divers goods" has been hold«n sufficient.^ Farticular- § 166. The degree of particularity necessary m setting ity required out the offence can be best determined by examining the cation^anV objects for which such particularity is required. These protection. objects may be specified as follows :* — 28V), It was held that in an Indictment to desert ; Reg. v. Rohblns for removing revenue stamps from casks without destroying them it is not ne- cessary to aver a scienter. "Where a statute," said Benedict, J., " forbids the doing of a certain act under certain circumstances, without reference to knowledge or intent, any person doing the act mentioned is charged with the duty to see that the circumstances attending this act are such as to make it lawful, and under such statutes a conviction may be had upon proof of doing the forbidden act, without proof or knowledge by the accused of the circumstances specified in the statute. The books contain many cases where such a rule has been applied. See Barnes v. The State, 19 Conn. 399 ; Fox V. State, 3 Tex. Ct. App. 329, as within the rule ; Commonwealth v. Waite, 11 Allen, 264, where the act charged was selling adulterated milk ; 2 Allen, 160, where selling liquor that was intoxicating was the offence ; State V. Heck, 23 Minn. 594, where selling liquor to an habitual drunkard was charged ; Russell on Crimes, 93, where the crime charged is inducing a soldier 1 Car. & K. 456, where the crime was abducting an unmarried girl under sixteen years of age; also Reg. v. Olifer, 10 Cox C. C. 402 ; Fitzpatrick v. Kelly, L. R. 8 Q. B. 337, where the charge was selling adul- terated butter ; Reg. v. Woodrow, 15 M. & W. 404, where the offence was having in possession adulterated to- bacco, and where it was found as a fact that the accused believed the to- bacco to be unadulterated. See, also, Halsted v. The State, 12 Vroom, 552." The question in its substantive rela- tions is discussed in Whart. Crim. Law, 9th ed. § 88. 1 Com. V. Hobbs, -140 Mass. 443. But see Whart. Crim. Law, 9th ed. § 524. 2 R. V. Wright, 1 Vent. 170 ; Com. Dig. Indict. G. 5. As to evidence of surplusage of this kind, see Whart. Crim. Ey. §§ 138 et seq. 3 R. „. J 1 Chit. Eep. 698 ; R. v. Eccles, 1 Leach, 274; R. o. Gill, 2 Barn. & Aid. 204; Com. v. Judd, 2 Mass. 329 ; Com. v. Collins, 3 S. & R. 220 ; Com. v. Mifflin, 5 Watts & S. 461. * See 1 Starkie's C. P. 73, from which several of these points are taken. 117 § 166,] PLEADING AND PRACTICE. [CHAP. III. (a.) In order to identify the charge, lest the grand jury should find a bill for one offence and the defendant be put upon his trial for another.' (J.) That the defendant's conviction or acquittal may enure to his subsequent protection, should he be again questioned on the same grounds. (e.) To warrant the court in granting or refusing any particular right or indulgence, which the defendant claims as incident to the nature of the case.^ (ci.) To enable the defendant to prepare for his defence' in par- ticular cases, and to plead in all ;* or, if he prefer it, to submit to the court by demurrer whether the facts alleged (supposing them to be true) so support the conclusion in law, as to render it neces- sary for him to make any answer to the charge.* (e.) To enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judg- ment. (/.) To instruct the court as to the technical limits of the pen- alty to be inflicted.^ (^.) To guide a court of error in its action in revising the rec- ord.' 1 Staunf. 181. other indictment ; and that there may 2 1 Stark. C. P. 73. he no doubt as to the nature of the 3 R. V. Hollond, 5 T. R. 623 ; Fost. judgment to be given in case of con- 194 ; Com. v. MoAtee, 8 Dana, 29. See, viction." Biggs v. People, 8 Barh. 547 to the same effect. People v. Taylor, 3 — Edmonds, P. J. Denio, 91. " That certainty and pre- * 3 Inst. 41. oision in an indictment is required, ^ Cowper, 672. which will enable the defendant to ^ Cowper, 672 ; 5 T. E. 623 ; 1 Star- judge whether the facts and circum- kie C. P. 73. stances stated constitute an indictable ' This reason was considered the offence, that he may know the nature most important in R. v. Bradlaugh, 38 of the offence against which he ia to L. T. (N. S.) 118 ; L. R. 3 Q. B. D. 607 ; prepare his defence ; that he may plead 14 Cox C. C. 68 ; commented on infra, a conviction or acquittal, in bar of an- § 177. 118 CHAP. III.] PJiKADINfl OF DOOXIMENTS. [§ 167. VIII. WRITTEN INSTRUMENTS. 1. Where the Instrument, as in Fokg- EKT AND Libel, must be set out in PULL, § 167. (a.) In what case literal exactness is necessary, § 167. (6.) " Tenor," " purport'," and " sub- stance," § 168. (c.) What yariance Is fatal, § 173. (d..) Quotation marks, § 175. (e.) Lost, destroyed, obscene, or sup- pressed writings, § 176. (/.) When any part may be omitted, §180. iff-) Where the instrument is in a for- eign language, or is on its face in- sensible, § 181. 2. Whebe the Instrument, as in Lar- ceny, ETC., mat be DESOBIBED MERE- LY BY GENERAL DESIGNATION, § 183. . What genbbal Legal Designation WILL suffice, § 184. " Purporting to be," § 184. "Receipt," "acquittance," §§ 185, 186. " Bill of exchange," § 187. " Promissory note,'^ § 188. " Bank note," § 189. "Money," §190. " Goods and chattels," § 191. " Warrant for the payment of money," §193. " Order," § 193. " Request," § 194. "Deed," "bond," § 196. " Obligation," § 198. " Undertaking," § 199. " Guarantee," § 200. "Property," § 201. "Piece of paper," § 203. 1. Where the Instrument, as in Forgery and Libel, must he set out in full} § 167. Where the words of a document are essential ingre- dients of the offence, as in forgery, passing counterfeit _^ money, sending threatening letters, libel, etc., the docu- words of ment should be set out in words and figures." The mat- are mate- 1 In Massachusetts, by Gen. Stat. 1864, c. 250, § 1, variance in writings or print is immaterial, if the identity of the instrument is manifest. 2 R. V. Mason, 2 East, 238 ; 2 East P. C. 976 ; R. v. Powell, 1 Leach, 77 ; E. V. Hart, 1 Leach, 145 ; U. S. v. Noelke, 17 Blatoh. 554 ; U. S. v. Went- worth, 11 Fed. Rep. 52 ; 0. 8. v. War- ren, 17 Fed. Rep. 145 ; Com. v. Stow, 1 Mass. 54 ; Com. v. Bailey, 1 Mass. 62 ; Com. v. Wright, 1 Cush. 46 ; Com. V. Tarhox, Ibid. 66 ; State w. Farrand, 3 Halst. 333 ; State v. Gustin, 2 South. R. 749 ; Com. v. Gillespie, 7 S. & R. 469 ; Com. v. Sweney, 10 S. & R. 173 ; State V. Stephens, Wright's OhioR. 73 ; State V. Twitty, 2 Hawks, 248 ; Eooker V. State, 65 Ind. 86 ; Baker v. State, 14 Tex. Ap. 332 ; Smith v. State, 18 Tex. Ap. 399. As to vacianoe , see Whart. Crim. Ev. § 114. As to forgery, see Whart. Crim Law, 9th ed. § 727. As to libel, Ibid. §§ 1156etseg'. In indictment for libel, the alleged libellous matter must be set out accu- rately, any variance being fatal ; Cart- wright V. Wright, 1 D. & R. 230; Wright V. Clements, 3 B. & Aid. 503 ; Com. v. Tarbox, 1 Cush. 66 ; Com. v. Sweney, 10 S. & R. 173 ; State v. Browulow, 7 Humph. 63 ; Walsh v. State, 2 McCord, 248 ; though matters not in the libel- lous passage, or of record, need not be exactly alleged. Thus, an indictment charging that the defendant published 119 § 167.] PLEADING AND PRACIICB. ter must be set out word for word.^ [chap. III. rial they should be set forth. of a word in an indictment for forgery is fatal.^ Thus, the omission In such a libel on the twenty-first of the month, may be supported by proof of a publi- cation on the nineteenth of the same month. But it is otherwise if the in- dictment has alleged that the libel was published in a paper dated the twenty- first of the month. Com. v, Varney, 10 Cush. 402. Where parts are selected, they must be set forth thus : "In a certain part of which said," etc., "there were and are contained certain false, wicked, malicious, scandalous, seditious, and libellous matters, of and concerning," etc., " according to the tenor and effect following, that is to say :" " And in a certain other part," etc., etc. See 1 Camp. 350, per Lord Ellenborough ; Archbold's C. P. 494 ; 1 Wms. Notes to Saund. 139. Infra, § 180. The date at the end of the libel need not be set forth. Com. v. Harmon, 2 Gray, 289. If the indictment does not on its face profess to set forth an accurate copy of the alleged libel in words and figures, it will be held insufficient on demurrer, or in arrest of judgment. State v, Twitty, 2 Hawks, 248 ; State v. Good- man, 6 Rich. 387 ; and cases cited to § 169. It is not sufficient to profess to set it forth according to its substance or effect. Com. v, Tarbox, 1 Cush. 66 ; Com. v. Wright, 1 Cush. 46 ; State V. Brownlow, 7 Humph. 63. And where the indictment alleged that the defend- ant published, etc., an unlawful and malicious libel, according to the purport and effect, and in substance as follows, it was ruled that the words between libel and as follows could not be rejected as surplusage. Com. v. Wright, 1 Cush. 46. Infra, §'170. Where it does not appear from the paper itself who its author was, nor the persons of and concerning whom it was written, nor the purpose for which it was written, these facts should be explicitly averred, for the consid- eration of the jury, in all cases in which they are material. State v. Henderson, 1 Rich. 179. Where the persons alleged to have been libelled are alluded to in ambig- uous and covert terms, it is not suffi- cient to aver generally that the paper was composed and published "of and concerning' ' the persons alleged to have been libelled, with innuendoes accom- panying the covert terms, whenever they occur in the paper as set out in the indictment, that they meant those persons, or were allusions to their names. There should be a full and explicit averment that the defendant, under and by the use of the covert terms, wrote of and concerning the per- sons alleged to be libelled. R. a. Mars- den, 4 M. & S. 164 ; State v. Henderson, 1 Rich. 179; State v. Brownlow, 7 Humph. 63. Infra, § 181 a. The court will regard the use of fic- titious names and disguises, in a libel, in the sense that they are commonly understood by the public. State v. Chace, Walker, 384. Under a declaration which alleges the publication of a certain " libel con- 1 State V. Sweny, 10 S. & R. 173 ; Street, Tayl. 158 ; and see State v. State V. Townsend, 86 N. C. 676. Bradley, 1 Hay. 403 ; State v. Coffey, 2 U. S. V. Hinman, 1 Baldwin, 292 ; N. C. Term. R. 272. 0. S. V. Britton, 2 Mason, 464 ; State v. 120 CHAP. III.] PLEADINa OP DOCUMENTS. [§ 168. cases, however, it is not necessary to copy the vignettes, devices, seals, letters, or figures in the margin, as they make no part of the meaning ;* and so of stamps.* But it has been held fatal to omit the name of the State in the upper margin of a copy of a bank note, when such name is nof repeated on the body.* In prosecutions for selling lottery tickets, in jurisdictions in which all lotteries are il- legal, the weight of authority is that the ticket need not be set forth ;* though, if there be a pretence of setting forth the ticket, a variance is fatal." It has also been held not necessary to set forth, in an in- dictment for not destroying stamps, the stamps which should have been effaced.* § 168. When it is necessary to set forth exactly a document,^ it may be preceded by the words, " to the tenor follow- in guch ing," or " in these words," or " as follows," or " in the ?n^igtment words and figures following," for though the term should "tenor," which imports an accurate copy,* has been jorth the considered to be the most technical way of introducing ^°'''^^- the document, yet it has been ruled that " as follows" is equivalent to the words " according to the tenor following," or " in the words and figures following," and that if under such an allegation the T)rosecutor fails in proving the instrument verbatim, as laid, the variance will be fatal ;' and where the indictment, by these or cerning the plaintiff, " but contains no 2 Whart. Crim. Law, 9th ed. § 677. innuendoes, colloquiums, or special ' Com. v. Wilson, 2 Gray, 70 ; see averments of facts to connect the pub- langdale v. People, 100 111. 263. lication with the plaintiff, if no evi- ■• People v. Taylor, 3 Denio, 99 ; dence be offered to connect him there- Freligh o. State, 8 Mo. 613 ; U. S. v. with, except the publication itself, the Bayaud, Benedict, J., 15 Rep. 520 ; 21 question whether the publication re- Blatch. 287 ; cited supra, § 164 ; fers to the plaintiff is for the court, and Whart. Crim. Law, 9th ed. § 1493. not for the jury. Barrows v. Bell, 7 ' Com. v. Gillespie, 7 S. & R. 469. Gray, 301. Innuendoes are hereafter 6 U. S. v. Bayaud, ut supra. discussed. Infra, § 181 a. ' 1 Ch. C. L. 234 ; 2 Leach, 661 ; 6 » U. S. V. Bennett, 17 Blatch. 357 ; East, 418-426 ; Whart. Crim. Law, 9th State V. Carr, 5 N. H. 367 ; Com. v. ed. § 737. Bailey, 1 Mass. 62 ; Com. u. Stephens, s 2 Leach, 660, 661 ; 3 Salk. 225 ; Ibid. 203 ; Com. ». Taylor, 5 Cush. Holt, 347-350, 425 ; 11 Mod. 96, 97 ; 605 ; People u. Franklin, 3 Johnson's Douglass, 193, 194 ; Whart. Crim. Law, C. 299 ; Com. v. Searle, 2 Binn. 332 ; 9th ed. § 737. Buckland v. Com., 8 Leigh, 732 ; Griffin » 1 Leach, 78 ; 2 Leach, 660, 961 ; 2 V. State, 14 Ohio St. R. 55 ; Whart. East P. C. 976 ; 2 Bla. Rep. 787 ; Clay Crim. Law, 9th ed. § 731. Infra, § 180. v. People, 86 111. 147 ; State v. Town- 121 §173.] PLEADING AND PRACTICE. [chap. III. "Purport" means effect ; " tenor" means conteiits. similar averments, fails to claim to set out a copy of the instrument in words and figures, it will be invalid.* § 169. Purport, it is said, means the effect of a document as it appears on the face of it in ordinary construction, and is insufficient when literal exactness is required; tenor means an exact copy of it.^ But if the instru- ment, in cases where only purport is required, does not " purport" to be what the indictment avers — i. e., if its meaning is not accurately stated, the variance is fatal. ^ Purport may be rejected as surplusage when tenor is accurately given.* Nor when the document is set forth, and shows fraud on its face, need its prejudicial character be averred." § 170. The words " in manner and form following, that is to "M n ^^y" do not profess to give more than the substance, and form," and are usual in an indictment for perjury ;* but the andeffect," word "aforesaid" binds the party to an exact recital.^ stance." do " -A-ccording to the purport and effect, and in substance," not imply verbal accuracy. Attaching original papers is not ade- quate. are bad, in cases where exactness of setting forth is required.^ And so is " substance and effect."' § 171. The attaching, of one of the original printed papers to the indictment, in place of inserting a copy, is not sufficient indication that the paper is set out in the very words.'" § 173. A mere variance of a letter will not be fatal, even when it is averred that the tenor is set out, pro- vided the meaning be not altered by changing the word misspelt into another of a different meaning ;*' thus, When ex- act copy is required mere vari- ance of a letter is immaterial. send, 86 N. C. 676. Whart. Crim. Law, 9th ed. § 737. 1 2 Leach, 597, 660, 661 ; State v. Bonney, 34 Me. 383 ; Com. v. Wright, 1 Cush. 46 ; Dana v. State, 2 Oh. St. 91 ; Whart. Crim. Law, 9th ed. §§ 737 et seq., 1656. 2 2 Leach,* 661 ; State v. Bonney, 34 Me. 383 ; State v. Witham, 47 Me. 165 ; Com. V. Wright, 1 Cush. 46 ; State v. PuUens, 81 Mo. 387. » Dougl. 300 ; State v. Molier, 1 De- T^ereux, 263 ; State v. Carter, Conf. (N. C.) E. 210 ; State v. Wimberly, 3 Mo- Cord, 190 ; Whart. Crim. Bv. § 114. 122 * state I'. Yerger, 86 Mo. 33. 6 State V. Covington, 94 N. C. 91 ; State V. Maas, 37 La. An. 202. 6 1 Leach, 192 ; Dougl. 193, 194. ' Ibid. ; Doug. 97. 8 Com. V. Wright, 1 Cush. 46 ; State V. Brownlow, 7 Humph. 68 ; Dana u. State, 2 Ohio St. 91. 8 Com. V. Sweney, 10 S. & R. 173. But see Allen v. State, 74 Ala. 557. i» Com. V. Tarbox, 1 Cush. 66 ; Whart. Crim. Law, 9th ed. §§ 736 et seq. " Infra, § 273 ; Whart. Crim. Ev. § 114; R. V. Drake, Balk. 660; U. S. CHAP. III.] PLEADING OP DOCU.MENTS. [§ 175. in an indictment for forging a bill of exchange, the tenor was " value received," and the bill as produced in evidence was " value reiceved ;" the question being reserved, it was held that the vari- ance was not material, because it did not change one word into another, so as to alter the meaning.* On the same principle, where, in an indictment for perjury, it was assigned for perjury that the defendant swore he " understood and believed," instead of " under- stood," the mistake was held to be immaterial.^ So " promise" for "promised" was held not a fatal variance.^ The great rigor of the old English law in this respect was one of the consequences of the barbarous severity of the punishment imposed. A more humane system of punishment was followed by a more rational system of pleading.* § 174. Where the setting out of the document in an indictment can give no information in the court, it is un- necessary to set it out." § 175. Quotation marks by themselves are not suf- ficient to indicate tenor, unless there be something to Quotation show that the document within the quotation marks was not suffi- that on which the indictment rests.* "'®"*' Unneces- sary docu- ment need not be Get forth. V. Hinman, 1 Bald. 292 ; U. S. v. Bur- roughs, 3 McL. 405 ; State v. Bean, 19 Vt. 530 ; State v. Weaver, 13 Ired. 491 ; State V. Coffee, 2 Murphey, 320 ; State V. Leake, 80 N. C. 403 ; State v. Bibb, 68 Mo. 286 ; Ham v. State, 4 Tex. Ap. 645 ; Baker ».' State, 14 Tex. Ap. 332 ; People V. Phillips, 70 Cal. 61. 1 1 Leach, 145. 2 1 Leach, 133 ; Dougl. 193, 194. See Whart. Crim. Law, 9th ed. §§ 1297-8. ' Com. V. Parmenter, 5 Pick. 279. * See Heard's Crim. PI. 215, citing 1 Taylor's Ev. § 234 a, 6th ed. Infra, §§273-4-5; Whart. Crim. Ev. § 114; Whart. Crim. Law, 9th ed. § 728 a. Where an indictment alleged that a forged certificate was signed by Bowl- ing Starke, but the instrument was signed B. Starke, and the signer's true name was Boiling Starke, the variance was held fatal. Com. v. Kearns, 1 Va. Cas. 109 ; State v. Waters, Const. R. 669 ; Murphy v. State, 6 Tex. Ap. 554. Contra, State v. Bibb, 68 Mo. 286. Where the name of John MoNiooU, signed to a forged instrument, was in the setting out of the forged instrument in the indictment written John Mc- Nioole ; this was held no variance. R. V. Wilson, 2 C. & K. 527 ; 1 Den. C. C. 284 ; 2 Cox C. C. 426. But see fully Whart. Crim. Ev. §§ 114 et seg. The subject of variance between the indictment and the evidence in this respect is more fully considered in an- other work. Whart. Crim. Ev. § 114 ; Whart. Crim. Law, 9th ed. § 728 a. - R. u. Coulson, 1 Eng. L. & E. 550 ; S. C. 1 T. & M. C. C. 332; 4 Cox C. C. 227. 6 Com. V. Wright, 1 Cush. 46. 123 § 177.] PLBADHia AND PRACTICE. [CHAP. III. § 176. Where the document on which the indictment rests is in Document the defendant's possession, or is lost or destroyed, it is defend-" Sufficient to aver such special facts as an excuse for the ant's non-setting out of the document, and then to proceed, hands need . , , ° . . , ' , ., . . not be set either by stating its substance, or by describing it as a °' ■ document which " the said inquest cannot set forth by reason," etc., of its loss, destruction, or detention, as the case may be,' giving, however, the purport of the instrument as near as may be." Thus, where the indictment excused the want of a particular description, by averring that the bond was with the defendant, it was held that this was sufficient.' Although it was said, in another case, the note is described as made on the day of May, and the proof is that the forged note was dated on a particular day, a conviction will be sustained, notwithstanding the variance, when a satisfactory reason for the omission of a more particular description is given in the indictment.* The allegation of loss, however, will not supply the want of the allegation of such extraneous facts as are essential to constitute in- dictability.* § 177. It has also been ruled that if the grand jury declare of an indecent libel, " that the same would be offensive to And so of , , , . . , 1 -1 , 1 obscene the court here, and improper to be placed on the records ''''^'' thereof," the non-setting forth of the libel will be there- by sufficiently excused.* Thus, in an indictment for publishing an obscene book or picture, it is not necessary that the libel should be set out at large,' but in such case it is necessary specifically to aver 1 Whart. Crim. Ev. §§118, 199. 4 Leigh, 694 ; State ». Davis, 69 N. C. See Com. v. Sawtelle, 11 Gush. 142 ; 313 ; Du Bois v. State, 50 Ala. 139. People V. Bogart, 36 Cal. 245. Infra, See fully Whart. Crim. Er. §§ 118, § 218. 199. 2 Whart. Crim. Law, 9th ed. §§728 » People v. Kingslej, 2 Cow. 522. et seq. ; E. v. Watson, 2 T. R. 200 ; R. See Croxdale v. State, 1 Head. 139. V. Haworth, 4 C. & P. 254 ; E. v. Hun- * People v. Badgeley, 16 Wend. 53. ter, 4 C. & P. 128 ; U. S. v. Britton, 2 See State v. Squire, 1 Tyler, 147. Mason, 468 ; State v. Bonney, 34 Me. s Com. v. Spilman, 124 Mass. 237. 223 ; State v. Parker, 1 Chipman, Vt. 6 Com. v. Holmes, 17 Mass. 336 ; 294; People v. Badgeley, 16 Wend, and see Whart. Crim. Law, 9th ed. 531 ; Wallace v. People, 27 111. 45 ; § 1609 ; for other cases, and cases Hart V. State, 55 Ind. 599 ; Munson v, given infra. State, 79 Ind. 541 ; Pendleton v. Com., ' State v. Brown, 1 Williams (Vt.), 124 CHAP. Ill,] PLEADINa OF DOCUMENTS. [§ 177. the reason of the omission. And in any view it is proper on prin- ciple, that the obscene paper should be in some way individuated.* 619 ; Com. v. Holmes, 17 Mass. 336 ; Com. V. Dejardin, 126 Mass. 46; Com. V. Sharpless, 2 S. & R. 91 ; People v. Girardln, 1 Mann. (Mich.) 90 ; Thomas B. State, 103 Ind. 419. For form see Whart. Preo. 952, 968. This distinc- tion has been taken In reference to in- decent publications sent by mail in violation of statute. Bates v. U. S. 11 Biss. 70 ; U. S. v. Kaltmeyer, 16 Fed. Eep. 760 ; U. S. v. Benedict, 16 Blatch. 338 ; see Whart. Crim. Law, 9th ed. §§ 1609, 1662, 1831. When the docu- ment is set forth, it may be left to speak for itself. Smith v. Slate, 24 Tex. Ap. 1. 1 Com. V. Tarbox, 1 Cush. 66 ; Com. V. Wright, 139 Mass. 382 ; State v. Hay- ward, 83 Mo. 299; and see U. S. v, Kaltmeyer, 16 Fed. Rep. 760; 5 McCr. 260. The position of the text is accepted in England as to indecent prints. Dugdale v. R., Dears. C. C. 64. In R. V. Bradlaugh, 38 L, T. (N. S.) 118; L. R. 3 Q. B. D. 607 ; 14 Cox C. C. 68, it was ruled that an indictment which did not give the words of an alleged obscene libel or excuse their omission was bad. In this case it was noticed by Bramwell, J., that the American authorities excuse the non-setting forth of the libel on the grounds of its obscenity, which allegation was omit- ted in R. V. Bradlaugh. It will not do to say that this excuse is surplusage. An indictment which excuses the non- setting " forth of a document on the ground of its loss, or of its destruction by the defendant, is good, though with- out such an excuse the indictment would be defective. The excuse, there- fore, is essential. But, when such an excuse is made, the American cases present an almost unbroken line of authority to the effect that the obscene document need not be copied. Com. v. Holmes, 17 Mass. 336 ; State v. Brown, 1 Williams (Vt.), 619; McNair v. People, 89 111. 441 ; Fuller v. People, 92 111. 182; and People v. Girardin, 1 Mann. (Mich.) 90, are direct to this effect. Com. v. Tarbox, 1 Cush. 66, reaffirms the principle of Com. v. Holmes, but holds that to paste the alleged obscene matter to the indict- ment is a defective mode of pleading. Ag affirming Com. v. Holmes may also be cited Com. v. Dejardin, 126 Mass. 46. On the other hand, in State v, Hanson, 23 Tex. 232, an indictment for publish- ing an obscene document, without giv- ing the words, was held bad. In this case, however, there was no excuse offered, as in Com, v. Holmes, for not setting out the libel. Com. v. Sharp- less, 2 S. & R., was the case of an inde- cent picture, and the Supreme Court held that it was not necessary that the picture should be copied on the indict- ment. The reason, however, is the same as that given in Com. v. Holmes — that the court must preserve the "chastity" of its records, and not permit them to be used to perpetuate obscenities. It may be added to this that if an obscene publication were to he considered as exclusively a libel, It might be difficult to resist the conclu- sion, that as a libel when indicted as such, it should be spread on the record, supposing that no legitimate excuse be given for the non-setting out. But there is much force in the position that an obscene publication is not so much a libel as an offence against public decency; and if it be the latter, the particularity required in setting forth libels is not necessary. If a mob, for instance, should gather about a relig- 125 § 180.] PLEADINO AND PRACTICE. [chap. III. Prosecu- tor's neg- ligence does not alter the case. Production of a docu- ment al- leged to be " de- stroyed" is a fatal variance. Extraneous parts of document § 178. Even where the prosecutor's negligence caused the loss, the loss will be an excuse for non-description, unless the misconduct was so gross as to imply fraud.' § 179. When there is an allegation that a document is destroyed, as an excuse for its non-description, there is a fatal variance between the indictment and the proof if the destroyed instrument is produced on trial.^ § 180. Wherever the whole document is essential to the description of the offence, the whole must be set out in the indictment. It is otherwise, however, as to in- dorsements and other extraneous matter having nothing need not be to do with the part of the document alleged to be forged.^ And where, upon an indictment for forging a receipt, . it appeared that the receipt was written at the foot of an account, and the indictmept stated the receipt thus : " 8th March, 1773. Received the contents above by me, Stephen Withers," without setting out the account at the foot of which it was written ; this was ruled sufficient.* In other cases, where part only of a written instrument is included in the offence, that part alone is necessary to be set out. Thus, in cases where portions of publications are libellous and others not, it is only necessary, as is elsewhere noticed, to state those parts containing the libels ; and if the libellous pas- sages be in different parts of the publication, distinct from each other, they may be introduced thus: " In a certain part of which said libel there were and are contained the false, scandalous, malicious, and defamatory words and matter following, that is to say," etc. "And in a certain other part of which said libel there were and are con- tained," etc.* Where the indictment is for forging a note or bill. ious assembly, disturbing its worship by profane and indecent language, it would not be necessary, it may well be argued, that those profane and indecent words should be set out. Nor is this the only illustration to which we may appeal. An indictment against a common scold need not set forth the words the " scold " was accustomed to use. See argument in Southern Law Rev. for 1878, p. 268. 1 State V. Taunt, 16 Minn. 109. 2 Smith V. State, 33 Ind. 159. 126 3 Whart. Crim. Law, 9th ed. § 753. And see Com. v. Ward. 2 Mass. 397 ; Com. V. Adams, 7 Met. 60 ; Perkins v. Com., 7 Grat. 651 ; Buckland v. Com., 8 Leigh, 732 ; State v. Gardiner, 1 Ired. 27 ; Hess. v. State, 5 Ohio, 5. Lang- dale V. People, 100 111. 263. * R. V. Testick, 1 East, 181, n. ; Whart. Crim. Law, 9th ed. §§ 729 et seq. s See Tabart v. Tipper, 1 Camp. 350. Whart. Crim. Law, 9th. ed. § 1656, and cases cited to § 167. CHAP. III.] PLEADINa OF DOCUMENTS. [§ 181 d. the indorsement, though forged, need not be set out.' And, as we have seen, it is not necessary to set forth vignettes or other embel- lishments, though if this be attempted a variance may be fatal.'' An altered document, as is elsewhere seen, may be averred to be wholly forged.' But, if an alteration be averred, the alteration must be specified,^ and an addition which is collateral to the docu- ment must, if forged, be specially pleaded," § 181. A document in a foreign language must be translated and explained by averments.* The proper course is to set out, as " of the tenor following," the original, and then ^"een^ie'^ to aver the translation in English to be " as follows."^ mus"Te°ex- And so where initials appear without averment of what plained by they mean ;* and where there is no averment of who the officer was whose name is copied in a forged instrument, there be- ing no averment of what the instrument purports to be.' In another volume it will be seen more fully that when "tenor" is set out, a variance is fatal ;'" that when the legal effect only of a document is averred, it is sufficient if the' proof substantially conforms ;" that when the variance is doubtful, the question is for the jury ;'* and that a lost or unobtainable document may be proved by parol.'* § 181 a. An innuendo is an interpretative parenthesis, thrown into the quoted matter to explain an obscure term. It jnj,uendo can explain only where something already appears upon can inter- the record to ground the explanation ; it cannot, of itself, not en- change, add to, or enlarge the sense of expressions ^*''^^' 1 Com. V. Ward, 2 Mass. 397 ; Com. 429 ; R. v. Warshaner, 1 Mood. C. C. V. Adams, 7 Met. 50 ; Com. v. Perkins, 466 : Wormouth v. Cramer, 3 Wend. 7 Grat. 654 ; Simmons ». State, 7 Ham. 394. As to California, see special stat- 116 ; Whart. Crim. Law, 9tli ed. §§ ute. People o. Ah Woo, 28 Cal. 205. 731-3, and cases cited to § 176. If the translation be incorrect the va- 2 Whart. Crim. Ev. § 114 ; Whart. riance is fatal. R. v. Goldstein, ut su- Crim. Law, 9th ed. § 731. Supra, pra; and see 20 Wis. 239. § 167. 8 R. „. Barton, 1 Moody C. C. 141 ; a Whart. Crim. Law, 9th ed. § 735. R. v. Inder, 2 C. & K. 635. " Ibid. 9 R. „. Wilcox, R. & R. C. C. 50. 5 Com. V. Woods, 10 Gray, 480. w Whart. Crim. Ev. § 114. 6 R. V. Goldstein, R. & R. 473 ; 7 " Ibid. § 116. Moore, 1 ; 10 Price, 88. Whart. Crim. u Ibid. § 117. Law, 9th ed. § 729. " Ibid. § 118. ' Ibid. ; R. v. Szudurskie, 1 Moody, 127 § 181 a.] PLEADING AND PRACTICE. [chap. III. beyond their usual acceptation and meaning. It can interpret, but cannot add.* It may serve aa an explanation, but not as a substi- tute.* Extrinsic facts, if requisite to the sense, must be averred in the introductory part of the indictment.' Thus, in an action for the words "He is a thief," the defendant's meaning in the use of the word " he" cannot be explained by an innuendo " meaning the said plaintiff," or the like, unless something appear previously upon the record to ground that explanation ; but if the words had previously been charged to have been spoken of and concerning the plaintiff, then such an innuendo would be correct ; for when it is alleged that the defendant said of the plaintiff " He is a thief," this is an evi- dent ground for the explanation given by the innuendo, that the plaintiff was referred to by the word " he."* " When the language is equivocal and uncertain, or is defamatory only because of some latent meaning, or of its allusion to extrinsic facts and circumstances, then an inducement or innuendo or both are indispensable to express and render certain precisely what the libel is of which the defendant is accused." ' But extrinsic facts need not be averred unless necessary to make out the sense.* » See 2 Salk. 512 ; Cowp. 684 ; Le Fanu V. Malcoinson, 1 H. of L. Cas. 637 ; Solomon v. Lawson, 8 Q. B. 825 ; Goodrich v. Hooper, 97 Mass. 1 ; Mix v. Woodward, 12 Conn. 262 ; Van Veoh- ten V. Hopkins, 5 Johns. 211 ; State v. Neese, N. C. T. R. 270 ; Bradley v. State, Walker, 156 ; State v. Henderson, 1 Rich. 179. It was held in Pennsylva- nia, in 1870, that where no new essen- tial fact is requisite to the frame of an indictment for libel, which requires to he fouud by the grand jury as the ground of a colloquium, and where the only object of an innuendo is to give point to the meaning of the language, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the word. If some of the innuendoes in an indictment for libel extend the meaning of parts too far, but there be others sufficient to give 128 X>oint to it, the jury may convict under the latter alone. Com. v. Keenan, 67 Penn. St. 203. See, further, note to §167. 2 State V. Atkins, 42 Vt. 252 ; State V. Spear, 13 R. I. 326; though see Com. V. Keenan, 67 Penn. St. 203 ; Com. u. Meeser, 1 Brewst, 492. s 1 Saund, 121, 6th ed. Infra, § 496 ; Com. V. Snelling, 15 Pick. 321. * Archibald's C. P. 494; State v. White, 6 Ired. 418. 5 Durfee, C. J., State v. Corbett, 12 R. I. 288, citing State u. Henderson, 1 Rich. 179 ; State v. Mott, 45 N. J. 494 ; People V. Isaacs, 1 N. Y. Cr. R. 148. 6 State V. Shelton, 51 Vt. 102. Where the plaintiff averred, by way of innuendo, that the defendant, in attributing the authorship of a cer- tain article to a " celebrated surgeon of whiskey memory, ' ' or to a " noted steam doctor," meant by these appel- lations the plaintiff, it was held not- CHAP. Ill,] PLEADING OF DOCUMENTS. [§ 183. 2. Where the Instrument, as in Larceny, etc., may he described merely by general Designation.^ § 182. By State as well as by federal legislation, statutes have been enacted making the larceny of bank notes, bonds, statutory and other writings for the payment of money, highly designa- ° , . ... tions must penal. Questions constantly arise whether certain befoi- articles alleged to be stolen are included within these °^^ ' statutes. The adjudications are too numerous to be here detailed ; and we can only, within the limits assigned to us, fall back upon the general principle that documents stolen, to bring them within the statute, must be described by the statutory terms.* § 183. When a general designation of a document is all that is required, then it is ordinarily sufficient to give the statu- ,j,jo„_jj tory designation, and it is enough if this is sufficiently nerai accurate to identify the document.'' x5ut it the pleader is sufficient, withstanding the innuendo, that the declaration' was bad, for want of an averment that the plaintiff was gen- erally known hy these appellations, or that the defendant was in the hahit of applying them to him, or something to that effect. Miller v. Maxwell, 16 Wend. 9. See, also, 2 Hill, 472, and 12 Johns. 474. When an alleged libel affects the prosecutor only in his business stand- ing, such business must be averred. Com. V. Staoey, 8 Phila. 617. In another case, in an action on the case against a man for saying of another " He has burnt my barn," the plaintiff' cannot, by way of innuendo, say, " meaning my barn full of corn ;" Barham v. Nethersal, 4 Co. 20 a; be- cause this is not an explanation de- rived from anything which preceded it on the record, but is the statement of an extrinsic fact not previously stated. But if in the introductory part of the declaration it had been averred that the defendant had a barn full of corn, and that, in a discourse about that barn, he had spoken the above 9 words of the plaintiff, an innuendo of its being the barn full of corn would have been good ; for, by coupling the innuendo with the introductory aver- ment, it would have made it complete. Archbold's C. P. 494 ; 4 R. Ab. 83, pi. 7 ; 85, pi. 7 ; 2 Ro. Rep. 244 ; Cro. Jac. 126 ; 1 Sid. 52 ; 2 Str. 934 ; 1 Saund. 242, n. 3 ; Goldstein v. Poss, 9 D. & Ry. 197 ; 6 B. & C. 154 ; Clement o. Fisher, 1 M. & Ry. 281 ; Alexander v. Angle, 1 C. & J. 148 ; 7 Bing. 119 ; R. V. Tutchin, 5 St. Tr. 532. The question of the truth of the in- nuendoes is for the jury ; and they must be supported by evidence, unless they go to matters of notoriety or of which the court takes judicial notice. See cases cited supra ; State v. At- kins, 42 Vt. 252 ; Com. v. Keenan, 67 Penn. St. 203 ; State v, Perrin, 2 Brev. 474. ' As to lumping descriptions of notes in larceny, see infra, § 207. ^ As to variance in such cases see Whart. Crim. Ev. § 116. 3 Bonnell v. State, 64 Ind. 498. 129 § 183.] PLEADING AND PRACTICE. [chap. III. yet if in- undertakes to give the worda of the document, then a purports to variance as to such words is at common law fatal.* On ffivc words variance is' the Other hand it is said that if the words are accurately fatal. given, an erroneous designation may be treated as sur- plusage.* Nor will the indictment be defective for want of accuracy of specification, where this specification is the best the pleader could give. This is eminently the case in prosecutions for larceny of bank bills from the person, when the bank bills have not been recovered.* " Purporting to be" is not a necessary qualification of the desig- nation.^ 1 See cases supra ; and see R. v. Craven, R. & R. 14 ; D. S. v. Keen, 1 McLean, 429 ; U. S. v. Lancaster, 2 Mc- Lean, 431 ; Powers v. State, 87 Ind. 97. s Infra, §~184. In an Indictment for falsely pretend- ing a paper to be a valid promissory note, it is sufficient to designate it, set- ting it forth not being necessary. R. v. Coulson, T. & M. 332 ; 1 Den. C. C. 692 ; 4 Cox. C, C. 332; Com. v. Coe, 115 Mass. 481, 8 Infra, §§ 188 et seq.; Wilson v. State, 69 Ga. 591. « R. V. Birch, 1 Leach, 79 ; 2 W. Bl. 790 ; State v. Gardiner, 1 Ired. 27 ; Whart. Crim Law, 9th ed. § 738. In- fra, § 184. The following references to rulings under statutes may be of value : — United States Courts. — Money and bank notes, and coin, are "personal goods," within the meaning of the six- teenth section of the Crimes Act of 1790, 0. 36, respecting stealing and purloining on the high seas. U. S. v. Moulton, 5 Mason, 537. See U. S. ii. Hinman, 1 Baldw. 292 ; U. S. v. Lan- caster, 2 McLean, 431. Massachusetts. — An indictment under the Act of March 15, 1785, for larceny, alleging that the defendant stole ' ' a bank note of the value of , of the goods and chattels of ," is suffl- 130 cient, without amore particular descrip- tion of the note. Com. t. Richards, 1 Mass. 337. "Divers bank bills, amounting in the whole to , etc., and of the value of, etc., of the goods and chattels," etc., has been held suffi- cient; Larned v. Com., 12 Met. 240; Com. V. Sawtelle, 11 Cush. 142. See other cases, infra, §§ 189, 206 ; and so of " certain moneys, to wit, divers pro- missory notes, current as money in said Commonwealth." Com. v. Ashton, 125 Mass. 384. See, for other cases, infra, § 189 a. " Sundry bank bills and sundry promissory notes issued by the United States, commonly called legal tender notes, all said bills and notes together amounting to ninety dollars, and of the value of ninety dollars," is. not an adequate description of United States treasury notes. Com. v. Cahill, 12 Allen, 540. See Hamblett ». State, 18 N. H. 384. " For the payment of money," need not be averred of a promissory note. Com. V. Brettun, 100 Mass. 206. Connecticut. — Where an information for theft described the property alleged to be stolen as " thirteen bills against the Hartford Bank, each for the pay- ment and of the value of ten dollars, issued by such bank, being an incor- porated bank, in this State," it was CHAP. III.] PLEADING OF DOCUMENTS. [§ 184. 3. What Creneral Legal Designation will suffice. § 184. ^^ Purporting to be." — The pleader may aver the instru- ment to be of the class prohibited, or he may aver that j^ aesigna- it " purports to be,'* etc. ; e. g., he may ^ay that the de- tion be er- fendant forged " a certain will," or " a certain false, etc., variance is paper -wntmg purporting to be the last will," etc.,^ though, held that this description was suffi- ciently certain. Salisbury v. State, 6 Conn. 101. New York. — A contract not under seal is incorrectly described as a bond, and the error is fatal. People w. Wiley, 3 Hill, 194. Where the indictment stated that the defendant stole " four promissory notes, commonly called bank notes, given for the sum of fifty dollars each, by the Mechanics' Bank in the city of New York, which were due and unpaid, of the value of two hundred dollars, the goods and chattels of P. C, then and there found," etc., it was held a sufficient description without saying they were the property of P. C. The word chattels denotes property and ownership. People v. Holbrook, 13 Johns. 90. See, also. People v. Jack- son, 8 Barb. 637. Pennsylvania. — Under the Act of 15th April, 1790, an indictment for stealing bank notes must lay them as promis- sory notes for the payment of money (Com. V. Boyer, 1 Binn. 201) ; and, therefore, an indictment for stealing a "ten dollar note of the President, Di- rectors, and Company of the Bank of the United States," is bad. Under the Act of 1810 see Spangler v. Com., 3 Binn. 533 ; Stewart b. Com., 4 S. & R. 194 ; Com. V. McLaughlin, 4 Eawle, 464 ; Com. V. McDowell, 1 Browne, 360. By the revised Act of 1860, Pamph. 435, it is sufficient if the instrument be averred by the name by which it is generally known. See Com. v. Henry, 2 Brewst. 566 ; Com. v. Byerly, lb. 568. New Jersey. — " Bank notes," pleaded as such, are not goods and chattels under the statute. State v. Calvin, 2 Zab. 207. Maryland. — In an indictment founded upon the Act of 1809, c. 138, for stealing a bank note, it is sufficient to describe the note as a bank note, for the payment of, etc., and of the value of, etc. Nothing more is required than to charge the offence in the language of the act. State v. Cassel, alias Baker, 2 Har. & G. 407. North Carolina. — In an indictment for stealing a bank note, a description of the note in the following words : "one twenty dollar bank note on the State Bank of North Carolina, of the value of twenty dollars," is good. State V. Rout, 3 Hawks. 618. See, also. State V. Williamison, 3 Murph. 216 ; State V. Fulford, 1 Phill. (N. C.) L. 563 ; and see Sallie v. State, 39 Ala. 691. Georgia. — See State v. Allen, Charl- ton, 518. Alabama. — See Wilson i>. State, 1 Port. 118. Mississippi, — See Damewood v. State, 1 How. Miss. 262 ; Greeson v. State, 5 How. (Miss.) 33. National notes are not correctly described as " $150 in United States' currency." Merrill v. State, 45 Miss. 651. Infra, § 189 a. Missouri. — It is not necessary to al- lege that the bank is chartered. Mo- Donald u. State, 8 Mo. 283. Tennessee. — See Hite v. State, 9 Yer- ger, 357. Ohio. — See Grummond v. State, Wil- cox, 510 ; McMillan v. State, 5 Ohio, 269. 1 2 East P. C. 980 ; E. v. Birch, 1 131 § 185.] PLEADING AND PRACTICE. [chap. III. as has just been seen, " purporting to be" may be omitted.' At common law, however, great care is necessary in this respect, since, if the document turns out in proof not to be what the indictment declares it purports to be, the variance is fatal.* But, as has been already observed, when the tenor is correctly given, the general designation of the document may be rejected as surplusage.* In libel, it is not necessary to aver that the publication was in a news- paper.* § 185. " Beceipt."—'' Settled, Sam. Hughes," at the foot of a bill of parcels, was held to support an allegation of a receipt without any explanatory averment.* Anything that admits payment, and is signed, is enough to bring the instrument within the term " receipt."* But if the fact of payment does not either appear on the instrument or is not averred,^ or the name of the receiptor is wanting, or is obscure and is not helped out by averments,' the term " receipt" is not sus- tained.' And such explanatory matter must not only be averred, but proved." "Receipt" includes all signed ad- miBBions of payment. Leach C. C. 79 ; State v. Gardiner, 1 Ired. 27 ; Whart. Crim. Law, 9th ed. §§ 728 et seq. 1 Supra, § 183. 2 R. V. Jones, Douglass, 300 ; 1 Leach C. C. 204 ; R. v. Reading, 2 Leach C. C. 590 ; 2 East P. C. 952 ; R. v. Gil- christ, 2 Leach C. C. 657 ; R. v. Edsall, 2 East P. C. 984 ; 1 Bennett & Heard's Lead. Cas. 318 ; People v. Holbrook, 13 Johns. 90 ; Grummond v. State, Wil- cox, 510 ; State v. Williamson, 3 Mur- phey, 216 ; State «. Weaver, 94 N. C. 836 ; Dowlng v. State, 4 Mo. 572 ; Con- lee V. State, 14 Tex. Ap. 222. And see fully Whart. Crim. Ev. § 116 ; Whart. Crim. Law, 9th ed. §§ 728 et seq. 3 R. .,. Williams, T. & M. 382 ; 2 Den. C. C. 61 ; 4 Cox C. C. 356 ; Com. V. Castles, 9 Gray, 123 ; Com. v. Coe, 115 Mass. 481 j though see Mr. Greayes's criticism, 2 Rus. on Cr., 4th ed., 811, note ; Heard's Cr. PI. 213. 132 ^ Rattray ». State, 61 Miss. 377. 5 R. V. Martin, 1 Moody C. C. 483 ; 7 C. & P. 549 ; R. v. Boardman, 2 Moody & R. 147 ; R. v. Rogers, 9 C. & P. 41. 6 Testick's case, 2 East P. C. 925 ; R. V. Houseman, 8 C. & P. 180 ; R. u. Moody, Leigh & Cave, 173 ; but see under peculiar Massachusetts statute, Com. a. Lawless, 101 Mass. 32. ' R. V. Goldstein, R. & R. C. C. 473 ; R. V. Harvey, R. & R. 227 ; R. v. West, 2 C. & K. 496 ; 1 Den. C. C. 258 ; R. v. Pries, 6 Cox C. C. 165 ; Clark v. State, 8 Ohio St. (N. S.) 630 ; State v. Hum- phreys, 10 Humph. 442 ; Whart. Crim. Law, 9th ed. § 740. 8 R. c. Hunter, 2 Leach C. C. 624; 2 East P. C. 977; R. v. Boardman, 2 Mood. & R. 147 ; Whart. Crim. Law, 9th ed. 740. 8 Com. V. Lawless, 101 Mass. 32. 1° See infra, §§ 192-3 ; and see Whart. Crim. Law, 9th ed. §§ 728 et seq., 740. CHAP. III.] PLEADING OF DOCUMENTS. [§ 187. § 186. Acquittance is a term used in some statutes as cumulative ■with receipt, and all receipts may be regarded as acquit- „ Acquit- tances •} but all acquittances are not receipts, as an ac- tance" in-" . . . • 1 T 1 eludes dis- quittance may consist in an instrument simply discharg- charges ing another from a particular duty.^ ^°^ ^ ^' A certificate by a society that a member has paid up all his dues, and is honorably discharged, is, under the English statute, neither an acquittance nor a receipt ;' nor is a scrip certificate in a railway company.^ § 187. " Bill of Exchange." — If the drawer's, payee's, or drawee's name be wanting or be insensible; if the en- iigiuofg^.. gagement is on its face conditional i* if the amount be change" . .». , , . , . to be used uncertain, or if it be not expressed in money, the mstru- in its tech- ment will not sustain the technical description.* And so "^"^^ ^^<^^s- if there be an obscurity or error in the " acceptance,"" or the in- dorsement f and so where the instrument was made payable to or order.' That a bill drawn by a person in his own favor, and by him accepted and indorsed, is a " bill of exchange," is asserted in Massachusetts,'" though in England the inclination of authority is the other way." It is not necessary, in New York, to aver that there was money due on the bill.'* A " cheque" is a bill of exchange under the statute.'^ 1 See R. V. Atkinson; 2 Moody, 215. given, see R. v. Smith, supra; R. v. 2 Com. u. Ladd, 15 Mass. 526. Suelling, Dears. 219 ; 22 Eng. L. & E. » R. V. French, Law Rep. 1 C. C. R. 597. See Whart. Crim. Law, 9th ed. 217. See Com. v. Lawless, 101 Mass. §§ 739 et seq. 32. 1 R. V. Cooke, 8 C. & P. 582 ; R. v. * Clark V. Newsam, 1 Exch. 131 ; Rogers, 8 C. & P. 629. R. u. West, 1 Den. C. C. 258 ; 2 Cox C. « r. „. Arsoott, 6 C. & P. 408. If C. 437. payable to drawer's own order, neither 5 R. V. Harper, 44 L. T. (N. S.) 615. indorsement nor acceptance is needed. 6 R. V. Curry, 2 Moody, 218 ; R. v. R. v. Wicks, R. & R. 149 ; R. v. Smith, Birkett, R. & R. 251 ; R. „. Smith, 2 2 Moody, 295. Mood. 295 ; R. v. Wicks, R. &'R. 149 ; 9 R. w. Randall, R. & R. 195. R. V. Hart, 6 C. & P. 106 ; R. v. But- i» Com. «. Butterick, 100 Mass. 12. terwiok, 2 Mood. & R. 196 ; R. o. Ran- " R. v. Smith, supra. dall, R. & R. 195 ; R. v. Bartlett, 2 ^ Phelps v. People, 13 N. Y. Supreme Moody & R. 362 ; R. v. Mopsey, 11 Cox Ct. 401 ; S. C, 72 N. Y. 334, 372. C. C. 143 ; People u. Howell, 4 Johns. « Hawthorn v. State, 56 Md. 530 ; 296. Whether drawee's name can be Whart. on Cont. §§ 834, 840 ; see State dispensed with, if place of payment be v. Pierson, 59 Iowa, 271. 133 § 189.] PLEADING AND PRACTICE. [CHAP. III. § 188. " Promissory Note." — Great liberality has been shown in „p the interpretation of this term when used in statutes sory note" making the forgery or larceny of " promissory notes" larger penal. Thus, it has been held to include bank notes,* sense. -where the statute does not specifically cover " bank notes," though it seems to be otherwise when it does ;* while it does not include silver certificates.* It is not necessary, in prose- cutions for larceny, that the note be locally negotiable,* or be any- thing more than a mere due bill.' It was at one time ruled in Penn- sylvania, that if a note be not averred or implied to be still due and unpaid, it will not be within the statute,* though it is enough if on the face of the paper it appears still outstanding.'^ And though an instrument signed by M. and payable to his order is not a promis- sory note until indorsed, an allegation that D., in forging the in- dorsement, forged the indorsement of a promissory note, may be sustained.* § 189. " Bank Note." — In England, in an indictment under the 2 Geo. 2, c. 25, the instrument stolen must be expressly note" in- averred to be a bank note, or a bill of exchange, or some eludes other of the securities specified ; and, therefore, it is in- notes IS- r T 1 1 sued by sufficient to charge the defendant with stealing a certain note, commonly called a bank note, for none such is de- scribed in the act.' And in the case of a bank note, it is sufficient to describe it generally as a bank note of the Governor and Com- pany of the Bank of England, for the payment of one pound, etc., the property of the prosecutor ; the said sum of one pound thereby secured, then being due and unsatisfied to the proprietor. ■" In • Com. V. Paulus, 11 Gray, 305 ; negotiable in another. Whart. Confl. Com. V. Ashton, 125 Mass. 384 ; People of L. § 447. V. Jackson, 8 Barb. 637 ; Com. v. Boyer, " People v. Finch, 5 Johns. 237. 1 Binn. 201 ; Hobbs v. State, 9 Mo. « Com. v. M'Laughlin, 4 Rawle, 464 ; 855 ; though see Culp v. State, 1 Por- Stewart v. Com., 4 S. & R. 194. But ter, 33. see Rev. Stat, supra, § 184, note. 2 Spangler «. Com., 3 Binn. 533 ; ' Ibid. ; Com. v. Richards, 1 Mass. Damewood v. State, 1 How. Miss. 262. 337 ; Phelps v. People, 72 N. Y. 334 ; 3 Stewart v. State, 62 Md. 413. State v. Rout, 3 Hawks, 618. See * Story on Bills, § 60 ; Sibley v. Com. «. Brettun, 100 Mass. 206. Phelps, 6 Cush. 172 ; People v. Brad- » Com. v. Dallinger, 118 Mass. 439. ley, 4 Park. C. R. 245. For what is s Craven's case, 2 East P. C. 601. not negotiable in one country may be "> Starkie's C. P. 217. See Com. v. 134 CHAP. III.] PLEADING OF DOCUMENTS. [§ 189 a. Massachusetts, a bank note is sufficiently described as a " bank bill" in an indictment on Rev. Sts. c. 126, § 17, for stealing it.* And an indictment charging the larceny of " sundry bank bills of some banks respectively, to the jurors unknown, of the value of," etc., is good.* An unnecessarily minute description of a bank note may be fatal ; as where an indictment for stealing a bank note alleged it to be " signed for the Governor and Company of the Bank of England, by J. Booth," and no evidence of Booth's signature was given, the judges held the prisoner entitled to an acquittal.^ " Bank bill or note" refers exclusively to bank paper, and does not include an ordinary promissory note.* It includes, however, notes redeemed by the bank, and in its agents' hands." Whether it is necessary to aver the bank to have been incorpo- rated has been already considered.* Under the Maine statute it is not necessary to aver either genuineness or the name of the bank.^ § 189 a. " National bank currency notes" has been held an ade- quate description ;' and so of " two five dollar United States rj,j.gg^gy treasury notes, issued by the treasury department of the note and United States government, for the payment of five dollars states cur- each and of the value of five dollars."' " One promis- ^^^'^T- sory note issued by the treasury department of the United States," has been also held sufficient ;'" and so of " four promissory notes of the United States for the payment of money ;"" and so of " fifty dollars in national currency of the United States, the exact denomination of which is to the grand jury unknown ;"'^ and Richards, 1 Mass. 337 ; Larned v. Com., 6 Com. v. Rand, 7 Met. 475. 12 Met. 240 ; Com. v. Sawtelle, 11 Gush. ^ Supra, § 110. 142 ; People v. Holbrook, 13 Johns. 10 ; ' State v. Stevens, 62 Me. 284. State u. Williamson, 3 Murphey, 216, * U. S. v. Bennett, 17 Blatch. 3.57. and other cases cited Whart. Crim. Ev. See Levy v. State, 79 Ala. 259. § 116 a. 9 State v. Thomason, 71 N. C. 146. 1 Eastman v. Com., 4 Gray, 416; " State ■>. Fulford, 1 Phill. (N. C.) Com. V. Stehbins, 8 Gray, 493. " Bank L. 563 ; and see Sallie v. State, 39 Ala. note" and " bank bill" are synony- 691 ; Wells v. State, 4 Tex. Ap. 21. mous. State v. Hays, 21 Ind. 176. " Hummel v. State, 17 Ohio St. 628. 2 Com. w. Grimes, 10 Gray, 470. See State v. Liord, 30 La. An. Part II. See State v. Hoppe, 39 Iowa, 468. 867. ^ 3 R. V. Craven, Russ. & Ry. 14 ; ^ Dull v. Com., 25 Grat. 965 ; Du Bois Whart. Crim. Ev. § 116. v. State, 50 Ala. 139 ; Grant v. State, ' State V. Stimson, 4 Zab. 9. 55 Ala. 201 ; but see Merrill v. State, 135 § 189 a.] PLEADING AND PRACTICE. [CHAP. III. SO of " dollars in paper currency of the United States of America."^ In Massachusetts, it is held that " three bonds of the United States, each of the value of ten thousand dollars," is a good description ;* and so of " divers promissory notes current as money in said Commonwealth, of the amount and value of eighty-seven dollars, a more particular description of which is to the jurors un- known,"^ nor is it a variance that the notes were " three tens, eleven fives, and one two," and might have been so known by the grand jury.* " Divers promissory notes, of the amount and of the value in all of five thousand dollars, a more particular description of which is to the jurors unknown," is sufficient, and is sustained by proof of bank notes." " Divers promissory notes payable to the bearer on demand, current as money in the said Commonwealth, of the amount and of the value of eighty dollars, a more particular description of which is to the jurors unknown," is also good, unless it should appear that the grand jury had at the time of the finding a full description of the notes.* But " sundry bank bills," " com- monly called legal tenders," has been held insufficient.'' " Certain money and bank bills," to wit, " six dollars and eighty-five cents in bank bills usually called United States legal tender notes, as follows : 45 Miss. 651 ; Martinez v. State, 41 Tex. ° Com. v. Gallagher, 126 Mass. 54 ; 164 ; Ridgeway v. State, 41 Tex. 231. S. P., Com. o. Ashton, 125 Mass. 354. " One five dollar bill circulating me- An indictment on the Gen. Sts. c. dium current as money," has been sus- 160, § 24, charging the robbery of sev- tained in Texas. Reside v. State, 10 eral " promissory notes then and there Tex. Ap. 675. See supra, § 176. See of the currency current in said Com- as to paper currency. State v. Shiver, monwealth," is sustained by proof 20 S. C. 392 ; Riggs v. State, 104 Ind. that the notes stolen were either bank 261 ; State v. Graham, 65 Iowa, 617. bills or treasury notes. The words 1 State u. Carro, 26 La. An. 377; " of the currency current in this Corn- State V. Shonhausen, 26 La. An. 421. monwealth" are equivalent to " cur- i: Com. 7). White, 123 Mass. 430. See rent as money in this Commonwealth." Kearney v. State, 48 Md. 16. Com. v. Griffiths, 126 Mass. 252. 3 Com. V. Green, 122 Mass. 333. That ' Com. v. Cahill, 12 Allen, 540. See "divers promissory notes" sufficiently Hamblett i-. State, 18 N. H. 384 ; Terr describes bank notes, see Com. v. Jenks, v. Shipley, 4 Mont. 498. 138 Mass. 484. "Divers United States treasury notes, * Ibid. See Com. «. Hussey, 111 and national bank notes and fractional Mass. 432. currency notes, amounting in the whole 6 Com. «. Butts, 124 Mass. 449. See to$158.00,andofthevalueof $158.00," McQueen v. State, 82 Ind. 72. is sufficient. State v. Hurst, 11 W. Va. 54. 136 CHAP. III.] PLEADING OP DOCUMENTS. [§ 191. one bill of the denomination of five dollars, one bill of the value of one dollar, and eighty-five cents in currency, usually known and called postal currency," was held in New York in 1870 not to be an averment sufficiently accurate to sustain a conviction for stealing national bank notes and United States fractional currency.* It was conceded that to charge the notes simply as " current bank bills of the value of ," etc., would have been enough. But it was in- sisted that when surplus descriptive matter, varying the character of the thing stolen, is introduced, this must be proved.* But " $275 in money, lawful money of the United States, and of the value of $275," is now held sufficient.^ § 190. '■'• Money r — Under the general term " money," bank notes, promissory notes, or treasury warrants cannot be included, unless they be made a legal tender.* In Eng- |e^o°°y/rti. land, however, it has been held that bank notes, when ^'^ ^*'^ currency, a legal tender, are properly described in an indictment for larceny as " money," although at the time they were stolen they were not in circulation, but were in the hands of the bankers themselves." Whatever is currency is money. § 191. " G-oods and Chattels." — Under " goods and chattels," it has been ruled that bank notes cannot be included,* nor bonds • People V. Jones, 5 Lansing, 340. 2 People V. Loop, 3 Parker C. R. 559 ; People V. Qulnlan, 6 Parker C. R. 9. See Hickey v. State, 23 Ind. 21, 334, 340 ; State v. Evans, 15 Rich (S. C), 31 ; State v. Carson, 20 La. An. 48 ; Com. V. Butterick, 100 Mass. 1 ; Mc- Entee v. State, 24 Wis. 43 ; State v. Anderson, 26 Minn. 66. ° People V. Reavey, 38 Hun, 418. * R. V. Major, 2 East P. C. 118 ; R. v. Hill, R. & R. 190 ; State v. Foster, 3 McC. 442 ; Williams v. State, 12 Sm. & M. 58 ; State v. Jim, 3 Murpli. 3 ; Mo- Auley V. State, 7 Yerg. 526 ; Com. v. Swinney, 1 Va. Cas. 146 ; Johnson v. State, 11 Ohio St. 324 ; Colson v. State, 7 Black. 590; Hale v. State, 8 Tex. 171. See Davison v. State, 12 Tex. Ap. 214. 6 R. V. West, 40 Eng. Law & Eq. 564 ; 7 Cox C. C. 183 ; Dears. & B. 109 ; R. V. Godfrey, Dears. & B. 426. 5 Com. V. Eastman, 2 Gray, 76 ; State V. Calvin, 2 Zabr. 207 ;. Com. u. Swin- ney, 1 Va. Cas. 146 ; State v. Jim, 3 Murphey, 3 ; contra, People u. Kent, 1 Dougl. (Mich.) 42. As to English practice, see R. v. Mead, 4 C. & P. 535 ; R. u. Dean, 2 Leach, 693; R. v. Crone, Jebb, 47 ; Anon. 1 Crawf. & Dix, C. C. 152. In R. «. Mead, halves of bank notes sent by mail were held "goods and chattels." R. v. Dean only holds notes to be " money." And a railway ticket has been said to be a chattel. R. V. Boulton, 1 Den. C. C. 508 ; 2 C. & K. 917. But see R. v. Kilham, L. E. 1 C. C. 264; Steph. Dig. C. L. art. 288, doubting. And whenever, in statutes, the terms "goods and chattels" are used as nomen generalissimum, and are 137 § 193.] PLEADING AND PRACTICE. [chap. hi. and mortgages,^ nor coin.* But, be this as it may, it seems that in such case the words " goods and chattels" may be dis- charged as surplusage, and a conviction sustained with- out them.' And the tendency is to embrace in the term all movables, e. g. , poultry and other live stock ;* and grain in a stable.* Indeed, it would seem as if what- ever is subject to common law larceny should be embraced in the term unless restricted by statute.* § 192. " Warrant, Order, or Request for Money or Croods." — " Warrant" is now held to include any in- strument calling for the payment of money or delivery of goods, on which, if genuine, a primd facie case of recovery could be made.' § 193. " Order" implies beyond this, a mandatory power in the drawer.' " Goods and chat- tels" in- cludes per- sonalty, exclusive of chases in action. " War- rant" is an instrument calling for payment or delivery. "Order" implies mandatory power. not connected with the terms " money" or "property," they should have this general construction. 1 R. V. Powell, 14 Eng. Law & Eq. 575 ; 2 Den. C. C. 403. 2 R. V. Radley, 3 Cox C. C. 460 ; 2 C. & K. 977; 1 Den. C. C. 450; R. v. Davison, 1 Leach, 241 ; though see U. S. V. Moulton, 5 Mason, 537 ; Hall v. State, 3 Oh. St. 575. 3 Ibid. ; R. v. Morris, 1 Leach C. C. 109 ; Com. v. Eastman, 2 Gray, 76 ; S. C, 4 Gray, 416 ; Com. o. Bennett, 118 Mass. 452. Supra, §§ 158, 183. * 2 East P. C. 748 ; R. v. Whitney, 1 Moody, 3. ' State V. Brooks, 4 Conn. 446. 6 State V. Bonwell, 2 Earring. 529. ' R. V. Vivian, 1 C. & K. 719 ; 1 Den. C. C. 35 ; R. 0. Dawson, 2 Den. C. C. 75 ; 5 Cox C. C. 220 ; 1 Eng. Law & Eq. 589. A "dividend" warrant falls under this head. R. v. Autey, Dears. & B. 294 ; 7 Cox C. C. 329 ; and so does a letter of credit. R. v. Raake, 2 Moody, 66 ; and so, distiuctively, of any letters authorizing hut not commanding a partic- ular act ; and this constitutes the chief differentia between warrant and order. 138 Perhaps the only eases, therefore, to which "order" does not apply, but "warrant" does, are those in which there is a discretionary power reserved to the drawee. An authority to a cor- respondent to advance funds if he thinks best, is a "warrant" but not an " order." See R. v. Williams, infra. But warrants include also (as has been seen) instruments where the drawer assumes mandatory power ; e. j., besides the cases just mentioned, post-office drafts (R. v. Gilchrist, supra) and bills of exchange. R. v. Willoughby, 2 East P. C. 581. s R. t). Williams, 2 C. & K. 51; Mc- Guire v. State, 37 Ala. 161. Prim& fade case is enough ; and though the drawer has neither money nor goods in the drawee's hands, and there is no privity between them, yet, as the in- strument could be none the less on its face the basis of a suit, it does not, from such latent defects, lose the qual- ities of a forgeable order. See R. v. Carte, 1 C. & K. 741 ; People i.. Way, 10 Cal. 336 ; R. v. Lockett, 1 Leach, 110. But a primd facie drawer and drawee are necessary ; and the drawer must CHAP. III.] PLEADINa OF DOCUMENTS. [§194, § 194. " Bequest" is wider still, and includes a mere invitation, and is technically proper in cases where the party sup- „ posed to draw is without authority to draw ;' nor is it inoiudee necessary that a drawer should be specified.* Cheques, tation. drafts, and bills of exchange fall under either head.* occupy, on the face of the instrument, the attitude of "ordering," and the drawee the relation of being "ordered." See cases just cited, and R. v. Curry, 2 Moody, 218 ; C. & M. 652 ; R. v. Cnl- len, 5 C. & P. 116 ; R. v. Richards, R. & R. 193 ; People v. Farrington, 14 Johns. 348. Yet that there may be cases where a drawee's name can be dispensed with is on reason clear. An order on the keeper of a prison, for instance, or on the sheriff of a county, is no less an order because the drawee's name is not given ; and so we can con- ceive of an order by a factory treasurer on the factory store-keeper, to which the same remark would apply. As sustaining this may be cited R. v. Gil- christ, 2 Moody, 233 ; R. v. Snelling, Dears. 219; 22 Eng. L. & Eq. 597; Com. V. Butterick, 100 Mass. 12 ; Noakes V. People, 25 N. Y. 380. Defectiveness, or elliptical obscurity, does not destroy the forgeable character of the instru- ment as an "order," if it can be proved to be an order by parol. But if so, the wanting links must be sup- plied by special averment in the indict- ment. See supra, § 181 ; Whart Crim. Law, 9th ed. §§ 682 et seq. Yet when this is done, our courts have not been so fastidious, as appears to have been sometimes the case in England, as to require each "order" to come up to a preconceived legal standard. This, perhaps (besides our emancipation from the numbing effect on old English judges of the consciousness of the death penalty in forgery), may be attributed to the fact that in this country every- body does business in every sort of way, while in England the class is com- paratively limited, and restricted to settled forms. As sustaining the Amer- ican liberalization of the rule, see Com. u. Fisher, 17 Mass. 46 ; Com. v, Butter- ick, 100 Mass. 12 ; State v. Cooper, 5 Day, 250 ; People v. Shaw, 5 Johns. R. 236 ; People v. Farrington, 14 Johns. R. 348 ; Hoskins v. State, 11 Ga. 92 ; Johnson v. State, 62 Ga. 299 ; McGuire V. State, 37 Ala. 361. See Jones v. State, 50 Ala. 161. The following was held to be an " order for the payment of money," although the party ad- dressed was not indebted to the sup- posed drawer, or bound to comply : "Mr. Campbell, please give John Kep- per $10, Frank Neff." Com. u. Kepper, 114 Mass. 278. Even in England a note from a merchant asking that the bearer should be permitted to test wine in London docks, is an " order" for the delivery of goods. R. v. lUedge, 2 C. & K. 871 ; T. & M. 127 ; 3 Cox C. C. 552. No Anierican expansion of the rule has exceeded this. ' R. V. James, 8 C. & P. 292 ; R. v. Thomas, 2 Moody, 16 ; R. v. Newton, 2 Moody, 59; R. v. Walters, C. & M. 588 ; R. V. White, 9 C. & P. 282 ; R. v. Evans, 5 C. & P. 553; R. v. Kay, L. Rep. 1 C. C. 257. 2 R. V. Pulbrook, 9 C. & P. 37. 3 R. V. Willoughby, 2 East P. C. 944 ; R. V. Shepherd, Ibid. ; State v. Nevins, 23 Vt. 519 ; People v. Howell, 4 Johns. 296. So is a, post-dated check ; R. v, Taylor, 1 C. & K. 213 ; but not a war- rant for wages. R. v. Mitchell, 2 F. & F. 44. 139 § 195.] PLEADING AND PRACTICE. [chap. III. The writing need not be of a business character, nor negotia- ble.i When the pleader is doubtful as to the class in which the instrument falls, it seems that instead of averring the instrument, as in the case last cited, to be " a certain warrant, order, and request," the better course is to aver the uttering of one warrant, one order, and one But it is doubtful whether even this is not duplicity, where the words do not each describe the object ;* and hence, where there is a question whether the document is an " order," or " request," or " warrant," it is safe to give to each designation a separate count.' §195. Terms may be used cumu- latively. request. * 2 Russ. on Crimes, 514. A forged Instrument of writing was in the following terms : — "Mr. Davis : Wen. 19th. "pleas let the boy have $6.00 dol- ers for me. B. W. Eakl." It was held that such instrument is primd facie an " order for the payment of money" within the meaning of the statute. Evans v. State, 8 Ohio State Kep. (N. S.) 196. Many subtleties formerly existed in the English law as to the distinctions between these several designations. The following cases are generally re- ferred to under this head : R. v. Mc- intosh, 2 East P. C. 942 ; R. v. Ander- son, 2 Moody & R. 469 ; R. o. Dawson, supra ; R. v. Williams, 2 C. & K. 51 ; R. u. Hart, 6 C. & P. 106 ; R. v. Rob- erts, C. & M. 682. The pleader has, however, been relieved from most of these by a more recent case (1850), where it was held that if the instru- ment be set out in haec verba, a misde- scription will be immaterial, at least if it fall within one of several terms used to designate it. R. v. Williams, 2 Den. C. C. 61 ; 4 Cox C. C. 356 ; cited supra, §§ 184, 192-3. And the intimation was even thrown out that where the indictment sets forth the forged instru- ment, the court will see whether it is 140 within the statute (when the indict- ment is under a statute), and if so, will sustain a conviction, although it was not specifically averred to be an instrument which the statute covered. Thus, where the indictment charged the defendant to have forged a certain warrant, order, and request, in the words and figures following, to wit : "Mr. Sevan, S Pleas to send by bearer a quantity of basket nails," etc., the Court of Criminal Appeal, Lord Campbell presiding, sustained the con- viction, apparently on the ground that if there was a technical misnomer of the instrument, this was cured by its being fully set forth, and thus speak- ing for itself. R. v. Williams, 2 Den. 0. C. 61 ; 4 Cox C. C. 356 ; 2 Eng. Law & Eq. 633. See other cases cited supra, §§184, 192. But simply "W. Trim, 2s.," is insensible and incurable. R. V. Ellis, 4 Cox C. C. 258. s R. V. Gilchrist, 2 M. C. C. 233 ; C. & M. 224 ; R. v. Crowther, 5 C. & P. 316, per Bosanquet, J. See Com. v. Livermore, 4 Gray, 18 ; sed quaere whether the unnecessary cumulation could not be discharged as surplusage. Compare State v. Corrigau, 24 Conn. 286 ; Whart. Crim. Ev. § 138. ' See supra, §§ 162-3 ; infra, § 251. CHAP. III.J PLEADING OF DOCUMENTS. [§ 198. § 196. If the writing, on its face, comes short of being either an order, warrant, request, or other statutory term, aver- ment may be made, and evidence received, bringing it up "ly be ex- to thife required standard, as where the name of the plained by ^ . T 1 1 !■ 1 ayerments. party addressed is omitted,' or where the body of the writing is on its face insensible.^ And where the fraudulent or illegal character of the document does not appear on its face, this must be helped out by averments.* Innuendoes have been 'already discussed.* §197. "Deeds." "Bonds." — To sustain the averment of a deed, there must be a writing under seal, purporting to pass some legal right from one party to another, either must be in mediately or immediately ; and hence a power of at- a/r'seai '^"' tornev to sell stock is a deed under the statutes." Nor passing a . right, is it necessary that a deed should rigorously pursue the statutory form.* Primd facie validity is enough. The averment of the " deed" need not give the grantee's name.^ " Bond" in- cludes a municipal certificate of indebtedness.* § 198. " Obligation." — Under statutes based, as those of Louisi- ana, on the Roman law, an obligation is a unilateral en- «obiiea^ gagement by which one party engages himself to another tion" is a to do a particular thing. The English common law au- engage- thorities sometimes speak as if the term is limited to bonds ™^° ' with penalties. But when the term is used in a statute as nomen generalissimum, it must be construed in its most liberal sense.' ' R. V. Carney, 1 Mood. 351 ; R. v. Pulbrook, 9 C. & P. 37 ; R. v. Rogers, 9 C. & P. 41. See supra, § 185. 2 R. V. Hunter, 2 Leach C. C. 624 ; R. V. Walters, C. & M. 588 ; R. v. At- kinson, C. & M. 325 ; R. «. CuUen, 1 Moody, 300 ; R. v. Pulbrook, 9 C. & P. 37 ; Com. ». Spilman, 124 Mass. 327 ; Carberry v. State, 11 Ohio St. 410; State V. Crawford, 13 La. An. 300; Whart. Crim. Law, 9th ed. §§ 728 elseq. » Ibid. ; Com. v. Hinds, 101 Mass. 209 ; Com. v. Costello, 120 Mass. 359. * Supra, § 181 a. 6 R. V. Fauntleroy, 1 C. & P. 421 ; 1 Moody, 52. " R. V. Lyon, R. & R. C. C. 255. In R. V. Morton, 12 Cox C. C. 456 ; L. R. 2 C. C. R. 22, it was held that the forging of letters of orders issued by a bishop, certifying that on a day and at a place mentioned therein A. B. was admitted into the holy order of deacons, according to the manner pre- scribed by the Church of England, and rightly and canonioally ordained dea- con, in testimony whereof the bishop had caused his episcopal seal to be af- fixed thereunto, is not the feloniously forging of a deed within the 24 & 25 Vict. 0. 98, s. 20. ' State V. Hall, 85 Mo. 669. 8 Bishop V. State, 55 Md. 138. 9 See Fogg v. State, 9 Yerg. 392. 141 § 202 a.] PLEADING AND PRACTICE. [CHAP. III. And so is " under- taking." A "guar- antee" and an I. 0. U. are under- takings. ' " Proper- ty" is whatever may be ap- propriated. "Piece of paper" is subject of larceny. § 199. As to " undertaking,'" the same remark is to be made. Where, however, either term is used to represent a sub- ordinate species or class, then the instrument must be proved to belong to this species or class.* § 200. A " guarantee" is an undertaking f and so is a bare " I. 0. U." without any expressed considera- tion.* § 201. " Property," it needs scarcely be said, includes whatever may be appropriated to individual use. Money necessarily falls within this definition.* § 202. "Piece of Paper." — It has been sometimes the practice to aver, in larceny, the stealing of " one piece of paper, of the value of one dollar," etc., as the case may be ; and it has been thought that in this way the difficulty as to setting out doubtful instruments could be avoided. How far this is the case will be considered hereafter." A " piece of paper," it may be generally said, if of any value, is the subject of larceny.® § 202 a. A written letter, if merely the inducement or introduc- " Chaiien- ^^^^ ^ ^^ °^^^ Communication, conveying a challenge, ges" to need not be set forth. Thus, where T., in a letter to N., figlitneea , . . , . , „ , , not be set used expressions implying a challenge, and by a post- °^ ' script referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded ; and that N. might give testimony of the conversation between H., the bearer of the letter, and him- self.^ Even when a statute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge f and if an attempt be made to set out in the indictment a copy, and it 1 R. V. West, 1 Den. C. C. 258 ; 2 C. & K. 496 ; S. P., Clark v. Newsam, 1 Exch. 131. ^ R. V. Joyce, 10 Cox C. C. 100 ; L. & C. 576 ; R. v. Reed, 2 Moody, 62. ' R. V. Chambers, L. R. 1 C. C. 341. ' People t'. Williams, 24 Mich. 156. 5 Infra, § 213 ; Whart. Crim. Law, 142 9th ed. § 880. See E. v. Bingley, 5 C. & P. 602. 6 R. V. Perry, 1 Den. C. C. 69 ; S. C, 1 C. & K. 727 ; R. t>. Clark, R. & R. 181. ' State V. Taylor, 3 Brev. 243. 8 Brown v. Com., 2 Va. Cas. 516 ; State V. Farrier, 1 Hawks, 487. CHAP. III.] INDICTMENT : WOBDS SPOKEN. [§ 203. varies slightly from the original, as by the addition or omission of a letter, in no way altering the meaning, this is cured by verdict.^ IX. WORDS SPOKEN. § 203. Where words are the gist of the offence, they must be set forth in the indictment with the same particularity as a words libel ; as, for instance, in an indictment for scandalous or ^^"^^^^ contemptuous words spoken to a magistrate in the execu- set forth tion of his office ;* or for blasphemous or seditious or ob- though ' scene or abusive words ,^ or for perjury.* It is not enough, prooA" '^ in such case, to lay the substance of the words alleged to «'»°'^s^- have been spoken. The words themselves must be laid, but only the substance need be proved." But the meaning must be evidently and clearly the same, without the help of any implication or any- thing extrinsic.®" Should any substantial difference exist between the words proved and those laid, even if laid as spoken in the third person and proved to have been spoken in the second,^ the de- fendant must be acquitted. But if some of the words be proved as laid, and the words so proved amount to an indictable offence, it will be sufficient.' And when the words do not constitute the gist of the offence, as where the charge is attempt to extort by threats, then it is enough to set forth the substance.' When, also, it is not the words but their tendency that is at issue, it is enough to set forth such tendency ; and hence an indictment for " threatening to 1 See HefFren v. Com., 4 Mete. (Ky.) 207 ; Whart. Crim. Law, 9th ed. §§ 5 ; Ivey v. State, 12 Ala. 276. 1603-7, 1615. 2 R. 13. Bagg, 1 RoUe Rep. 79 ; R. v. In indictments for threatening with How, 2 Str. 699. Infra, § 965. intent to extort money the words need ' R. V. Popplewell, 2 Str. 686 ; R. v. not be set out exactly. The substance Sparling, Ibid. 498 ; State v. Brew- is enough. Com. v. Goodwin, 122 ington, 84 N. C. 783 ; Walton v. State, Mass. 19. 64 Miss. 207; McMahone v. State, 13 ^ People o. Warner, 5 Wend. 271 Tex. Ap. 220 ; contra, Foley, ex parte. State v. Bradley, 1 Hay. 403, 463 62 Cal. 508. State v. Coffey, N. C. Term R. 272 • See Whart. Crim. Law, 9th e"d. State v. Ammons, 3 Murph. 123. § 1297 ; Whart. Crim. Ev. § 120 a. ■ ' R. v. Berry, 4 T. R. 217 ; Com. «. 5 Updegraph v. Com., 11 Serg. & Moulton, 108 Mass. 308. See Whart. Rawle, 394 ; Com. v. Kneeland, 20 Crim. Law, 9th ed. §§ 1603-7, 1615. Pick. 206 ; Bell v. State, 1 Swan » Com. v. Kueeland, 20 Pick. 206. (Tenn.), 42 ; State v. Clarke, 31 Minn. ^ Com. v. Moulton, ut supra. See Com. u. Goodwin, 122 Mass. 19. 143 § 206.] PLEADING AND PRACTICE. [CHAP. III. murder" need not set out the words of the threat.' But, where slanderous words, spoken in the presence of third parties, are made specifically indictable by statute, they must be substantially set forth and the presence of third parties must be averred.^ § 204, When words are laid as an overt act of treason, enou^h'to i* is Sufficient to set forth the substance of them,' for set forth they are not the gist of the oflFence, but proofs or evi- substance. •' ° ' '^ i dences of it merely. X. PERSONAL CHATTELS. 1. Indefinite, Insensible, ob Lumpino | 2. Value, § 213. Debokiptions, § 206. | 3. Monet ob Coin, § 218. § 205. In this connection it is proposed to treat the pleading of personal chattels only so far as necessary for the purpose of a demurrer, or a motion in arrest of judgment. The question of variance between the description and the evidence will be con- sidered in a separate volume.^ 1. Indefinite, Insensible, or Lumping Descriptions. § 206. When, as in larceny, or receiving stolen goods, personal chattels are the subiect of an ofience, they must be Personal , '' . chattels, described specifically by the names usually appropriated jects of an ^0 them, and the number and value of each species or must^be particular kind of goods stated ;* thus, for instance : specifically " one coat of the value of twenty shillings : two pairs of described. , ./ o ? r boots, each pair of the value of thirty shillings ; two pairs of shoes, each pair of the value of twelve shillings ; two sheets, each of the value of thirteen shillings ; of the goods and chattels of one J. S.," or " one sheep of the price of twenty shillings," etc., and the like. If the description were " twenty wethers and ewes," the indictment would be bad for uncertainty ; 1 State V. O'Mally, 48 Iowa, 501. So 222. And see State v. Brewington, 84 as to common scolding, Whart. Crim. N. C. 783. Law, 9th ed. § 1442. a Post. 194 ; R. v. Layer, 8 Mod. 93 ; 2 Wiseman v. State, 14 Tex. Ap. 7 ; 6 St. Tr. 328. citing Lagrone v. State, 12 Tex. Ap. * Whart. Crim. Ev. §§ 121 et seq. 426 ; McMahan v. State, 13 Tex. Ap. = See 2 Hale, 182, 183 ; People v. 220 ; S. P., Conlee v. State, 14 Tex. Ap. Coon, 45 Cal. 672 ; Whart. Crim. Ev. §§ 121-6. 144 CHAP. III.] INDICTMENT : PERSONAL CHATTELS. [§ 208. it should state how many of each ;' and so of an indictment charg- ing the stealing of " one case of merchandise."^ But an indictment charging the defendant with feloniously taking three head of cattle has been held suflSciently certain under a statute, without showing the particular species of cattle taken.* When several articles are stated, it is not necessary to separate them by the connecting word "and."* An indictment charging the defendant with the larceny of " six handkerchiefs" is good, though the handkerchiefs were in one piece, the pattern designating each handkerchief ;' and so of an indictment charging the stealing of a " pair of pants ;"* or three hundred pair of shoes.^ The distinctions as to variance of instruments of death are else- where discussed.* § 207. When several notes are stolen in a bunch, it is rarely that the prosecutor can designate their respective amounts and -when values. As a matter of necessity, therefore, an indict- °°'^^ ^F^ •' ' ' stolen in a ment charging the larceny of " sundry bank bills, of launch, de- some banks respectively to the jurors unknown, of the tions may value of $38," etc., is sufficient.* And there is even mateiT'" authority to the effect that it is enough to say "divers S*"^*"- bank bills, amounting in the whole to, etc., and of the value of, etc., of the goods and chattels," etc." § 208. The common acceptation of property is to govern its description, and there must be such certainty as will nfust be^ enable the jury to say whether the chattel proved to be indmdu-" stolen is the same as that upon which the indictment is ateoflfence. 1 2 Hale, 183 ; Archbold's C. P. 45. s Whart. Crim. Ev. §§ 91-4 ; Whart. Otherwise In Texas. State v. Murphy, Crlm. Law, 9th ed. §§ 519-20. 39 Tex. 46. 9 Com. v. Grimes, 10 Gray, 470 ; Com. 2 State V. Dawes, 75 Me. 51. v. Sawtelle, 11 Cush. 142. ' People V. Littlefield, 5 Cal. 355. » Lamed v. Com. 12 Met. 240 ; Com. * State V. Bartlett, 55 Me. 200. v. O'Connell, 12 Allen, 451 ; State d. 6 6 Term E. 267 ; 1 Ld. Eaym. 149. Taunt, 16 Minn. 109 ; contra, Hamblett Whart. Crim. Ev. § 121. ». State, 18 N. H. 384 ; Low v. People, 6 State V. Johnson, 30 La. An. Pt. II. 2 Park. C. R. 37. See Com. v. Cahill, ^^^- 12 Allen, 540. Other oases are given ' Com. u. Shaw, 145 Mass. 349. supra, § 189 o. 10 145 § 209.] PLEADING AND PRACTICE. [chap. III. founded, been the §209. "Dead" animals must be averred to be such. "Living" must be in- telligently described. and will judicially show to the court that it could have subject-matter of the offence charged.^ When animals are stolen alive, it is not necessary to state them to be alive, because the law will presume them to be so unless the contrary be stated ; but if when stolen the animals were dead, that fact must be stated ; for, as the law would otherwise presume them to be alive, the ■ variance would be fatal.' But if an animal have the same appellation whether it be alive or dead, and it 1 Whart. Crim. Ev. § 121 ; Com. v. James, 1 Pick. 376 ; People v. Jackson, 8 Barb. S. C. 657 ; Reed's Case, 2 Rod- ger's Reo. 168 ; Com. v. Wentz, 1 Ashm. 269. It is sufficiently certain to describe the article stolen as "one bide, of tbe value," etc. (State v. Dowell, 3 Gill & J. 310), or " one watch," etc. Widner V. State, 25 Ind. 234. An indictment charging A. with stealing a printed book, of the value, etc., is correct, and the title of the book need not be stated. State v. Dowell, 3 Gill & J. 310 ; State v. Logan, 1 Mo. 377 ; Turner v. State, 102 Ind. 425. A count charging manslaughter on the high seas, by casting F. A. from a vessel, whose name was unknown, is sufficiently certain ; and so of a count charging the offence to have been com- mitted from a long-boat of the ship W. B., belonging, etc. United States V. Holmes, 1 Wall. Jun. 1. See Com. V. Strangford, 112 Mass. 289. As to variance in pleading instrument of death see Whart. Crim. Law, 9th ed. §§ 519-20. As to variance of goods see Whart. Crim. Ev. § 121. "Lot of Lumber," " Parcel of Oats," "Mixtures." — In Louisiana judgment was arrested on an indictment which charged the defendant with stealing a "lot of lumber," a "certain lot of fur- niture," and "certain tools." State 146 V. Edson, 10 La. An. R. 229. On the other hand, in North Carolina, a " par- cel of oats" was adjudged a sufficient description of the stolen property. State V. Brown, 1 Dev. 137. The rea- son of this distinction is, that in the first case a closer description was pos- sible ; in the second, not so. And a general description in larceny is enough. This doctrine is founded partly on the fact that the prosecutor is not considered in possession of the article stolen, and is not, therefore, enabled to give a minute description ; and principally, because, notwith- standing the general description, it is made certain to the court, from the face of the indictment, that a crime has been committed, if the facts be true. State ti. Scribner, 2 Gill & J. 246. Substances mechanically mixed should not be described in an indict- ment as a " certain mixture consisting of," etc., but by the names applicable to them before such mixture, though it is otherwise with regard to sub- stances chemically mixed. R. v. Bond, 1 Den. C. C. 517. It has been held in Massachusetts that where brandy was feloniously drawn from a cask, and then bottled, it could not be described in the indict- ment as "bottles of brandy." Com. V. Gavin, 121 Mass. 54. 2 R. V. Edwards, R. & R. 497 ; R. v. Halloway, 1 C. & P. 128 ; Com. v. Bea- CHAP. III.] indictment: goods: animals. [§210. makes no difference as to the charge whether it were alive or dead, it may be called, when dead, by the appellation applicable to it when alive .^ Whether a description is sufficient depends in statutory cases largely on the statute.* It has been held that " one sheep" is a suffi- ciently exact description ;» and so is " a chestnut sorrel horse,"* and " one beef steer,"" and " one black pig, white listed, and one white pig, with a blue rump, both without ear^marks, of the value of $2."* But " a yearling" is not a sufficient description.^ A "pig" four months old may be called a " hog,"* and " chickens" may be called " hens."' But " cattle" do not include " sheep" or " goats."'" When a dead animal, or part of an animal, has a distinctive name, it may be described as such. Hence an indictment charging the stealing " one ham," of the value of ten shillings, of the goods and chattels of T. H., was held good, although it did not state the animal of which the ham had formed a part." But an indictment for stealing " meat" is bad for generality."' Variance as to animals is discussed in another volume.^^ In a future section it will be seen that the question of specification de- pends largely on the terms of the statute." § 210. Specification is necessary when certain members of a class are subjects of indictment, and certain others not. ^^^^^^ ^^j Thus, an indictment for stealing " three eggs" has been certain ruled to be bad, because only the eggs of animals a class are man, 8 Gray, 497. See R. v. "Williams, ^ * Taylor v. State, 44 Ga. 263. 1 Mood. C. C. 107. See Whart. Crim. = Short v. State, 36 Tex. 644. Law, 9th ed, § 871. In State v. Don- « Brown v. State, 44 Ga. 300. ovan, 1 Honst. 43, it was held that an ' StoUenwerk v. State, 55 Ala. 142. averment of the stealing of "two * Lavender ». State, 60 Ala. 60. See fishes commonly called shad" was People v. Stanford, 64 Cal. 27. good, though the proof was they were » State v. Bassett, 34 La. An. 1108. dead. lo Mcintosh w. State, 18 Tex. Ap. 285. 1 R. V. Puckering, 1 Mood. C. C. " R. u. Gallears, 2 C. & K. 981 ; 1 242 ; Smith v. State, 7 Tex. Ap. 882 ; Den. C. C. 501. contra, Com. v. Beaman, 8 Gray, 497. "^ State v. Morey, 2 Wis. 494 ; State Infra, § 237 ; Whart. Crim. Ev. § 124 ; v. Patrick, 79 N. C. 656. Whart. Crim. Law, 9th ed. § 874. i3 Whart. Crim. Ev. § 124. 2 Infra, § 237. w Infra, § 237. » State V. Pollard, 53 Me. 124 ; Whart. Crim. Ev. § 824. 147 § 212 a.] PLEADING AND PRACTICE. [chap. III. Bubjectsof domitae naturae are the subiect of larceny.* But an Indict- . . 1 -1 1 1 • 1 ment, then indictment for bestiality, which described the animal as a"s muBtbe " ^ certain bitch," was held sufficiently certain, although described, tjjg female of foxes and some other animals, as well as of dogs, are so called.^ In larceny this would be bad, as the term would not indicate whether or no the animal was larcenous.^ In bestiality this distinction is immaterial. § 211. An indictment charging the stealing of certain " gold-bearing quartz-rocks," is bad. It should appear that the rock was severed from the realty.* "A cab- bage" or other vegetable must, at common law, be shown not to have been growing on the field.' The prosecutor is bound by the description of the spepies of goods stated ; thus, for instance, an indictment for stealing a pair of shoes cannot be supported by evidence of a larceny of a pair of boots. But a variance in the number of the articles is immaterial, provided the verdict rests on an article which is one of the number averred, and which sufficient to sustain a conviction.* So if there be ten different Minerals and vege- tables must be averred to be sev- ered from realty. §212. Variance in number or value immate- rial. IS species of goods enumerated, and the prosecutor prove a larceny of any one or more of a sufficient value, it will be sufficient, although he fail in his proof of the rest." But it was held otherwise where five certificates of stock of a particular number were alleged to be stolen, and it appeared that only one certificate of that number had been issued.* § 212 a. An instrument of injury must be substantially described ; Instrument though when the effect produced by the instrument aver- may'be ap- ^^^ *°*^ ^^^^ ^^^"^ '^^ virtually the same, a mere variance 1 R. V. Cox, 1 C. & K. 487 ; 1 Den. C. C. 502; sed quaere. See Whart. Crim. Law, 9th ed. § 870. 2 E. V. Allen, Ibid. 495. 3 Whart. Crim. Law, 9th ed. §§ 869-71. * State V. Burt, 64 N. C. 619 ; People V. Williams, 35 Cal. 671 ; Whart. Crim. Law, 9th ed. § 865. 6 State V. Foy, 82 N. C. 679. 6 E. V. Forsyth, R. & E. 274 ; Hope 148 V. Com., 9 Met. 134; Com. v. Cahill, 12 Allen, 640; State v. Fenn, 41 Conn. 590 ; State v. Martin, 82 N. C. 672. ' Infra, § 252. Com. v. Eastman, 2 Gray, 76 ; Com. v. Williams, 2 Cush. 583 ; People v. Wiley, 3 Hill N. Y. 194 ; State V. Martin, 82 N. C. 672. Infra, §§ 262, 470 ; Whart. Crim. Ev. § 145. See under Texas statute, Pittman v. State, 14 Tex. Ap. 576. 8 People V. Coon, 45 Cal. 672. CHAP. III.] INDICTMENT: GOODS: NUMBERS. [§ 215. in name will not vitiate.* The question of the effect of proximate- the instrument is one of fact for the jury under the direc- tion and supervision of the court.* Such agencies may be cumula- tively laid.' Ordinarily the adoption of the statutory description is sufficient.^ If the instrument be unknown, this may be so averred.* 2. Value. § 213. It is necessary that some specific value should Value must be assigned to whatever articles are charged as the sub- when^ifr- jects of larceny.* An indictment cannot be sustained for g^^Jglg , stealing a thing of no intrinsic or artificial value.' § 214. A count for stealing " one piece of paper, of the value of one cent," may be good, when a count for stealing Larceny a bank note fails' in consequence of the instrument of " piece ... .of paper described being void, but not, it is said, where it is maybe ,. J 9 prosecuted. § 215. It has been sa,id that the object of inserting value is either to distinguish grand from petit larceny, or to enable the court to be guided as to imposing fines or restitution ; sentiai to and that when neither of these conditions exists (e. g., and'aiso°"' where a statute punishes horse-stealing, irrespective of to mark value), then value need not be averred."* But this is 1 See Whart. Crim. Ev. §§ 91-3. Wilson, 1 Porter, 118 ; State t'. Allen, 2 Ibid. Peoplew. Casey, 72 N.Y. 393; Charlton, 518; Merwin v. People, 26 State V. Townsend, 1 Houst. C. C. '337 ; Mloh. 298 ; Morgan v. State, 13 Fla. State V. Gould, 90 N. C. 659 ; Tatum v. 671 ; Sheppard v. State, 42 Ala. 531. State, 59 Ga. 638 ; MoReynolds v. State, Supra, § 206 ; Whart. Crim. Ev. § 126 ; 4 Tex. Ap. 327 ; Briggs v. State, 6 Tex. Whart. Crim. Law, 9th ed. § 951. See Ap. 144 ; Hunt ti. State, 6 Tex. Ap. 663. contra as to money. State v. King, 37 ' Supra, § 158 ; Whart. Crim. Law, La. An. 91. See State v. Pierson, 59 9th ed. §519; Peoples. Casey, 72 N.Y. Iowa, 271. The value need not be 393 ; State v. McDonald, 67 Mo. 13. alleged in current coin. People v. * State V. Morrissey, 70 Me. 401 ; Eighetti, 66 Cal. 184. State V. Chumley, 67 Mo. 41. Infj-a, ' State v. Bryant, 2 Car. Law Rep. § 220. 617. 6 Supra, § 156. 8 r. „. Peny, 1 Den. C. C. 69 ; S. C, 6 Eoscoe's Crim. Ev. 512 ; State v. 1 Car. & K. 727 ; R. v. Clark, R. & E. Goodrich, 46 N. H. 186 ; State v. Fenn, 181 ; 2 Leach, 1039. 41 Conn. 590 ; People v. Payne, 6 ' Whart. Crim. Law, 9th ed. § 880. Johns. 103 ; State v. Stimson, 4 Zab. «> Eitohey v. State, 7 Blaokf. 168. 9 ; State v. Smart, 4 Eich. 356 ; State See Sheppard v. State, 42 Ala. 531 ; V. Tillery, 1 Nott & McCord, 9 ; State Collins v. State, 20 Tex. Ap. 199 ; V. Thomas, 2 McCord, 527 ; State v. Whart. Crim. Law, 9th ed. §§ 951, 962. 149 § 217.] PLEADING AND PRACTICE. [chap. III. doubtful law ; though the amount of value is only material in those cases in which an offence is graduated in conformity to the value of the thing taken.* And where the value of a thing which is the subject of the offence is necessary to fix the grade of the offence, it is a proper mode of stating it to aver that the thing is of or more than the value prescribed by the statute.* But where the offence is intent to steal goods, the value of the goods need not ordinarily be given.' § 216. An averment of the value of bank notes, not legal tender, is always necessary, but not so of govern- ment coins, which are values themselves.* A collective or lumping valuation, so far as demurrer or arrest of judgment is concerned, is always permissible.* And it is said that where several articles, all of one kind, are described, their value may be alleged in the aggre- gate or collectively, and the defendant may be convicted of stealing a part of less value than the whole, if there be anything on the record to attach to the articles on which the conviction was had a value sufficient to sustain the con- viction.* Legal cur- rency need not be val- ued. §217. When there is lumping yaluation, conviction cannot be had for stealing fraction. ' People V. Stetson, 4 Barb. 151 ; People u. Higbee, 66 Barb. 131 ; State V. Gillespie, 80 N. C. 396 ; People v. Belcher, 58 Mich. 325 ; Lunu v. State, 44 Tex. 85. ' Phelps V. People, 72 N. Y. 384. 3 Green v. State, 21 Tex. Ap. 64. * State V. Stimson, 4 Zabr. (N. J.) 9 ; Grant u. State, 55 Ala. 201 ; State V. Ziord, 30 La. An. Pt. I. 867. Infra, § 218. Supra, § 189 a. A description in an indictment in these words, "ten five-dollar bank bills of the value of five dollars each," is sufficiently definite. Eyland v. State, 4 Sneed, 357. Supra, § 189 a. 6 State V. Hood, 51 Me. 363; Com. V. Grimes, 10 Gray, 470 ; Peoples v. Robles, 34 Cal. 591. 6 Com. V. O'Connell, 12 Allen, 451 ; but see Hamblett v. State, 18 N. H. 150 384. In Com. v. O'Connell the indict- ment was for "a quantity of bank notes current within this Common- wealth, amounting together to one hundred and fifty dollars, and of the value of one hundred and fifty dol- lars." It was said by the court that "it is not perceived that the descrip- tion of bank bills as ' a, quantity,' in- stead of 'divers and sundry,' consti- tutes an error. And the statement of the aggregate of the property stolen, where all the articles are of one kind, has been sanctioned by the court." Com. <,'. Sawtelle, 11 Cush. 142. Upon such an indictment, when the articles are all of one class, the defendant may be convicted of stealing a less sum than that charged in the indictment. Com. V. O'Connell, 12 Allen, 451. See, fur- ther, supra, § 189 o. CHAP. III.] indictment: money: coin. [§ 218. But when articles of different kinds, e. g., "sundry bank bills, and sundry United States treasury notes," are thus lumped with a com- mon value, the indictment cannot be sustained by proof of stealing only a part of the articles enumerated.* Nor can a conviction for stealing a part of the articles charged be sustained unless to such part suflScient value is assigned or implied.' 3. Money and Coin. § 218. Money is described as so many pieces of the current gold or silver coin of the country, called . Foreign coin should be specified,' but as to our own coin, the better must be opinion is that it is sufficient to aver " of silver and gold ^escribed'^ coin of the United States."* The subject of variance is elsewhere discussed.* " Twenty-five dollars in money" is not a suflBiciently exact desig- nation.' " Bank notes" have been already noticed.' " United States gold coin" is equivalent to " gold coin of the United States;" such coin being current by law, both court and jury know, without allegation, that a gold coin of the denomina- tion and value of ten dollars is an eagle.' A count charging the conversion of $19,000 of money, and $19,000 of bank notes, is bad for uncertainty.' Generality of description, 1 Whart. Grim. Ev. § 126 ; Com. v. statute, see State v. Jackson, 26 W. Va. Cahill, 12 Allen, 540 ; and see Hope v. 250. Commonwealth, 9 Met. 134; Com. v. * V. S. v. Rigsby, 2 Cranch C. C. Laverj, 101 Mass. 207, cited Whart. 364 ; Jackson v. State, 26 W. Va. 250 ; Crim. Ev. § 126. McKane v. State, 11 Ind. 195 ; Bravo 2 Hamblett v. State, 18 N. H. 384 ; v. State, 20 Tex. Ap. 177 ; see People Lord V. State, 20 N. H. 404 ; State v. v. Ball, 14 Cal. 100. Goodrich, 46 N. H. 186 ; Com. v. Smith, 6 whart. Crim. Ev. § 122. 1 Mass. 245 ; Low v. People, 2 Parker ^ gmith v. State,- 33 Ind. 159 ; Mer- C. E. 37 ; Collins v. People, 39 111. 233 ; win «. People, 26 Mich. 298 ; Lavarro Shepard v. State, 42 Ala. 531 ; Meyer v. State, 1 Tex. Ap. 685 ; and so suh- V. State, 4 Tex. Ap. 121. stantially is State u. Longbottoms, 11 3 R. V. Pry, R. & R. 482. See R. v. Humph. 39. See State v. Green, 27 La Warshoner, 1 Mood. C. C. 466. As to An. 598. description in forgery, see Whart. Crim. ' Supra, § 189. Law, 9th ed. § 751. That " silver coin s Daily v. State, 10 Ind. 536. See of the value of, ' ' etc., is sufficient under Whart. Crim. Ev. § 122. 3 State V. Stimsou, 4 Zabr. 9. 151 § 219.] PLEADING AND PRACTICE. [chap. III. however, may be excused by an averment that the precise character and value of the coin or notes are unknown to the grand jury.* § 219. It should be kept in mind, that if the indictment charges stealing a particular note or piece of coin and the evi- dence is that such note or coin was given to the defend- ant'to change, who refused to return the change, the de- fendant, even under the statutes making such conversion larceny, cannot be convicted of stealing the change ; for there is a fatal variance between the description in the indictment and the proof.' But an indictment charging the larceny of the note or coin actually given to the de- fendant may be good.* When money is given to change, and change is kept, in- dictment cannot aver stealing change. XI. OFFENCES CREATED BY STATUTE. Generally sttfjicient and neces- sakt to use wobds op stat0te, § 220. Common Law Offences made in- dictable BY Statote, § 230. (a.) Statutory directions must be pur- sued, § 230. (6;) Specification must be given, § 281. (c. ) When common law and statutory indictments are cumulative, § 233. 3. Technical Avbbments in Statutes, § 235. Equivalent terms admissible, § 236. 4. Dbsckiption of Animals in Stat- ute, § 237. 5. Provisos and Exceptions, § 238. ' Supra, §§ 166, 189 et seq.; State v. McAnulty, 26 Kan. 533, citing Com. v. Grimes, 10 Gray, 470, and other oases. An indictment for larceny from the person of " sundry gold coins, current as money in this Commonwealth, of the aggregate value of twenty-nine dollars, but a more particular descrip- tion of which the jurors cannot give, as they have po means of knowledge," and containing similar allegations as to bank bills and silver coin, is sufficiently specific to warrant a judgment upon a general verdict of guilty. Com. v. Saw- telle, 11 Cush. 142 ; Com. v. Butts, 124 Mass. 449 ; People v. Bogart, 36Cal. 245. And so a fortiori as to an averment of "four hundred and fifty dollars in specie coin of the United States, the denomination and description of which is to the grand jury unknown." Chis- holm V. State, 46 Ala. 66. As to alle- 152 gation " unknown," see supra, § 189 a; Whart. Crim. Ev. §§ 97, 122. But where practical, the pieces charged to be stolen should be spe- cifically designated. Leftwich v. Com., 20 Grat. 716 ; People v. Ball, 14 Cal. 101 ; Murphy v. State, 6 Ala. 845. " Of the moneys of the said M. N." sufficiently describes ownership. R. o. Godfrey, D. & B. 426; Whart. Crim. Law, 9th ed. § 979. 2 R. V. Jones, 1 Cox C. C. 105 ; R. v. Wast, D. & B. 109 ; 7 Cox C. C. 183 ; R. I*. Bird, 12 Cox C. C. 257 ; and other cases cited supra ; Whart. Crim. Ev. §123. It is not necessary, however, to intro- duce averments in a statute which do not individuate an offence. Helblng, ex parte, 66 Cal. 215. ' Com. V. Barry, 124 Mass. 325. CHAP. III.] INDICTMENTS ON STATUTES. [§ 220. § 220. Where a statute prescribes or implies the form of the in- dictment, it is usually sufficient to describe the offence in the words of the statute,' and for this purpose it is eufficient essential that these words should be used.* In such case ^^^ neces- sary to use the defendant must be specially brought within all the words, of material words of the statute ; and nothing can be taken ' U. S. 0. Batchelder, 2 Gall. 5 ; V. S. V. Jacoby, 12 Blatoh. 491 ; U. S. v. Dickey, 1 Morris, 412 ; U. S. v. Britton, 107 U. S. 655 ; U. S. v. Northway, 120 U. S. 327; People v. Marseiler, 70 Cal. 98 ; State v. Beckman, 57 N. H. 174 ; State V. Kenester, 59 N. H. 36 ; State v. Perkins, 63 N. H. 368 ; State v. Little, 1 Vt. 331 ; State v. Cocke, 38 Vt. 437 ; State V. Pratt, 54 Vt. 484 ; Com. v. Mal- loy, 119 Mass. 347; Com. v. Burling- ton, 136 Mass. 438 ; Com. v. Brown, 141 Mass. 78; Whiting v. State, 14 Conn. 487 ; State v. Lockwood, 38 Conn. 400 ; State v. Cady, 47 Conn. 44 ; Peo- ple V. West, 106 N. Y. 293 ; State v. Hickman, 3 Halst. 299 ; Titus v. State, 49 N. J. L. 36 ; Res. v. Tryer, 3 Yeates, 461 ; Com. v. Chapman, 5 Whart. 427; Williams v. Com., 91 Penn. St. 493 ; Bixler v. State, 62 Md. 354 ; Com. v. Hampton, 3 Grat. 590; Helfriok v. Com., 29 Grat. 844; State w. Riffe, 10 W. Va. 794; Camp. v. State, 3 Kelly, 419 ; Lassiter v. State, 67 Ga. 739 ; Allen V. People, 82 111. 610 ; Cole v. People, 84 111. 216 ; Ker v. People, 110 111. 627 ; Thomas v. People, 113 111. 99 ; Seacord v. People, 121 111. 623 ; People V. Murray, 57 Mich. 396 ; People o. O'Brien, 60 Mich. 8 ; State v. Seam- mons, 1 Greene (Iowa), 418; Buckley V. State, 2 Greene, 162 ; State v. Smith, 46 Iowa, 662 ; State v. Bonneville, 53 Wis. 680 ; State v. Comfort, 22 Minn. 271 ; State v. Boverliu, 30 Kan. 611 ; State !).■ Foster, 30 Kan. 365 ; Com. v. Tanner, 5 Bush, 316 ; Davis v. State, 13 Bush, 318 ; State v. Ladd, 2 Swann, 226 ; Hall v. State, 3 Cold. 125 ; State V. Chumley, 67 Mo. 41 ; State v. Hay- ward, 83 Mo. 299 ; State v. Rueker, 93 Mo. 88 ; State v. Miller, Ibid. 263 ; State V. Williams, 2 Strobh. 474 ; State V. Blease, 1 McMul. 472 ; State v. Moser, 33 Ark. 140 ; State v. Snyder, 41 Ark. 227 1 Linney v. State, 5 Tex. Ap. 344 ; People V. Lewis, 61 Cal. 366 ; People v. Sheldon, 68 Cal. 634 ; Cohen v. State, 7 Col. 274. 2 1 Hale, 517, 526, 535 ; Fost. 423, 424 ; R. V. Ryan, 7 C. & P. 854 ; 2 Moody, 15 ; V. S. v. Lancaster, 2 Mc- Lean, 431 ; U. S. V. Andrews, 2 Paine, 451 ; U. S. u. Pond, 2 Curtis, C. C. 265 ; State V. Gurnby, 37 Me. 149 ; State v. Rust, 36 N. H. 438 ; Com. v. Fenno, 125 Mass. 387; Phelps v. People, 72 N. Y. 334 ; People v. Allen, 5 Denio, 76 ; State V. Gibbons, 1 South. 51 ; Com. v. Hampton, 3 Grat. 690 ; Howell v. Com., 5 Grat. 664 ; State v. Hoover, 68 Vt. 496 ; State v. Schuler, 19 S. C. 140 ; State V. Ormond, 1 Dev. & Bat. 119 ; State V. Stanton, 1 Ired. 424 ; State v. Calvin, Charlt. 151 ; Cook v. State, 11 Ga. 53 ; Sharp v. State, 17 Ga. 290 ; Jackson v. State, 76 Ga. 551 ; State v. Click, 2 Ala._ 26 ; Lodono v. State, ,25 Ala. 64 ; Mason v. State, 42 Ala. 543 ; State V. Pratt, 10 La. An. 191 ; State v. Comfort, 5 Mo. 357; State v. Shiflet, 20 Mo. 415 ; State v. Vaughan, 26 Mo. 29 ; State V. Davis, 70 Mo. 460 ; State v. Buster, 90 Mo. 514 ; Com. v. Turner, 8 Bush, 1 ; People o. Martin, 32 Cal. 91 ; People v. Bnrk, 34 Cal. 661 ; Peo- ple V. Murray, 67 Cal. 56 ; Denton v. State, 21 Neb. 448 ; Kinney u. State, 21 Tex. Ap. 348. 153 § 221.] PLEADING AND PRACTICE. [CHAP. Ill, by intendment.* Whether this can be done by a mere transcript of the words of the statute depends in part upon the structure of the statute, in part upon the rules of pleading adopted by statute or otherwise, in the particular jurisdiction. On the general principles of common law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offence that the offender has proper notice, from the mere adoption of the statutory terms, what the offence he is to be tried for really is. But in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant upon trial without specifica- tion of the offence, than it would be under a common law charge. And besides this general principle, there are the following settled exceptions to the rule before us : — § 221. (1.) Statutes frequently make indictable common law „ . offences, describing them in short by their technical of law not name, e. ^., "burglary," "arson." No one would ven- ture to say that in such cases indictments would be good charging the defendants with committing " burglary" or arson.^ 1 tJ.~S. V. Lancaster, 2 McLean, 431 ; Bailey's case, 78 Va. 19 ; State v. Fos- ter, 3 MoCord, 442 ; State v. O'Banson, 1 Ball. 144 ; State «. La Creux, 1 Mc- MuU. 488 ; State v. Noel, 5 Black. 548 ; Chambers v. People, 4 Scam. 351 ; State V. Duncan, 9 Port. 260 ; State v. Mit- chell, 6 Mo. 147 ; State v. Helm, 6 Mo. 263 ; Ike v. State, 23 Miss. 525 ; State V. On Gee How, 15 Neh. 184 ; Jones v. State, 12 Tex. Ap. 424 ; though see Com. V. Pogerty, 8 Gray, 489, and Frazer v. People, 54 Barb. 306. ' Supra, § 154; R. v. Powner, 12 Cox, C. C. 235. See U. S. u. Pond, 2 Curt. C. C. 265 ; U. S. v. Staton, 11 Flip. 310 ; State v. Higgins, 53 Vt. 191 ; U. S. V. Crosby, 1 Hughes, 448 ; Bates V. State, 31 Ind. 72 ; State v. Windell, 60 Ind. 300 ; State d. Simmons, 73 N. C. 269; Sikes w. State, 66 Ala. 77; Grattan v. State, 71 Ala. 344 ; State v. Flint, 33 La. An. 1288 ; Hoskey v. State, 9 Tex. Ap. 202 ; State v. Mesohao, 30 154 Tex. 518; Marshall u. State, 13 Tex. Ap. 492; People v. Martin, 52 Cal. 201 ; McCarthy v. Torr, 1 Wy. 311. In U. S. V. Simmons, 96 U. S. 360, it was held that where a defendant is not charged with using a still, boiler, or other vessel himself, but with causing and procuring some person to use them, the name of such person must be given in the indictment. It was further ruled that an indictment for distilling vine- gar illegally must set out that the ap- paratus was used for that purpose, and in the premises described, and the vinegar manufactured at the time the apparatus described was being used; and further, that the averment that defendant caused and procured the ap- paratus to be used for distilling implies with sufficient certainty that it was so used ; it is not essential that it^ actual use shall be set out. It was held, also, that it is not necessary, in an indict- ment for defrauding the revenue, to CHAP. III.] IKDICTMENTS ON STATUTES. [§ 221. (2.) A statute may be one of a system of statutes, from which, as a whole, a description of the offence must be picked out. Thus, a statute makes it indictable to obtain negotiable paper by false pretences. But what are "false pretences?" To learn this we have to go to another statute, and this statute, it may be, refers to another statute, giving the definition of terms. No one of these statutes gives an adequate description of^the offence, nor can such description be taken from them in a body. It is inferred from them, not extracted from them. The same may be said of statutes making indictable the use of slanderous words. These words must be set forth.* (3.) A statute on creating a new offence describes it by a popular name. It is made indictable, for instance, to obtain goods by " falsely personating" another. But no one would maintain that it is enough to charge the defendant with " falsely personating another." So far from this being the case, the indictment would not be good unless it stated the kind of personation, and the person on whom the personation took effect.* An act of Congress, to take another illus- tration, makes it indictable to " make a revolt," but under this act it has been held necessary to specify what the revolt is.* " Fraud" in elections, in a Pennsylvania statute, is made indictable ; but the indictment must set out what *the fraud is.* It is not enough to say that the defendant " attempted" an offence, though this is all the statute says ; the particulars of the attempt must be given.' " Not a qualified voter," in a statute, must be expanded in the in- dictment by showing in what the disqualification consists.* And set out the particular means of the ' U. S. o. Almeida, Whart. Free, fraud. 1061. An indictment under the Masa. stat- * Com. a. Miller, 2 Pars. 197. ute, which charges the defendant with ^ R. v. Marsh, 1 Den. C. C. 505 ; R. adulterating " a certain substance in- v. Powner, 12 Cox C. C. 235 ; Com. u. tended for food, to wit, one pound of Clark, 6 Grat. 675 ; Whart. Grim. Law, confectionery," is not sufficiently de- 9th ed. § 192, where other cases are scriptive of the substance alleged to given. See IT. S. v. Warner, 26 Fed. have been adulterated. Com. v. Chase, Rep. 616. 125 Mass. 202. « Pearce v. State, 1 Sneed, 63. See ' Lagrone v. State, 12 Tex. Ap. 436 ; U. S. v. Crosby, 1 Hughes, 448 ; Peo- supra, § 203. And so as to libel. Hart- pie v. Wilber, 1 Park. C. R. 19 ; State ford V. State, 96 Ind. 461. o. Langford, 3 Hawks, 381 ; Anthony 2 See U. S. V. Goggin, 9 Biss. C. C. v. State, 29 Ala. 27 ; Banner v. State, 269. 54 Ala. 127 ; State v. Pugh, 15 Mo. 509 ; 155 § 223.] PLEADINO AND PRACTICE. [OHAP. III. " the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution against him. An indictment not so framed is defective, although it may follow the language of the statute."! (4.) The terms of a statute may be more broad than its intent, in which case the indictment must so differentiate the offence (though this may bring it below the statutory description) as may effectuate the intention of the legislature.^ (5.) An offence, when against an individual, must be specified as committed on such an individual, when known, though no such con- dition is expressed in the statute ; though it is otherwise with nuis- ances, and offences against the public' § 222. An indictment, when professing to recite a statute, is bad Variance if if ^^^ statute is not Set forth correctly.* It is otherwise indictment ^^en the statute- is counted on (or appealed to by the proposes ^ ^'^ _ •' _ to but fails conclusion against the form of the statute, etc.), in which statutory Case, as is hereafter noticed, terms convertible with those ^°''^^" in the statute may be used." § 223. Where a general word is used, and afterwards more g > . J special terms, defining an offence, an indictment charg- limitations ing the offencc must use the most special terms ; and if the general word is used, though it would embrace the special term, it is inadequate.* State V. Jackson, 7 Ind. 270 ; State v. ' Infra, § 224 ; U. S. v. Goodwin, 20 Shaw, 35 Iowa, 575 ; though see State v. Fed. Rep. 237 ; Com. v. Burke, 15 Dole, 3 Blaokf. 298 ; State u. Brougher, Gray, 408; Com. ». Washburn, 128 3 Blackf. 307 ; and as to general rule, Mass. 421 ; Butler v. State, 3 McCord, see State v. McLoon, 78 Me. 420. 383 ; though see, for a more liberal ' Field, J., U. S. v. Hess, 124 U. S. view, R. v. Westley, Bell C. C. 193. 488, citing U. S. v. Carll, 105 U. S. 611; 6 See infra, § 236 ; Whart. Crim. Ev. U. S. V. Simmons, 96 U. S. 360. §§ 91 et seq.; Com. v. Unknown, 6 2 U. S. V. Pond, 2 Curtis C. C. 268 ; Gray, 489 ; State v. Petty, Harp. 69 ; State V. TurnbuU, 78 Me. 392; Com. v. Butler v. State, 3 McCord, 383 ; Hall v. Slack, 19 Pick. 304 ; Com. «. Collins, 2 State, 3 Kelly, 18. Cush. 556 ; State v. Griffin, 89 Mo. 49 ; ^ state v. Bryant, 58 N. H. 59 ; State Langenotte v. State, 22 Tex. Ap. 261. v. Plunkett, 2 Stew. 11 ; State o. Rai- s Com. V. Ashley, 2 Gray, 357 ; ford, 7 Port. 101 ; Arohbold C. P. 93. Whart. Crim. Law, 9th ed. §§ 1410 et seq. 156 CHAP. III.] INDICTMENTS ON STATUTES. [§227a. must be given In full. Offence must be averred to be within statute. & 224. An indictment on a private statute must set Private statute out the statute at full.' As has been seen, it is other- ■wise with a public statute.* § 225. The indictment must show what offence has been committed and what penalty incurred by positive averment. It is not sufficient that they appear by infer- ence.' § 226. It is not necessary to indicate the particular section or even the particular statute, upon which the case rests, gegyonor It is only necessary to set out in the indictment such '*®^*^j^'j°'' facts as bring the case within the provisions of some need not be statute which was in force when the act was done, and also when the indictment was found.* § 227. Where a statute creates an offence, which from its nature requires the participation of more than one person to constitute it, a single individual cannot be charged with statute re- its commission unless in connection with persons un- defendants known." Thus, an indictment against one individual one is not ' ° . » , sufflcient. unconnected with others, based upon that section of the Vermont statute relative to offences against public policy which inflicts a penalty upon each individual of any company of players or other persons who shall exhibit any tragedies, etc., is insufficient.^ § 227 a. When, however, the object (as distinguished from the actor') of an offence is stated in the statute in the plural, y^^^ gt^- then, if this be done as a description of a class, the in- t"te states ,. ,.,.,,. . object in dictment may be in the smgular, designating any one piurai, it of the class. Thus, in a statute prohibiting the stealing beaded in of notes^ an indictment for stealing a note was sustained ;' singular. 1 state V. Cobb, 1 Dev. & Bat. 115 ; Goshen v. Sears, 7 Conn. 92 ; 1 Sid. 356 ; 2 Hale, 172 ; 2 Hawk. c. 25, s. 103 ; Bac Ab. Indict, p. 2. By statute in some states private statutes may be cited by title. See State v. Loomis, 27 Minn. 521. These statutes, however, do not apply to cases, such as charters of banks, which it was not necessary to plead at common law. 2 R. V. Sutton, 4 M. & S. 542 ; U. S. ». Rhodes, I Abb. U. S. 28 ; Com. v. CoItoD, II Gray, I ; Com. v. Hoye, 11 Gray, 462. 3 Com. V. Walters, 6 Dana, 291; State V. Briley, 8 Port. 472; Hamp- ton's case, 3 Grat. 590 ; Com. u. Glass, 33 Grat. 827 ; Graves v. State, 63 Ala. 144. * Com. V. Griffin, 21 Pick. 523, 525. Com. V. Wood, II Gray, 85 ; Com. v. Thompson, 108 ]^ass. 461. 5 See infra, § 305. 6 State V. Fox, 15 Vt. 22. ' Com. V. Messenger, I Binn. 273. 157 230.] PLEADING AND PRACTICE. [chap. III. Disjunc- tive statu- tory state- ments to be averred conjunc- tively. on a statute prohibiting the living in houses of ill-fame, an indictment for living in a house of ill-fame is good.' § 228. Though the language of the statute be disjunctive, e. g,, burned or caused to be burned, and the indictment charge the offence in the conjunctive, e. g., burned and caused- to be burned, the allegation, as has been noticed, is sufficient.^ The same rule applies where the intent is averred disjunctively. In either case the superfluous term may be rejected as surplusage.' And it is held that when the words of the statute are synonymous, it may not be error to charge them alternatively.* § 229. Defects in the description of a statutory offence will not at common law be aided by verdict,' nor will the conclu- sion, contra formam statuti, cure." But if the indictment describe the offence in the words of the statute, in Eng- land, after verdict, by the operation of the 7 Geo. 4, c. 64,' it will be sufficient in all offences created or sub- jected to any greater degree of punishment by any stat- ute.* But as a rule, at common law the features of the statute must be enumerated by the indictment with rigid particularity. St tute ^ ^^^* W^^"^^ ^^ ^^* ^^^ before subject to punish- creating ah mcnt is declared penal, and a mode is pointed out in to be which it is to be prosecuted, that mode must be strictly Sa. Pursued.' At com- mon law defects in statutory indicts ments are not cured by verdict. 8 » State V. Nichols, 83 Ind. 228. See Hall V. State, 3 Kelly, 18. 2 Supra, § 162 ; infra, § 251 ; U. S. V. Armstrong, 5 Phil. Eep. 273 (Grier, J., 1863) ; Day v. State, 14 Tex. Ap. 26 ; Hammell v. State, Ibid. 326. 3 Supra, §§ 161-3. * State V. Ellis, 4 Mo. 474 ; State v. Flint, 62 Mo. 393; Russell k. State, 71 Ala. 348 ; Lancaster v. State, 43 Tex. 519. Supra, § 161. 6 See Lee v. Clarke, 2 East, 333. s 2 Hale 170 ; and see R. v. Jukes, 8 T. R. 536 ; Com. Dig. Inform. D. 3. SteVens v. State, 18 gla. 903. ' See supra, § 90. 8 E. V. Warshoner, 1 Mood. C. C. 466. 158 s Atty.-Gen. v. Radloff, 10 Exch. 84 ; Com. V. Howes, 15 Pick. 231 ; Mc- Elhinney v. Com., 22 Penn. St. 365 ; Com. V. Turnpike, 2 Va. Cas. 361 ; Journey v. State, 1 Mo. 304 ; State v. Helgen, 1 Speers, 310 ; State v. Maze, 6 Humph. 17. Where an offence is created by sta- tute, or the statute declares a common law offence committed under peculiar circumstances, not necessarily included in the original offence, punishable in a different manner from what it would be without such circumstances ; or where the nature of the common law offence is changed by statute from a lower to a higher grade, as where a misdemeanor is changed into a felony ; CHAP. III.] INDICTMENTS ON STATUTES. [§ 232. § 231. As we have already noticed, where a statute -v^rijencom- refers to a common law offence by its technical name, and mon law offcDcs is proceeds to impose a penalty on its commission, it is in- made penal sufficient to charge the defendant with the commission taus of of^ fence must be given. of the offence in the statutory terms alone.* The cases are familiar where, notwithstanding the existence of stat- utes assigning punishments to " murder," " arson," " burglary," etc.-, by name, with no further definition, it has been held necessary for the pleader to define the offences by stating the common law in- gredients necessary to its consummation.* When stat- & 232. Generally where a statute gives a new remedy, ute is cu- . , ■' , . » • ,. • 1 i i, mulatlve, either summary or otherwise, tor an existing right, the common remedy at common law still continues open.* p^sue^d.**^ the indictment must be drawn in refer- ence to the provisions of the statute, and conclude contra formam statuti; but where the statute is only declaratory of what was previously an oflfence at common law, without adding to or altering the punishment, the indict- ment need not so conclude. People v. Enoch, 13 Wend. 159 ; State v. Loftin, 2 Dev. & Bat. 31 ; State v. Corwin, 4 Mo. 609. See infra, § 280. 1 Supra, § 221 ; Bates v. State, 31 Ind. 72 ; State v. Absence, 4 Port. 397 ; State V. Stedman, 7 Port. 495 ; State v. Meshac, 30 Tex. 518. See Erie's case, 2 Lew. 133 ; Davis v. State, 39 Md. 355 ; see State v. Fhilbin, 38 La. An. 964 ; Witte v. State, 21 Tex. Ap. 88. " See supra, §§ 154, 221 ; Com. v. Stout, 7 B. Monr. 247. When a statute makes official extortions indictable, the indictment must give the facts of the extortion. State «. Perham, 4 Oregon, 188. Where a statute, in defining a crime, makes another crime one of its con- stituents, this second crime must bespe- cifically averred ; e. g., where murder with intent to commit rape is defined as murder in the first degree. Titus V. State, 49 N. J. L. 36. ' R. V. Jackson, Cowp. 297 ; R. v. Wigg, 2 Ld. Raym. 1163; U. S. v. Halberstadt, G-ilpin, 262 ; Jennings v. Com., 17 Pick. 80 ; Com. v. Rumford Works, 16 Gray, 231 ; Pitman v. Com., 2 Robinson, 800 ; State v. Thompson, 2 Strobh. 12; State v. Rutledge, 8 Humph. 32 ; Simpson v. State, 10 Yerg. 525 ; State v. Moffett, 1 Greene (Iowa), 247 ; People v. Craycroft, 2 Cal. 243 ; Whart. Crim. Law, 9th ed. §§ 26-7. As to when offence is to be regarded as statutory, see infra, § 281. In Pennsylvania, as it has been noticed, it is required by act of as- sembly, that every act must be fol- lowed strictly, and where a statutory penalty is imposed, the common law remedy is forever abrogated. Act 21st March, 1806, § 13 ; 4 Smith's Laws, 332 ; Resp. v. Tryer, 3 Yeates, 451 ; Updegraph v. Com., 6 S. & R. 5 ; 3 Ibid. 273; 1 Rawle, 290; 5 Wharton, 357 ; Evans v. Com., 13 S. & R. 426. See Whart. Crim. Law, 9th ed. §§ 26- 7. It has accordingly been held that where a magistrate is guilty of extor- tion, the common law remedy, by in- dictment, is abrogated by the act of assembly giving the injured party, in such case, a qui tarn action for the 159 § 235.] PLEADING AKD PRACTICE. [CHAP. III. § 233. On the other hand, as has been noticed,* where the stat- ute both creates the offence and prescribes the penalty, the statute must be exclusively followed, and no common law penalty can be imposed. But where the statute creates the offence, but assigns no penalty, then the pun- ishment must be by common law.^ § 234. Wherever a general statute, purporting to be exhaustive, is passed on a particular topic, it absorbs and vacates on that topic the common law.* § 235. Whenever a statute attaches to an offence cer- tain technical predicates, these predicates must be used in the indictment.* Thus, in an indictment on the statute which makes it high treason to clip, round, or file any of the coin of the realm, " for wicked lucre or gain sake," it was necessary to charge the offence to have been committed for the sake of wicked lucre or gain,' otherwise it would be bad. In another case, an indictment on that part of the Black Act (now repealed) which made it felony, " wilfully and maliciously" to shoot at any person in a dwelling-house or other place, was ruled bad, because it charged the offence to have been done " unlawfully and maliciously" omitting the word " wilfully ;"* some of the judges thought that " maliciously" included " wilfully," but the greater number held, that as wilfully and maliciously were both mentioned in the statute, as descriptive of the offence, both must be stated in the indictment. When stat- ute assigns no penalty punish- ment is at common law. Exhaust- ive statute absorbs common law. Statutory technical averments to be intro- duced. penalty. Evans v. Com., 13 S. & R. 246. But it must be conceded that the courts have shown great unwillingness to extinguish the common law remedy in many cases where a statutory pen- alty is created. Thus, nuisances to navigable rivers are still indictable at common law, though the Act of 23d March, 1803, points out a peculiar pro- cedure by which the obstruction is to be abated ; Com. v. Church, 1 Barr, 107 ; and a common law indictment is preserved against an interference with the health of the city of Philadelphia, though the legislature has particularly committed that interest to the care of a board of health, with plenary powers to abate or indict. Com. v. Vansiokle, 160 1 Brightly, 69. See Whart. Crim. Law, 9th ed. §§ 25-6. As to Mississippi statute, see Wile v. State, 69 Miss. 260. 1 Supra, § 230. 2 R. V. Robinson, 2 Burr. 799. 3 Com. V. Dennis, 105 Mass. 162; Whart. Crim. Law, 9th ed. §§ 30 ei seq. * As to particular averments see infra, §§ 257-269 ; State v. Dodge, 78 Me. 439. s 1 Hale, 220. 6 R. V. Davis, 1 Leach, 493 ; State v. Parker, 81 N. C. S48. See, however. State V. Thome, 81 N. C. 555 ; infra, § 236. And see, also, Davis v. State, 4 Tex. Ap. 456. CHAP. Ill,] INDIOTMBNTS ON STATUTES. [§ 236. But in Pennsylvania, an indictment for arson, charging that the defendant did " feloniously, unlawfully, and maliciously set fire," etc., was held to be sufficient without the word "wilfully," though " wilfully" was included in the description of the offence given in the act constituting it.* In New Hampshire and North Carolina, the contrary view has been taken.^ § 236. It must be remembered, in qualification of what has been heretofore stated, that as to the substance, as distin- guished from the technical incidents of an offence, it is aient terms the wrongful act that the statute forbids, and that the ™ay be ° given, words used by the statute in describing the act may not be the only words sufficient for this purpose. A statute may in- clude in such description cumulative terms of aggravation for which substitutes may be found without departing from the sense of the statutory definition ; or, as in the case of the Pennsylvania and cognate statutes dividing murder into two degrees, the terms used to indicate the differentia of the offence may be regarded as so far equivalents of the common law description that the common law description may be held to be proper, and the introduction of the statutory terms unnecessary.' Or, another word may be held to be so entirely convertible with one in the statute that it may be substituted without variance. In such case a deviation from the statutory terms may be sustained. We have already seen that these ^words, when they state a conclusion of law, are not sufficient, but that the unlawful act must be further described. We have further to add that these words, when they describe the substance, are not necessarily exclusive. Hence, where a word not in the statute is substituted in the indictment for one that is, and the word thus sub- stituted is equivalent to the word used in the statute, or is of more 1 Chapman «. Com., 5 Wharton, 427. and maliciously." R. v. Turner, 1 See State v. Pennington, 3 Head Mood. C. C. 239. (Tenn.), 119. Where an indictment charged in one 2 State V. Grove, 34 N. H. 510 ; State count that the defendant did break to V. Massey, 97 N. C. 465 ; State v. Mor- get out, and in another that he did gan, 98 N. C. 641. hreak and get out, this was ruled in- An indictment upon stat. 7 and 8 G. sufficient, because the words of the 4, 0. 39, a. 2, for feloniously, volunta- statute are "break out." E. v. Comp- rily, and maliciously setting fire to a ton, 7 C. & P. 139. barn, was holden bad, because the > See Whart. Crim. Law, 9th ed. words of the statute are " unlawfully § 393. 11 161 § 237.] PLEADING AND PKACTICE. [chap. III. extensive signification than it, and includes it, the indictment may be sufiScient.^ Thus, if the word " knowingly" be in the statute and the word " advisedly" be substituted for it in the indictment, the indictment may be sufficient.* In further illustration of this view it may be mentioned that " excite, move, and procure" are held convertible with " command, hire, and counsel" as used in the statute,' and " without lawful authority and excuse" with " without lawful excuse."* But, as a rule, it is not prudent to substitute other terms for those in the statute. § 237. We have elsewhere seen that where a statute uses a single general term, this term is to be regarded as comprehend- ing the several species belonging to the genus ; but that if it specifies each species, then the indictment must designate specifically." Where an indictment on the re- pealed statutes 15 G. 2, c. 34, and 14 G. 2, c. 6, which made it felony, without benefit of clergy, to steal any cow, ox, heifer, etc., charged the defendant with stealing a cow, and in evidence it was proved to be a heifer, this was determined to be a fatal variance ; for the statute having mentioned both cow and heifer, it was presumed that the words were not considered by the legislature as synony- mous.* It is otherwise when " cow" is used as a nomen generalis- simumJ A " ewe"* or " lamb"* may be included under the gen- Where a statute de- scribes a class of animals by a general term, It is enough to use this term for the whole elass : otherwise not. ' tJ. S. ». Nunnemaoher, 7 Biss. 129 ; Dewee's case, Chase's Dec. 531 ; Tully V. People, 67 N. Y. 15; Eckhardt v. People, 83 N. Y. 452 ; State v. Shaw, 35 Iowa, 575 ; Williams o. State, 64 Ind. 553 ; Schmidt v. State, 78 Ind. 41 ; McCntcheon v. State, 69 111. 601 ; State II. Welch, 37 Wis. 196 ; State v. Law- rence, 81 N. C. 621 ; State v. Thome, 81 N. C. 558 ; Roberts v. State, 55 Miss. 414; State v. Watson, 65 Mo. 115; People V. Schmidt, 63 Cal. 28 ; State v. George, 34 La. An. 261. ! R. V. Fuller, 1 B. & P. 180. » R. V. Grevil, 1 And. 194. * R. ». Harvey, L. R. 1 C. C. 284. It is not essential, on an indictment ,om tlie Slave-trade Act of 20th of April, 162 1818, 0. 86, §§ 2 and 3, to aver that the defendant knowingly committed the offence. U. S. v. Smith, 2 Mason, 143. 6 Whart. Crim. Ev. § 124. " R. K. Cooke, 2 East P. C. 616 ; 1 Leach, 123. See, also, R. v. Douglas, 1 Camp. 212 ; Tnrley v. State, 3 Humph. 323; State v. Plunket, 2 Stew. 11. See supra, § 209 ; Whart. Crim. Ev. §124. r People v. Soto, 49 Cal. 69. See Taylor «. State, 6 Humphreys, 285. 8 R. V. Barran, Jebb, 245 ; R. ». Barnam, 1 Crawf. & Dix C. C. 147. 9 R. V. Spicer, 1 C. & K. 699 ; R. v. MeCuUy, 2 Moody, 34 ; State v. Tootle, 2 Barring. 641. See, however, R. u. Beany, R. & R. 416. CHAP, in.] INDICTMENTS ON STATUTES. [§238. eral term " sheep," when such general term stands alone in the statute, without " ewes" or " lambs" being specified ; but not otherwise.* On the same conditions, under the term " cattle" may be included "pigs,"* "asses,"* "horses,"* and " geldings,"* but not a domesticated buffalo,* " sheep," or " goats."' As a nomen generalissimum, under " swine" may be included " hogs ;"' under " horses" may be included " mares."' Generally we may state the rule to be that when a statute uses a nomen generalissimum as such (e. g., cattle'), then a particular species can be proved ; but that when the statute enumerates certain species, leaving out others, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the in- tention of the legislature to use it as such.'" § 238. " Provisos" and " exceptions," to whose consideration we next proceed, though usually coupled in this connection, „ . are logically distinct ; a " proviso" being a qualification and exeep- attached to a category, an " exception," the taking of part of particular cases out of that category. For our present need n'ot^ purposes, however, they may be considered together ; ^^ stated. and the first principle that meets ns is that when they are not so expressed in the statute as to be incorporated in the definition of the offence, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the statutory provisos." Nor is it even necessary to allege that he is ' R. V. Puddifoot, 1 Moody, 247; R. » R. v. Welland, R. & R. 494; R. v. V. Loom, Ibid. 160. Chard, R. & R. 488. See State v. 2 R. V. Chappie, R. & R. 77. Abbott, 20 Vt. 537 ; Taylor v. State, 6 s R. V. Whitney, 1 Moody, 3. Humph. 285 ; State v. Plunket, 2 Stew. * R. V. Magle, 3 East P. C. 1076 ; 11 ; State v. Godet, 7 Ired. 210 ; Shu- State V. Hambleton, 22 Mo. (1 Jones) brick v. State, 2 S. C. 21 ; though see 452. So in Texas (under statute) a State v. MoLain, 2 Brer. 443. As to "gelding" under the term "horse." machinery, see Whart. Or. L. 9th ed, Jordt V. State, 31 Tex. 571. Contra in § 1052. Texas at common law, Valesco v. State, " 1 Sid. 303 ; 2 Hale, 171 ; 1 Lev. 9 Tex. Ap. 76. And see Cameron v. 26 ; Poph. 93, 94 ; 2 Burr. 1037 ; 2 State, 9 Tex, Ap. 332. Stra. 1101 ; 1 East R. 646, in notes ; 5 R. V. Mott, 2 East P. C. 1075. 5 T. R. 83 ; 1 Bla. R. 230 ; 2 Hawk. 6 State V. Crenshaw, 22 Mo. 457. c. 25, g. 112 ; Bae. Ab. Indict. H. 2 ; ' Mcintosh V. State, 18 Tex. Ap. Bum, J., Indict, ix.; 1 Chitty on 284. Pleading, 357 ; Murray w. R., 7 Q. B. 8 Rivers v. State, 10 Tex. Ap. 177. 700 ; U. S. v. Cook, 17 Wall. 168 ; U. S. s People V. Pico, 62 Cal. 50. v. Nelson, 29 Fed. Rep. 202 ; State v. 163 238.] PLEADING AND FBACIICE. [chap. III. not within the benefit of the provisos, though the purview should expressly notice them ; as by saying that none shall do the act pro- hibited, except in the cases thereinafter excepted.* Nor, even when the enacting clause refers to the subsequent excepting clauses, does this necessarily draw such subsequent clause up into the enacting clause.* For when such exceptions embrace matters of defence, they are properly to be introduced by the defendant.' And extenu- Q-nrney, 37 Me. 149 ; State v. Boying- ton, 56 Me. 512; State v. Abbott, 11 Foster, 434 ; State v. Wade, 34 N. H. 495 ; State v. Cassady, 52 N. H. 500 ; State V. Abbot, 29 Vt. 60; State «. Ambler, 56 Vt. 672; Com. v, E. R., 10 Allen, 189 ; Com. v. Shannahan, 145 Mass. 99 ; State v. Miller, 24 Conn. 522; State v. Powers, 25 Conn. 48; State V. Rush, 13 R. I. 198 ; Walter v. Com., 6 Weekly Notes, 389 ; Fleming V. People, 27 N. Y. 329 ; Jefferson v. People, 101 N. Y. 19, 238 ; Becker v. State, 8 Ohio St. 391 ; Stanglein v. State, 17 Ohio St. 453 ; Billingheimer ». State, 32 Ohio St. 535; Kopke v. People, 43 Mich. 41 ; Swartzbaugh v. People, 85 111. 467 ; Beasley v. People, 89 111. 571 ; Colson v. 'State, 7 Blackf. 590; Russell v. State, 50 Ind. 174; State V. Maddox, 74 Ind. 105 ; Metzker V. State, 14 111. 101 ; Romp v. State, 3 Greene (Iowa), 276 ; State v. Williams, 20 Iowa, 98 ; Worley v. State, 11 Humph. 172 ; State v. Jackson, 1 Lea, 680 ; State v. Loftin, 2 Dev. & B. 31 ; State V. Heaton, 81 N. C. 542 ; Carson V. State, 69 Ala. 235 ; Grattan v. State, 71 Ala. 344 ; Jones v. State, 81 Ala. 81 ; State V. O'Gorman, 68 Mo. 179 ; State V. Jaqnes, 68 Mo. 260 ; State v. O'Brien, 74 Mo. 549 ; Blasdell v. State, 5 Tex. Ap. 263; Logan v. State, 5 Tex. Ap. 306; Wilson v. State, 33 Ark. 557; State V. Ah Chew, 16 Nev. 50. See on this head elaborate and able notes in 1 Benn. & Heard's Leading Cases, 250 ; 2 Ibid. 7, 11. See, also, as to proof of 164 • negative averments, Whart. Crim. ^v. §321. 1 State V. Adams, 6 N. H. 533 ; State V. Sommers, 3 Vt. 156 ; State v. Abbey, 29 Vt, 60 ; State v. Powers, 25 Conn. 48 ; Matthews v. State, 2 Yerg. 233 ; People V. Nugent, 4 Cal. 341. See Whart. Crim. Law; 9th ed. § 1713. 2 Ibid.; 2 Hawk. P. C. C. 25 ; Com. V. Hill, 5 Grat. 682. 3 1 Bla. Rep. 230 ; 2 Hawk. c. 25, s. 113; 2 Ld. Eaym. 1378; 2 Leach, 548 ; People v. Nugent, 4 Cal. 341. The subject is closely allied to that of Burden of Proof, discussed in Whart. Crim. Ev. § 319. In Com. V. Hart, 11 Cush. 130, we have the following from Metcalf, J.: — " The rule of pleading a statute which contains an exception is usually expressed thus : ' If there be an ex- ception in the enacting clause, the party pleading must show that his ad- versary is not within the exception ; but if there be an exception in a sub- sequent clause or subsequent statute, that is matter of defence, and is to be shown by the other party.' The same rule is applied in pleading a private instrument of contract. If such instrument contain in it, first, a general clause, and afterwards a sepa- rate and distinct clause which has the effect of taking out of the general clause something that would other- wise be included in it, a party, rely- ing upon the general clause, in plead- ing, may set out that clause only. CHAP. III.] INDICTMENTS ON STATUTES. [§ 239. ation which comes in by way of subsequent proviso or exception need n»t be pleaded by the prosecution.' § 239. But where a proviso adds a qualification to the enactment, so as to bring a case within it, which, but for the proviso, would without noticing the separate and dis- tinct clause which operates as an ex- ception ; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it together with the ex- ception. Gould PL c. 4, §§ 20, 21; Vavasour v. Ormrod, 9 Dowling & Ryland, 597, and 6 Barnewall & Cress- well, 430; 2 Saunders PI. & Ev. 2d ed. 1025, 1026. The reason of this rule is obvious, and is simply this : Unless the exception in the enacting clause of a statute, or in the general clause in a contract, is negatived in pleading the clause, no offence or no cause of action appears in the indict- ment or declaration, when compared with the statute or contract. Flow- den, 410. But when the exception or proviso is in a subsequent substantive clause, the case provided for in the enacting or general clause may be fully stated without negativing the subse- quent exception or proviso. A prima facie case is stated, and it is for the party, for whom matter of excuse is furnished by the statute or the con- tract, to bring it forward in his de- fence. . . . "The word 'except' is not neces- sary in order to constitute an excep- tion within the rule. The words ' un- less,' 'other than,' 'not being,' 'not having,' etc., have the same legal effect, and require the same form of pleading. Gill u. Scrivens, 7 Term R. 27; Spieres v. Parker, 1 Term R. 141 ; R. V. Palmer, 1 Leach C. C. 4th ed. 102 ; Wells ». Iggulden, 5 D. & R. 19 ; Com. v. Maxwell, 2 Pick. 139 ; State V. Butler, 17 Vt. 145 ; 1 East P. C. 166, 167. "There is a middle class of cases, namely, where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some subsequent or prior clause, or to some other statute. As when the words ' except as hereinafter men- tioned,' or other words referring to matter out of the enacting clause, are used. The rule in these cases is, that all circumstances of exemption and modification, whether applying to the offence or to the person, which are in- corporated by reference with the en- acting clause, must be distinctly nega- tived. Verba relata inesse videntur. E. V. Pratten, 6 Term R. 559 ; Vava- sour V. Ormrod, 9 D. & R. 597 ; 6 B. & Cr. 430." But in a subsequent case the last distinction was reconsidered in the same court, it being held that an ex- ception not in the enacting clause need not be negatived, unless neces- sary to the definition of the offence. Com. V, Jennings, 121 Mass. 47. 1 R. V. Bryan, 2 Stra. 111. Where different grades of the same general offence are defined in the statute, certain special circumstances being included as essential elements in the definition of the higher grade and excluded by negative words in the definition of the lower grade, an infor- mation charging the lower grade of the offence need not negative the presence of such circumstances. Infra, § 250. State V. Kane, 63 Wis. 260. 165 § 240.] PLEADING AND PRACTICE. [chap. III. be yrithout the statute, the indictment must show the case to be otherwise ^itl^iii ^^^ proviso.' This is eminently the case with when pro- clauses in statutes prohibiting doing certain acts without eame a license,^ and with statutes prohibiting sales to minors c ause. without consent of parents.^ And where a statute forbids the doing of a particular act, without the existence of either one of two conditions, the indictment must negative the existence of both these conditions before it can be supported.* § 240. Where exceptions are stated in the enacting clause (under Exceptions ^^^''^ *'^''™ ^^^ ^^ ^® understood all parts of the statute in enacting which define the offence), unless they be mere matters of ClfliUBC to be nega- extenuation or defence, it will be necessary to negative ^® ■ them, in order that the description of the crime may in all respects correspond with the statute.* Thus, where a statute imposes a penalty on the selling of spirituous liquors without a license, it is necessary to ayer the want of a license in the indict- ment;' and such negation must squarely meet and traverse the » U. S. V. Cook, 17 Wall. 168 ; State V. Godfrey, 24 Me. 232 ; State v. Gur- ney, 37 Me. 149 ; State v. Boyington, 56 Me. 512 ; State v. Bryant, 58 N. H. 79 ; State v. Barker, 18 Vt. 195 ; State V. Palmer, 18 Vt. 570; State v. Stokes, 54 Vt. 179 ; State v. Abbott, 11 Foster, 434 ; Com. ». Jennings, 121 Mass. 47 ; Com. V. Davis, 121 Mass. 352 ; Barber V. State, 50 Md. 161 ; Gibson v. State, 54 Md. 447 ; Conner v. Com., 13 Bush, 714 ; State v. Heaton, 81 N. C. 542 ; State V. Lanier, 88 N. C. 658 ; Smith v. State, 81 Ala. 74 ; Jones v. State, 81 Ala. 79 ; State v. Meek, 70 Mo. 355 ; Jenson v. State, 60 Wis. 577 ; People v. Roderigas, 44 Cal. 9 ; Leatherwood v. State, 6 Tex. Ap. 244 ; Terr v. Scott, 2 Dak. 212 ; Tallner v. State, 15 Tex. Ap. 23 ; and cases in prior notes. As to exceptions in bigamy, see Whart. Crim. Law, 9th ed. § 1713. 2 Infra, §§ 240-2. Whart. Cr. Law, 9th ed. § 1499. a Ibid. State v. Emerick, 35 Ark. 324. Infra, §§ 240-2. 166 * state V. Loftin, 2 Dev. & Bat. 31 ; Newman v. State, 63 Ga. 533. Thus, when either of two licenses is specified, both must be negatived. Neales v. State, 10 Mo. 498. 5 2 Hale, 170 ; 1 Burr. 148 ; Fost. 430 ; 1 East Rep. 646, in notes ; 1 T. R. 144 ; 1 Ley, 26 ; Com. Dig. Action, Statute ; 1 Chitty on Plead. 357 ; State V. Adams, 16 N. H. 532 : State v. Hun- ger, 15 Vt. 290 ; State v. Godfrey, 24 Me. 232 ; Barber v. State, 50 Md. 161 ; see State v. Price, 12 Gill & J. 260 ; Elkins V. State, 13 Ga. 435 ; Metzker v. People, 14 111. 101 ; State v. Blood- worth, 94 N. C. 918. As to mode of negativing, see Beasley v. People, 89 111. 571. 6 Com. ^. Thurlow, 24 Pick. 374 ; State V. Webster, 5 Halstead, 293 ; see Surratt v. State, 45 Miss. 601 ; Riley v. State, 43 Miss. 397. See fully infra, note to § 241, and compare Whart. Crim. Law, 9th ed. §§ 1499, 1713. That where the statute declares that the license may be from " A. or B.," CHAP. III.] INDICTMENTS ON STATUTES. [§ 241. assumption of a license of the character specified in the indictment as an excuse,* So, in an indictment under the Mississippi Act of 1830, prohibiting any person, other than Indians, from making settlements within their territory, it is necessary to aver that the defendant is not an Indian.' Again, on an indictment under the Massachusetts statute of 1791, c. 58, making it penal to entertain persons not being strangers on the Lord's day, it must appear that the parties entertained were not strangers.' So in Vermont, an indictment under the statute which prohibits the exercise on the Sabbath of any " secular business," etc., except " works of necessity and charity," must allege that the acts charged were not acts of " necessity and charity."* Even where certain persons were authorized by the legislature to erect a dam, in a certain manner, across a river which was a public highway, it was held that an indictment for causing a nuisance, by erecting the dam, must contain an averment that the dam was beyond the limits prescribed in the charter, and that it was not erected in pursuance of the act of the legislature.* § 241. Such are the technical tests which are usually applied to determine whether an exception or proviso is or is not to be negatived in an indictment. In many cases we are such case is told that when the exception or proviso is in the " enact- ^atute' ing clause," it must be negatived in the indictment, but creates a it is otherwise when it is in " subsequent" clauses. This a limited distinction has sometimes been called rude, and some- times artificial, yet in point of fact it serves to symbolize a germinal point of discrimination. I prohibit, for instance, all sale of alcohol by a sweeping section ; and in a subsequent section I except from this sales for medicinal purposes. Here the very structure of the statute shows my intent, which is to make the sale of alcohol a crime by statute, as is the exploding gunpowder in the streets a crime at common law ; and hence a license in the first case need not be nega- tived in the indictment any more than a license in the second.* On this is to be negatived by denying a 236 ; Goodwin <,. State, 72 Ind. 113 ; license from either "A. or B.," see Davis o. State, 39 Ala. 521. State V. Burns, 20 N. H. 550 ; People s State v. Craft, 1 Walker, 409. See V. Gilkinson, 4 Park C. R. 26 ; Com. v. Matthews ». State, 2 Yerger, 233. Hadcraft, 6 Bush, 91 ; State v. Swad- a Com. v. Maxwell, 2 Pick. 139. ley, 16 Mo. 515. * State v. Barker, 18 Vt. 195. 1 Ibid. Eawlings v. State, 2 Md. « State v. Godfrey, 24 Me. 232. 6 See Snrratt v. State, 45 Miss. 601. 167 4 241.] PLEADING AND PRACTICE. [CHAP. III. the other hand, I enact that none but licensed persons shall sell al- cohol. Here I do not create a general crime, but I say that if certain persons do certain things they shall be liable to indictment ; and to maintain an indictment it must be averred that the defend- ants were of the class named. Hence the test before us is not for- mal, but essential ; it is practically this,— -is it the scope of the statute to create a general offence, or an offence limited to a par- ticular class of persons or conditions ? In other words, is it intended to impose the stamp of criminality on an entire class of actions, or upon only such actions of that class as are committed by particular persons or in a particular way ? In the latter case, the defendant must be declared to be within this class ; in the former case this is not necessary. We may take as a further illustration a statute de- fining murder, in which statute are specified the cases in which ne- cessity or self-defence are to be regarded as excusatory. It would make no matter, in such case, whether these excusatory cases be or be not given in the same clause with that prohibiting the general offence ; in either case they need not be negatived in the indictment. The same might be said of the defence, that the person killed was an alien enemy, and that the killing was in open war. On the other hand, if the statute should say that an offence is indictable only when perpetrated on a particular class of persons, no matter how many clauses may intervene between the designation of the offence and the limitation of the object, the limitation of the' object must be given in the indictment.' Of course the question thus in- volved, whether a crime is general or limited as to persons, may be determined otherwise than by the structure of a statute. If it be clear that an act is only to become a crime when executed by per- sons of a particular class, or under particular conditions, then this class or those conditions must be set out in the indictment, no mat- ter in what part of the statute they may be expressed. With this view practically coincides that expressed io some of the cases cited above, that mere excusatory defence is not to be negatived in the indictment. For an excusatory defence implies a crimen generalis- simum ; and to a crimen generalissimum no exceptions, on the foregoing principles, need be negatived in the indictment.^ > Com. V. Maxwell, 2 Pick. 139. Com. v. Hart, 11 Cush. 130 ; Com. ». ' See 1 Benn. & Heard's Lead. Cas. Jennings, 121 Mass. 47 ; State v. O'Don- ut supra; State u. Abbey, 29 Vt. 60 ; nell, 10 R. I. 472 ; Hill v. State, 63 Ga. 168 CHAP. III.] indictment: duplicity. [§ 243. XII. DUPLICITY. 1. Gbnbballt, Joinder in one Count or TWO Distinct OrrKNCES is bad, §343. 2. Exceptions to the Rule, § 244. (a.) Minor offences Included in ma- jor, Burglary, etc., § 244. (6.) Assaults with intent, etc., § 247. (c.) Misdemeanors constf{uent in felonies, and herein of how far the term " feloniously" may be re- jected, §(.249. (d.) Where alternate phases in an offence are united In statute, § 251. (c.) Double articles in larceny, § 252. (/.) Double overt acts or intents, §253. (§'.) Double batteries, libels, or sales, , § 254. 3. How Duplicity mat bb Objected to, § 255. § 243. A count in an indictment which charges two distinct offences, each distinctively punishable, is bad, and may be quashed 472 ; Neales v. State, 10 Mo. 498 ; Sur- ratt V. State, 45 Miss. 601; Whart. Crim. Law, 9th ed. § 1713. It has been said in England a statute casting on the defendant the burden of proving a license does not, by itself, relieve the prosecution from averring the want of license (R. v. Harvey, L. R. 1 C. C. 284), though otherwise in Massachusetts. Com. v. Edwards, 12 Cush. 187. In prosecutions for selling liquor with- out license, the indictment, as a general rule, should negative the license. State V. Munger, 15 Vt. 290 ; Com. v. Thur- low, 24 Pick. 874 ; State v. Webster, 5 Halst. 293 ; Com. v. Hampton, 3 Orat. 590 ; State v. Horan, 25 Tex. (Sup.) 271 ; Com. v. Smith, 6 Bush, 303. See Burke v. State, 52 lud. 461. Indict- ment need not aver defendant not to be a "druggist," etc. Surratt v. State, 45 Miss. 601 ; Riley v. State, 43 Miss. 397. See, also, State v. Fuller, 33 N. H. 259; State v. Blaisdell, 33 Ibid. 388 ; State v. Buford, 10 Mo. 703. As the cases show, the whole question de- pends on the principle underlying the statute. Where one section of the stat- ute imposes a penalty on selling " in violation of the provisions of this act," it has been held unnecessary to nega- tive exceptions in subsequent sections. Com. V. Tuttle, 12 Cush. 502 ; Com. v. Hill, 5 Grat. 682. In Texas, a statute providing that license need not be negatived has been pronounced unconstitutional. Hewitt V. State, 25 Tex. 722 ; State v. Horan, 25 Tex. (Sup.) 271; contra, State v. Comstock, 27 Vt. 553. And in Maine a statute has been held unconstitutional which prescribes that the vendee need not be named. State v. Learned, 47 Me. 426. " Without" implies a sufficient nega- tion. Com. V. Thompson, 2 Allen, 507. " Without lawful excuse" is equivalent to without authority. R. v. Harvey, L. R. 1 C. C. 284. If the negation of the license to sell is as to quantity co- extensive with the quantity charged to be sold, it is sufficient. The general negation, " not having a license to sell liquors as aforesaid," relates to the time of sale, and not to the time of finding of the bill, and will suffice. State V. Munger, 15 Vt. 290. " With- out being duly authorized and ap- pointed thereto according to law," is a sufficient negation. Com. v. Keefe, 7 Gray, 332 ; Com. v. Conant, 6 Gray, 482 ; State v. Fanning, 38 Mo. 359 ; Com. V. Hoyer, 125 Mass. 209 ; Rober- 169 § 243.] PLBADIN& AND PRACTICE. [CHAP. III. on motion of the defendant, or judgment may be entered for the Generaii defence on special demurrer.* To constitute duplicity, however, the second or superfluous offence must be suffi- ciently averred, as otherwise its description can be rejected as surplusage ;* nor does the objection of duplicity pre- vail, as will presently be seen, when one of the offences joined is a component part or preliminary stage of the other. The objection, also, cannot be taken on arrest of judgment.^ joinder in one count of two dis- tinct of- fences is bad. son v. Lambertville, 38 N. J. L. 69. See State v. Hornbreak, 15 Mo. 478 ; State V. Andrews, 28 Mo, 17. As to mode of negativing, see Eagan i;. State, 53 Ind. 162. In indictments for bigamy, the ex- ceptions in the statute, when not part of the description of the offence, need not be negatived. Murray w. R. , 7 Q B. 700 ; State v. Abbey, 29 Vt. 60 ; Com. V. Jennings, 121 Mass. 50 ; Stanglein v. State, 17 Ohio St. 453 ; State «. Wil- liams, 20 Iowa, 98 ; State v. Johnson, 12 Minn. 476 ; State u. Loftin, 2 Dev. & Bat. 31. It is otherwise where the ex- ception describes the offence in the en- acting clause. Fleming v. People, 27 N. Y. 329. Nor is it necessary to allege that the defendant knew at the time of his second marriage that his former wife was then living, or that she was not beyond seas, or to deny her continuous absence for seven years prior to the second marriage. Barber V. State, 50 Md. 161, citing Bode v. State, 7 Gill, 316. Where an indictment, under the Massachusetts statute, alleged that the defendant, on a certain day, was law- fully married to A. ; and that after- wards, on a certain day, he "did un- lawfully marry and take to his wife one B., he, the defendant, then and there being married and the lawful husband of the said A., she, the said A., being his lawful wife, and living, and he, the 170 said defendant, never having been legally divorced from the said A. ;" and it was proved that the defendant was lawfully married to A. ; that after- wards she was duly divorced from him for misconduct on his part ; and that he then married B. ; it was ruled, that there was a variance between the alle^ gations and the proof. Com. v. Rich- ardson, 126 Mass. 34. 1 Starkie's C. P. 272 ; Archbold C. P. 49 ; U. S. V. Nunnemacher, 7 Biss. 129 ; U. S. -0. Sharp, 1 Peters C. C. R. 131 ; State v. Smith, 31 Me. 386 ; State «. Nelson, 8 N. H. 163 ; State v. Mor- ton, 27 Vt. 310 ; Com. v. Symonds, 2 Mass. 163 ; People v. Wright, 9 Wend. 193 ; Com. V. Gable, 7 S. & R. 423 ; State V. Lot, 1 Richards. 260 ; Ellis v. Com., 78 Ky. 130 ; Knopf v. State, 84 Ind. 316 ; Stewart v. State, 111 Ind. 554 ; State v. Ferriss, 3 Lea, 700 ; Hos- kins V. State, 11 Ga. 92 ; Long v. State, 12 Ga. 293; Miller v. State, 5 How. Miss. 250; State v. Brewer, 33 Ark. 176 ; Rasnick v. Com., 2 Ya. Cas. 356 ; Heinemann v. State, 22 Tex. Ap. 44. See Com. v. Colby, 128 Mass. 91 ; Terr V. Dufleld, 1 Ariz. 59. » Whart. Crim. Ev. § 138 ; State v. Palmer, 35 Me. 9 ; Com. v. Tuck, 20 Pick. 356 ; Breese t;. State, 12 Ohio St. 146 ; Green v. State, 23 Miss. 509. Supra, § 158. » Infra, §§ 255, 759. CHAP. III.] INDICTMENT: DUPLICITY. [§ 245. Exception In cases where lar- ceny Is in> eluded in burglary or embez- zlement. § 244. Prominent exceptions to the rule before us are to be found in indictments for burglary, in which it is correct to charge the defendant with having broken into the house with intent to commit a felony, and also with having com- mitted the felony intended ;' in indictments for robbery, in which there can be averments for larceny ;" and in indict- ments in England for embezzlements by persons intrusted with public or private property, which may charge any number of embezzlements, not exceeding three, committed within six months.^ On the same principle, a count stating that the defendant broke and entered into a shop with intent to commit a larceny, and did then and there commit a larceny, is not bad for duplicity.* So when an indictment alleged that the defendant broke and entered into the dwelling-house of one person with intent to steal his goods, and having so entered, stole the goods of another person, etc., it was held there was no misjoinder." So, also, a persoil may be indicted in one count for breaking and entering a building with intent to steal, and also with stealing, and may be convicted of the larceny simply.* § 245. Another exception has been recognized in indictments for adultery, in which under some statutes the jury . may find the defendants guilty of fornication but not where guilty of adultery.^ And so, on an indictment for tion'is^in- 1 Infra, §§ 465-7 ; Whart. Crlm. Law, 9th ed. § 819 ; State v. Depass, 31 La. An. 487 ; State v. Davis, 73 Mo. 129 ; State v. Shaflfer, 59 Iowa, 290 ; Dodd V. State, 33 Ark. 517 ; State v. Johnson, 34 La. An. 48 ; State v. Pierre, 38 La. An. 91. 2 Infra, §§ 246, 465 ; Allen v. State, 68 Ala. 98 ; McTigue v. State, 4 Baxt. 31 ; People v. Jones, 53 Cal. SB. 3 Archbold's C. P. 49. Infra, §§ 465- 6 ; Whart. Crim. Ev. § 129. As to verdict, see infra, § 736. i « Com. V. Tuck, 20 Pick. 356 ; State V. Ayer, 3 Foster (N. H.), 301. In- fra, § 819. Contra, under Iowa Code, State V. McFarland, 49 Iowa, 99. 6 State vl Brady, 15 Vt. 353. « See State v. Colter, 6 R. I. 195 ; State V, Crocker, 3 Earring. 554 ; Breese v. State, 12 Ohio St. 146 ; Speers V. Com., 17 Grat. 570; Vaughau v. Com., 17 Grat. 576; Davis v. State, 3 Cold. (Tenn.) 77 ; State v. Brandon, 7 Kans. 106 ; State v. Grisham, 1 Hayw. 12; People v. Nelson, 58 Cal. 104; Borum v. State, 66 Ala. 468. See Whart. Crim. Law, 9th ed. § 819, and other cases ; and see infra, §§ 465-7. So in Ohio, as to " robbery" and " as- sault." Howard v. State, 25 Ohio St. 399. And see Smith v. State, 57 Miss. 822. ' Com. V. Roberts, 1 Yeates, 6 ; State V. Cowell, 4 Ired. 231 ; but see Maull V, State, 37 Ala. 160. See Whart. Crim. Law, 9th ed. § 1737. See Bar- ber V. State, 39 Ohio St. 660. 171 § 2-lT.] PLEADING AND PRACTICE. [chap. III. eluded in niEOor offence. §246. When major crime in- cludes minor, conviction may be for either. seduction,* it is not duplicity to charge fornication.' It is not duplicity, also, to join " battery" with " rape"' or " robbery."* Generally speaking, where an accusation (as in the case of the inclusion of manslaughter in murder) includes an offence of an inferior degree, the jury may discharge the defendant of the high crime, and convict him of the less atrocious ; and in such case it is sufficient if they find a verdict of guilty of the inferior offence, and take no notice of the higher." And on indictments for riot there can be a conviction of any averred indictable ingredient.' Hence, when there is a proper allegation in the indictment for riot, the de- fendant may be convicted of an assault.^ Under robbery, also, there may, when there are proper averments, be a conviction of larceny.* § 247. Further illustrations are to be found in indictments "ABsanit" ^°^ assault and battery, or assault with intent to kill is included or ravish, or assault with intent to do other illegal sauit with acts, where the defendant may be convicted of assault alone ;' or for assault and battery, where a battery is intent.'' ' Dinkey v. Com., 17 Penn. St. 126. See Whart. Crim. Law, 9th ed. § 1737. 2 Dinkey i>. Com., 17 Penn. St. 126. See Shouse v. The Commonwealth, 5 Barr, 83, and Com. v. Murphey, 2 Allen, 163, cited infra. i" Com. V. Thompson, 116 Mass. 346. * Hanson v. State, 43 Ohio St. 376. 5 See infra, §§ 465-7, 742 ; Whart. Crim. Law, 9th ed. §§ 542-641 a; R. V. Dawson, 3 Stark. R. 62 ; R. v. Dun- gey, 4 F. & F. 99 ; R. v. Oliver, 8 Cox C. C. 384 ; Bell C. C. 287 ; R. v. Yeadon, 9 Cox C. C. 91 ; State v. Waters, 39 Me. (4 Heath) 54 ; Com. v. Griffin, 21 Pick. 523 ; Com. v. Binney, 133 Mass. 571 ; People v. McDonnell, 92 N. Y. 657 ; Fahnestock u. State, 23 Ind. 231 ; Davis V. State, 100 Ind. 154 ; Swinney V. State, 8 S. & M. 576 ; Cameron v. State, 8 Eng. (13 Ark.) 712 ; State v. Taylor, 3 Oregon, 10 ; Denman v. State, 15 Neb. 138 ; Packer v. People, 8 Col. 361 ; see as to verdict, State v. 172 Flannagan, 6 Md. 167 ; Johnson v. State, 14 Ga. 55 ; Collins v. State, 33 La. An. 162. Infra, § 742. 6 Whart. Crim. Law, 9th ed. § 1550. See Bradley v. State, 20 Fla. 738. ' Shouse o. Com., 5 Barr, 83 ; but see Ferguson v. People, 90 111. 570 ; Whart. Crim. Law, 9th ed. § 1550. » Whart. Crim. Law, 9th ed. § 858. s R. I!. Owen, 20 Q. B. D. 829 ; R. V. Mitchell, 12 Eng. Law & Eq. 588 ; Robinson, ex parte, 3 M'Arthur, 418 ; State V. Waters, 39 Me. 54 ; State v. Dearborn, 54 Me. 442 ; State v. Bean, 77 Me. 486 ; State v. Hardy, 47 N. H. 538 ; State v. Coy, 2 Aiken, 181 ; State V. Burt, 25 Vt. (2 Deane), 373; State V. Reed, 40 Vt. 603 ; State v. Johnson, 1 Vroom, 185 ; Francisco v. State, 4 Zabr. 30; Stewart v. State, 5 Ohio R. 242 ; Carpenter v. State, 23 Ala. 84 ; State V. Stedman, 7 Port. 495 ; M'Bride V. State, 2 Eng. (Ark.) 374 ; Reynolds V. State, 11 Tex. 20 ; State v. Kennedy, CHAP. Ill ] indictmekt: ditplicitt. [§ 249. charged in an indictment for assault with intent to kill.' And if the aggravating facts sustaining the intent are imperfectly pleaded, the defendant can be convicted of the assault alone.* § 248. Where an offence is, by law, made more highly pun- ishable if committed upon a person of a particular class than if committed upon a person of another class, an ment for*" indictment for the offence may be maintained, though it minor there does not specify to which of the classes the injured per- conviction son belongs ; and upon a conviction on such an indict- ment, the milder punishment only will be awarded.' And although the evidence prove the major offence, if the indictment charge only the minor, the defendant can only be convicted of minor.* § 249. At common law, for the reason that a defendant on trial for misdemeanor was entitled to certain privileges (^e.g., a special jury, a copy of the indictment, and counsel) conviction which were not allowed to a defendant on trial for a of misde- meanor on felony, the rule was that a defendant could not be con- indictment victed of a misdemeanor on an indictment for a felony. " ^' Had such a conviction been permitted, then it would have been within the power of the prosecution to deprive the defendant, in a case of misdemeanor, of these privileges, by indicting him for a felony in which the misdemeanor was inclosed. This, however, could not be tolerated, and hence rose the common law rule prohibiting a conviction of misdemeanor on an indictment for felony.* But when these privileges were allowed in felonies as well as misdemeanors, the reason for the rule failed ; and the rule ceased to be regarded as 7 Blackf. 233 ; Foley v. State, 9 Ind. 363 ; Siebert v. State, 95 Ind. 471 ; State v.. Graham, 51 Iowa, 72 ; Glllett V. State, 56 Iowa, 430; State v. Less- ing, 16 Minn. 75 ; State v. Robey, 8 Nev. 312; State v. Cooper, 31 Kan. 505 ; State ». Perkins, 82 N. C, 681 ; State v. Gaffney, Rice, 431 ; Clark V. State, 12 Ga. 131 ; Lewis v. State, 38 Ga. 181 ; State v. Burk, 89 Mo. 635. For other cases see Whart. Crim. Law, 'gth e4. §§ 641 a, 1550 ; and see State V. Scheie, 52 Iowa, 608. Where one is indicted for an assault with intent to commit murder in the first degree, by the Tennessee Act of 1832, c. 22, this includes an indictment for an assault and battery ; and upon failure of proof to warrant a conviction of felony, the defendant may be con- victed of the misdemeanor. State v. Bowling, 10 Humph. 52. 1 Com. j;. Kennedy, 13 Mass. 584; Com. V. Blaney, 133 Mass. 571. " State V. Schlosa, 63 Mo. 861. ' State V. Fielding, 32 Me. 585. * See infra, §§ 465-6. 5 See Dearsley's Crim. Proc. 67 ; London Law Times, Nov. 5, 1881, p. 11 ; R. V. Westheer, Leech, 14. 173 § 249.] PLEADING AND PRACTICE. [chap. III. peremptory.^ In some jurisdictions in this country the rule has never been in force, the reason for it not existing,* in other jurisdictions the right to so convict is expressly given by statute.' Thus, on an in- dictment for rape, the defendant may now be convicted of assault and battery,^ or, on the same charge, of incest where the indictment contains the proper averments ;* or on an indictment for man- slaughter or murder there may be a conviction of assault and battery,' and on an indictment for murder the defendant may be convicted of an assault with intent to kill.^ And in New York on an indictment for procuring an abortion of a quick child, which by statute is a felony, the prisoner may be convicted of the statutory - misdemeanor of destroying a child not quick.* . And we may now generally hold that it is not duplicity to inclose a misdemeanor in a felony.' 1 See R. V. Bird, 2 Den. 202, 217 ; Com. V. Newall, 7 Mass. 24S ; Com. v. Eoby, 12 Pick. 496, overruling Com. v. Cooper, 15 Mass. 345. 2 See Rogers v. People, 34 Mich. 345 ; infra, § 261. ' See Com. v. Drum, 19 Pick. 479, and cases hereafter cited. ^ ' Ibid. So in other states. Frinde- ville V. People, 42 111. 217. Hall v. People, 47 Mich. 636 ; State v. Pennell, 56 Iowa, 29 ; State v. Jay, 57 Iowa, 164. 5 Com. V. Goodhue, 2 Met. Mass. 193. Com. V, Bakeman, 131 Mass. 577 ; People v. Rowle, 2 Mich. N. P. 209 ; see more fully Whart. Crim. Law, 9th ed. § 1751. 6 Com. V. Drum, 19 Pick. 479. State V. O'Eane, 23 Ean. 244 ; Scott v. State, 60 Miss. 268 ; Green v. State, 8 Tex. Ap. 71 ; Peterson v. State, 12 Tex. Ap. 650. See, also. Com. v. Hope, 22 Pick. 1, 7 i Com. V. Griffin, 21 Pick. 523 ; Denman v. State, 15 Neb. 138. See, also, Whart. Crim. Law, 9th ed. § 544. In such case, however, to sustain a conviction, " the assault must be in- cluded in the charge on the face of the indictment, and also be part of the very acV presented as a felony. R. v. 174 Birch, 1 Den. 185. If we could con- ceive of a case of murder in which there was no assault (see R. v. Walkden, 1 Cox, 282) then there could be no con- viction in such a case of an assault. But, in point of fact, there can be no murder without an assault ; and this even is the case with homicide by poison taken by the deceased in ignorance of its nature. See Whart. Cr. Law, 9th ed. § 610. ' People V. M'Donnell, 92 N. Y. 657. ■ People V. Jackson, 3 Hill's N. Y. R. 92. See infra, § 261. 9 Infra, § 261. In Pennsylvania there may be a con- viction of attempt ou indictment for complete offence. Rev. Act. 1860, p. 442. In Virginia the practice is the same. Code, 1866, chap, ccviii. § 27. And so in Georgia, Hill v. State, 53 Ga. 125, and Tennessee, Lacy v. State, 8 Baxt. 401 ; Smith v. State, 2 Lea, 614. What is the general common law rule on this point in the United States will be considered under another head. Infra, § 261. In Massachusetts, " fe- loniously" is made by statute unneces- sary in all cases. Stat. 1852, c. 40, § 3. CHAP. III.] indictment: duplicity. [§ 251. § 250. In every case, however, the minor offence, to sustain a conviction for its commission, must be accurately stated.* g^j ^j^^j. Thus, on an indictment for rape, there can be no con- ^°<=«g viction for fornication unless there be an averment that accurately the prosecutrix was not the defendant's wife." So there can be no conviction of an assault on an indictment for murder unless the indictment avers an assault.* The minor offence, also, must be an ingredient of the major ; if simply collateral to the major, not forming part of it, there can be no conviction of such minor offence.* § 251. Where a statute, as has already been observed," makes two or more distinct acts connected with the same trans- . Not du- action indictable, each one of which may be considered piicity to as representing a phase in the same offence, it has in successive many cases been ruled they may be coupled in one ^^^^"^^^^ count.' Thus, setting up a gaming-table, it has been » See infra, § 965. 2 Com. V. Murphy, 2 Allen, 163. In a leading Englisli case, it was ruled that, in order to convict a pris- oner of a felony, not a felony prima- rily charged in the indictment, it is necessary that the minor felony should he substantially included in the in- dictment. Thus, an indictment for burglary includes ' an indictment for house-breaking, and generally also for larceny, and the prisoner on this may be found guilty of one or other of these felonies. But in an indictment for burglary, and for breaking and en- tering a house and stealing, the pris- oner cannot be found guilty of break- ing and entering a house with intent to steal. R. v. Keid, 2 Den. C. C. 89 ; 1 Eng. Law & Eq. 599. See Speers v. Com., 17 Grat. 570. 3 Scott V. State, 60 Miss. 268, see State V. Ryan, 15 Oregon, 512. * R. V. Watkins, 2 Moody, 217. « Supra, § 162. " Supra, § 247; infra, § 742 ; Whart. Crim. Ev. §§ 134, 138 ; R. o. Bowen, 1 Den. C. C. 21 ; R. v. Jennings, 1 Cox C. 0. 88 ; State v. Wood, 14 R. I. 151 ; R.». Oliver, 8 Cox C. C. 384 ; Bell C. C. 287 ; R. v. Yeadon, 9 Cox C. C. 91 ; U. S. V. Hull, 14 Fed. Rep. 324 ; 4 Mo- Cr. 273 ; U. S. u. Ferro, 18 Fed. Rep. 901 ; State v. Nelson, 29 Me. 329 ; Com. 1). Hall, 4 Allen, 305 ; Com. v. Dolan, 121 Mass. 374; Com. v. Ashton, 125 Mass. 384 ; State v. Matthews, 42 Vt. 542 ; Com. v. Atkins, 136 Mass. 160 ; State V. Fowler, 13 R'. I. 661 ; Barnes V. State, 20 Conn. 232 ; State v. Teahan, 50 Conn. 92 ; Read v. People, 86 N. Y. 381 ; People v. Casey, 72 N. Y. 393; Leath v. Com., 32 Grat. 873; Sprouse w. Com., 81 Va. 374; Com. V. Miller, 107 Penn St. 276 ; State v. Connor, 30 Ohio St. 405 ; State v. Smalls, 11 S. C. 262 ; Hoskins v. State, 11 Ga. 92 ; Murphy v. State, 47 Mo. 274; State v. Fancher, 71 Mo. 460; State V. Myers, 10 Iowa, 448 ; State i>. Harris, 11 Iowa, 414 ; State v. Bran- non, 50 Iowa, 372 ; Watson v. State, 39 Ohio St. 123 ; State v. House, 55 Iowa, ^66; State i>. Gray, 29 Minn. 142 ; State v. Bergman, 6 Oregon, 341 ; State V, Carr, 6 Oregon, 133 ; State v. 175 § 251.] PLEADIN& AND PRACTICE. [CHAP. III. said, may be a distinct offence ; keeping a gaming-table and induc- ing others to bet upon it, may constitute a distinct offence ; for either unconnected with the other an indictment will lie ;' yet when both are perpetrated by the same person at the same time, they may be coupled in one count.* An indictment, also, for keeping and maintaining, at a place and time named, " a certain building, to wit : a dwelling-house, used as a house of ill-fame, resorted to for prostitution, lewdness, and for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors, the said building, so used as aforesaid, being then and there a common nuisance," may be sustained,^ and so of several successive statutory phases of mak- ing, forging, and counterfeiting, of causing and procuring to be falsely made, forged and counterfeited, and of willingly aiding and assisting in the said false making, forging, and counterfeiting.^ It is admissible, also, to charge that the defendant " administered, and caused to be administered," poison, etc.* " Obstruct or resist" process may be joined, so as to read " obstruct and resist" in the indictment.^ It is also not duplicity to charge that the defendant did " offer to vend and to sell, and to cause to be furnished to and for one A. C, a certain paper, being a lottery ticket," etc. ;^ or that he did " torment, maim, beat, and wound" an animal.* And in an indictment on the Massachusetts Rev. Stats, c. 58, § 2, by which the setting up or promoting of any of the exhibitions therein men- Palmer, 32 La. An. 565 ; demons v. Grey, 2 Gray, 501 ; State v. Price, 6 State, 4 Lea, 23 ; Thompson v. State, Halst. 203 ; Angel v. Com., 2 Va. Cas. 30 Tex. 356 ; Copping v. State, 7 Tex. 231 ; Rasniok v. Com., Ibid. 356 ; Mac- Ap. 59 See Com. ». Nichols, 10 Allen, key v. State, 3 Ohio St. 363; Jones v. 199 ; Ferrell v. State, 2 Lea, 25. State, 1 McMull. 236 ; Hoskins v. State, ' See State v. Fletcher, 18 Mo. 425. 11 Ga. 92 ; Wingard v. State, 13 Ga. 2 Hinkle v. Com., 4 Dana, 518. 396 ; State v. McCoUum, 44 Mo. 343 ; » Com. V. Ballon, 124 Mass. 26 ; State People v. Tomlinson, 35 Cal. 503. See, r. Carver, 2 R. I. 286 ; State ». Adam, as taking a narrower view, State w. 31 La. An. 717. So as to advertising. Haven, 59 Vt. 339; State w. McCormack, exposing to sale, and selling lottery 56 Iowa, 585. tickets. Com. v. Gillespie, 7 S. & R. ° Ben. i^. State, 22 Ala. 9. 469 ; State v. McWilliams, 7 Mo. Ap. « Slicker v. State, 8 Eng. (13 Ark.) 99 ; see Read v. People, 86 N. Y. 381. 397. See, also. State v. Looklear, 1 Bus- * Supra, § 162 ; Whart. Crim. Law, bee, 205. Supra, § 228. 9th ed. § 727 ; R. v. North, 6 D. & R. ' Read v. People, 86 N. Y. 381. .See 143 ; U. S. V. Armstrong, 5 Phil. R. Com. v. Atkins, 136 Mass. 160. 273 ; State v. Hastings, 53 N. H. 452; » State v. Haskell, 76 Me. 399. State V. Morton, 27 Vt. 310 ; Com. v. 176 CHAP. III.] INDICTMENT: DUPLICITY. [§ 252. tioned, without license therefor, is prohibited, it is not duplicity to allege that the defendant " did set up and promote" such an exhibi- tion.^ In such cases the offences are divisible, and a verdict may- be had for either.* Where a statute requires a license from A. or B., the indictment following the statute must negative a license from eith&r A. or C* § 252. In all cases of larceny, and like offences, several articles may be joined in a count, the proof of either of which will sustain the indictment,* though where a variety of |c[escau^" articles are stolen at the same time and place, and from be joined . in larceny, the same individual, it has been held that the stealing of such articles at the same time and place is only one offence, and must be so charged.'' It has been even ruled that the same count may join the larceny of several distinct articles, belonging to dif- ferent owners, where the time and the place of the taking of each are the same.^ This, however, has been properly denied ;' and when averred to be at distinct times, the count is unquestionably double.' 1 Com. V. Twitohell, 4 Cusli. 74. 2 See infra, § 742; Whart. Crim. Law, 9tli ed. § 727 ; Whart. Crim. Ev. § 154. See, however, State v. Bach, 25 Mo. Ap. 554. A neglect by supervisors of roads both to open and repair roads may be charged in one count of an indictment against them. Edge v. Com., 7 Barr, 275. Under a statute making it an offence to " send or convey" an indecent let- ter, it is duplicity to charge " send and convey," the "sending" and "con- veying" having different meanings. Larison v. State, 49 N. J. L. 259 ; sed quaere. 3 Supra, § 240. * Supra, § 212 ; infra, § 470 ; Whart. Crim. Ev. § 132 ; State v. Cameron, 40 Vt. 555 ; Com. «. Williams, 2 Cush. 583 ; Com. v. Eastman, 2 Gray, 76 ; Com. V. O'Connell, 12 Allen, 451 ; State u. Hennessey, 23 Ohio St. 339 ; State v. Bishop, 98 N. C. 773 ; Leslie v. Com., 12 82 Ken. 250; State v. Williams, 10 Humph. 101; Lorton v. State, 7 Mo. 65 ; State v. Johnson, 3 Hill, B. C. 1 ; State V. Evans, 23 S. C. 209 ; State v. McAnulty, 26 Kan. 533. In Maine it has been ruled that a count charging a larceny of bank bills each of a, denomination and value stated, and of a pocket-book and knife, "of the goods, chattels, and money of J. S. K.," etc., contains a sufficient de- scription of the property, and is not bad for duplicity. Stevens v. State, 62 Me. 284. = Ibid. ; and see, particularly, infra, §470. , 6 Infra, § 470 ; see Hoiles v. U. S., 3 McArth. 370; Smith v. State, 63 Ga. 168 ; Dodd v. State, 10 Tex. Ap. 370. ' State u. Thurston, 2 McMull. 382 ; Com. V. Andrews, 2 Mass. 409 ; Casey V. People, 72 N. Y. 393 ; infra, § 740 ; and see Whart. Crim. Law, 9th ed. §§ 931, 948. 8 State V. Newton, 42 Vt. 537. 177 § 254.] PLEADING AND PRACTICE. [chap. III. § 253. Laying several overt acts in a count for high treason is not duplicity,* because the charge consists of the com- cumuiative passing, etc., and the overt acts are merely evidences of and^intents it ; and. the Same as to Conspiracy. A count in an indict- andagen- ment, charging one endeavor or conspiracy to procure the commission of two offences, is not bad for duplicity, because the endeavor is the offence charged." The same rule exists where assaults and other offences with several intents are charged.^ It is so, as we have seen, where forging a note and forging an in- dorsement are joined.* It is admissible, also, to state cumula- tively several weapons by which a wound has been inflicted;* and those not proved may be rejected as surplusage.' Various means used in committing the offence may be joined without duplicity.^ § 254. A man may be indicted for the battery of two or more persons in the same count,* or for libel upon two or more d OTbie bat- Persons, where the publication is one single act ;' or for teries, selling liquor to two or more persons,'" or in several 1 Kelyng, 8. 2 R. V. Fuller, 1 B. & P. 181 ; E. v. Bykerdike, 1 M. & Rob. 179 ; People v. Milne, 61 Cal. 71. 3 E. V. Dawson, 1 Eng. Law & Eq. 62; R. V. Cox, R. & R. 362; R. v. Davis, 1 C. & P. 306 ; R. v. Smith, 4 C. & P. 569 ; R. V. Gillow, 1 Moody C. C. 85 ; R. V. Hill, ,2 Moody C. C. 30 ; R. v. Bait, 6 C. & P. 329 ; State v. Moore, 12 N. H. 42; Com. v. McPike, 3 Cush. 181 ; People v. Curling, 1 Johns. R. 320 ; State v. Dineen, 10 Minn. 407 ; People V. Milne, 61 Cal. 71 ; Whart. Crim. Law, 9th ed. § 119; Whart. Crim. Ev. § 135. ' Supra, §§ 250 ff. Sprouse v. Com., 81 Va. 374. 5 People V. Casey, 72 N. Y. 398; State V. Jackson, 39 Ohio St. 37 ; Wil- liams V. State, 69 Ga. 401 ; Gonzales v. State, 5 Tex. Ap. 584 ; and cases cited supra, § 212 a. 6 U. S. V. Patty, 9 Biss. 429 ; State 178 V. Blan, 69 Mo. 317. Supra, §§ 158, 212 a. Infra, § 1297. ' Com. V. Brown, 14 Gray, 419 ; State 0. McDonald, 37 Mo. 13; People b. Casey, 72 N. Y. 393. See Whart. Crim. Ev. §§ 134, 138. 8 R. V. Benfield, 2 Burr. 983 ; R. v. Giddings, C. & M; 634 ; Com. v. O'Brien, 107 Mass. 208 ; Kenuey v. State, 5 R. 1. 385 ; Fowler v. State, 3 Heisk. 154. See 2 Str. 890; 2 Ld. Raym. 1572; (State V. McClintock, 8 Iowa, 203, contra) ; and so of a double shooting or stabbing. Com. v. McLaughlin, 12 Cush. 615 ; Shaw v. State, 18 Ala. 547. See Ben v. State, 22 Ala. 9 ; R. v. Scott, 4 B. & S. 368. Infra, §§ 468, 492. s Infra, § 468 ; R. v. Jenour, 7 Mod. 400 ; 2 Burr. 983 ; State v. Atchison, 3 Lea, 729. See State v. Womack, 7 Cold. (Tenn.) 508. So where two horses are overdriven in one team. Peo- ple V. Tindale, 10 Abb. Pr. N. § 374. 1° State V. Anderson, 3 Rich. 172 ; State e. Bielby, 21 Wis. 204. See, for CHAP. III.] indiotmbnt: duplicity. [§ 255. forms,' without rendering the count bad for duplicity, libels, or And it is said that burning several hous6s by one fire can be joined.* Whether the killing of two persons by one act is one offence is hereafter discussed." § 255. Duplicity, in criminal cases, may be objected to by special demurrer,* perhaps by general demurrer ; or the court, in general, upon application, may quash the indictment ; is'Suaiiy but the better view is that it cannot be made the subject yer^fct!^ of a motion in arrest of judgment, or of a writ of error ;* and it is in any view cured by a verdict of guilty as to one of the offences, and not guilty as to the other,* and by a nolle prosequi as to one member of the count.^ But when two repugnant offences, requiring different punishments, are introduced in one count, judg- ment may be arrested.' a cognate case, Walter v. Com. 6 Weekly Notes, 389; Whart. Crim. Law, 9tli ed. § 1515. An indictment for selling spirituous liquors without a license charged that the defendant, at his storehouse and dwelling-house in Pennsboro, in said county, did sell, etc. ; and it was held on motion to quash, that it was not Intended to charge two distinct sales at different places, but rather to de- scribe the store and dwelling-house as constituting one building, and one and the same place ; and, therefore, there were not two distinct offences charged in the same count. Conley v. State, 5 W. Va. 522. Compare Whart. Crim. Law, 9th ed. § 1515. 1 Osgood V. People, 39 N. Y. 449. 2 Woodford v. People, 62 N. Y. 117. Infra, § 469. 3 Infra, § 468. ' Ellis V. Com., 78 Ky. 130 ; People w. Quoise, 56 Cal. 396 ; State v. Goodwin, 33 Kans. 538. 6 Nash V. E., 9 Cox C. C. 424 ; 4 B. & S. 935 ; V. S. v. Bayaud, 21 Blatch. 217, 287; 15 Rep. 520; Com. v. Tuck, 20 Pick. 356 ; State v. Johnson, 3 Hill S. C. 1; Simons v. State, 25 Ind. 331; State V, Brown, 8 Humph. 89 ; Scruggs V. State, 7 Baxt. 38 ; Forrest v. State, 13 Lea, 103; People u. Shotwell, 27 Cal. 394 ; Tucker v. State, 6 Tex. Ap. 251. Infra, § 777 ; but see contra, when there is a confusion of averments, R. v. Cook, 1 R. & R. 176 ; State v. Fowler, 28 N. H. 184 ; Com. v. Powell, 8 Bush. 7 ; State v. Howe, 1 Rich. 260 ; Terr v. Heywood, 2 Wash. Terr. 181, and cases cited supra, § 243. As to curing by verdict, see infra, § 759. 6 R. V. Guthrie, L. R. 1 C. C. 241 ; State V. Miller, 24 Conn. 522 ; State v. Merrill, 44 N. H. 624. ' State V. Merrill, 44 N. H. 624; State V. Buck, 59 Iowa, 382, and cases cited. Infra, § 383. 8 Cases cited infra, § 256 ; and see State V. Nelson, 8 N. H. 163 ; modified by State v. Snyder, 50 N. H. 150; Com. V. Holmes, 119 Mass. 198. 179 § 256.] PLEADING AND PRACTICE. [chap. III. Where ma- terial aver- ments are repugnant, Indictment is bad. XIII. REPUGNANCY. 256. When one material averment in an indictment is contra- dictory to another the whole is bad,' Thus, to adopt one of the old illustrations, if an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious, for it is impossible any one can be bound by a forgery.* A relative pronoun, also, referring with equal uncertainty to two antecedents will make the proceedings bad in arrest of judgment. But, as is elsewhere seen, every fact or circumstance laid in an in- dictment, which is not a necessary ingredient in the offence, may be rejected as surplusage.^ That disjunctive statements are inadmissible has been elsewhere seen.^ Where counts are repugnant a general verdict cannot be sus- tained ;' though it is otherwise when they represent varying phases or stages of the same ofiFence.^ 1 2 Hawk. C.-25, s. 62 ; E. v. Harris, 1 Den. C. C. 461 ; T. & M. 177 ; State V. Haven, 59 Vt. 399 ; Com. v. haw- less, 101 Mass. 32. 8 3 Mod. 104; 2 Show. 460. See Mills V. Com., 13 Penn. St. 634. Repugnancy has been held to exist where an indictment charged an of- fence to have been committed in No- vember, 1801, and in the twenty-fifth year of American Independence (State V. Hendricks, Con. R. 369), and where the crime was laid to have been com- mitted A. D. 1830. Serpentine v. State, I How. Miss. R. 260. 3 Supra, §§ 158, 253-4; Whart. Grim. Ev. §§ 138 et seq. ; 1 Chitty on Pleading, 384, 335 ; R. u. Craddook, 2 Den. C. C. 31 ; T. & M. 361 ; State v. Cassety, 1 Richards, 91 ; State v. Smolls, II S. C. 262. Where there was a general verdict of guilty on an indictment for procuring a miscarriage, in which one count averred 180 quickness and the other merely preg- nancy, and one count averred the abor- tion of the mother and the other of the child, the Supreme Court refused to re- verse on the ground of repugnancy. Mills V. Com., 13 Penn. St. 634. An indictment charging an assault with three weapons — a pair of tongs, a hammer, and an axe-handle — is not void for repugnancy. State v. McDon- ald, 67 Mo. 13 ; supra, §§ 158, 212 a. « Supra, §§ 161, 228. Where one count charges the offence to have been committed in one county and another count charges it in another, the general rule is, that the counts are repugnant, and the indictment will be quashed on motion, or the prosecutor be compelled to elect which he will pro- ceed on. State v. Johnson, 5 Jones (N. C), 221. 5 Infra, § 737. 6 Ibid. ; infra, §§ 285 et seq. ; State V. Mallon, 75 Mo. 355. CHAP. III.] INDICTMENT : TECHNICAL AVERMENTS. [§ 260. XIV. TECHNICAL AVERMENTS. 1. " Tbaitokouslt," § 257. 2. " felonionslt did kill," " malice apokethought," "strike," § 260. 3. "Feloniously,"— WHEN necessary, AND WHEN IT MAY BE DISCHARGED AS Surplusage, § 261. 4. "Eavish," "Carnally knew," "Forcibly," "Falsely," § 263. 5. " Falsely," § 264. 6. " Burglariously," § 265. 7. " Take and carry away," § 266. 8. "Violently and against the Will," § 267. 9. " Unlawfully," § 269. 10. "Forcibly and with a Strong Hand," § 270. § 257. In indictments for treason, the offence must be laid to have been committed traitorously ; but if the treason itself be j^^ treason laid to have been so committed, whether it consist in " traitor- , . , . ously" levying war against the supreme authority or otherwise, must be it is not necessary to allege every overt act to have been traitorously committed.' § 258. In an indictment for murder, it must be alleged that the offence was committed of the defendant's malice afore- „ Malice thought, words which cannot be supplied by the aid of afore- . . rr J thought" any other ; and if this averment be omitted, or if the essential to defendant be merely charged with killing and slaying "^^^ ^'^' the deceased, the offence will amount to no more than manslaughter.* But the want of these words in an indictment for an assault with intent to kill will not be fatal on arrest of judgment.' § 259. Where the death arises from any wounding, beating, or bruising, it has been said that the word ugu^aUy^" " struck" is essential, and that the wound or bruise must esseutiai to wound, be alleged tq have been mortal.* § 260. The word " feloniously" is at common law essential to all in- dictments for felonyj whether at common law or statutory,* although ' Cranbourn's case, 4 St. Tr. 701; Salk. 633 ; Bast P. C. 116. 2 1 Hale, 450, 466 ; East P. C. 345 ; Whart. CrimLaw, 9th ed. §§ 5n etseq.; MoElroy v. State, 14 Tex. Ap. 235. A killing by misadrenture, or chance medley, is described to have been done " casually and by misfortune, and against the will of the defendant. ' ' See State V. Rabon, 4 Rich. 260. ' Cross V. State, 55 Wis. 262. See Whart. Crim. Law, 9th ed. § 644. * See Whart. Crim. Law, 9th ed. §5 518 et seq.; 2 Hale, 184 ; 2 Inst. 319 ; 2 Hawk. c. 23, s. 82 ; Cro. J. 635 ; 5 Co. 122 ; Lad's case, 1 Leach, 112. 5 R. (;. Gray, L. & C. 365 ; Com. v. Weidenhold, 112 Penn. St. 584 ; Mears V. Com., 2 Grant, 385 ; State ». Brister, 1 Houst. 150 ; Scudder v. State, 62 Ind. 13 ; State v. Roper, 88 N. C. 656 ; State V. Murdock, 9 Mo. 730 ; State v. Gilbert, 24 Mo. 380 ; Bowler u. State, 41 Miss. 570; Wile v. State, 60 Miss. 260; 181 § 261.] PLEADING AND PRACTICE. [chap. III. the reason for the term being purely arbitrary,* it is no longer necessary unless prescribed by. statute, or unless de- oiSiy°°e8- scribing a common law or statutory felony.^ But in all Bentiaito common law felonies it is, at common law, essential. felonyi . . Thus, in an indictment for murder, it is at common law requisite to state as a conclusion from the facts previously averred that the said defendant, him, the said C. D., in manner and form aforesaid, feloniously did kill and murder.^ § 261. If an act be charged to have been done with a felonious intent to commit a crime, and it appears upon the face of the indictment that the crime, though perpetrated, would not have amounted to a felony, the word feloni- ous, being repugnant to the legal import of the offence charged, may be rejected as surplusage.* Word " feloni- ously" can be re- jected as surplusage, Edwards v. State, 25 Ark. 444. It has, however, been held that when a statute creating a felony does not use the term " feloniously," the latter term may he omitted in the indictment. People v. Olivera, 7 Cal. 403; Jane v. Com., 3 Mete. (Ky.) 18. The word "feloni- ously" may he sometimes dispensed with hy statute, either expressly or hy implication. Peek v. State, 2 Humph. 78 ; Butler v. State, 22 Ala. 43. 1 The term was originally introduced in order to exclude the oflFender from his clergy ; R. v. Clerk, Salk. 377 ; and is not essential to an indictment for man- slaughter. See, as to gradual disap- pearance of distinction, Whart. Crim. Law, 9th ed. § 22. 2 SeeSteph. Cr. Law, §§ 56, 57 etseq.; State V. Feloh, 58 N. H. 1. 3 Whart. Crim. Law, 9th ed. §§ 518 et seq. ; 1 Hale, 450, 466 ; 4 Bl. 307 ; Yel. 205 ; Cain v. State, 18 Tex. 387. It has been held that " feloniously" is not essential to an assault and bat- tery with intent to kill ; Stout v. Com., 11 S. & R. 177 ; State u. Scott, 24 Vt. 27 ; though elsewhere the omission was held fatal. Mears v. Com., 2 Grant, 385 ; Scudder v. State, 62 Ind. 13 ; 182 Curtis V. People, 1 Breese, 199 ; and see Whart. Crim. Law, 9th ed. § 644. In all cases of mayhem, the words felonious]^ and did maim are requi- site ; 1 Inst. 118 ; 2 Hawk. c. 23, ss. 15, 16, etc. ; 2 Hawk. c. 25, s. 55 ; Com. o. Reed, 3 Am. L. Journ, 140; Canada v. Com., 22 Grat. 899; State V. Brown. 60 Mo. 141 ; Whart. Crim. Law, 9th ed. § 586 ; though it is said in Massachusetts that the offence is not a felony (Com. v. Newell, 7 Mass. 244), and in Georgia, to be only so in case of castration, Adams v. Bar- rett, 5 Geo. 404. * * Whart. Crim. Ev. § 148 ; 2 East P. C. 1028; Cald. 397; Haokett «. Com., 15 Penn. St. 95 ; Com. v. Gable, 7 S. & R. 423; People v. Jackson, 3 Hill (N. Y.), 92; People v. White, 22 Wend. 175 ; Staeger v. Com., 103 Penn. St. 469 ; Lohmau t. People, 1 Comst. 379 ; Hess v. State, 5 Ohio, 1 ; State v. Sparks, 78 Ind. 166. But, see contra Starkie's C. P. 169 ; n. r. ; State f. Sarrah, 1 Houst. 112 ; Black v. State, 2 Md. 376 ; State v. Flint, 33 La. An. 1238 ; State v. Edwards, 90 N. C. 710 ; cf. State V. Fletch, 58 N. H. 1 ; supra, § 249. CHAP. III.] INDICTMENT : TECHNICAL AVERMENTS. [§ 261. Where, however, a count on its face is for a complete felony, it has been doubted whether a conviction can be had for the con- stituent misdemeanor. In England, the rule at common law was that such a conviction could not be had, the reason being, that if a misdemeanor be tried under an indictment for a felony, the defen- dant loses his right to a special jury and a copy of the bill of indictment.^ In this country, though the reason fails, the principle that under an indictment for a felony there can, at common law, be no conviction for a misdemeanor, has been followed in Massachu- setts,^ in Indiana,^ in Tennessee,* in Maryland," and in Louisiana.^ In New York,' Pennsylvania,* Vermont,* New Jersey,'" Ohio," North Carolina," South Carolina,*^ Michigan," and Arkansas,'* it has beeii held that the English reason ceasing, the rule itself ceases. In most States this latter position is now established by statute, if not by common law." ' E. V. Woodhall, 12 Cox C. C. 240 ; R. u. Cross, 1 Ld. Raym. 711 ; 3 Salk. 193 ; 2 Hawk. c. 47, s. 6 ; 1 Chitty C. L. 251, 639 ; R. u. Walker, 6 C. & P. 657 ; R. w. Gisson, 2 C. & K. 781 ; R. v. Reid, 2 Den. C. C. 88 ; 2 Eng. Law & Eq. 473. See supra, §§ 246-7. Now, however, the statute of 1 Viot. c. 85, s. 11 (Lord Denman's Act) enables con- viction to be had for a constituent mis- demeanor. 2 Com. V. Newell, 7 Mass. 245. This has been corrected by statute. Com. V. Drum, 19 Pick. 479 ; Com. v. Soan- nel, 11 Cush. 547. See supra, § 249. s State V. Kennedy, 7 Blackf. 233 ; Wright V. State, 5 Ind. 527. * State V. Valentine, 6 Yerg. 533. 5 Black V. State, 2 Md. 376 ; aff. in Barber v. State, 50 Md. 161 ; though see Burke v. State, 2 Har. & J. 426 ; State V. Sutton, 4 Gill, 494. Supra, §247. 6 State V. Flint, 33 La. An. 1238. - ' People 0. White, 22 Wend. 175 ; People V. Jackson, 3 Hill (N. Y.) 92 ; Lohman v. People, 1 Comst. 379. See supra, § 249. 8 Hunter v. Com., 79 Penn. St. 503. See Com. v. Gable, 7 S. & R. 433 ; and Whart. Crim. Law, 9th ed. § 542. That on an indictment triable exclu- sively in the Oyer and Terminer, in which the defendant cannot be exam- ined as a witness, he cannot be con- victed of a misdemeahor, in which he could be examined as a witness, see Com. V. Harper, 14 Weekly Notes, 10. » State V. Coy, 2 Aiken, 181 ; State V. Wheeler, 3 Vt. 344 ; State v. Scott, 24 Vt. 129. '" State V. Johnson, 1 Vroom, 185. " State V. Hess, 5 Ohio, 1 ; Stewart V. State, 5 Ohio, 242. ^ State V. Watts, 82 N. C. 656 ; see, however. State o. Durham, 72 N. C. 747 ; State v. Upohurch, 9 Ired. 455. " State V. Gaffney, Rice, 431 ; State u. Wimberly, 3 McCord, 190. " Rogers v. People, 34 Mich. 345. " Cameron v. State, 8 Eng. (13 Ark.) 712. i« Supra, § 158 ; Whart. Crim. Ev. § 148 J Com. V. Squires, 1 Met. 258; Com. V, Scannel, 11 Cush. (Mass.) 547. So in Minnesota. State v. Crummey, 17 Minn. 72. In North Carolina. State V. Purdie, 67 N. C. 26, 326. See 183 § 263.] PLEADING AND PRACTICB. [chap. III. § 262. Attempts, by the statutes of England and most of the United States, are made substantive offences, even where they do not exist as such at common law. And by the same statutes, the jury in most instances — even in indictments for felony — may convict of the attempt.* In indictments of rape, the words " feloniously ravished" are essential, and the word rapuit is not supplied by the words earnaliter cognovit ;^ and it seems that the latter words are also essential in indictments,' though the contrary has been ruled in the case of an appeal.* The usual course in an indictment for rape is to aver that it was com- mitted forcibly, and against the will of the female, and therefore it would not be safe to omit the averment,' though in Pennsylvania the omission was held not to be fatal, in a case where ravish and carnally know were introduced.* In an indictment for an unnatural crime, the descriptive words of the statute taking^ away clergy, must be used ; and it is not sufficient to say contra naturae ordinem rem hahuit veneream et earnaliter cognovit.^ In such case con- viction may be had of at- tempt. §263. " Ravish" and " for- cibly" are . essential to rape. State V. Upchuroh, 9 Ired. 455. In Iowa. State v. MoNally, 32 Iowa, 580. And in Texas. Jorasco v. State, 6 Tex. Ap. 238. 1 Whart. Crim. Law, 9th ed. § 173 ; and see infra, §§ 742 et seq., as to ver- dict. Burke v. State, 74 Ala. 399. An indictment for arson charged that the defendants " feloniously, wil- fully, and unlawfully" set fire to, burned, and consumed a certain build- ing used as a brewery for the manu- facture of beer. It was held that the indictment was defective in not al- leging that the burning was malicious. Kellenbeck v. State, 10 Md. 431. Supra, § 235. Where a statute makes criminal the doing of the act ' ' wilfully and mali- ciously," it is not sufficient for the in- dictment to charge that it was done " feloniously and unlawfully," or felo- niously, unlawfully and wilfully ; these latter terms not being synonymous, 184 equivalent, of the same legal import, or substantially the same as " wilfully -and maliciously." State v. Gove, 34 N. H. 510 ; though see supra, § 235 ; Whart. Crim. Law, 9th ed. § 586. 2 Gougleman v. People, 3 Parker C. R. (N. Y.) 15 ; 1 Hale, 628 ; 2 Hale, 184; 1 Inst. 190; 2 Inst. 180. See, however, State v. Meinhart, 73 Mo. 562. 3 1 Hale, 632 ; 3 Inst. 60 ; Co. Lit. 137 ; 2 Inst. 180. ' 11 H. 4, 13 ; 2 Hawk. o. 23, s. 79 ; Staun. 81. 6 State V. Jim, 1 Dev. 142 ; Whart. Crim. Law, 9th ed. § 573. 6 Harman v. Com., 12 Serg. & R. 69 ; and see Com. v. Fogerty, 8 Gray, 489 ; and see, for fuller discussion, Whart. Crim. Law, 9th ed. § 573. ' 5 Eliz. c. 17, 3, 4 ; W. & M. c.-9, s. 2 ; Fost. 424; Co. Ent. 351 ; 3 Inst. 59 ; 1 Hawk. c. 4, s. 2. 8 East P. C. 480 ; 3 Inst. 59. CHAP. III.] indictment: technical averments. [§ 269. § 264. In an indictment for perjury, it is necessary to ,, p^j^^jy,, charge that the defendant wilfully and corruptly swore essential to -, . . • r « perjury. falsely.' But it is not necessary in forgery.'' ' § 265. In burglary the essential words are " feloniously and bur- glariously broke and entered the dwelling-house, in the ,^^^^ ^^^ night time ;" and the felony intended to be committed, or ousiy'^to actually perpetrated, must also be stated in technical ''"'"^^'y- terms." But " burglariously" is not necessary in statutory house- breaking.* § 266. In larceny, the words feloniously took and carried away the goods," or took and led away the cattle, are „ ^^^^ essential. "The property of" is also essential." and carry r r •! -J. away" es- These terms are also requisite in statutory indictments sentiai to for embezzlement.^ § 267. In an indictment for robbery from the person, j'^^^®"*" the words feloniously, violently,* and against the will, against the are essential ; and it is usual, though it is said to be un- sentiai to necessary, to allege a putting in fear.' robbery. § 268. Piracy must be alleged to have been done fe- " Pirati- ^ CSii lO loniously and piratically."* piracy. § 269. The phrase " unlawful" is in no case essential, unless it be a part of the description of the oflfence as defined by u uniaw- sorae statute ; for if the fact, as stated, be illegal, it ^^}}y" and ' . ' ° ' other ag- would be superfluous to allege it to be unlawful ; if the gravative facts stated be legal, the word unlawful cannot render it essential. 1 See fully Whart. Crlm. Law, 9th ed. § 1286. 2 State V. MoKiernan, 17 Nev. 224. 3 1 Hale, 549 ; Portwood v. State, 29 Tex. 47. See Lyon v. People, 68 111. 271 ; State v. Curtis, 30 La. An. Pt. ii. 814 ; and see Whart. Crlm. Law, 9th ed. § 814. * Tully «: Com., 4 Met. 357 ; State v. Meadows, 22 W. Va. 766 ; Sullivan v. State, 13 Tex. Ap. 462. 6 1 Hale, 504; 2 Hale, 184; R. ». Middleton, L. R. 2 C. C. 41 ; Com. v. Adams, 7 Gray, 43 ; Rountree v. State, 58 Ala. 381 ; Gregg v. State, 64 Ind. 223 ; Whart. Crim. Law, 9th ed. § 914. In Green v. Com., Ill Mass. 417, it was held that " steal" might be a substi- tute ; though this ruling may be ques- tioned ; see State v. Johnson, 30 La. An. Pt. i. 305. That "steal" may be omitted see State v. Lee Ping, 10 Oreg. 27. ^ State V. Parker, 1 Honst. u. c. 9. ' Com. «. Pratt, 132 Mass. 246. 8 1 Hale, 534 ; Fost. 128 ; 3 Inst. 68. But see Smith's case. East P. C. 783, in which it was holden that violenter is not an essential term of art. See Whart. Crim. Law, 9th ed. § 857. As to " wilfully," see Woolsey v. State, 14 Tex. Ap. 57. » Whart. Crim. Law, 9th ed. § 857. w 1 Hawk. c. 37, ss. 6, 10, 185 § 271.J PLEADING AND PKACTICB. [CHAP. III. indictable.' The same observation is applicable to the terms "wrongfully," "unjustly," "wickedly," "wilfully," "corruptly," to "the evil example," "falsely," "maliciously," "fraudu- lently," and such like.^ Thus, though it is usual to allege that the party falsely forged and counterfeited, it is enough to allege that he forged, because the word implies a false making. In indictment for libels, it is sufficient either to use the word falsely or maliciously,' or an equivalent epithet. But when either of these terms is part of the essential definition of the offence, it cannot be dropped.^ And this is eminently the case when the term is part of a statutory defi- nition.' § 270. In forcible entry, at common law, the defendants must be "Forci charged with having used such a degree of force as biy" and amounts to a breach of the peace.' The words, " with Btrong strong hand," are indispensable. But it is sufficient in tiaUo^for"' ^"^^ ^^ indictment to aver, that the defendants unlaw- cibie entry, fully and with a strong hand entered into the prosecutor's mills, etc., and expelled him from the possession thereof.' In rape, also, " forcibly" is in most jurisdi<||tions essential.' § 271. The practice still exists of introducing, in indictments for forcible injuries, the technical words, vi et armis ; but armis" not by the stat. 37 H. 8, c. 8, it is enacted that " inquisitions essential. ^^ indictments lacking the words vi et armis, viz., hacur lis, cultellis, arcuhus, et sagittis, or any such like words, shall be taken, deemed, and adjudged, to all intents and purposes, to be good and effectual in law, as the same inquisitions and indictments having the same words were theretofore taken, deemed, and adjudged to 1 U. S. V. DrisooU, 1 Low. 305 ; State §§ 517, 839 ; State v. Hartman, 8 Baxt. V. Williams, 3 Foster (N. H.) 321 ; 384 ; U. S. v. Caruthers, 15 Fed. Rep. State V. Concord R. R., 59 N. H. 85 ; 309. State u. Vt. R. R., 27 Vt. 103 ; State u. « Sty. 392; 2 Wms. Saund. 242; Bray, 1 Mo. 126 ; Capps «. State, 4 Starkie C. P. 86. Iowa, 502 ; Stazey v. State, 58 Ind. * Com. v. Turner, 8 Bush, 1. 514 ; Sliinn v. State, 68 Ind. 423 ; State = Supra, § 235. V. Mulliisen, 69 Ind. 145; Williams v. « R. v. Wilson et al., 8 T. R. 357 ; 6 State, 3 Heisk. 376. See, however, Mod. 178 ; Whart. Crim. Law , 9th ed. contra, under present Indiana statute, § 1107. State V. Smith, 74 Ind. 557. And see ' Ibid. Woolsey v. State, 14 Tex. Ap. 57. 8 Whart. Cr. Law, 9th ed. § 573. 8 See Whart. Crim. Law, 9th ed. 186 CHAI^. III.] INDICTMENT: CLERICAL BKRORS. [§ 273. be." These words are therefore superfluous, even where the crime is of a forcible nature, and were unnecessary at common law, where the injury was not forcible.^ And in case of murder, the force at common law is implied from the very nature of the offence.^ The stat. 37 H. 8, c. 8, is in force in Pennsylvania,* in New Hampshire,* in Vermont,* in Massachusetts,* in North Carolina,^ in Tennessee,^ in Indiana,' aad in Louisiana,'" and in these States, as well as gen- erally in this country, the term may be properly omitted.^' § 272. " Knowingly" is one of the expletives which, when fraud is charged, it may be useful to insert." For although it may be discharged as surplusage if unnecessary, it may ingiy" " be sometimes employed to help out an otherwise defec- prudent tive allegation of guilty knowledge." XV. CLERICAL ERRORS. § 273. Verbal or grammatical inaccuracies, which do not afi'ect the sense, are not fatal.^* Mere misspelling will not be fatal, as in 1 2 Lev. 221 ; Cro. Jao. 473 ; 3 P. Wms. 497 ; Skinner, 426 ; 2 Hawk. c. 25, s. 90. 2 2 Hale, 187 ; 1 Hawk. o. 25, s. 3 ; 1 Hale, 534 ; 3 Inst. 68 ; Pulton, 131 h ; State V. Pratt, 54 Vt. 484. ' Roberts's Dig. 34 ; Com. v. Martin, 2 Barr, 244, in which case the omission of the " vietarmis" was held immate- rial. ' State V. Kean, 10 N. H. 347. s State V. Munger, 15 Vt. 290 ; 2 Ty- ler, 166. s Com. V. Scannel, 11 Cush. 547. ' State V. Duncan, 6 Ired. 236. s Tipton V. State, 2 Yerg. 542 ; Tay- lor V. State, 6 Humph. 285. 9 State V. Elliot, 7 Blackf. 280. '" Territory v. M'Farlane, 1 Martin, 224. See State v. Thornton, 2 Rice's Dig. 109. " See also State v. Temple, 3 Fairf. 214. ' ^ As to scienter, see supra, § 164. >3 1 Starkie C. P. 390 ; Com. v. Hohbs, 140 Mass. 443. w R. V. Stokes, 1 Den. C. C. 307 ; State V. Patterson, 68 Me. 473 ; State v. Shaw, 58 N. H. 74 ; State v. Lockwood, 58 Vt. 378 ; Com. v. Burke, 15 Gray, 408 ; Shay v. People, 22 N. Y. 317 ; Phelps V. People, 72 N. Y. 334, 372 ; Com. V, Moyer, 7 Barr, 439 ; Perdue v. Com., 96 Penn. St. 311 ; Com.t;. Ailstook, 3 Grat. 650; Lazier v. Com., 10 Grat. 708 ; State u. Gilmore, 9 W. Va. 641 ; State V. Hedge, 6 Ind. 330 ; Langdale V. People, 100 III. 263 ; State v. Ray- mond, 20 Iowa, 582 ; State v. Haney, 2 Dev. & Bat. 400 ; State v. Shepherd, 8 Ired. 195 ; State v. Smith, 63 W. C. 234 ; State v. Davis, 80 N. C. 384 ; State V. Coleman, 8 S. C. 237 ; State v. White, 15 S. C. 381 ; State v. Jefooat, 20 S. C. 383 ; Williams v. State, 3 Heisk. 376 ; Fortenberry v. State, 55 Miss. 403 ; Ward V. State, 50 Ala. 120 ; Pickens v. State, 58 Ala. 364 ; State v. Earn, 16 La. An. 183 ; State v. Ross, 32 La. An. 854 ; State v. Morgan, 35 La. An. 293 ; State V. Edwards, 19 Mo. 674 ; State v. Lee Ping, 10 Oreg. 27 ; Witten v. State, 187 § 273.] PLEADING AND PRACTICE. [chap. III. writing '' fifty-too" for "■fifty-two,"^ and " asmlt" for " assault,"'^ Verbal in- ^^^ " ^'''*''" f°^ " inare."^ The omission of a letter in accuracies the prisoner's name, in the title of a bill found by a grand not affect- . ^ . ' , , . . „ . , ing sense jury, 18 not a good ground for a motion in arrest ot judg- ^ * ■ ment, as the prisoner had pleaded to it, and had been convicted upon it, especially where the name is properly stated in the body of the bill of indictment itself;* and so where " mark," in an indictment for putting a false mark on sheep, was written " make."* As a rule we may hold that false spelling, which does not alter the meaning of the words misspelt, is no ground for arrest- ing judgment.* It is otherwise when the blunder destroys sense.^ 4 Tex. Ap. 70 ; Stinson v. State, 5 Tex. Ap. 31 ; Snow w.' State, 6 Tex. Ap. 274 ; Somerville v. State, 6 Tex. Ap. 433; Hutto t'. State, 7 Tex. Ap. 44 ; Irvin v. State, Ibid. 109 ; Henry ». State, Ibid. 388 ; Brumley v. State, 11 Tex. Ap. 114 ; and see particularly, as a, speci- men of how much carelessness can be passed by when the sense is preserved, Hackett V. Com., 15 Penn. St. 95. See supra, §§ 167 et seq. ; infra, § 760 ; Whart. Crim. Ev. §§ 114 et seq. As to curing by verdict, see infra, § 759. Thus, in an indictment for selling spirituous liquors by the small meas- ure, without license, the omission of the auxiliary verb " did," which should have been joined with the words " sell and dispose of," has been held im- material. State V. Whitney, 15 Vt. 298; State v. Edwards, 19 Mo. 674. In an indictment, however, which charged that the defendant " feloni- ously utter and publish, dispose and pass," etc., etc., omitting the word "did" before utter, etc., the court arrested the judgment on the ground of uncertainty, no charge being made that the prisoner did the act. State V. Haider, 2 McCord, 377. See State v. Hutchinson, 26 Tex. Ill ; State v. Daugherty, 30 Tex. 360; State u. 188 Earp. 41 Tex. 487 ; Koontz «. State, 41 Tex. 570. 1 State V. Hedge, 6 Ind. 333. 2 State V. Crane, 4 Wis. 400. 3 State V. Meyers, 85 Tenn. 203. * State V. Dustoe, 1 Bay, 377. Infra, §§ 760 et seq. 5 State V. Davis, 1 Ired. 125. 6 State B. Molier, 1 Dev. 263. See State V. Caspary, 11 Richs. 356 ; State . State, 14 Ohio, 461. Infra, § 278 a. ' Com. V. Desmarteau, 16 Gray, 16. s Com. V. Roland, 97 Mass. 598. •" Com. V. Davis, 11 Gray, 4 ; Com. i: Riggs, 14 Gray, 376. CHAP. III.] INDICTMENT : CONCLUSION. [§ 279. the effect that a lost indictment may at common law, when Lost indict- "' ment. it is not practicable to find a new bill, be prosecuted, after plea, on parol proof of its contents, or by a copy.' § 278 a. It is seen in another work^ that a pencil writing may be a valid document, even under the statute of frauds. Objectionable as this mode of writing may be, and strong ^rlSng as may be the reason for quashing an indictment written ™ay be •' ... sufficient. in pencil in such a way as to be uncertain, it cannot be said that after the jury has passed on the indictment, the fact that it is in whole or in part in pencil is ground for a motion in arrest. " Pencil " writing, in fact, it may be difficult to distinguish from "ink" writing, Some pencils write with what is virtually con- densed ink. Some ink may be as pale and evanescent as the lead commonly used in pencils.' XVI. CONCLUSION OF INDICTMENTS. § 279. The constitutions of most of the States contain a provision that all indictments shall conclude against their peace ^ , . "^ ^ Conclusion and dignity, respectively, and when so the conclusion must con- must be thus given in the indictment.^ In the United constitu- States Courts the conclusion is against the form of the ^'™ °^ ^*^*' ' State V. Gardner, 13 Lea, 134, overruling State v. Harrison, 10 Yerg. 542. In Bradford «. State, 54 Ala. 230, it was held that where an indictment was lost after plea, it could be supplied by a copy. S. P. State v. Simpson, 67 Mo. 647 ; State v. Rivers, 58 Iowa, 102, where a certified copy was received ; Buokner v. State, 56 Ind. 208 ; Miller V. State, 41 Ark. 489. In Gannaway V. state, 22 Ala. 777, this was denied in a case where the indictment was lost before arraignment. In Mount v. State, 14 Ohio, 295, it was held that a loss after conviction could be so sup- plied. In Bradshaw «. Com., 16 Grat. 507, where an indictment was lost after plea, it was held that it could not be supplied. And see Com. v. Keger, 1 Duval, 240, and State v. Harrison, 10 Yerg. 542, where it was held that a copy not made by judicial authority would not be sustained. As to statutory pro- visions by which such substitution can be eflfeeted, see State v. Stevisinger, 61 Iowa, 623 ; State v. Simpson, 67 Mo. 647; State v. Elliott, 14 Tex. 423; Magee v. State, 14 Tex. Ap. 367 ; Pierce v. State, Ibid. 365 ; Sohultz v. State, 15 Tex. Ap. 258. 2 Whart. on Ev. § 666. ' See R. V. Warshaner, 1 Mood. C. C. 466 ; 7 C. & P. 429 ; May o. State, supra. * See, for forms, Whart. Free. 3, 4, 5, etc.; and see Lemons v. State, 4 W. Va. 755 ; State v. Johnson, 35 La. An. 842 ; Rice v. State, 3 Heisk. 215 ; Hold- en ». State, 1 Tex. Ap. 225. Thomp- son V. State, 15 Tex. Ap. 39. But informations are not bound by the lim- itation. Nichols V. State, 35 Wis. 308. 191 § 280.] PLEADING AND PRACTICE. [CHAP. III. statute and the peace and dignity of the United States.^ In the several States the conclusion is sometimes prescribed by statute, sometimes by constitution .* As a rule, however, when a particular conclusion is peremptorily imposed by constitution or statute, the conclusion must be given as presented.' An interpolation, how- ever, of the words "people of" or other surplusage, does not viti- ate.* § 280. Where a statute creates an offence, or declares a common law offence, when committed under particular circum- statute ere- Stances, not necessarily in the original offence, punish- modiflee ^^^^ ^^ ^ different manner from what it would have been conciusioii wit'io'^'' such circumstances ; or where the statute changes should be the nature of the common law offence to one of a higher degree, as where what was originally a misde- meanor is made a felony, the indictment should conform to the statute creating or changing the nature of the offence, and should, at common law, conclude against the form of the statute." Under a statute revising and absorbing the common law, the conclusion 1 U. S. V. Bader, 4 Woods, 189. 9 ; State v. Durst, 7 Tex. Ap. 74 ; ' The following cases may be refer- Cox v. State, 8 Tex. Ap. 254 ; Haren red to in this connection : New v. State, 13 Tex. Ap. 333 ; Burrard v. Hampshire, State v. Eean, 10 N. H. State, 20 Ark. 106 ; Anderson v. State, 347. Pennsylvania, Com. v. Rogers, 5 20 Ark. 106. S. & R. 468. North Carolina, State v. ' State v. Cadle, 19 Ark. 613. Parker, 81 N. C. 531 ; State v. Joyner, ^ i Hale, 172, 189, 192; Dougl. 441 ; 81 N. C. 534. South Carolina, State 1 Salk. 370 ; 13 East, 258 ; 5 Mod. 307 ; V. Washington, 1 Bay, 120; State 2 Ld. Raym. 1104; 1 Saund. 135 a, n. V. Anthony, 10 S. C. 19 ; State v. 3, 4 ; 2 Hawk. c. 23, s. 99 ; c. 25, s. Yaney, 1 Con. R. 237 ; State v. Strick- 116 ; Bac. Ab. Indictment, H. 4 ; Burn, land, 10 S. C. 19. Illinois, Zareseller J., Indict, ix. ; Cro. C. C. 39 ; 1 Chitty V. People, 17 111. 101. Iowa, Hariman on Pleading, 358 ; 2 Hale, 189 ; Browne's V. State, 2 Greene, 270. Kentucky, case, 3 Greenl. 177 ; State v. Soule, 20 Com. V. Young, 7 B. Mon. 1 ; Allen v. Me. 19 ; Com. v. Springfield, 7 Mass. Com., 2 Bidd, 210. Mississippi, State 9 ; Com. v. Stock bridge, 11 Mass. 279 ; V. Johnson, 1 Walk. 392. Colorado, Com. v. Northampton, 2 Mass. 116 ; Paebard v. People, 8 Col. 361. Com. v. Cooley, 10 Pick. 37 ; Com. v. 3 Com. V. Carney, 4 Grat. 546 ; Searle, 6 Binn. 332 ; Chapman v. Com., Thompson v. Com., 20 Grat. 724 ; Lem- 5 Whart. 427 ; State v. Gray, 14 Rich, ons V. State, 4 W. Va. 755 ; State v. S. C. 174; State v. MoKettrick, 14 S. Allen, 8 W. Va. 680 ; State v. McCoy, C. 346 ; Beasley v. State, 18 Ala. 535. 29 La. An. 593; State v. Lopez, 19 As to relations of statutes to common Mo. 254 ; State v. Reaky, 1 Mo. Ap. law, see supi;a, § 232. 192 CHAP. III.] INDICTMENT : CONCLUSION. [§ 281. must be statutory.' When the constitution does not forbid, a statu- tory conclusion may be dispensed with by statute.* § 281. It is otherwise where the statute is only declaratory of what was a previous offence at common law, without otherwise adding to or altering the punishment.^ And where a ^^^"^^^^^ statute only inflicts a punishment on that which was an not modify offence before, judgment may be given for the punish- ment prescribed therein, though the indictment does not conclude contra formam statuti, etc.* This is clearly the case when the statute only mitigates the common law punishment.* 1 Com. V. Cooley, ut supra; Com. v. Dennis, 105 Mass. 162. 2 This is the case in England. Castro V. B-., L. R. 6 App. Ca. 229 ; 44 L. J. (N. S.) 351 ; L. R. 5 Q. B. D. 490 ; 14 Cox C. C. 546. ' 1 Deac. Crim. Law, 661 ; People v. Enoch, 13 Wendell, 175, per Walworth, Chanc. ; Warner v. Com., 1 Barr, 164; State V. Evans, 7 Gill & J. 290 ; State «. Jim, 3 Murph. 3. See Whart. Crim. law, 9th ed. §§ 25-6. * State V. Burt, 25 Vt. 373 ; Com. v. Searle, 2 Blnn. 332 ; Russell v. Com., 7 S. & R. 489; White v. Com., 6 Binn. 179 ; Chiles v. Com., 2 Va. Cas. 260 ; State V. Ratts, 63 N. C. 503 ; State v. Stedmau, 7 Port. 495 ; 2 Hale, 190 ; 1 Saund. 135 a, n. 3, 6 ; 2 Roll. Abr. 82. See People v. Cook, 2 Parker C. R. 12 ; State V. Jim, 3 Murph. 3. Infra, § 287. 5 State V. Lawrence, 81 -N. C. 521 ; State V. Thome, 81 N. C. 555. In Massachusetts, a conclusion " against the peace and the statute," is good ; Com. a. Caldwell, 14 Mass. 380 ; though in the same State it was held insufficient to charge the offence as committed against the law In such case made and provided. Com. v. Stockbridge, 11 Mass. 279. In Kentucky, by the Code, an in- dictment is sufficient if it Show intel- ligibly the offence Intended to be charged, and need not conclude 13 "against the form of the statute." Com. V. Kennedy, 15 B. Mon. (Ky.) 531. In Arkansas, the omission of the words ■ ' contrary to the form of the statute in such case made and pro- vided," does not vitiate the indict- ment under the Code (Dig. o. 52, § 98), though the offence be created by statute. State v. Cadle, 19 Ark. Rep. 613. In the United States courts, a con- clusion "contrary to the true intent and meaning of the act of Congress, in such case made and provided," has been held sufficient. IT. S. v. La Costa, 2 Mason, 129 ; D. S. v. Smith, 2 Mason, 143. But see U. S. v. Crittenden, 1 Hempst. 61. But an indictment charg- ing A. with having committed an of- fence, made such by a statute, "in contempt of the laws of the United States of America," is bad. U. S. v. Andrews, 2 Paine C. C. 451. The proper office of the conclusion, contra formam statuti, is to show the court the action Is founded on the stat- ute, and is not an action at common law. Crain v. State, 2 Yerg. 390. Onecount concluding " contra formam," etc., does not cure another without the proper conclusion. State v. Soule, 20 Me. 19. But such a conclusion of the final count has been held in Alabama to validate prior counts defective in 193 § 284.] PLBADIN& AND PRACTICE. [chap. III. Such con- clueion does not cure de- fects. Conclusion need not be in plural. The fact that the last averment of an indictment is of a former conviction, does not constitute any objection to giving the indict- ment the ordinary conclusion.' § 282. An indictment in which the statute is defec- tively set forth is not cured by a statutory conclusion.* § 283. Where the offence is governed or limited by two statutes, there have been various distinctions taken respecting the conclusion against the form of the statutes in the plural or the statute in the singular. The rule given by the older writers is, that where an offence is prohibited by several independent statutes, it was necessary to con- clude in the plural ; but now the better opinion seems to be, that a conclusion in the singular will suffice.' The common practice now is to conclude in the singular in all cases, though in Maryland,* and in Indiana,* it has been held that when an offence is prohibited by one act of assembly, and the punishment prescribed and affixed by another, the conclusion should be against the acts of assembly. Though there is but one statute prohibiting an offence, it is not fatal for the indictment to conclude contrary to the " statutes."* § 284. In a common law indictment, the words contra formam this respect. McGuire v. State, 1 Ala. Sel. Ca. 69 ; 37 Ala. 161. 1 People V. O'Brien, 64 Cal. 53. 2 2 Hawk. c. 25, s. 110. Supra, §229. s 1 Hale, 173 ; Sid. 348 ; Owen, 135 ; 2 Leach, 827 ; 1 Dyer, 347 a. ; 4 Co 48 ; 2 Hawk. o. 25, s. 117 ; R. v. Pirn, R. & R. 425 ; though see R. v. Adams, C. & M. 299 ; U. S. v. Trout, 4 Biss. 105 ; Batman's case, 8 Grreenl. 113 ; Kane v. People, 9 Wend. 203 ; Towuley V. State, 3 Harr. N. J. 311 ; State v. Jones, 4 Halst. 357 ; State v. Dayton, 3 Zabr. 49 ; Bennett v. State, 3 Ind. 167 ; State V. Robbins, 1 Strobh. 355 ; State V. Bell, 3 Ired. 506. * State V. Cassell, 2 Harr. & Gill, 407. See, also, State v. Pool, 2 Dev. 202. ' Francisco v. State, 1 Carter, 179 ; King V. State, 2 Ibid. 523. See Craw- ford V. State, 2 Ibid. 132. But where an indictment for murder concluded contra formam st«tuti, and by the statute of 1843 the punishment of that crime was death ; but by the Act of 1846 the punishment is either death or impris- onment in the State prison at hard labor during life, at the discretion of the jury, it was held that the conclu- sion of the indictment in the singular, to wit, contra formam statuti, was correct. Bennett v. State, 3 Ind. 167. 6 Townley u. State, 3 Harr. N. J. 311; Carter V. State, 2 Carter (Ind.), 617 ; but see contra, State v. Cassel, 2 Harr. & Q. 407 ; State v. Abernathy, 1 Busbee, 428. 194 CHAP. III.] INDICTMENT : JOINDER OF OFFENCES, [§ 285. statuti may be reiected as surplusage.* And where an statutory , , .,,,,., conclusion offence, both by statute and common law, is badly laid may be re- under the statute, the judgment may be given at common ^^'^ ^- surplusage. law.' XVII. JOINDER OF OFFENCES. § 285. A defendant, as has been already seen, cannot generally be charged with two distinct ofifences in a single count, counts for It is otherwise, however, when we approach the question °^e same°^ of the introduction of a series of distinct counts. Offences, character it is held, though differing from each other, and varying same mode in the punishments authorized to be inflicted for their ^ayTe perpetration, and though committed at different times, Joined, may be included in the same indictment, and the accused tried upon the several charges at the same time, provided that the offences be of the same general character, and provided the mode of trial is the same." In misdemeanor^, the joinder of several offences will 1 State V. Schloss, 63 Mo. 361 ; 2 Hale, 190 ; Alleyn, 43 ; 1 Salk. 212, 213; 5 T. E. 162; 2 Leach, 584; 2 Salk. 460 ; 1 Ld. Raym. 1163 ; 1 Saund. 135, n. 3 ; 2 Hawk. o. 25, s. 115 ; Bac. Ab. Indict. H. 2; Burn, J., Indict. Ix. State V. Burt, 25 Vt. 373 ; State v. Gove, 34 N. H. 510 ; State v. Buokman, 8 N. H. 203 ; Com. v. Hoxey, 16 Mass. 385 ; Knowles v. State, 3 Day, 103 ; South- worth V. State, 5 Conn. 325 ; Com. v. Gregory, 2 Dana, 417 ; Reap. v. Newell, 3 Yeates, 407 ; Penn u. Bell, Addison, 171 ;' White v. State, 15 S. C. 381 ; Haslip V. State, 4 Hayw. 273. 2 Com. V. Lanigan, 2 Boston Law Rep. 49 ; State v. Phelps, 11 Vt. 117. 3 R. V. Pussell, 3 Cox C. C. 291 ; U. S. V. O'Callahan, 6 McLean, 596 ; U. S. 0. Wentworth, 11 Fed. Rep. 52 ; Charlton v. Com., 5 Met. 532; Josslyn V. Com., 6 Met. 236 ; Com. v. Costello, 120 Mass. 358 ; Com. v. Brown, 121 Mass. 69 (in Massachusetts the law is not changed by the Stat, of 1861 ; Com. V. Costello, supra) ; People v. Dunn, 90N. Y. 104; People «. Rynders, 12 Wend. 425 ; Edge v. Com., 7 Barr, 275 ; Mills V. Com., 13 Penn. St. 631 ; Nich- olson V. Com., 96 Penn. St. 603 ; State V. Slagle, 82 N. C. 653; Hoskins v. State, 11 Ga. 92 ; Engleman v. State, 2 Carter (Ind.), 91 ; Johnson v. State, 29 Ala. 62 ; State v. Kibby, 7 Mo. 317 ; Klein v. State, 78 Mo. 627 ; State o. Diskin, 35 La. An. 46 ; State v, Sandoz, 37 La. An. 376 ; Baker v. State, 4 Pike, 56; State v. Chandler, 31 Kan. 201; Orr V. State, 18 Ark. 540; People v. Garcia, 58 Cal. 102. See, however, contra, when punishments differ in character, Norvell v. State, 60 Ala. 174. The tJ. S. Revised Stats. § 1024, pro- vides that charges which may be joined in one indictment may be con- solidated by order of the court. U. S. 0. Bennett, 17 Blatch. 357. This, however, does not justify joining in- congruous counts. U. Si V. Gaston, 28 Fed. Rep. 848. In California it is by statute provided that only one ofifence is to be included in an indictment. People V. De Coursey, 61 Cal. 134. 195 § 288.] PLEADING AND PRACTICE. [chap. III. not vitiate the prosecution in any stage.* Hence, it is the constant practice to permit counts for several libels or assaults to be joined in the same indictment.' And in a leading case,' under several counts for a conspiracy alleging several conspiracies of the same kind, on the same day, the prosecutor was allowed to give in evi- dence several conspiracies on dififerent days.^ In what cases elec- tion will be compelled will be considered in a future section.* § 286. It was once said that a person could not be prosecuted Assaults '^P"" °^^ indictment for assaulting two persons, each on two assault being a distinct offence.* But in a subsequent DGrsons can be Case,'' the court held this position not to be law, and joined. g^j^ . tt Cannot the king call a man to account for a breach of the peace, because he broke two heads instead of one ? It is a prosecution in the king's name for the offence charged, and not in the nature of an action, where a person injured is to recover separate damages."* So in con- § 287. So may be joined counts for a misdemeanor spiracy and ^j|;jj counts for a Conspiracy to commit a misdemeanor,' assault. _ . . and assault with assault with intent.'" law'andT § 288. An indictment may also contain a count at statute. common law and another under a statute." 1 Young V. R., 3 T. R. 105 ; R. v. Jones, 2 Camp. 132 ; R. u. Benfield, 2 Burr. 984; R. v. Kingston, 2 East. 468 ; U. S. V. Peterson, 1 W. & M. 305 ; U. S. V. Porter, 2 Cranch C. C. 60; People i^. Costello, 1 Denio, 83; Harman v. Com., 12 S. & R. 69 ; Com. V. Gillespie, 7 S. & R. 476 ; Weinzorp- flin V. State, 7 Blaokf. 186 ; State V. Gummer, 22 Wis. 441 ; State v. Schweiter, 27 Kan. 499 ; Quinn v. State, 49 Ala. 353; State v. Randle, 41 Tex. 292. Infra, § 293. See Whart. Grim. Law, 9tli ed. § 978. 2 Ibid. 3 R. V. Levy, 2 Stark. N. P. 408. See Res. v. Hevice, 2 Yeates, 114; Whart. Crim. Law, 9th ed. § 1387. * See, also, R. v. Broughton, 1 Trem. P. C. Ill, where the indictment charged no less than twenty distinct acts of extortion. The indictment 196 against Mayor Hall, tried in New York, October, 1872, contained four counts for each of fifty-five different acts, containing two hundred and twenty counts in all. 6 Infra, § 293. s R. V. Clendou, 2 Ld. Raym. 1572 ; 2 Str. 870. ' R. V. Benfield, 2 Burr. 984.. See supra, § 254, for other cases. 8 Supra, § 254. s Whart. Crim. Law, 9th ed. § 1387 ; R. V. Murphy, 8 C. & P. 297 ; Com. v. Gillespie, 7 S. & R. 476, 477 ; 6 P. L. J. 283 ; Thomas v. People, 113 111. 531. •" People V. Sweeny, 55 Mich. 586. Supra, § 247. 1' Com. V. Sylvester, ut supra; Com. V. Ismahl, 134 Mass. 201 ; State v. Williams, 2 MoCord, 301 ; Brightly R. 331 ; State u. Thompson, 2 Strobh. 12. Infra, § 291. CHAP. III.] INDICTMENT: JOINDER OP OFFENCES. [§ 290. And so of felony and misde- meaaor. § 289. Nor does it vary the case that one offence is a felony and the other a misdemeanor, one being part of the same transaction with the other.* Thus in an English case re- served, it was held by Lord Campbell, 0. J., Cresswell, J., Coleridge, J., Piatt, B., and Williams, J., that it is no ground for arresting a judgment upon conviction of felony that the indictment contained a count for a misdemeanor.* And indict- ments will be sustained which join larceny with conspiracy to defraud, both based on the same transaction ;' and a felony with a misde- meanor, forming distinct stages in the same offence.* It has been held, however, that murder cannot be joined with conspiracy to mur- der ;* nor rape with incest ;* though these rulings are open to doubt. § 290. Where two or more distinct felonies are contained in the same indictment, it may be quashed, or the prosecutor compelled to elect on which charge he will proceed,' but the indictment will not be quashed or set aside on de- murrer where several counts are introduced solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offence, or for cognate offences ;' though when the offences developed in the evidence are distinct, the prosecution, as will' presently be seen, will be compelled before ver- dict to elect that on which it relies.' And it is a common practice Cognate felonies may be joined. 1 Staeger V. Com., 103 Penn. St. 469. 2 R. V. Ferguson, 29 Eng. Law & Eq. 536 ; 6 Cox C. C. 454. Infra, § 769. » Henwood-w. Com., 52 Penn. St. 424. * Stevick V. Com., 78 Penn. St. 460 ; Hunter «. Com., 79 Penn. St. 503 ; Peo- ple w. Satterlee, 5 Hun, 167 ; infra, § 293. 6 U. S. V. Soott, 4 Biss. 29 ; sed quaere. So in Georgia, as to joinder of robbery and assault. Davis v. State, 57 Ga. 66. Infra, § 292. 5 State V. Thomas, 53 Iowa, 214, Beck and Day, JJ., dissenting. See supra, § 249 ff; infra, § 291. ' Lazier v. Com., 10 Grat. 708 ; State V. Reel, 80 N. C. 442; Wo- maok V. State, 7 Cold. (Tenu.) 508; McGahahin v. State, 17 Fla. 665; People V. Garcia, 58 Cal. 102. Infra, §§ 293, 807, 736, 771 et seq. That such joinder is not bad on demurrer see State v. Smalley, 50 Vt. 736. In- fra, §§ 400 et seq. 8 State V. Lockwood, 88 Vt. 378 j State V. Elsham, 70 Iowa, 531. 8 R. V. Trueman, 8 C. & P. 727 ; State V. Nelson, 29 Me. 329 ; Com. v. Hills, 10 Cush. 530; Com..i;. Sullivan, 104 Mass. 552; State v. Tuller, 34 Conn. 281; State v. Hazard, 2 R. I. 474; Kane v. People, 8 Wend. 203 ; Donnelly V. State, 2 Dutch. (N. J.) 463, 601 ; Wright V. State, 4 Humph. 194; Cash V. State, 10 Humph. Ill ; Weinzorpflin V. State, 7 Black. 186 ; Mershorn v. State, 51 Ind. 14-'; Short v. State, 63 Ind. 376; State t. Weil, 89 Ind. 286; Hubbard v. State, 72 Ala. 164 ; State v. Strickland, 10 S. C. 191 ; State v. Soott, 15 S. C. 434 ; State v. Jacob, 10 La. R. 197 § 291.J PLEADING AND PRACTICE. [chap. III. to join counts for distinct felonies, when constructed on different sec- tions of the same statute.' Thus, for instance, in indictments under the Massachusetts statute for arson or burglary, where the common law offence is divided into distinct grades, counts may be joined em- bracing each section.^ § 291. Felonies and misdemeanors, forming part of the develop- ment of the same transaction, may in like manner be Successive grades may joined.' Thus, where an assault is an ingredient of a ejoine . felony, as in the case of rape, and assault with intent to commit rape ; or larceny and conspiracy to steal ;* or where acces- sorship is joined to the principal offence ;'''or where the misdemeanor is of the nature of a corollary to the felony, as in forgery and utter- ing f as in larceny and the receiving of stolen goods ;' and as in burglary and receiving ;' a joinder is good. So, by Judge Wood- 141 ; Ketohingham ». State, 6 Wis. 426 ; People v. Thompson, 28 Cal. 214 ; People V. Valencia, 43 Cal. 552 ; Fisher V. State, 33 Tex. 792; Gonzales ». State, 12 Tex. Ap. 657. Infra, §§ 308 et seq. See Charlton u. Com., 5 Met. 532 ; Com. v. Cain, 102 Mass. 487, ci- ted infra, § 910. In People ». DeCour- cey, 61 Cal. 134, it was held that lar- ceny and emhezzlement could not be enjoined. 1 See Com. v. Pratt, 137 Mass. 98. 2 Com. V. Hope, 22 Pick. 1 ; Com. v. Sullivan, 104 Mass. 552. 3 Hunter v. Com., 79 Penn. St. 503 ; Stevick V. Com., 78 Penn. St. 466; Hutchison v. Com., 82 Penn. St. 472 ; see State u. Johnson, 5 Jones (N. C.) 221 ; Campbell v. People, 109 III. 565. * Whart. Crim. Law, 9th ed. § 1387 ; Hen wood v,. Com., 52 Penn. St. 424; State V. Hood, 51 Me. 363; State v. Watts, 82 N. C. 656 ; Cawley v. State, 87 Ala. 152. Supra, §§ 285, 286 ; in- fra, §§ 736 et seq. 6 Infra, § 293. " Foute V. State, 15 Lea, 712 ; Boles V. State, 13 Tex. Ap. 650, though see State V. Henry, 59 Iowa, 391. ' E. u. Huntley, 8 Cox C. C. 260 ; R. V. Ferguson, 6 Cox C. C. 454 ; K. v. 198 Craddock, 2 Den. C. C. 31 ; R. v. Flower, 3 C. & P. 413 ; R. o. Hilton, Bell, 201 ; 8 Cox, 87 ; U. S. v. Prior, 5 Cranch C. C. 37 ; State v. Stimpson, 45 Me. 608 ; Com. v. Adams, 7 Gray, 43 ; Com. V. O'Connell, 12 Allen, 451 ; State V. Hazard, 2 R. I. 474 ; Harman ». Com., 12 Serg. & R. 69 ; Buck v. State, 2 Harr. & J. 426 ; State v. Sutton, 4 Gill. 495 ; Dowdy ». Com., 9 Grat. 727 ; State B. Speight, 69 N. C. 72 ; State v. Baker, 70 N. C. 530 ; State v. Lawrence, 81 N. C. 522 ; State v. Gaffney, Rice, 431; State v. Boyes, 1 MoM. 191; State V. Montague, 2 McCord, 257; State V. Posey, 7 Richard. 484 ; Ste- phen V. State, 11 Ga. 225 ; Johnson v. State, 61 Ga. 212 ; State v. Coleman, 5 Port. 32 ; State v. Daubert, 42 Mo. 243 ; Bennett v. People, 96 111. 102; Keefer V. State, 14 Ind. 246 ; State v. Moul- trie, 33 La. An. 1146. As to elec- tion, see infra, § 293. When the offences are cognate, " it matters not that the offences 'alleged in the several counts are of different grades, and call for different punish- ments." Earl, J., Hawker v. People, 75 N. Y. 496. 8 Com. V. Darling, 129 Mass. 112 ; State V. Strickland, 10 S. C. 191. CHAP. III.] INDICTMENT '. JOINDER OF COUNTS. [§ 292. bury, it was ruled, that if there be two counts in one indictment for offences committed at the same time and place, and of the same class, but different in degree, as one for a revolt, and another for an attempt to excite it, the judgment will not be arrested, though a verdict of guilty be returned on both.^ It has also been held that seduction can be joined with fornication and bastardy.^ § 292. It was formerly held, that if the legal judgment on each count would be materially different, as in felony and mis- joj^^g^ ^f demeanor, then the joinder of several counts would be different ' •' » 1 o offences no bad on demurrer, in arrest of judgment, or on error,'' ground for though this objection could be cured at the trial by ^"°'^' taking a verdict on the counts only that can be joined.* At present, after a general verdict of guilty, it is considered no objection to an » U. S. V. Peterson, 1 W. & M. 305. In New York, when by statute an of- fence comprises different degrees, an indictment may contain counts for the different degrees of the same offence, or for any of such degrees. Rev. Stat, part ir. o. 11, tit. 3, art. 2, § 51. And so under U. S. Rev. Stat. U. S. v. Jacoby, 12 Blatch. 491. The joinder of embezzlement with larceny has equal sanction. Whart. Crim. Law, 9th ed. § 1047. Where an indictment charges in one count a breaking and entering of a building, with intent to steal, and in another count, a stealing in the same building on the same day, and the de- fendant is found guilty generally, the sentence, whether that which is proper for burglary only, or for burglary and larceny also, caniiot be reversed on error, because the record does not show whether one offence only, or two were proved on the trial ; and as this must be known by the judge who tried the case, the sentence will be presumed to have been according tb the law that was applicable to the facts proved. Crowley v. Com., ll'Met. 575 ; Kite v. Com., 11 Met. 581 ; Com. v. Birdsall, 69 Penn. St. 482. See People ». Gar- nett, 29 Cal. 622. Contra, Wilson v. State, 20 Ohio, 26. A count in an in- dictment, which charges the breaking and entering in the night-time of a shop adjoining to a dwelling-house, with intent to commit a larceny, may be joined with a count which charges the stealing of goods in the same shop, and the defendant, if found guilty gen- erally, may be sentenced for both of- fences. But if the breaking and en- tering, and the actual stealing, are charged in one count, only one offence is charged, and the defendant, on con- viction, can be sentenced to one pen- alty only. Josslyn u. Com., 6 Met. 236 ; Davis v. State, 57 Ga. 66 ; see State V. Nelson, 14 Rich. (S. C.) L. 169. 2 Nicholson v. Com., 91 Penn. St. 390. 3 Young V. R., 3 T. E. 103 ; Hancock V. Haywood, Ibid. 435 ; but see 1 East P. C. 408 ; 1 Chitty's C. L. 254, 255 ; State V. Merrill, 44 N. H. 624 ; State v. Freels, 3 Humph. 228 ; Hildebrand v. State, 5 Mo. 548 ; Compare Buck v. State, 1 Ohio St. R. 61. Infra, §§ 737, 771, 910. * R. ». Jones, 8 C. & P. 776. 199 § 293.] PLEADING AND PRACTICE. [chap. III. indictment, on motion in arrest, that offences of diff'erent grades and, requiring diff'erent punishments are charged in the different counts.* If any one of the counts is sufficient, the court, it has been argued, will render judgment upon such count ; and if all the counts are sufficient, judgment will be rendered on the count charging the high- est offence.^ There is also high authority, to be hereafter noticed, to the effect that when there is a verdict of guilty on each of a series of counts, there may be a specific sentence imposed on each,^ though it is otherwise in respect to counts which are defective.* So far as concerns the jury, on the trial of an indictment charg- ing distinct offences in separate counts, the better course is to pass upon each count separately, applying to it the evidence bearing on the question of the defendant's guilt of the offence therein charged." At the same time, where two counts are for successive stages of the same crime, the practice is to take a general verdict, which carries the greater offence ; or where good and bad counts are joined, a verdict on the good counts.* § 293. As a general rule, when two offences charged form parts of one transaction, the one an ingredient or corollary of the other. > R. V. Ferguson, 6 Cox C. C. 454; U. S. V. Stetson, 3 W. & M. 164; State V. Hood, 51 Me. 363 ; Carlton v. Com., 5 Met. 532 ; Kane v. People, 8 Wend. 203; Com. v. Birdsall, 69 Penn. St. 482 ; Stone v. State, 1 Spencer, 404 ; Moody V. State, 1 W. Va. 337 ; State v. Speight, 69 N. C. 72 ; State v. Reel, 80 N. C. 442 ; Covey v. State, 4 Port. 186 ; State V. Mallon, 75 Mo. 355. Infra, §§ 737-40, 771, 910. 2 Infra, §§ 771, 910 ; State v. Hood, 51 Me. 363 ; State v. Hooker, 17 Vt. 658 ; State v. Merwin, 34 Conn. 113 ; State V. Tuller, 34 Conn. 281 ; Cook «. State, 4 Zab. 843 ; Com. v. McKisson, 8 S. & R. 420; Hutchison v. Com., 82 Penn. St. 472 ; Manly v. State, 7 Md. 149 ; State v. Nelson, 14 Rich. (S. C.) 169 ; Dean v. State, 43 Ga. 218 ; Cow- ley V. State, 37 Ala. 152 ; State v. MoCue, 39 Mo. 112; State v. Core, 70 Mo. 491 ■; Cribbs v. State, 9 Fla. 409 ; 200 People V. Shotwell, 27 Cal. 394. So in England. R. v. Ferguson, 6 Cox C. C. 454. See, for general verdict in lar- ceny and receiving. State ». Baker, 70 N. C. 630. As to how far bad count vitiates verdict, see infra, § 771. 3 Infra, §§ 90S-910. * Infra, § 771 ; Adams v. State, 52 Ga. 565. 6 Com. V. Carey, 103 Mass. 214 ; but see State v. Tuller, 34 Conn. 281. See infra, §§ 737-740, 908, 910. " Infra, §§ 737, 740, 911 ; and cases cited supra. Where a count for a misdemeanor in Pennsylvania is joined to a, count for felony, the jury cannot, in acquitting the prisoner, impose costs upon him ; and though such a verdict be rendered and judgment ordered, the county is liable for the costs. Wayne v. Com., 26 Penn. St. 154. CHAP. III.] INDICTMENT : JOINDER OF COUNTS. [§ 293. the prosecutor will not be ordinarily called upon to elect upon which charge he will proceed.' Between larceny and stolen goods, therefore, an election will not be compelled will not be when the evidence is such that it is doubtful of which ^^"^f^f offence the defendant was guilty.* And the prosecutor fences are will not be compelled to elect where a count, ch£(,5ging a person with being accessary before the fact, is joined with one charging him with being accessary after f nor where the defendant is indicted as a principal in the first degree in one count, and as principal in the second degree or accessary in another count,* nor when several defendants in homicide are charged with assaulting with different weapons." On the same principle, where there are counts in an indictment for forging a bill, acceptance, and indorse- ment, the prosecutor is not driven to elect on which he will proceed.* ' R. V. Jones, 2 Camp. 132 ; R. v. Austin, 7 C. & P. 796 ; R. v. Kartell, Ibid. 475 ; R. v. Wheeler, Ibid. 170 ; R. V. Puliiam, 9 C. & P. 281 ; U. S. v. Neversou, 1 Mackey, 152; State u. Flye, 26 Me. 312 ; Com. v. Ismahl, 134 Mass. 201 ; People v. Costello, 1 Denio, 83 ; People v. Satterlee, 5 Hun, 167 ; People V. Reavy, 45 Hun, 418 ; Arm- strong V. People, 70 N. Y. 38; Com. V. Manson, 2. Ashm. 31;. People v. Sweney, 55 Mich. 586; State «. Man- luff, 1 Houst. C. C. 268; State v. Bell, 27 Md. 675 ; Dowdy v. Com., 9 Grat. 727 ; State v. McNeill, 93 N. C. 552 ; State V. Nelson, 14 Rich. L. 169; Mayo V. State, 30 Ala. 32; State v. Hogan, R. M. Charlton, 474 ; State V. Jackson, 17 Mo. 554 ; State v. Mal- lon, 75 Mo. 355 ; Sarah v. State, 28 Miss. 267 ; Ker v. People, 110 111. 627 ; Miller v. State, 51 Ind. 405 ; Wall v. State, 51 Ind. 453 ; State v. Fisher, 37 Kan. 404; Candy v. State, 8 Neb. 482; State V. Crimmins, 31 Kan. 376 ; State V. Skinner, 34 Kan. 256 ; State :;. Jacob, 10 La. An. R. 141. Mastersou v. State, 20 Tex. Ap. 574. Between different items of a continu- ous taking election will not be com- pelled. R. V. Ward, 10 Cox C. C. 42. The offences must be individuated to sustain a demand for an election. Poacher v. State, 61 Ala. 22. * State V. Hogan, Charlton, 474 ; Andrews v. People, 117 111. 195 ; Engle- man v. State, 2 Carter (Ind.), 91; Keefer v. State, 4 Ind. 246 ; Glover v. State, 109 Ind. 391 ; Dowdy v. Com., 9 Grat. 727 ; State v. Morrison, 85 N. C. 561 ; State v. Daubert, 42 Mo. 242 ; State V. Bell, 27 Md. 675; State v. Laque, 37 La. An. 853 ; and cases cited supra, § 291. s R. 0. Blackson, 8 C. & P. 43 ; Tompkins v. State, 17 Ga. 356, But in R. V, Brannon, Law Times, Feb. 28, 1880, p. 319. Cockburn, C. J., required the prosecution to elect between two counts, one charging the defendant as principal the other as accessary after the fact. * R. V. Gray, 7 C. & P. 164 ; State v. Testerman, 68 Mo. 408 ; Williams v. State, 69 Ga. 11 ; Simms v. State, 10 Tex. Ap. 131. 6 Williams v. State, 54 Ga. 401 ; Gonzales v. State, 5 Tex. Ap. 584. ^ R. V. Young, Peake's Add. Cas. 228. 201 § 294.] PLBADIN(J AND PRACTICE. [CHAP. IH. Of course no election will be compelled when the counts vary only in form.* But where two assaults at diflferent times are proved an election will be compelled ;* and where two defendants were indicted for a conspiracy and for a libel, and at the close of the case for the prosecution, there was evidence against both as to the conspiracy, but no evidence against one of them as to the libel, an election was required.^ The defendant is entitled to an acquittal on the aban- doned counts if there be no nolle prosequi as to them.* § 294. Abandoning the artificial and now in most jurisdictions Obiect obsolete distinction between felonies and misdemeanors, of election ^re may hold, therefore, summing up what has been al- isto reduce j • j .u <■ ,, • i ■ to a single ready said, the loUowmg conclusions : — issue. Q-^y Cognate offences may be joined in separate counts in the same indictment. (2.) If this is done in such a way as to oppress the defendant,' the remedy is a motion to quash. (3.) It is permissible, ii;i most States, to join several distinct ofiFences, to each of which fine or imprisonment is attachable ; and upon a conviction on each count, to impose a sentence on each." (4.) Yet as to oflfences of high grade in all States, and in some States as to all offences, the court will not permit more than a sin- gle issue to go to the jury, and hence will require an election on the close of the prosecution's case," except in those cases in which of- fences are so blended that it is eminently for the jury to determine which count it is that the evidence fits.' 1 Stewart v. State, 58 Ga. 577. Nelson, 29 Me. 339 ; State v. Smith, 2 State V. Hutohings, 24 S. C. 142 ; 22 Vt. 74 ; State v. Croteau, 23 Vt. 14; Williams v. State, 77 Ala. 53 ; see State v. Hazard, 2 R. I. 474 ; Eaue v. Busby V. State, Ibid. 661. People, 8 Wend. 203 ; People v. Austin, 3 R. t). Murphy, 8 C. & P. 297. 1 Parker C. R. 154 ; Lanergan v. Peo- * Ibid. State v. McNeill, 93 N. C. pie, 39 N. Y. 39 ; State v. Early, 3 552 ; State v. Sorrell, 98 N. C. 738. Earring. 561 ; Bainbridge v. State, 30 5 See infra, § 910. Ohio St. 264 ; State v. Haney, 2 Dev. & 6 State V. Brown, 58 Iowa, 298. Bat. 390 ; State «. Sims, 3 Strobh. 137 ; ' Supra, §§ 288, 290 ; Whart. Crim. Tompkins v. State, 17 Ga. 356 ; Gilbert Law, 9th ed. 5§ 540, 1047 ; R. v. Van- v. State, 65 Ga. 449 ; Elam v. State, 26 dercomb, 2 Leach, 816 ; R. v. Smith, Ala. 48 ; Cochrane i/. State, 30 Ala. B. & R. 295 ; ?. v. Hart, 7 C. & P. 542 ; People v. Jenness, 5 Mich. 305 ; 652 ; R. V. Trueman, 8 C. & P. 727 ; Long v. State, 56 Ind. 182 ; Kidder v. E. V. Hinley, 2 M. & R. 524 ; U. S. v. State, 58 Ind. 68 ; Snyder u. State, 59 Dickenson, 2 McLean, 325 ; State v. Ind. 105 ; Goodhue ». People, 94 111. 202 CHAP. III.] INDICTMENT : JOINDER OF COUNTS. [§ 296. The object of the rule, it may be added, is, first, to enable the defendant to prepare properly for his defence ; and, secondly, to protect him, by an individualization of the issue, in case a second prosecution is brought against him. On the other hand, we must remember that there are a series of minor offences in which a join- der is a benefit to the defendant, «ven though he should be con- victed on each count, as he is thus saved from an accumulation of costs that might have a crushing effect. There are numerous lines of cases in which, where separate indictments are introduced to cover a series of simultaneous or closely consecutive offences (e. g., as in the cases of the famous tea suits before Judge Washington, in which a separate libel was brought for each of a thousand chests of tea alleged to have been smuggled), the court will require, in order to save the defendant from unnecessary vexation, if not ruin, that the cases be consolidated.* § 295. Whether a court will compel a prosecuting officer to elect which count to proceed on rests in the discretion of the court, and cannot ordinarily be assigned for error.' But discretion when two distinct felonies are put in evidence, under sep- °^'^°"'''- arate counts, against protest, this rule, in its rigor, cannot be ap- plied.* When, however, several guilty acts (as in case of adultery) are put in evidence to make out a case, it is not error that election is not compelled, when it is not specially asked for.* § 296. It has been said in Iowa that when the repugnancy is of record, the time for an application to elect is before plea ; and the court has refused to permit a plea to be ^i«<^'j°" withdrawn in order to let in a motion to require an elec- *™e before ,. , T, , .1 ., verdict, tion." ±!ut, as the repugnancy may not appear until the 37 ; state v. Testerman, 68 Mo. 408 ; People, 23 N. Y. 293 ; State v. Bell, 27 State V. Jourdan, 32 Ark. 203 ; State w. Md. 675 ; State v. Smith, 24 Va. 814 ; Lancaster, 3fi Ark. 55. Bailey o. State, 4 Ohio (N. S.), 440 ; 1 That indictments may be eonsoli- Snyder v. State, 59 Ind. 105 ; Beaty v. dated in the federal courts under stat- State, 82 Ind. 228 ; Beasley v. People, ute has been already seen. Supra, 89 111. 571 ; Johnson v. State, 29 Ala. § 285. See, also, State v. McNeill, 93 62 ; George v. State, 39 Miss. 570 ; N. C. 552. , State v. Leonard, 22 Mo. 449 ; State v. 2 Infra, § 778 ; State v. Hood, 51 Green, 6B Mo. 632. Me. 363; Com. v. Sullivan, 104 Mass. » Womack v. State, 7 Cold. 508. 552 ; Com. v. Pratt, 137 Mass. 98 ; State * State v. Witham, 72 Me. 531. See V. TuUer, 34 Conn. 281 ; People v. Ba- Whart. Cr. Ev. § 194. ker, 3 Hill (N. Y.), 159 ; Nelson v. = State v. Abrahams, 6 Iowa, 117. 203 § 297.] PLEADING AND PRACTICE. [chap. III. evidence is developed, it is not in such case just to compel an elec- tion until the prosecutor knows what to elect. Hence, when necessary to justice, the motion has been held in time if made be- fore verdict.^ To elect a count is virtually to withdraw the others from the consideration of the jury ;^ though ordinarily the motion should be made before the defendant opens his case.* After verdict, the course is not to elect a particular count, but to enter a nolle prosequi as to those on which judgment is not asked.* But at any time before verdict it is within the power of the prosecution to make the election, though this should ordinarily be done before summing up.' §297. Counts should be varied to euit case. Every cautious pleader will insert as many counts as will be necessary to provide for every possible contingency in the evidence ; and this the law permits.* Thus, he may vary the ownership of articles stolen, in larceny ;^ of houses burned, in arson ;' or the fatal instrument and Hence a verdict of guilty on four other incidents, in homicide.' 1 Womack v. State, 7 Cold. 508 ; State V. Sims, 3 Strobh. 137 ; Elam v. State, 26 Ala. 48 ; Johnson v. State, 29 Ala. 62 ; Wash. v. State, 14 Sm. & M. 120. 2 Mills V. State, 52 Ind. 187. » State V. Smith, 24 W. Va. 814. * Infra, §§ 707, 740, 742, 908-10 ; State V. Reel, 80 N. C. 442. 5 Woodford v. People, 62 N. Y. 117 ; and see infra, § 874. 6 Beasley v. People, 89 111. 571 ; State V. Smith, 24 W. Va. 814 ; State v. Shepard, 33 La. An. 1216 ; see People 0. Garcia, 58 Cal. 102. That to counts of this class, Mass. stat. 1861 does not apply, see Com. v, Andrews, 132 Mass. 263 ; Howard v. State, 34 Ark. 433. ' State V. Nelson, 29 Me. 329 ; Com. ti. Dobbin, 2 Parsons, 380 ; Cooper v. State, 79 Ind. 206. As to verdict, see infra, § 740. 8 E. e. Trueman, 8 C. & P. 727 ; New- man V. State, 14 Wis. 393. 9 See Whart. Crim. Law, 9th ed. § 540 ; Hunter v. State, 40 N. J. L. 204 495. As to averment of weapon, see supra, § 212 a. The reason for this is thus excellently stated by Chief Justice Shaw : — "To a person unskilled and un- practised in legal proceedings, it may seem strange that several modes of death, inconsistent with each other, should be stated in the same docu- ment ; but it is often necessary, and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation made by the grand jury, with as much certainty and pre- cision as the evidence before them will warrant. They may be well satisfied that the homicide was committed, and yet the evidence before them leave it somewhat doubtful as to the mode of death ; but, in order to meet the evi- dence as it may finally appear, they are very properly allowed to set out the mode in difi'erent counts ; and then if any one of them is proved, supposing it to be also legally formal, it is suffi- cient to support the indictment. Take CHAP. III.] indictmbnt: joindee of counts. [§ 297. counts, charging the murder to have been committed with a knife, a dagger, a dirk, and a dirk-knife, is not double or repugnant, since the same kind of death is charged in all the counts.' the instance of a murder at sea : a man is struck down, lies some time on the deck insensible, and in that condition is thrown overheard. The evidence proves the certainty of a homicide, by the blow or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a death by a blow, and a death by drowning, and perhaps a third, alleg- ing a death by the joint result of both causes combined." Bemis's Webster case, 471 ; S. C. 5 Cush. 533. See U.S. V. Pirates, 5 Wheat. 184; also Pettes «. Com., 126 Mass. 245 ; State V. Johnson, 10 La. An. K. 456. How generally the same practice ex- ists in England may appear from the very pertinent inquiry of Alderson, B., in a recent case : ' ' Why may there not be as many counts for receiving as there are for stealing — one for each ? It is really only one offence, laying the property in different persons. It is one stealing, and one receiving ; and be- cause there was some doubt as to the person to whom the property really be- longed, the property is laid five differ- ent ways. If a late. learned judge had drawn the indictment, you would very likely had it laid in fifty more." R. t>. Beeton, 2 Car. & KiM 961, Alderson, B. To same effect, . see Beasley «. People, 89 111. 571 ; People v. Thomp- son, 28 Cal. 214. See, as to verdict to be taken in such cases, infra, § 740. " In R. V. Sillem (2 H. & C. 431), as information (which might have been an indictment) charged certain persons in substance with having equipped for the Confederate States, then at war with the United States, a ship called the Alexandra. The information was framed upon 59 Geo. 3, c. 69, and con- tained ninety-five counts. The first count charged an equipping with in- tent that the ship should he employed by certain foreign States, styling them- selves the Confederate States, with in- tent to cruise against the Republic of the United States. The second count, instead of the Republic of the United States, mentioned the citizens of the Republic of the United States. The third count omitted all mention of the Confederate States, and called the United States the Republic of, etc. The fourth count was like the third, with the exception of returning to the expression 'citizens,' etc. After giving various names to the United States and Confederate States in the first eight counts, eight other counts were added substituting ' furnish' for ' equip.' Eight more substituted ' fit out' for 'furnish.' In short, the indictment contained a number of counts obtained by combining every operative verb of the section on which it was founded with all the other operative words." Report of English commissioners of 1879. Lord Campbell in R. t. Rowlands, 2 Den. C. C. 38, and Lord Denman in R. V. O'Connell, 11 CI. & F. 374, censure the undue multiplication of counts ; though under common law pleading, this, in complicated cases, cannot be avoided. To split the charge in dis- tinct indictments would unduly accu- mulate costs, and would expose the prosecution to an application to con- solidate. » Donnelly v. State, 2 Dutch. (N. J.) 463 ; affirmed in error, 2 Dutch. (N. J.) 601. Supra, §§ 290 et seq. ; infra, §§ 736 et seq. To same effect, see Mer- rick V. State, 63 Ind. 637 ; Jones v. 205 § 298.] PLEADING AND PRACTICE. [CHAP. III. § 298. As both in civil and criminal pleading two counts charg. ing the same thing would be bad on special demurrer for pMciseiy"'^ duplicity — though the fault in civil pleading is cured by d'?*ti pleading over — it has been usual, by inserting the word " other" in a second count, to obviate this difficulty, through the fiction that the cause of action thus stated is new and distinct. The rule is clear, that when two counts setting out the same offences occur, judgment will be arrested. " Neither, as we think," says Lord Denman, in a case in 1846, " can one offence, whether felonious or not, be properly charged twice over, when with one indictment or two ; and as special demurrers are not necessary in criminal cases, we think that if the two counts in an indictment necessarily appear to be for the same charge, the objection might be taken in arrest of judgment. But still the court would, if pos- sible, hold them not to be for the same offence ; and certainly the omission of the word ' other' would not of itself make the same ; though the insertion of the word ' other' would make them dif- ferent."' In New Hampshire, however, it is said that where the same offence is described with formal variations in different counts, it is not necessary to allege the offence described in each of the several counts to be other and different from that described in the others.* Even according to the strictest practice, the omission in an indict- ment, containing two counts, of an averment that they are for different offences, is cured by a verdict of not guilty on one of the counts, or the entry of a nolle prosequi on that count." The relative " said," used in one of the subsequent counts of an indictment referring to matter in a previous count, is always to be taken to refer to the count immediately preceding where the sense of the whole indictment does not forbid such a reference.* State, 65 Ga. 621. As to duplicity in son with the uttering of the instru- such averments, see supra, § 253. That ment, and then proceeded to charge the defendant cannot use one count as the defendant with being an accessary evidence to disprove another count, before the fact to such uttering, it was see Edmonds v. State, 34 Ark. V20. ruled in Massachusetts that but two 1 Campbell v. R., 11 Ad. & EI., N. S. counts were charged. Pettes o. Com., 800. 126 Mass. 242. 2 State V. Rust, 35 N. H. 438. ' Com. v. Holmes, 103 Mass. 440 Where an indictment in the first (Ames, J., 1869). count charged the defendant with the * Sampson v. Com., 5 W. & S. 385 ; forging of a certain instrument, and in Boles v. State, 13 Tex. Ap. 650. the second count charged another per- 206 CHAP. III.] INDICTMENT : JOINDER OP DEPENDANTS. [§ 301. § 299. Where the first count of an indictment is bad, or is aban- doned by the prosecution, a subsequent count may be onebad sustained, even though it refers to the first count for some count can- allegations, and without repeating them.* Generally, aided by however, one bad count cannot help another bad count, *°°* ^^' which is defective in a distinct way.* Even in good counts, it is unsafe to attempt to supply a material averment by mere reference to a preceding count. Time and place may be thus implied, but not, it seems, descriptive averments which enter into the vitals of the ofience.* § 300. There may be cases, it seems, in which counts may be transposed after verdict, so as to invest the second with p^^^jg the incidents of the first, or vice versa. Thus, in an may be English case, A. and B. were indicted for the murder of after C, by shooting him with a gun. In the first count A. ^" '"^ ' was charged as principal in first degree, B. as present, aiding and abetting him ; in the second count B. as principal in first degree, A. as aiding and abetting. The jury convicted both, but said they were not satisfied as to which fired the gun. It was held that the jury were not bound to find the prisoners guilty of one or other of the counts only (Maul. J., dissentiente) ; and that notwithstanding the word " afterward" in the second count, both the counts related substantially to the same person killed, and to one killing, and might have been transposed without any alteration of time or meaning.* The effect of a bad count after verdict will be considered here- after.* XVIII. JOINDER OF DEFENDANTS. 1. Who may be joined. § 301. When more than one join in the commission of an offence, all, or any number of them, may be jointly indicted for it, or each » Com. V. Miller, 2 Parsons, 480. See v. Lyon, 17 Wis. 231 ; Keeoli v. State, State V. Lea, 1 Cold. (Tenn.) 175. 15 Fla. 591 ; but see supra, §§ 292 et ' State V. Longley, 10 Ind. 482. seq., as to practice In counts for receiv- 3 See K. V. Dent. 1 C. & K. 249 ; 2 ing stolen goods. Cox C. C. 354 ; E. u. Martin, 9 C. & P. * R. v. Downing, 1 Den. C. C. 52. 213; State v. Nelson, 29 Me. 329; « jnfra, §§ 736, 771. Sampson v. Com., 5 W. & S. 385 ; State 207 302.] PLEADING AND PRACTICE. [chap. hi. of them may be indicted separately.' Thus, if several* commit a Joint robbery, burglary, or murder, they may be indicted for offeoders it jointly* or separately ; and the same where two or C£LI1 D6 , _ •! p " J jointly more commit a battery, or are guilty ot extortion ;* or m icte . ^j.g concerned in a common violation of the Lord's day ;' or are engaged in the same boat in unlawfully fishing.' And parties to the crime of adultery may be indicted jointly ;'' though where two are jointly indicted for fornication or adultery, and are tried together, and one party is found guilty and the other not guilty, no judgment can be rendered against the former.' Where property has been obtained under false pretences, and the false pretences were conveyed by words spoken by one defendant in the presence of others, all of whom acted in concert together, all par- ties may be indicted jointly.' And where two persons are jointly indicted and one only is tried, a separate count charging the latter alone with the crime is unnecessary.'" § 302. But where the offences are necessarily several there can be no joinder." It is true that where a libellous song when of- ^^^ ^^"^^ ^7 ^^^ men, it was held that they might be in- fences are dieted iointlv :" and the same view has been taken where 66y6ra.l. two or more persons join in any other kind of publication 1 U. S. V. 0' Callahan, 6 McLean, 596 ; State v. Gay, 10 Mo. 440. As to joint punishment see infra, § 940. As to new trial from misjoinder see infra, §§ 873 et seg. As to when co-defend- ants can be witnesses for each other see Whart. Crim. Ev. § 445. As to Michigan practice see Stuart v. People, 42 Mich. 455. 2 Supra, § 293 ; R. v. Giddings, C. & M. 634 ; Com. v. O'Brien, 107 Mass. 208; Com. v. McLaughlin, 12 Cush. 615; Fowler v. State, 3 Heisk, 154, where the indictment was against two for assault and battery upon three. 3 2 Hale, 173 ; State v. Blan, 69 Mo. 317; Rucker v. State, 7 Tex. Ap. 549. * R. V. Atkinson, 1 Salk. 382 ; R. v. Trafford, 1 B. & Ad. 874; Kane v. People, 8 Wend. 203. » Com. V. Sampson, 97 Mass. 407. 208 6 Com. V. Weatherhead,, 110 Mass. 175. ' Com. V. Elwell, 2 Met. 190 ; State V. Mainor, 6 Ired. 340. But see Whart. Crim. Law, 9th ed. § 1339. 8 State V. Mainor, 6 Ired. 340. 9 R. V. Young, 3 T. R. 98. Infra, § 1209. i» State V. Bradley, 9 Richards. (S. C.) 168. See Weatherford v. Com., 10 Bush, 196. " Infra, § 315 ; Elliott v. State, 26 Ala. 78 ; though see Young v. R., 3 T. R. 106 ; R. a. Kingston, 1 East, 468. In State v. Deaton, 92 N. C. 788, it was held that two could not be jointly in- dicted for drunkenness. But suppose two should agree to get drunk to- gether ? n R. V. BenfielS, 2 Burr. 985. See Whart. Crim. Law, 9th ed. § 1603. CHAP. III.] INDICTMENT : JOINDER- 01 DEFENDANTS. [§303. of a libel ; yet if the utterance of each party be distinct, as if two booksellers, not being partners, sell the libel at their respective shops, they must be indicted separately. Two or more cannot be jointly indicted for perjury ,i or for seditious, obscene, or blasphem- ous words, or the like, because such offences are in their nature dis- tinct.* And if A. and B. are jointly indicted and tried for gaming, and the evidence shows that A. and others played at one time when B. was not present, and B. and others played at another time when A. was not present, no conviction can be had against them.^ If, also, the offence charged does not wholly arise from the joint act of all the defendants, but from some personal and particular act or omission of each defendant (e. g., as with larceny and receiving, or receiving at distinct times),* the indictment must charge them sev- erally and not jointly.* And it has been held that when A. strikes B. on one day, and C. strikes B. on another, A. and C. cannot be included jointly in one count.' § 308. Persons holding different oflSces with separate ^^*|^*° duties cannot be jointly indicted for a misdemeanor in with sep- oflSce. Thus, an indictment charging such an offence ties. ■ R. V. Phillips, 2 Str. 921 ; Whart. Cr. L. 9th ed. § 1253. 2 State V. Roulstone, 3 Sneed (Tenn.), 107 ; Cox V. State, 76 Ala. 66. » Elliott V. State, 26 Ala. 78 ; Lind- say «. State, 48 Ala. 169 ; Galbreath v. State, 36 Tex. 200 ; State v. Homan, 41 Tex. 155. See contra, Com. v. Mo- Chord, 2 Dana, 242. That for a joint game they can be jointly indicted see Com. V. McGfuire, 1 Va. Ca. 119 ; Coog a. State, 4 Port. 180 ; State v. Homan, ut sup. * R. V. Dovy, 2 Den. C. C. 92 ; 4 Cox C. C. 478 ; U. S. v. Kazinski, 2 Spragne, 7 ; Home v. State, 37 Ga. 80 ; Stephens v. State, 14 Ohio, 386. Infra, §315. 5 R. V. Messingham, 1 M. C. C. 257 ; Com. V. Miller, 2 Parsons, 480 ; People V. Hawkins, 34 Cal. 181. See R. v. Parr, 2 M. & Rob. 346; Vaughn v. State, 4 Mo. 530 ; Baker v. People, 105 14 111. 452. See Com. v. Jones, 136 Mass. 173. " R. V. Devett, 8 C. & P. 639. Infra, §315. Several Receivers. — Although as a rule several receivers cannot be jointly charged in the same count with sepa- rate and distinct acts of receiving (R. V. Pulham, 9 C. & P. 281), yet it is too late, after verdict, to object that they should have been indicted sepa- rately. R. V. Hayes, 2 M. & Rob. 156. Concert justifies Joinder. — Although the acts are several, yet there can be no exception to a joinder if concert be inferred. And this is good, though the only evidence for the prosecution is of separate acts, at separate times and places, done by several persons charged as accessaries, upon which a conviction is had. R. v..Barber, 1 Car. & Kir. 442. 209 § 305.J PLEADING AND PRACTICE. [chap. III. against the inspectors, clerks, and judge of an election, was held bad on demurrer.* § 304. Principals in the first and second degree, and accessa- ries, before and after the fact, may all be joined in the and aM:es- ^^™® indictment, and they may be convicted of differ- BarieB can ent degrees ;^ or the principals may be indicted first, and the accessaries after the conviction of the principals.' And their relation may be transposed in alternate counts^ § 305. In conspiracy, where one cannot be indicted for an offence In con ■ committed by himself alone, the acquittal of all charged racy at in the same indictment with him, as co-defendants, must least two - T 1 . I 1 1 • (. •! must be 01 course extend to him,* nor when the jury tail to agree •"""^ ■ as to one of two co-conspirators, can there be a convic- tion of the other ?* In an indictment for conspiracy, less than two cannot possibly be joined ;^ a wife and husband together not being sufficient. A charge of conspiracy cannot be sustained against two defendants one of whom was at the time of the offence insane.^ One defendant may be tried alone, when his co-conspirators are alleged to be unknown,' or when such conspirators are dead, or absent, or previously convicted.'" 1 Com. V. Miller, 2 Parsons, 481. Otherwise when officers concur in ex- tortion. R. V. Tisdale, 20 Up. Can. Q. B. 272. 2 2 Hale, 173 ; R. «. Moland, 2 Mood. C. C. 270 ; R. «. Greenwood, 2 Den. C. C. 453 ; Com. v. Drew, 3 Cush. 384 ; Com. V. Felton, 101 Mass. 14; Klein v. People, 31 N. Y. 229 ; Mask v. State, 32 Mass. 405 ; State v. Putnam, 18 S. C. 175 ; State v. Hamlin, 47 Conn. 95. Infra, § 753. That such is the case with principals and accessaries see Whart. Crim. Law, 9th ed. §§ 230, 231. 3 People 0. Valencia, 45 Cal. 304. See Whart. Crim. Law, 9th ed. §§ 205 et seg. * Supra, § 300. Hawley v. Com., 75 Va. 847. 6 R. V. Kinnersley, 1 Stra. 193; R. V. Sudbury, 12 Mod. 262 ; 2 Salk. 593 ; 1 Lord Raym. 484 ; People v. Howell, 210 4 John. 296 ; Turpin v. State, 4 Blackf. 72 ; State v. Mainor, 6 Ired. 340 ; State V. Allison, 3 Yerg. 428. See Whart Crim. Law, 9th ed. §§ 1388 et seq., as to conspiracy ; and § 1545, as to riot. As to verdict see infra, § 755. " R. V. Manning, L. R. 12 ; Q. B. D. 241 ; 51 L. T. N. S. 121. ' R. V. Gompertz, 9 Q. B. 824 ; U. S. V. Cole, 5 McLean, 513 ; Com. v. Manson, 2 Ashm. R. 31 ; State v. Sam, 2 Dev. 569 ; State v. Covington, 4 Ala. 603; Whart. Crim. Law, 9th ed. §§ 82, 1392. Infra, § 755. 8 See Braokenridge's Miscellanies, 223. 9 D. S. V. Miller, 3 Hughes, 553 ; Whart. Crim. Law, 9th ed. § 1388. 10 R. V. Kenrick, 5 Q. B. 49 ; R. u. Cooke, 5 B. & C. 538 ; 7 D. & R. 673 ; State V. Buchanan, 5 Har. & J. 500. supra, § 104 ; infra, § 1388. CHAP. III.] INDICTMENT : JOINDER 01 DEFENDANTS, [§ 307. From the peculiar character of the pleading in conspiracy, a new trial as to one defendant is a new trial as to all.* § 306. In an indictment for riot, when the ofience is not charged to have been committed with persons unknown, unless ^^ ^..^j, three of the parties named are proved to have been con- three must bfi ioincd cerned, they must all be acquitted.^ Where there is an allegation of defendants unknown, or there are co-defendants, dead or absent, or previously convicted, the case is otherwise.* The effect of charging the offence to have been committed by persons " unknown" has been further considered under another head.* § 306 a. As has been seen in another volume, there is no tech- nical objection to an indictment joining a married woman with her husband." And this rule has been applied to ^^^^'^"e indictments for assault ;' for keeping disorderly and ?>?? ^e gaminghouses;' for forcible entry and detainer;' for murdeij f for stealing and receiving." The presumptions of law in such cases are elsewhere considered." § 307. Misjoinder of defendants, when apparent on the record, may be made the subject of a demurrer, a motion in jj- • ■ ^ arrest of judgment, or writ of error ; or the court will may be in some cases quash the indictment." When the mis- to at any joinder appears in evidence an acquittal may be ordered. *""^' If, however, two be improperly found guilty separately on a joint 1 R. V. Goinpertz, 9 Q. B. 824. In- 355 ; Rather v. State, 1 Port. 132 ; fra, §§ 850, 875. State v. Bentz, 11 Mo, 27. 2 Penn. v. Hurston, Addis. R. 334 ; " R. u. Cruse, 8 C. & P. 541 ; State Whart. Crim. Law, 9th ed. § 1545. v. Parkerson, 1 Strobh. 169. » R. u. Scott, 3 Burr. 1262 ; Clein w. ' R. v. Williams, 10 Mod. 63 ; R. v. People, 31 N. Y. 229 ; State v. Egan, Dixon, 10 Mod. 335 ; Com. v. Mur- 10 La. R. 698. As to verdict see phy, 2 Gray, 516; Com. v. Cheney, infra, § 755. 114 Mass. 281 ; State v. Bentz, 11 * Supra, §§ 104, 111 ; Whart. Crim. Mo. 27. Law, 9th ed. §§ 1391, 1847. 8 state v. Harvey, 3 N. H. 65. " Whart. Crim. Law, 9th ed. § 75 ; o R. v. Cruse, 8 C. & P. 541. R. V. Sergeant, 1 Ry. & M. 352; R. v. w R. „. M'Athey, 9 Cox C. C. 251. Hammond, 1 Leach, 499 ; R. v. Mat- " Whart. Crim. Law, 9th ed. § 78. thews, 1 Den. C. C. 596"; State v. « Young v. R., 3 T. R. 103-106 ; 1 Nelson, 29 Me. 329 ; Com. v. Trim- Stra. 623 ; Com. Dig. Ind. H. As to mer, 1 Mass. 476 ; Com. v. Lewis, 1 new trial, see infra, § 874. That in Met. (Mass.) 151 ; Com. v. Tryon, 99 such cases error does not lie see State Mass. 442 ; State v. Collins, 1 McC. v. Underwood, 77 N. C. 502 ; State v. Lindsay, 78 N. C. 499. 211 309.] PLEADING AND PRACTICE. [chap, ni. indictment, the objection may, in general, be cured by producing a pardon or entering a nolle prosequi as to the one of them who stands second on the verdict. During the trial the difficulty may be relieved by a nolle prosequi, or an acquittal of a defendant improperly joined. If there be error in this respect a new trial may be granted.* § 308. Where two persons are indicted for a conspiracy, and one of them dies before the trial, and it proceeds against not be both, it is no mistrial, and entry of a suggestion of the suggested A^at\^ nn +V>o r-ai^^r-A ;<> „T,r,onoaaa^-r^ 2 on record. death on the record is unnecessary. 2. Severance. § 309. Where several persons are jointly indicted, they may be tried separately, at the election of the prosecution* or of antB^ay *^® defendants. The prosecution may sever as a matter elect to of right ;* but the question of severance is usually raised by the defendants themselves, as to whom the matter is left to the discretion of the court." Where they elect to be tried 1 Infra, §§ 873-4. When the indictment charges only A. and B. as conspirators, a nolle prose- qui as to A. has heen held to operate as an acquittal of B. State v. Jackson, 7 S. C. 283. 2 R. V. Kenrick, 5 Ad. & El. N. S. (5 Q. B.) 49. " Com. V. Hughes, 11 Phila. 430. * State V. Bradley, 9 Richards, 168 ; State V. McGrew, 18 Richards, 313 ; Hawkins v. State, 9 Ala. 137 ; State V. Thompson, 13 La. An. 515. '= Infra, § 755 ; State v. Conley, 39 Me. 78 ; Com. u. Jenks, 138 Mass. 484 ; State V. O'Brien, 7 R. I. 336 ; White- head V. State, 10 Ohio St. 449 ; Curran's case, 7 Grat. 619 ; Com. v. Lewis, 25 Grat. 938 ; Robinson v. State, 1 Lea, 673 ; Hawkins v. State, 9 Ala. 137 ; U. S. V. Colly er et al. Wharton on Homicide, Appendix. See Com. v. Manson, 2 Ashm. 31 ; State v. Wise, 7 Richards. 412; State v. McGrew, 13 Richards. 316 ; Wade v. State, 40 Ala. 74 ; Parmer 212 V. State, 41 Ala. 416 ; State v. Johnson, 38 La. An. 18 ; Lawrence v. State, 10 Ind. 453 ; State v. McLane, 15 Ner. 345. When the wife of one defen- dant is a witness for the others, see Com. v. Manson, supra ; Com. v. Easland, 1 Mass. 15 ; Whart. Crim. Ev. § 445. But at common law, a sev- erance will not be granted to enable one defendant to be a witness for the other ; as even on separate trials this result could not be reached. U. S. v. Gibert, 2 Sumner, 19. When, how- ever, there is no evidence against a particular defendant, or the evidence is but slight, the court may direct an acquittal of such defendant, so as to rehabilitate him as a witness. Com. u. Eastman, 1 Cush. 189 ; State v. Roberts, 15 Mo. 28. Infra, §§ 755, 873. See Whart. Crim. Ev. § 445. In Tennessee this is a statutory right ; State V. Knight, 3 Baxter, 418 ; Robin- son V. State, 1 Lea, 673 ; and so in Texas. Slawson v. State, 7 Tex. 68 ; CHAP. III.] INDICTMENT : JOINDER OF DEFENDANTS. [§ 312. separately, and where the application is granted by the court, the prosecuting officer may elect whom he will try first,^ which is usually at his discretion.^ But after the jury have been sworn, and part of the evidence heard, it is usually too late for either defendant to demand a separate trial.' § 310. Where the defences of joint defendants are antagonistic, it is proper to grant a severance.* And this should be is eminently the case where one joint defendant has made ^^^^^g, a confession implicating both, and which the prosecution fences intends to offer on trial.* § 311. In conspiracy and riot, though it was once thought other- wise,* it is now held the defendants may claim separate trials.^ And wh6n the case is tried jointly, the court Jacy°and' must direct the jury that they are not to permit one "°' "° defendant to be prejudiced by the other's defence.^ §312. 3. Verdict and Judgment. Joint defendants may be convicted of different grades.' Thus, where two or more defendants are jointly charged in the Eucker v. State, 7 Tex. Ap. 549 ; Krebs V. State, 8 Tex. Ap. 15. That a verdict of insanity of one joint defendant works a severance, see Marler v. State, 67 Ala. 55. • Com. V. Berry, 5 Gray, 93 (riot) ; People V. Mclntyre, 1 Park. C. C. 371 ; People i;. Stockham, Ibid. 424 ; Jones V. State, 1 Kelly, 610. 2 Patterson v. People, 46 Barb. 625. See, as to misdemeanors, People v. White, 55 Barb. 606. As holding that in such cases error does not lie, see State V. Lindsay, 78 N. C. 499. As to new trial, see infra, § 874. As to call- ing one as a witness for the other, see Whart. Crim. Ev. § 445. 3 McJunkins v. State, 10 Ind. 140. • U. S. V. Kelly, 4 Wash. C. C. 528 ; U. S. V. Marchant, 12 Wheat. 480 ; State V. Soper, 16 Me. 293 ; Com. v. Robinson, 1 Gray, 555 ; Maton v. Peo- ple, 15 111. 536 ; Hawkins v. State, 9 Ala. 137 ; Thompson v. State, 25 Ala. 41 ; Mask v. State, 32 Miss. 405 ; RoacU V. State, 5 Cold. (Tenn.) 39. In Texas this is by statute. Willey V. State, 22 Tex. Ap. 408. 5 Com. V. James, 99 Mass. 438. ^ Com. V. Manson, supra, § 305. ' Infra, § 698. * Com. V. Robinson, 1 Gray, 555. See, as to Virginia practice. Acts 1877-8, chap. xvii. § 31. In Ohio, by statute, joint defendants can claim sep- arate trials by right. Crim. Proo. § 153. As to New Hampshire, see State V. Doolittle, 58 N. H. 92. » Infra, § 755 ; Whart. Crim. Ev. § 136 ; Klein v. People, 31 N. Y. 229 ; White w. People, 32 N. Y. 465 ; Shouse V. Com., 5 Barr, 83; State v. Arden, 1 Bay, 487 ; Brown v. State, 28 Geo. 209 ; R. V. Butterworth, R. & R. 520. See R. V. Dovey, 2 Den. C. C. 86 ; 4 Cox C. C. 428 ; 2 Eng. L. & Eq. Rep. 532 ; 2 Benn. & Heard Lead. Cases, 138. 213 § 314.J PLEADING AND PRACTICE. [chap. III. same indictment with murder, it is competent to the jury to find one guilty of murder, and another of manslaughter, and on such a verdict being rendered it will not be disturbed by the court as irregular.* So, also, in assault and bat- tery, one may be found guilty of assault and another of battery.^ A fortiori a verdict is good in ordinary cases where the jury convict one, and acquit or disagree as to the other.' § 313. Where one of several defendants is tried alone, he may be convicted alone ;* nor is it ground of exception that the others who were jointly indicted were not tried." In an indictment against two or more, when the charge is several as well as joint, the conviction is several ;' so that if one is found guilty, judgment may be rendered against him, although one or more may be acquitted. To this rule there are exceptions, as in case of conspiracy or riot, to which the agency of two or more is essential ; but violations of the license law, not being within the reason of these exceptions, come under the general rule.^ Subject to these exceptions when Joint de- fendants may be convicted of different grades. Defendants may be convicted severally. §314. Sentence is to be several. ' U. S. V. Harding, 1 Wall. Jun. 127; Mask. V. State, 32 Miss. 406 ; but see Hall V. State, 8 Ind. 439. Infra:, § 755. 2 White V. People, 32 N. Y. 465. ' See R. V. Cooke, supra, § 305 ; R. V. Taggart, 1 C. & P. 201; Com. v. Wood, 12 Mass. 313 ; Com. v. Cook, 6 S. & R. 577 ; State v. Vinson, 37 La. An. 792. On an indictment against three, a joint verdict finding each defendant guilty by name is in substance a dis- tinct vurdiot against each defendant. Fife ?;. Com., 29 Penn. St. R. 429. * Infra, § 765. This is prescribed in Rev. Stat. U. S. § 1036. 8 Supra, § 305, and cases cited. In- fra, §§ 549, 755. State v. Clayton, 11 Richards. 581 ; Com. v. McChord, 2 Dana, 243 ; Cruce v. State, 59 Ga. 84 ; State V. Bradley, 30 La. An., Pt. 1. 326. 6 Infra, § 755 ; State v. Brown, 49 214 Vt. 437 ; State o. Smith, 2 Ired. 402. See, as to joint receivings, Whart. Grim. Law, 9th ed. § 989. That the charge in cases of assault are several, see R. u. Carson, R. & R. 303 ; Com. V. Griffin, 21 Pick. 523 ; Jennings v. Com., 105 Mass. 586 ; Com. v. O'Brien, 107 Mass. 208. As to verdict, infra, § 755. As to sentence, infra, § 940, ' Com. V. Griffin, 3 Cush. 523. As to adultery, see State e. Ljeilj, 7 Jones (N. C), 159. One defendant on an indictment is not liable for the costs of others jointly indicted with him. State v. McO'Blenis, 21 Mo. 272 ; Moody v. People, 20 111. 315. But in Virginia only one clerk's or attorney's costs are to be collected on a joint verdict. Com. v. Sprinkle, 4 Leigh, 650. See Calico v. State, 4 Pike, 430 ; Searight v. Com., 13 S. & R. 301. CHAP. III.] INDICTMENT : STATUTES OF LIMITATION. [§ 316. parties are jointly indicted and convicted, they should be sentenced severally,* and the imposition of a joint fine is erroneous." § 315. To convict of a joint charge, the act proved must be joint. One oifence proved against one defendant, and a subse- quent oflFenoe against, another, cannot justify a convic- ^^^^ (,e tion, unless the offences are overt acts of treason or j°g"'f*° conspiracy, which are charged as such.' Thus, two joint ver- defendants cannot be convicted upon proof that each one committed an act constituting an offence similar to the act charged in the indictment.* And so a man and a woman cannot be jointly convicted of a single act of adultery upon the admission by one of an act of adultery committed at one time, and an admission by the other of an act of adultery committed at another time.* XIX. STATUTES OF LIMITATION. § 316. While, as will be hereafter seen, courts look with dis- favor on prosecutions that have been unduly delayed,* there is, at common law, no absolute limitation which y°n\'o b'e prevents the prosecution of offences after a specified time liberal to 1 •tf^ I-™.! 1 !• defendant, has arrived. Statutes to this effect have been passed in England and in the United States, which we now proceed to con- sider. We should at first observe' that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construc- tion that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial ' See cases cited supra in this sec- ' Com. v. Cobb, 14 Gray, 57. tion ; Waltzer v. State, 3 Wis. 785 ; In gaming, joint indictments have Straughan v. State, 16 Ark. 37 ; Curd, been sustained against parties taking V. Com., 14 B. Men. 386. Infra, § 940. separate parts in the same game. Com. 2 Curd V. Com., 14 B. Mon. 386 ; v. MeChord, 2 Dana, 242. But see State V. Gay, 10 Mo. 440 ; State u. contra, Elliott v. State, 26 Ala. 78 ; Berry, 21 Mo. 504; State u. HoUen- Lindsay u. State, 48 Ala. 169; State y. scheik, 61 Mo. 302. Infra, § 940. Homan, 41 Tex. 155 ; Johnson v. State, » Supra, § 302 ; infra, § 940 ; R. v. 8 Eng. 685. Dovey, 2Den. C. C. 86; E. v. Hemp- In England, it is said that when stead, R. & R. 344 ; R. v. Pulham, 9 there is a joint conviction for separate C. & P. 281. But see R. v. Barber, acts, the conviction may be sustained supra, § 302. as to the party proved to have oom- * Stevens v. State, 14 Ohio, 386. mitted the first felony in order of time. R. V. Gray, 2 Den. C. C. 87. 8 See infra, § 326. 215 § 316.] PLEADING AND PRACTICE. [CHAP. III. arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other ; there is there- fore no grantor against whom the ordinary presumptions of con- struction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the oflFence to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offence ; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen ; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt.' Independently of these views, it must be remembered that delay in ' This is well exhibited in a famous In other words, the defence of the statute metaphor by Lord Plunkett, of which of limitations is one not merely of technical it is said by Lord Brougham (Works, process, to be grudgingly applied, but of etc. Edinb. ed. of 1872, iv. 341) that right and wise reason, and, therefore, to be "it cannot be too much admired for generously dispensed. The same thought the perfect appropriateness of the fig- is to be found in another great orator : ure, its striking and complete resem- XoSJ H fui xa! tov t«c wpo&er/iciat n/mt blance, as well as its raising before us . . , , iwT yip ;uoi xai S ii\m ouSevo; iMm an image previously familiar to the Evexa deTvat avrov, q tou juq rvito^arreiff-^ai mind in all particulars, except its con- vju-af. rati j>aev ykp aiitttvfxivoi^ txttv^ ra nectiou with the subject for which it wirrt eT« hyiia-aTo ttvat iIo-Trpa^ao-dai. xara is so unexpectedly but naturally intro- ie tmv ■^tviofA.ivtuv Tov;^po*oy Ivojut^-i ffa^ssrarw duced." "Time," so runs this cele- eXey^ov ?«ir&iti. xat S/tca IwiiJn oJiitsTov brated passage, "with his scythe in lyva Sv roiic t« tuf*S«Xorr«f xa! touc /wifTufif his hand, is ever mowing down the iil {Sfv, ™ »»i»w ivrt ■mmm l&iixiv, i'm; evidences of title ; wherefore the wis- /wafTu; e'n tou Sixai'ou ritt IfOiuoit. Demos- ^om of the law plants in his other thenes, pro Phorm. ed. Reiske, p. 952. hand the hour-glass, by which he To the same effect may be noticed metes out the periods of that posses- Wcolsey's Polit. Phil. § 123 ; and see sion that shall supply the place of the U. S. v. Nortoii, 91 U. S. 566. muniments his scythe has destroyed." 216 CHAP. III.] INDICTMENT : STATUTES OF LIMITATION. [§ 318. instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that stat- utes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State • upon itself, to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that can be obtained.' § 317. Although at one time it was thought otherwise, the rule is now generally accepted that the plea may be taken advantage of on the general issue.'' But the defence need"notbe should be interposed before conviction, and cannot, un- specially less appearing on the indictment, be made subse- quently.' § 318. Ordinarily, as we have seen,* the offence must be laid in the indictment within the time fixed by the statute of indictment limitations. On the other hand, where the statute does offenc*^*^®"" not impose an absolute and universal bar, but only a bar within stat- in certain lines of cases, the prosecution may lay the excluded offence outside the statute, and may prove, without aver- ghouid^by ring it in the indictment, that the defendant was within f*"'^* P''^°" the exceptions of the statute.' Where this view obtains, facts of ex- the fact that the offence is on the face of the indictment ception. 1 A qui tarn action on the act prohib- iting the slave-trade is within the lim- itation of the federal statute. Adam^ V. Woods, 2 Cr. 336. So is an action for a penalty under the Consular Act of 1803. Parsons v. Hunter, 2 Sumn. 419. The two years' limitation of suits for penalties is repealed by implication by Act of 28th February, 1839, which extends the time to five years. Stimp- son V. Pond, 2 Curt. C. C. 502. See for other cases, U. S. v. Fehrenback, 2 Woods, 175 ; People v. Haun, 44 Cal. 96. 2 R. V. Phillips, R. & R. 369 ; U. S. V. Cook, 17 Wall. 168 ; D. S. v. Smith, 4 Day, 121 ; U. S. o. Watkins, 3 Cranch C. C. 441 ; U. S. V. White, 5 Cranch C. C. 73 ; U. S. V. Brown, 2 Low. 267 ; State V. Robinson, 9 Post. 274 ; Com. «. Ruffner, 28 Penn. St. 259 ; overruling Com. V. Hutchinson, 2 Pars. 453 ; Mc- Lane v. State, 4 Ga. 335 ; State v. Bowling, 10 Humph. 52 ; Hackney v. State, 8 Ind. 494 ; Hatwood v. State, 18 Ind. 492 ; State v. Hussey, 7 Iowa, 409. Contra, People v. Roe, 5 Park. C. R. 231 ; Johnson v. U. S., 3 McLean, 89 ; State v. Carpenter, 74 N. C. 230. See, as to duplicity In such pleas, 0. S. V. Shorey, 9 Int. Rev. Rec. 201. ' Supra, § 138 ; State v. Thomas, 30 La. An. Pt. I. 301. * Supra, § 137. 5 U. S. V. Cook, 17 Wall. 168 ; U. S. V. Ballard, 3 McL. 469 ; and see note thereto in Am. Law Reg. Nov. 1873 ; U. S. V. White, 5 Cranch C. C. 73 ; 217 § 319.] PLEADING AND PRACTICE. [CHAP. III. prima facie barred cannot be taken advantage of by demurrer, or motion to quash, nor a fortiori by arrest of judgment.' But where a statute exists limiting all prosecutions within fixed periods, the more exact course is to state the time correctly in the indictment, and then aver the exception, and this mode of pleading is now gen- erally required.^ Perhaps the conflict may be reduced by appeal- ing to the tests heretofore asserted,* and holding that when the ex- ception is part of the limitation it must be pleaded,* but when it is contained in a subsequent clause, and is clearly matter of rebuttal, then such particularity is not needed.* In any view a special averment that the offence was committed within the statute is unnecessary.* § 319. Statutory words of description must be taken in their technical exclusive sense, when it appears they are used unless gen- as specifications. Thus, " penalty" has been held to in- rates orSy ^^^^^ °°^y °'^'^ suits,^ and " deceit" has been ruled not State V. Hobbs, 39 Me. 212 ; People v. Van Sautvoord, 9 Cow. 655 ; Com. v. Hutchinson, 2 Pars. 453 ; State v. Bowling, 10 Humph. 52 ; State v. Rust, 8 Blackf. 195 ; see Lamkin v. People, 94 111. 101. In U. S. u. Cook, supra, an indict- ment charged the accused with the commission, more than two years pre- viously, of certain acts amounting to an offence as defined by an act of Con- gress ; another act limited prosecutions for this and other offences to two years, unless the accused had been a fugitive from justice. On demurrer the indict- ment was held good, though it did not allege that the accused was within the exception. 1 See supra, § 137. U. S. u. Cook, ut supra ; People o. Van Santvoord, 9 Cow. 655 ; U. S. a. White, ut supra; State v. Thrasher, 79 Me. 17 ; State v. Howard, 15 Richards. 274 ; State v. Hussey, 7 Iowa, 409 ; and see R. ». Treharne, 1 Moody, 298 ; Com. v. Hutchinson, 2 Pars. 453 ; Clark v. State, 12 Ga. 350 ; State V. Bowling, 10 Humph. 52 ; State V. Thomas, 30 La. An. Pt. I. 801. See 218 contra, as to arrest of judgment. White V. State, Texas, reported in Cent. L. J. Dec. 13, 1878 ; 6 Tex. Ap. 476. 2 State V. Hobbs, 39 Me. 212 ; State V. Robinson, 9 Poster, 274 ; McLane v. State, 4 Ga. 335 ; State v. Meyers, 68 Mo. 266 ; State v. Bryan, 19 La. An. 435 ; State v. Bilbo, Ibid. 76 ; State v. Pierce, Ibid. 90; State v. English, 2 Mo. 182 ; see Hatwood v. State, 18 Ind. 492 ; State v. Rust, 8 Blackf. 195 ; People V. Miller, 12 Cal. 291. When plea of limitation is good on the face of the indictment, the burden of proof is on the State to overthrow a plea of the statute. State v. Snow, 30 La. An. 401. See State v. Williams, 30 La. An. 842. 3 Supra, § 238. * Church V. People, 10 111. Ap. 222. 5 Garrison v. State, 87 111. 96 ; see State V. Gill, 33 Ark. 129 ; and also article by Mr. Heard in 1 Crim. Law Mag. 451. 6 Supra, §§ 162, 238 ; though see State V. Noland, 29 Ind. 212. ' State V. Thomas, 8 Rich. 295 ; State V. Free, 2 Hill (S. C), 628. CHAP. III.] INDICTMENT : STATUTES OF LIMITATION. [§ 321. to include " conspiracy."^ On the other hand, on reason- °"g°g^^gg* ing already given, when an offence is described, not as the technical term for a species, distinguished from other specific terms, but as nomen generalissimwm, then it is to have a wide and popular construction. & 320. As a rule, statutes of limitation apply to of- „ ' J! i_ Statute 18 fences perpetrated before the passage of the statute as retrospec- well as to subsequent offences.* § 321. The statute begins to run on the day of the commission of the offence.^ This, as is well said, is to be dated from the period 1 state V. Christianburg, Busbee, 46. 2 Johnson v. U. S., 3 McLean, 89 ; Adams v. "Woods, 2 Cr. 342 ; V. S. v. Ballard, 3 McLean, 469 ; U. S. v. White, 5 Cr. C. C. 73 ; Com. v. Hutch- inson, 2 Pars. 453 ; and to common law offences in the District of Columbia ; V. S. V. Slacum, 1 Cr. C. C. 485 ; U. S. V. Porter, 2 Ibid. 60 ; U. S. v. Watkins, 3 Ibid. 442; though see Martin v. State, 24 Tex. 61. In J^ew York, the Act of 1873, ex- tending the time for finding an indict- ment from three to five years, has been held not to cover offences committed before its passage. People v. Martin, 1 Parker C. R. 187 ; referring to People V. Carnal, 6 N. Y. 463 ; Sanford v. Bennett, 24 Ibid. 20 ; Shepperd v. People, 25 Ibid. 406 ; Hastings v. Peo- ple, 28 Ibid. 400 ; Stone., t). Fowler, 47 Ibid. 566 ; Palmer v. Conway, 4 Den. 375, 376; Watkins v. Haight, 18 Johns. 138 ; Dash v. Van Cluck, 7 Ibid. 477 ; Johnson v. Burrell, 2 Hill, 238 ; Calkins v. Calkins, 3 Barb. 305 ; , McMannis v. Butler, 49 Ibid. 176, 181 ; 7 Cow. 252; 10 Wend. 114, 117; 3 Barb. 621 ; 8 Wend. 861 ; Hathaway u. Johnson, 55 N. Y. 93 ; Amsbry v. Hinds et al., 48 Ibid. 57 ; Mongeon v. People, 55 Ibid. 613 ; Ely v. Holton, 15 N. Y. 595 ; Moore v. Mausert, 49 Ibid. 332. And see N. Y. & Oswego M. R. B. Co. V. Van Horn, 57 N. Y. 473 ; People ex rel. Ryan u. Green, 58 Ibid. 295, 303, 304 ; cited in letter to Alb. L. J. of Sept. 23, 1875. In Pennsylvania it has been held that an act extending a statute of limi- tation is not ex post facto as to a crime against which the statute had not run at the time of the extension. Com. v. Duffy, 96 Penn. St. 506. In New Jer-- sey it was at one time held that where a crime was committed more than two years before the repeal of a statute limiting prosecutions to two years after the commission of a crime prosecuted, the repeal of the statute and extension of the time of prosecution was not ex post facto as to such crime. State v. Moore, 42 N. J. L. 208. This, however, was subsequently overruled; State v, Moore, 43 N. J. L. 203. See Whart. Crim. Law, 9th ed. § 30 ; cf. criticism in Whart. Com. Am. Law, § 472. And that the repeal of a statute of limita- tions does not affect prior offences, see Garrison v. People, 87 111. 96 ; see Peo- ple V. Martin, 1 Park. C. E. 187. » State V. Asbury, 26 Tex. 82 ; see MoEntie v. Sandford, 42 N. J. L. 200. As to federal statutes bearing ou revenue and pension offences, see U. S. V. Hirsh, 100 U. S. 33 ; U. S. w. Coggin, 10 Rep. 687. In Louisiana the limita- tion in homicide runs from the death and not from the wound. State v. Taylor, 31 La. An. 851. 219 § 322.] PLEADINa AND PRACTICE. [chap, iir. Statute be- gins to run from com- miesion of crime. Continu- ous of- fences. when the crime is consummated.' Instantaneous crimes, such as killing and arson, are consummated when they reach the point of completion. When a distinct result is necessary to completion, i. e., death to homicide, it becomes part of the crime, no matter how long it may be delayed, and the ofifence is fixed in the moment of the killing. Continu- ous offences (such as nuisances, the carrying of con- cealed weapons, use of false weights, etc.) endure after the period of concoction, and as long as the offence by the defendant's action or permission continues to exist.' With instantaneous crimes, there- fore, the statute begins with the consummation (^Vollendung) ; with continuous crimes, it begins with the ceasing of the criminal act or neglect. In bigamy, the statute runs from the bigamous marriage, unless the offence is made by statute continuous.' In the latter case the statute does not begin to run while the bigamous marriage relation continues.* The time of the commission of the offence is to be determined by parol proof.* § 322. The procedure which must be instituted in order to save Indictment ^^ statute is, in the federal statutes, " indictment or in- orinfor- formation,"* and in the statutes of most of the States, mation saves Stat- "indictment." "Information," in the federal statutes,^ means not " complaint" by a prosecutffr, but the technical ex officio information filed by the government. Under such statutes, • Berner, Lehrbnch. d. StrafreoMs, 1871, p. 301. ' As to what is a continuous offence, see supra, § 125 ; Backalew v. State, 62 Ala. 334. Tliat a nuisance is a con- tinuing offence, see State v. Gnibert, 73 Mo. 20. s Giae «. Com., 81 Penn. St. 428 ; Scoggins V. State, 32 Ark. 205. As to the operation of the statute on continu- ous offences, see U. S. v. Irvine, 98 U. S. 450. ' ' State V. Sloan, 55 Iowa, 217. But see contra, Gtise v. Com., 81 Fenn. St. 428, overruling S. C. 11 Phil. 655 ; 33 Leg. Int. 102 ; Sooggin v. State, 32 Ark. 205 ; see Brewer v. State, 59 Ala. 101 ; Whart. Crim. Law, 9th ed. § 1685. 220 » Smith V. State, 62 Ala. 29. Where an indictment found December 13, 1880, charged an offence on December 13, .1878, this was held not to be barred by a two years' limitation. Savage v. State, 18 Fla. 909; S. P. State V. Beasley, 21 W. Va. 777. ^ The finding of an informal present- ment is not sufficient to take the case out of the statute. U. S. v. Slacum, 1 Cr. C. C. 485. Nor will a former in- dictment on which a nolle prosequi was entered. U. S. v. Ballard, 3 McLean, 469. But see infra, § 325. ' U. S. V. Vondersmith, Whart. Crim. Law, 9th ed. § 436, note^; U. S. V. Slacum, 1 Cr. C. C. 485. CHAP. III.] INDICTMENT : STATUTES OF LIMITATION. [§ 324. though the indictment must be found to prevent the bar of the stat- ute, the defendant need not be sentenced within the limitation.* § 323. In England, on the other hand, and in jurisdictions where " indictment" or " information" is not required, the usual in some warrant issued by a magistrate on a preliminary complaint i?,"f stat- is enough to save the statute.^ And that is clearly the ute saved " , Dy warrant case with a presentment by a grand jury, though the tn- or preeent- dictment was not found until after the statute expired ;^ and so it is held to be with a commitment or binding over by a magistrate.* § 324. Whether the exceptions to the statute must be specially averred in indictment, has been just noticed. When It is not necessary to constitute the exception of a pg^'^'g^JJ^'^^ person "fleeing from justice," that the defendant should ute,itisnot have been unintermittingly absent from the jurisdiction, by tempo- If he flies from a prosecution, mere occasional returns l^^J^ 1 Com. u. The Sheriff, 3 Brewster, 394 (Brewster, J. 1869). 2 E. V. Parker, 9 Cox C. C. 475 ; Leigh & C. 459 ; State v. Howard, 15 Richards. 274 ; Foster v. State, 38 Ala. 425 ; Ross v. State, 55 Ala. 177 ; contra, R. V. Hull, 2 F. & F. 16. 3 Brock V. State, 22 Ga. 98 ; and see R. V. Brooks, 1 Den. f . C. 217 ; 2 C. & K. 402 ; 2 Cox C. C. 436. * R. V. Austin, 1 C. & K. 621. One or two analogous cases under the Eng- lish statute may not be here out of place. In R. v. WillaOe, 1 East P. C. 186, it was holden upon the repealed statutes relating to coin, that the infor- mation and proceeding before the mag- istrate, upon the defendant's being taken, was to be deemed the "com- mencement of the prosecution" within the meaning of those acts. See, also, R. V. Brooks, 1 Den. C. C. 217 ; 2 C. & K. 402. But proof by parol that the prisoner was apprehended for treason respecting the coin, within three months after the offence was com- mitted, was holden not to be sufficient, where the indictment was after the three months, and the warrant to ap- prehend or to commit was not pro- duced. R. V. Phillips, R. & R. 369. In R. u. Killminster, 7 C. & P. 228, an indictment for night poaching was pre- ferred against the defendant within twelve months after the commission of the offence, and was ignored ; four years afterward another bill was found against him for the same offence, and upon an objection that the proceeding was out of time, Coleridge, J., doubted whether the first indictment was not a proceeding sufficient to entitle pros- ecutor to proceed. He reserved the point, but the defendant was acquitted upon the merits. See, also, Tilladam V. Inhabitants of Bristol, 4 N. & M. 144. In a remarkable case in Georgia, it was held that on an indictment for a major offence, to which the statute does not apply, but which includes a minor offence, covered and shielded by the statute, where the jury convicted of the minor offence, the statute may be ap- plied to the major offence. Clark v. State, 12 Ga. 350. 221 § 326.] PLEADING AND PRACTICE. [chap. III. will not start the statute afresh.' The same rule applies to conceal- ment of guilt.* ^ But to soldiers enlisting in the army and then removing this ex- ception does not apply ;' and the same reason would be good as to all removals under direction of the State.* § 325. The failure of a defective indictment, and the presenta- tion of a new and correct indictment after the statute has begun to run, does not revive the statute." The statute, as to the particular offence, was put aside by the commencement of legal proceedings against the defend- ant, and remains inoperative until these legal proceedings And this termination cannot be until a final judgment is reached on the merits.* It is possible, however, to conceive of a statute so couched as to make a judgment on mere technical grounds a termination of the prosecution, so that a new indictment would be regarded as a new prosecution. And it has been held that when an indictment is quashed, the time of its pendency is to be taken out of the statute.' § 326. In cases of secret offence, where the prosecutor is the sole or principal witness, and where, after a short lapse of time, Failure of defective Indictment does not revive statute. terminate. 1 U. S. V. White, 5 Cr. C. C. 116. See State v. Barton, 32 La. An. 278; State V. Vines, 34 La. An. 1073. A fleeing from justice does not neces- sarily import a fleeing from prosecution begun. U. S. v. Smith, 4 Day, 123. A person may flee from justice though no process was issued against him. U. S. V. White, 5 Cr. C. C. 39. The de- fendant is not entitled to the benefit of the limitation, if within the two years he left any place, or concealed himself, to avoid detection or punishment for any ofl'ence ; Ibid. 73 ; although he should within the two years have re- turned openly to the place where the offence was committed, so that, with ordinary diligence and due means, he might have been arrested. Ibid. 116. 2 Robinson v. State, 57 Ind. 113; see State v. Hoke, 84 Ind. 137 ; Wat- kins V. State, 68 Ga. 832. 222 Graham v. Com., 51 Penn. St. 256. * See U. S. V. Brown, 2 Lowell, 267. 5 State V. Curtis, 30 La. An. Pt. I. 1166 ; see State v. Baker, Ibid. 1134 ; Grill V. State, 38 Ark. 524 ; see Bube v. State, 76 Ala. 73. 6 Com. V. Sheriff, 3 Brewst. 394; State V. Johnston, 5 Jones (N. C), 221 ; State V. Hailey, 6 Jones (N. C), 42 ; Foster v. State, 38 Ala. 425. A prosecution, therefore, continues when an indictment is dismissed, and the matter immediately submitted to a grand jury, and a new indictment found, without releasing the defend- ant. TuUy V. Com., 13 Bush, 142. See U. S. V. Ballard, supra, § 322. ' State V. Owen, 78 Mo. 367; see State V. Morrison, 31 La. An. 311 ; Coleman v. State, 71 Ala. 312. CHAP. III.] INDICTMENT : STATUTES OF LIMITATION. [§ 328. the defendant, unless previously notified, must in the nature of things have great difficulty, from the evanescent character of memory, ^n collecting evidence aliunde as to alibi, look with the policy of the law is to compel a speedy prosecution, fong delay* Eminently is this the case with sexual prosecutions, espe- in^proeecu- cially those which are capable of being used for the extortion of money. Hence courts, as will hereafter be seen, look with disfavor on prosecutions for rape in which the prosecutrix does not make immediate complaint. And there are cases when the delay is marked and unexcused, when an acquittal will be directed. This course was taken by a learned English judge (Alderson) in a case of bestiality, where nearly two years (not quite the statutory limitation) was allowed by the prosecutor to pass before institution of proceedings.' § 327. The enumeration of specific exceptions is exhaustive, and the statute cannot be suspended in favor of the pros- „ „ . » „ , i , statute not ecution by any allegations of fraud on the part oi the suspended defendant. Thus, where it appears that an alleged mis- ^ demeanor was committed more than two years before the warrant was issued, and that the defendant was all the time a resident of the State, the prosecution cannot save the bar of the statute by showing that the defendant put the prosecutor on a wrong scent, and concealed the crime until a few weeks before the arrest.^ § 328. In the federal courts and in the courts of several of the States restrictions exist requiring trials in criminal cases to take place within a specified period after the institu- ute indict- tion of the prosecution.* The power of discharging a duly de- ' • R. V. Robins, 1 Cox C. C. 114. discharged without acting on his case. " Com. u. The Sheriff, 3 Brewster, Adams v. State, 65 Ga. 516. In Ne- 394. braska and California the defendant The statute runs in favor of an of- may be discharged at the end of the fender, although it was not known to first term unless the prosecution show the officers of the United States that reasons why it has not proceeded, he was the person who committed the Two Calf, ex parte, 11 Neb. 225 ; Fen- offence. U. S. V. White, 5 Cr. C. C. nessy, ex parte, 54 Cal. 101. That a 39. mere failure to call up a case without ' As to Georgia see Roebuck v. State, good reason will not be ground for a 57 Ga. 154. See Esselborn, in re, 20 discharge when defendant is out on Blatch. 1 ; where it was held that a bail, see U. S. v. Thorne, 15 Fed. Rep. defendant would be discharged if the 739. grand jury he was bound over to was 223 § 328.] PLEABINQ,.AND PRACTICE. [chap. III. layed may prisoner under the Pennsylvania statute,' providing for a charged. discharge if there has been no trial for the first two terms is limited, it is held, to the court in which he was indicted ; and the Supreme Court will not interfere if the commitment is un- exceptionable on the face of it.* A prisoner who stands indicted for aiding and abetting another to commit murder, and who was not tried at the second term, is not entitled to be discharged under the third section of the act if the principal has absconded, and proceedings to outlawry against him were commenced without delay, but suffi- cient time had not elapsed to complete them.^ A prisoner, also, is not entitled to demand a trial at the second term if he has a con- tagious or infectious disease, which may be communicated in the court to the prejudice of those present.* Nor does the statute cover ^ See infra, §§ 583 e< seq., where this subject is discussed in connection with the right to a continuance. ''2 Ex parte Walton, 2 Whart. 501. Infra, § 449. The intermediate finding of a second indictment for the same offence does not deprive the defendant of his rights. Brooks v. People, 88 111. 327. ' Com. 0, Sheriff, etc. of Allegheny, 16 S. & E. 304, Gibson, C. J., dissent- ing. * Ex parte Phillips, 7 Watts, 363. In Virginia it was required, "when any prisoner committed for treason or felony shall apply to the court the first day of the term, by petition or motion, and shall desire to be brought to his trial before the end of the, term, and shall not be indicted in that term, un- less it appear by affidavit that the wit- nesses against him cannot be produced in time, the court shall set him at lib- erty, upon his giving bail, in such penalty as they shall think reasonable, to appear before them at a day to be appointed of the succeeding term. Every person charged with such crime, who shall be indicted before or at the second term after he shall have been committed, unless the attendance of 224 the witnesses against him appear to have been prevented by himself, shall be discharged from imprisonment, if he be detained for that cause only, and if he be not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime, unless such failure pro- ceed from any continuance granted on the motion of the prisoner, or from the inability of the jury to agree on their verdict." E. C. of Va. c. 169, § 28. The excuses above enumerated are not exclusive. Whenever the common- wealth has just ground for delay, dis- charge will be refused. Adcock's case, 8 6rat. 662. It has been decided that the word term, where it occurs in this act, means, not the prescribed time when the court should be held, but the actual session of the court, 2 Va. Cases, 363. When the accused has been tried and convicted, and a new trial awarded to him, although he should not be again tried till after the third term from his examination, he is not entitled to a discharge. 2 Va. Cas. 162; Davis's Va. Or. Law, 422 ; and see Foster v. State, 38 Ala, 425 ; Sorafford, in re, 21 Ean. 735 ; infra, § 449. An analogous statute exists in Ohio. Eev. Stat. 7309. CHAP. III.] INDICTMENT: STATUTES OF LIMITATION. [§ 329. the case of a person who has been tried and convicted, but has obtained a new trial.* The defendant, also, to avail himself of the statute" must have been diligent in pressing for trial.* Whether such a discharge is a bar to further prosecution is hereafter dis- cussed.* § 329. Statutes of limitation, unless the words of the law ex- pressly direct the contrary, are acts of grace, binding g^atutes only the sovereign enacting them, and have no extra- have no extra-terri- territorial force.* If, to apply this principle to the pres- toriai ef- ent question, a foreigner commits an offence in England ^'^ ' or the United States, it could never be pretended that he could plead that in his own country the period for prosecution had ex- pired. And so where jurisdiction is based on allegiailce, as in case of political offences against the United States committed abroad, the defendant, when put on trial in the country of his allegiance, would not be permitted to set up the limitations of the forum delicti com- missi. In either case the law as to limitation is that of the court of process. And in this view most foreign jurists coincide.* Foelix, however, seems to think, that in case of a difference in this respect in the codes of States having concurrent jurisdiction, the milder legislation is to be preferred.' Bnt this statute does not entitle the prisoner to a discharge when good ground for continuance is shown by the State, or when the adjournment is necessitated by the court not having time to try the case. Johnson v. State, 42 Ohio St. 207. 1 Com. V. Sup. of Prisons, 97 Penn. St. 210. 2 Gallagher v. People, 88 111. 335 ; Edwards, ex parte, 35 Kan. 99. The 16 statute does not apply to fugitives from justice. Com. v. Hale, 13 Phila. 452. ' Patterson v. State, 49 N. J. L. 326. • Infra, § 449. = Whart. Confl. of L. §§ 534-544, 939. " Berner, Wirkungskreis der Straf- gesetze, p. 164 ; Kostlin, Syst. Deutsc. Straf. p. 24 ; Bar, § 143, p. 568. ' II. No. 602. 225 PLEADING AND PKACTICB. [chap. IV. CHAPTER IV. OF FINDING INDICTMENTS, AND HEREIN OP GRAND JURIES. I. Power op Grand Jurors to in- stitute Prosecutions. Conflict of opinion as to power of grand jury to originate prose- cutionB, § 332. Theory that such power belongs to grand jury, § 334. Theory that grand juries are limited to cases of notoriety, or in their own knowledge, or given to them by court or prosecuting officers, § 338. Theory that grand juries are re- stricted to cases returned by magistrates and prosecuting officers, § 339. Power of grand juries limited to court summoning them, § 340. II. Constitution op Grand Juries. Number must be between twelve and twenty-three, § 341. Foreman usually appointed by court, § 342. Jurors to be duly sworn, § 343. Bound to secrecy, § 343 a. III. Disqualifications. Irregijlarities in empanelling to be met by challenge to array or motion to quash, § 314. Disqualified juror may be chal- lenged, § 345. Preadjudication ground for chal- lenge, § 346. So of conscientious scruples, § 347. Personal interest a disqualifica- tion, § 348. "Vigilance membership" no ground, § 349. Objection to juror to be before general issue, § 350. 226 Plea should be special, § 351. Aliens not necessary in prosecu- tions against aliens, § 353. As to record jurisdictional objec- tions, there may be arrest of judgment, § 353. IV. Sanction op Prosecutino At- torney. Ordinarily bill must be signed by prosecuting officer, § 354. Name may be signed after find- ing, § 355, Prosecuting officer's sanction ne- cessary, § 356. V. Summoning and Indorsement op Witnesses. Witnesses for prosecution to be bound to appear, § 357. Names of witnesses usually placed on bill, § 358. VI. Evidence. Witnesses must be duly sworn, § 358 a. Defects in this respect may be met by plea, § 359. Evidence confined to prosecu- tion, § 360. Probable cause enough, § 361. Legal proof only to be received, §363. Grand jury may ask advice of court, § 364. New bill may be found on old testimony, § 365. VII. Powers op Pkosecutino Attor- ney. Prosecuting officer usually in attendance, § 366, Defendant and others not en- titled to attend, § 367, CHAP. IV.] POWER OP GRAND JURIES. [§ 332. VIII. FlNDINft AND ATTESTING BiLL. Twelve must concur in bill, § 368/ Foreman usually attests bill, §369. Bill to be brought into court, §370. Finding must be recorded, § 371. Bill may be amended by grand jury, § 373. Finding may be reconsidered, §373. Jury usually cannot find part only of count, § 374. Insensible finding is bad, § 375. Grand jury may be polled, or finding tested by bill in abate- ment, § 876. IX. Misconduct of Gkand Juror. Grand juror may be punished by court for contempt, but is not otherwise responsible, § 377. X. Duty to testify. Grand juror may be examined as to what witness said, § 378. Cannot be admitted to impeach finding, § 379. Prosecuting officer or other at- tendant inadmissible to im- peach finding, § 380. XI. Tampering- with an Offence, § 381. I, POWER TO INSTITUTE PROSECUTIONS. § 332. The value of grand juries is one of those questions ■which shift with the political tendencies of the age. C(,„fljgtof When liberty is threatened by excess of authority, then opinion as '' . ., , '' . . , . . *^ V to power of a grand jury, irresponsible as it is, and springing (sup- grand ju- posing it to be fairly constituted) from the body of the [nate prosed people, is an important safeguard of liberty. If, on the cutions. other hand, public order, and the settled institutions of the land, are in danger from momentary popular excitement, then a grand jury, irresponsible and secret, partaking, without check, of the popular impulse, may, through its inquisitorial powers, become an engine of great mischief to liberty as .well as to order. In the time of James II., when Lord Somers's famous tract was written, a ■barrier was needed against oppressive State prosecutions, and this barrier grand juries presented. In our own times a restraint may be required upon the malice of private prosecutors and the vio- lence of popular excitement ; and it is to the adequacy of grand juries for that purpose that public attention has been turned.* It is possible to conceive of a third even more perilous contingency : that grand juries, selected in times of high party excitement, may be so organized as to become the unscrupulous political tools of the party which happens to be in power, and may be used by this party to annoy or oppress its political antagonists. Rejecting, however, this hypothesis as one which a free people living under a constitu- ' See London Law Times, Oct. 4, 1879. 227 § 334.] PLEADING AND PEACTICB. [chap. IV. tional government would not permanently tolerate, we may view the question in its relation to the conditions above first stated. Assum- ing that of all prosecutions instituted either by government or indi- viduals the grand jury has an absolute veto at the outset, the fun- damental question still remains, have grand juries anything more than the power of veto, or, in other wdrds, can they originate prosecutions, and if so, with what qualifications ? § 833. On this point three views are advanced, which it will be out of the compass of this work to do more than state, with the authorities by which they are respectively supported, leaving the question for that local judicial arbitrament by which alone it can be settled. These views are : — ' § 334. That grand juries may on their own motion institute all Theory prosecutions whatsoever is a view which was generally that such accepted at the institution of the federal government, power be- . -iititi- longs to and was in accordanc,e with the iinglish practice then grand jury, obtaining.' 1 In the report of the English Com- missioners of 1879, we have the fol- lowing (pp. 32-3) :— " We doubt whether the existence of the power to send up a bill before a grand jury without a preliminary inquiry before a magistrate ; the ex- tent of this power, and the facilities which it gives for abuse, are generally known. It is not improbable that many lawyers, and most persons who are not lawyers, would he surprised to hear that theoretically there is no- thing to prevent such a transaction as this : Any person might go before a grand jury without giving any notice of his intention to do so. He might there produce witnesses, who would be examined in secret, and of whose evidence no record would be kept, to swear, without a particle of founda- tion for the charge, that some named person had committed any atrocious crime. If the evidence appeared to raise a prima facie ca&e, the grand 228 jury, who cannot adjourn their in- quiries, who have not the accused per- son before them, who have no means of testing in any way the evidence produced, would probably find the bUl. The prosecutor would be en- titled to a certificate from the officer of the court that the indictment had been found. Upon this he would be entitled to get a warrant for the arrest of the person indicted, who, upon proof of his identity, must be com- mitted to prison till the next assizes. The person so committed would not be entitled as of right to bail, if his alleged offence were felony. Even if he were bailed, he would have no means of discovering upon what evi- dence he was charged, and no other information as to his alleged offence than he could get from the warrant, as he would not be entitled by law to see the indictment or even to hear it read till he was called upon to plead. He would have no legal means of ob- CHAP. IV;] POWER OF GRAND JURIES. [§ 337. The right of a prosecutor to make complaint personally to a grand jury was practically recognized by Mr. Bradford, at the time attorney-general of the United States, in a letter to the secretary of state, dated Philadelphia, February 20, 1794.' § 335. Such, also, appears to have been the view of the late Judge Wilson of the Supreme Court of the United States.* § 336. In the works of the first Judge Hopkinson, the right of the grand jury to call such additional witnesses as they desire, not in themselves part of the witnesses for the prosecution, is defended in a tract written with much spirit, though in a style intended at the time more for popular than professional effect.* A similar latitude of inquiry is apparently advocated by Judge Addison. " The mat- * ters which, whether given in charge or of their own knowledge, are to be presented by the grand jury, are all offences within the county. To grand juries is committed the preservation of the peace of the county, the care of bringing to light for examination, trial, and punishment, all violence, outrages, indecency, and terror ; everything that may occasion danger, disturbance, or dismay to the citizens. Grand juries are watchmen stationed by the laws to sur- vey the conduct of their fellow-citizens, and inquire where and by whom public authority has been violated, or our Constitution and laws infringed."* As the learned judge, however, in the same charge, intimates an opinion that a grand jury is not to be permitted to summon witnesses before it, except under the super- vision of the C(i)urt, it would seem that the inquisitorial powers which he describes are to be only exercised on subjects which are given in charge to the jurors by the court, or rest in their personal knowledge. § 337. Perhaps, however, the broadest exposition is found in an opinion of the Supreme Court of Missouri, where it was held that a grand jury have a right to summon witnesses and start a prosecution taining the least information as to the his defence, or the least information nature of the evidence to he given, or as to the character of the charge." (except in oases of treason) even as ' 1 Opinions of Attorneys-General, to the names of the witnesses to be 22'. called against him ; and he might thus ^ 2 Wilson's Lectures on Law, 361. be tried for his life without having ' 1 Hopkinson's Works, 194. the smallest chance of preparing for * Addison's Charges, 47. 229 § 338.] PLEADING AND PBACTICB. [chap. IV. for themselves ; and that the court is bound to give them its aid for this purpose.^ The same view has been taken in the Circuit Court of the United States in the District of Columbia.* A similar question was raised in 1851, in the Circuit Court of the United States for the Middle District of Tennessee. The grand jury, it would seem, without the agency of the district attorney, called witnesses before them whom they interrogated as to their knowledge concerning the then late Cuban expedition. The ques- tion was brought before the presiding judge (Catron, J., of the Supreme Court of the United States), who sustained the legality of the proceeding, and compelled the witnesses to answer.^ Perhaps, however, the writer may venture the remark that the learned judge, in citing a former edition of this book, goes too far in assuming that it is there unqualifiedly stated that the general practice is as he lays down. § 338. A second view is that the grand jury may act upon and present such offences as are of public notoriety, and within their own knowledge, such as nuisances, seditions, etc., or such as are given to them in charge by the court, or by the prosecuting attorney, but in no other cases without a previous examination of the accused before a magistrate. This is the view which may be now con- sidered as accepted in the United States courts, and in most of the several States.* In Pennsylvania the annoyances and disorders attending the unlimited access of private prosecutors to the grand jury room have led a court of great respectability to hold it to be an indictable oflFence for a private citizen to address the grand jury unless when duly summoned.'' Theory that grand juries are limited to cases of no- toriety, or in their own know- ledge, and to eases given to them by court or prosecut- ing officers. ' Ward V. State, 2 Mo. 120. See State V. Corson, 12 Mo. 404 ; State v. Terry, 30 Mo. 368. 2 U. S. V. Tompkins, 2 Cranch C. C. R. 46 ; though see U. S. v. Lyles, 4 Cranch C. C. 469. As to informations, see U. S. V. Ronzone, 14 Blatch. 69. ' For opinion, see 8th ed. of this work, § 337. * Infra, §§ 867, 966. 230 ° Com. V. Crans, 3 P. L. J. 442. See Ridgeway's case, 2 Ashmead, 247 ; State 0. Wolcott, 21 Conn. 272. That such interference is a contempt of court, see Harwell v. State, 10 Lea, 544 ; infra, § 966. That for agents of the government to interfere is ground for quashing, see infra, § 397. And see, also, comments in Hartranft's App., 85 Penn. St. 433. CHAP. IV.] GRAJStD JURY: INQUISITORIAL POWERS. [§ 338. In accordance with this view, Judge King, in an able decision delivered in 1845, refused to permit the grand jury, on their own^ motion, to issue process to investigate into alleged misdemeanors in the oiBcers of the board of health, a public institution established in Philadelphia for the preservation of public health and comfort.* This conclusion was, in 1870, emphatically sustained by the Supreme Court of the State, by whom it was held that a grand jury cannot indict, without a previous prosecution before a magistrate, except in offences of public notoriety, such as are within their own knowledge, or are given them in charge by the court, or are sent to them by 'the district attorney .^ This, however, does not preclude 1 The opinion of Judge King on thia topic, given in prior editions, is now omitted for the purposes of condensa- tion. See report of English Commissioners, given in the 7th edition of this work, § 458. 4 Cr. Law Mag. 182; Report in 1870 of commis. to revise criminal codeofN. Y., p. 116. In New York a binding over is not necessary if the case is under exami- nation. See People v. Hyler, 2 Parker C. R. 566 ; People v. Horton, 4 Parker C. R. 222. A grand jury, it seems, may of their own knowledge indict a person com- mitting perjury before them. State v. Terry, 30 Mo. 368. 2 McCullough V. Com., 67 Penn. St. 30 ; S. P., Com. v. Simons, 6 Phil. R. 167. In McCulIoch v. Com. it was said by the chief justice : "It has never been thought that the 9th section of the 9th article of the Constitution, commonly called the Bill of Rights, prohibits all modes of originating a criminal charge against offenders ex- cept that by a prosecution before a committing magistrate. Had it been so thought, the court, the attorney- general, and the grand jury would have been stripped of power univer- sally conceded to them. In that event the court could give no offence in charge to the grand jury, the attorney- general could send up no bill, and the grand jury could make no presentment of their own knowledge, but all prose- cutions would have to pass through the hands of inferior magistrates." In Rowand v. Com., 82 Penn. St. 405, it was ruled that the district at- torney, with the powers of the deputy attorney-general conferred upon him by the Act of May 3, 1850 (P. L. 654), may prefer an indictment before the grand Jury without a preliminary hearing or previous commitment of the accused, and this even after a return of ignoramus to a previous indictment of the accused for the same offence ; but this power is to be exercised under the supervision of the proper court of criminal jurisdiction, and its employ- ment can only be justified by some pressing and adequate necessity. It was further said, that where the exer- cise of such power by the district attorney has been approved by the Court of Quarter Sessions, it will not be reviewed by the Supreme Court. See infra, § 373. To the same effect see Brown v. Com. 76 Penn. St. 319 ; and compare People v. Horton, 4 Parker C. R. 222. 231 § 338.] PLEADING AND PRACTICE. [CHAP. IV. a grand jury, when a bill sent to it by the prosecuting attorney contains a count as to which there was no specific binding over, from finding and returning such count.' In Tennessee a presentment, found not on the knowledge of any of the grand jury, but upon information delivered to the jury by others, will be abated on a plea of the defendant.^ But this does not preclude the grand jury from exercising inquisitorial power in respect to nuisances such as houses of ilWame, and other matters of notoriety." In an authoritative charge of Justice Field, of the Supreme Court of the United States, delivered to a California grand jury, in August, 1872, is the following : " Your oath requires you to diligently in- quire, and true presentment make; ' of such articles, matters, and things as shall be given you in charge, or otherwise come to your knowledge touching the present service.^ The first designation of subjects of inquiry are those which shall be given you in charge ; this means those matters which shall be called to your attention by the court, or submitted to your consideration by the district attorney. The second designation of subjects of inquiry are those which shall ' otherwise come to your knowledge touching the present service ;' this means those matters within the sphere of and relating to your duties which shall come to your knowledge, other than those to which your attention has been called by the court, or submitted to your consideration by the district attorney. But how come to your knowledge ? Not by rumors and reports, but by knowledge acquired 'from the evidence before you, or from your own observations. Whilst you are inquiring as to one oifence, another and a different offence may be proved, or witnesses before you may, in testifying, commit the crime of perjury. Some of you, also, may have per- sonal knowledge of the commission of a public offence against the laws of the United States, or of facts which tend to show that such an offence has been committed, or possibly attempts may be made to influence corruptly or improperly your action as grand jurors. If ■ Niohol«oa V. Com., 96 Penn. St. 2 state v. Love, 4 Humph. 265. 503. In Com. o. Lewis, 15 Weekly Infra, § 358, note. See, also, State v. Notes, 205, It was held that in such a Caine, 1 Hawks, 352, case there could be a continuance, If ' State v. Barnes, 5 Lea, 598 ; supra, the defendant was surprised, to the § 339 ; see Com. «. Wilson, 2 Chest, next term. Co. Rep. (Penn.) 164. 232 CHAP. IV.] GRAND JURY : INQUISITORIAL POWERS. [§ 339. you are personally possessed of such knowledge, you should dis- close it to your associates ; and if any attempts to influence your action improperly or corruptly are made, you should inform them of it also, and they will act upon the information thus communicated as if presented to them in the first instance by the district attorney. But, unless knowledge is acquired in one of these ways, it cannot be considered as the basis for any action on your part. We, therefore, instruct you, that your investigations are to be limited : First. To such matters as may be called to your attention by the court ; or, Second. May be submitted to your consideration by the district attorney ; or. Third. May come to your knowledge in the course of your investigations into the matters brought before you, or from your own observations ;' or, Fourth. May come to your knowledge from the disclosures of your associates. You will not allow private prosecutors to intrude themselves into your presence and present accusations. Generally such parties are actuated by private enmity, and seek merely the gratification of their personal malice. If they possess any information justifying the accusation of the person against whom they complain, they should impart it to the district attorney, who will seldom fail to act in a proper case. But if the district stttorney should refuse to act, they can make their complaint to a committing magistrate, before whom the matter can be investi- gated, and if sufficient evidence be produced of the commission of a public offence by the accused, he can be held to bail to answer to the action of the grand jury."' It has been held in New York, that a grand jury may find a bill against parties who are under arrest on a coroner's warrant, after the coroner's jury has . returned an inquest implicating them, and before the examination by the coroner has been completed.* § 839. The third view is that the grand jury are in all instances limited in their action to cases in which there has been „^ Theory such a primary hearing as enables the defendant, before thatgrand he is put on trial, to be confronted with the witnesses restricted 1 Famph. Rep. p. 9. See 2 Sawyer, ing to the usual practice in the federal 663-667 ; S. P. Lewis v. Commis., 74 N. courts, may on his official responsibil- C. 194. ity send a bill to a grand jury with- ' Peopleu.Hyler,2Parlj.C.R.(N. Y.) out a prior arrest or binding over. U. 566. The prosecuting attorney, accord- S. v. Fuers, 12 Int. Rev. Reo. 43. 238 § 339,] PLEADING AND PRACTICE. [CHAP. IV. to cases against him, and meet his prosecutor face to face.' If by magis- it should happen, under any contingencies of legislation, prosecuting that grand juries should be selected by the dominant po- officer. litical party, so as to be used by that party for political ends, then it is important that they should be restricted in the way which this limitation prescribes. An executive should have power, it is true, to institute, at his discretion, prosecutions, even though these prosecutions are aimed at political antagonists. But he should act, when exercising this power, responsibly, taking upon himself the burden, and challenging impeachment or popular condemnation should he do wrong. In this check he will move cautiously, and with due regards to constitutional and legal sanctions. It is other- wise, however, when he is authorized to act through a grand jury selected by himself or his dependents, and ready to execute, in every respect, his will. Such a body, irresponsible, servile to the political party whose creature it is, armed with inquisitorial powers of summoning before it whomsoever it will, examining them in se- cret, giving whatever interpretation it may choose to their evidence, finding whatever bills it chooses and ignoring all others, may be- come a dangerous engine of despotism, calculated to disgrace the government which acts through it, and provoke to revolution those on whom it acts. Under a system in which the- grand jury is ap- pointed by the executive, it is better that its functions should be limited in the terms here prescribed ; and that in all cases in which the executive desires to initiate a prosecution, it should be by information or preliminary arrest before a magistrate. At com- mon law, the right in a grand jury to institute prosecutions on its own motion is based on the assumption that it represents the people at large, and ceases to exist when it is not so constituted.* ' As advocating this view may be be a prior examination before a justice, noticed a pamphlet entitled The His- or a waiver of such examination, tory and Law of the Writ of Habeas Butler v. Com., 81 Va. 159 ; supra, Corpus, with an Essay on the Law of § 70. Grand Juries, by E. Ingersoll, of the " Except where proceedings originate Philadelphia Bar, 1849. 2 Hale's ex officio from the attorney-general, or Pleas of the Crown, by Stokes & In- where a grand juror possesses in his gersoll, 164. That, as in the old fed- own breast suifioient knowledge of the eral practice, any citizen may institute commission of a crime to enable his a prosecution, see U. S. c,-. Skinner, 1 fellows to find a bill exclusively on his Brunf. (U. S.) 446. evidence, cases, both in England and In Virginia there must, in felonies, this country, are rare where an indict- 234 CHAP. IV.] GRAND JURY : CONSTITUTION OF. [§ 341. § 340. Under the federal Constitution, Congress has invested the courts of the United States with criminal jurisdiction, Powerof and since this jurisdiction is chiefly exercised through f™iggjjm. the instrumentality of grand iuries, the power of Con- I'ed to . , . ~ . ,, , court sum- gress to determine their tunctions results by necessary moning implication. As a rule, the powers of grand juries are ^™' coextensive with, and are limited by, the crjminal jurisdiction of the courts of which they are an appendage.* Hence, a present- ment by a grand jury in the Circuit Court of the United States, of an offence of which that court has no jurisdiction, is coram non judiee, and is no legal foundation for any prosecution which can only be instituted on the presentment or the indictment of a grand jury-^ II. CONSTITUTION OF GRAND JURIES. § 341. Though twenty-four are usually summoned on grand juries, not more than twenty-three can be empanelled, as, otherwise, a complete jury of twelve might find a must be bill, when, at the same time, a complete jury of twelve twelve and might dissent.* If of twenty-four, the finding is void.* twenty- And it appears that, at common law, a grand jury com- posed of any number from twelve to twenty-three is a legal grand ment is found without a preceding hearing and binding over to answer ; and even where the bill is based on the evidence of a member of the grand jury, it has been held in one of the States that public safety required his name to be indorsed on the bill as prosecutor. State v. Caine, 1 Hawks, 352. In Tennessee, the grand jury cannot originate prosecutions except when by statute they have inquisitorial power. State V. Robinson, 2 Lea, 114. They have the power in liquor cases. State V. Staley, 3 Lea, 565. See supra, § 338. That the prosecuting attorney is not limited by returns, see Com. v. Morton, 12 Phila. 595. In Michigan there must be a prelimi- nary binding over. O'jaara v. People, 41 Mich. 623; of. Shepherd v. State, 64 lud. 43. » See Shepherd v. State, 64 Ind. 43. 2 See U. S. V. Hill, 1 Brock. 156 ; U. S. V. Reed, 2 Blatch. 435 ; U. S. v. Tallman, 10 Blatch. 21. 3 Cro. Eliz. 654 ; 2 Hale, 121 ; 2 Hawk. c. 25, s. 16 ; Com. v. Wood, 2 Cash. 149 ; Hudson v. State, 1 Blackf. 317 ; State v. Copp, 34 Kan. 522 ; Rev. Stat. N. Y. p. iv. 0. 4, § 26. See Rid- ling V. State, 56 Ga. 601. As to stat- utes limiting number, see U. S. v. Rey- nolds, 1 Utah, 319 ; 98 U. S. 145. As to venire facias, see U. S. v. Antz, 16 Fed. Rep. 119 ; 4 Woods, 174 ; Jones v. State, 18 Fla. 889. * R. V. Marsh, 6 Ad. & El. 236 ; Peo- ple V. Thurston, 5 Cal. 69. 235 § 343.] PLEADING AND PRACTICE. [CHAP. IV. jury.* If less than twelve the defect at common law is fatal.' A venire facias is an essential prerequisite.' § 342. After the jury is assembled, the first thing, if no chal- Foreman lenges are made, or exceptions taken, is to select a fore- potated by" ™an' which, in the United States courts, in New York, court. in Pennsylvania, and in most of the remaining States, is done by the court f in New England, by the jury themselves.* § 343. The oath administered to the foreman is substantially the Jurors to ^^™^ ^"^ most of the States: " You, as foreman of this be duly inquest, for the body of the county of , do swear sworii (or aflSrm) that you will diligently inquire, and true presentment make, of such articles, matters, and things as shall be given you in charge ; the commonwealth's (or State's) counsel, your fellows', and your own, you shall keep secret; you shall present no one for envy, hatred, or malice; neither shall you leave any one unpresented for fear, favor, affection, hope of reward, or gain, but shall present all things truly, as they come to your knowledge, according to the best of your understanding (so help you God)." The rest of the grand jury, three at a time, are then sworn (or affirmed) as follows : " The same oath (or affirmation) which your foreman hath taken, on his part, you and every of you shall well and truly observe, on your part (so help you God)."" In Penn- sylvania, after the words, " shall be given'you in charge," in the foreman's oath occur the words, " or otherwise come to your know- ledge, touching the present service." In Virginia the same expres- sion is introduced; but the subsequent clause, enjoining secrecy, is omitted.* In Massachusetts the jury are sworn in a body, the fore- man being afterwards elected, but the oath is the same as above.' 1 State V. Symonds, 36 Me. 128 ; State 2 Ired. 153 ; Barney v. State, 12 Sm. & V. Davis, 2 Iredell, 153; Pybos v. State,3 M. 68 ; People v. Butler, 8 Cal. 435. Humph. 49 ; Dowllng v. State, 5 Sm. & a u. S. v. Antz, 4 Woods, 174 ; 16 M. 664; Norris v. State,3Greene (Iowa), Fed. Rep. 119. 513. In Missouri twelve jurors suffice. * Smith's Laws of Pa. vol. vii. p. State V. Green, 66 Mo. 631. lu other 685 ; Rev. St. N. Y. part iv. o. 2, tit. 4, States special limitations exist. See § 26 ; Davis's Free. p. 9. State V. Swift, 14 La. An. 827. In Texas 6 gee Cr. Cir. Com. p. 11, 6th ed. the number must be exactly twelve. ^ Tate's Dig. tit. Juries. In the Kainey v. State, 19 Tex. Ap. 479. Crimes Act of 1866 the oath is given in 2 Clyncard's case, Cro. Eliz. 654 ; full. Pamph. L. 926. State V. Symonds, 36 Me. 128 ; Com. v. ' Rev. Stat. Mass. c. 136, § 5. Sayres, 8 Leigh, 722 ; State v. Davis, Where, on the first day of the term 236 CHAP. IV.] GRAND JURIES: QUALIFICATIONS OF. [§344. The fact that the grand jury were sworn must appear on the record.^ The terms of the oath, however, need not be set forth.* § 343 a. As has been just seen, grand jurors, according to the form generally used, are bound to secrecy ; and this duty is made obligatory by statute in several States.^ fg°r°fy'° The obligation to secrecy, however, is enforced by the policy of the law, as well as by the terms of this oath ; and hence the obligation is binding, though not imposed by the oath locally in force.^ The reasons for the rule are the importance of sheltering the action of the prosecuting authorities from premature disclosure by which such action could be frustrated ; the importance of pro- tecting accused parties from the disclosure, under the shelter of judicial procedure, of charges against them which may have been ignored." How far this obligation is made to yield to the duty of giving testimony in subsequent litigation is hereafter discussed.* As will be hereafter seen, only sworn officers are usually permitted to attend the sessions of the grand jury." III. DISQUALIFICATION OF GRAND JURORS, AND HOW IT MAY 3E EXCEPTED TO. § 344. Material irregularities in selecting and empanelling the grand jury, which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array,* or by of a circuit superior court, a grand ' See Coiji. v. Mead, 12 Gray, 167, jury was empanelled and sworn, and and cases cited infra, § 378. That the proceeded in discharge of its duties, court, in a strong case, may order the but next day it was discovered that prosecution to furnish the defendant one of the grand jurors wanted legal with the evidence used before the qualification, upon which the court grand jury, see Eighmy v. People, 79 discharged him and ordered another N. Y. 646 ; People v. Naughton, 7 Abb. to be sworn in his place, it was held Pr. (N. S.) 431. that this was regular, and the grand ^ Infra, § 378. jury was duly constituted. Com. v. ' Infra, § 367. Burtoh, 4 Leigh, 645. See Jetton v. « Jewett's case, 3 Wend. 314 ; U. S. State, 1 Meigs, 192. v. Blodgett, 35 Ga. 336 ; James v. 1 Lymau v. People, 7 111. Ap. 345 ; State, 45 Miss. 572 ; Chase v. State, Baker v. State, 39 Ark. 180. 46 Miss. 683 ; Boles v. State, 24 Miss. 2 Brown v. State, 74 Ala. 478. 445 ; Logan o. State, 50 Miss. 269 ; 3 See 16 West. Jur. 5. Barney v. State, 12 S. & M. 68 ; State * Little V. Com., 25 Grat, 921. Infra, v. Duncan, 7 Yerg. 271 ; Vanhook § 378. V. State, 12 Tex. 252 ; Keed v. State, 237 § 345.J PLEADING AND PRACTICE. [chap. IV. Irregulari- ties in em- panelling to be met by chal- lenge to array or motion to quash or plea. §345. Disquali- fied juror may be chal- lenged. motion to quash.' This must, when possible,* be before the general issue.' Objections by plea are hereafter no- ticed.* In New York, under the Criminal Procedure Code, there can be no longer a challenge to the body of the grand jury on the ground that it is irregularly or defectively constituted.* When a person who is disqualified is returned, it is a good cause of challenge to the poll, which may be made by any person who is concerned in the business to come before the grand jury ;* and in like manner a pre- judiced grand juror may be challenged by an accused 1 Tex. Ap. 1 ; State v. Jacobs, 6 Tex. 99; People .;. Earnest, 45 Cal. 29; U. S. V. Tallman, 10 Blatch. 21. It has been held not to be a good cause of challenge to the array, that the ofiScers whose duty it was to make the original selection were two or three weeks at the work ; nor, that one of them was temporarily absent ; nor, that they employed a clerk to write the names selected, and put them in the wheels ; Com. u. Lippard, 6 S. & R. 395 ; nor that two unquali- fied persons were inadvertently placed on a list of three hundred. U. S. u. Rondeau, 4 Woods, 185 ; 16 Fed. Rep. 109. See State v. Glascow, 59 Md. 209 ; Billingslea v. State, 68 Ala. 486 ; Com. V. Lippard, 6 S. & R. 395. But strong personal bias on the part of the persons employed in drawing the j ury may be a cause for challenge of the array. State i>. McQuaige, 5 S. C. 429. 1 Infra, §§ 350 e« seq., 388. See U. S. V. Antz, 16 Fed. Rep. 119 ; 4 Woods, 174 ; State v. Champeau, 52 Vt. 313 ; State V. Cox, 52 Vt. 471 ; State v. Law- rence, 12 Oregon, 297. Thus, an in- dictment may be quashed when a juror was personated by a stranger to the panel. Nixon v. State, 68 Ala. 535. See, generally, People v. Petrea, 92 N. Y. 128 ; State i'. Hughes, 58 Iowa, 165. 238 2 Infra, § 350. 8 Infra, § 350 ; U. S. v. Hale, 109 U. S. 65 ; Brown v. Com., 73 Penn. St. 34 ; State v. Easter, 30 Ohio St. 542 ; Barrows u. People, 73 111. 256 ; State V. Borroum, 25 Miss. 203 ; James ». State, 45 Miss. 572 ; State v. Whitton, 68 Mo. 91; State v. Greenwood, 23 Minn. 104; Dixon ■/. State, 29 Ark. 165 ; People v. Southwell, 46 Cal. 141. In North Carolina plea is said to be the proper mode of exception. State V. Haywood, 73 N. C. 437. For former New York practice as to plea in abatement see Dolan v. People, 64 N. Y. 485 ; People v. Tweed, 50 How. Pr. 262, 273, 280, 286. For practice in refusing a challenge to the array, see Carpenter v. People, 64 N. Y. 382. See People v. Fitzpatrick, 1 N. Y. Cr. Rep. 425 ; 30 Hun, 493 ; People v. Duff, 1 N. Y. Cr. Rep. 307 ; 65 N. Y. Prac. 365. As to practice in summon- ing jury in federal courts, C S. v. Munford, 16 Fed. Rep. 164. * Infra, § 350. » People V. Hoogkerk, 96 N. Y. 38. For an examination of the federal stat- ute in this relation see U. S. v. Rich- ardson, 28 Fed. Rep. 61. There can be no challenge to array for personal ob- jection to particular jurors. Id. « 2 Hawk. c. 25, s. 16 ; Bao. Ab. Juries, A.; Burn, J., 29th ed. Jurors, CHAP. IV.] ^ GRAND JURIES: CHALLENGES OF. [§ 347. person against whom the prejudice works. ^ Although it is said an amicus curiae, may be sometimes allowed to intervene,^ yet gene- rally the right is limited to those who are at the time under a prose- cution for an offence about to be submitted to the consideration of the grand jury or against whom a prosecution is threatened.^ The burden of proof is on the challenger.* Exemption is a personal privilege of the juror. If the exempted person serves, the defendant has no right to* complain." § 346. It is therefore a good cause of exception to a grand juror, that he has formed and expressed an opinion as to the guilt of a party whose case will probably be pre- sented to the consideration of the grand inquest.* As will presently be seen, the objection must be made, when there is opportunity to do so, before indictment found.' § 347. A conscientious inability to find a bill for a capital offence is a good ground for challenge.' Preadju- dication ground for challenge. So of con- scientious scruples. A.; Mershom v. State, 51 Ind. 14; State V. Richardson, 28 Fed. Rep. 61. As to time of challenge see People v. Geiger, 49 Cal. 643. As to practice see State 0. Fowler, S2 Iowa, 103. As to plea see Id. Infra, §§ 350, 419. ' State V. bsborne, 61 Iowa, 330. 2 Com. V. Smith, 9 Mass. 107. " People V. Horton, 4 Park. C. R. 222 ; Hudson v. State, 1 Blackf. 318 ; Ross V. State, 1 Blackf. 390 ; Thayer v. People, 2 Dougl. (Mich.) 418; State V. Herndon, 5 Blackf. 75 ; U. S. v. Blodgett, 35 Ga. 336 ; State v. Corson, 12 Mo. 404 ; but see contra, Tucker's case, 8 Mass. 286 ; State v. Clarissa, 11 Ala. 57; State v. Hughes, 1 Ala. 655. * State V. Haynes, 54 Iowa, 109. As to action after bail found see infra, § 350. = Infra, § 692 ; Green v. State, 59 Md. 123; U. S. o. Munford, 16 Fed. Rep. 164. 6 U. S. V. White, 5 Cranoh C. C. R. 457 ; People v. Jewett, 3 Wend. 314 ; State V. Rickey, 5 Halst. 83 ; Rolland V. Com., 82 Penn. St. 306 ; Com. v. Clark, 2 Browne, 325 ; State v. Gillick, 7 Iowa, 287 ; State v. Osborne, ut sup.; State V. Quimby, 51 Me. 395 ; People u. Manahan, 32 Cal. 68; State v. Hol- oomb, 86 Mo. 371 ; Patrick v. State, 16 Neb. 330 ; but see Musiok v. People, 40 111. 268 ; State v. Clarissa, 11 Ala. 57. ' Infra, § 350. See Com. v. Clarke, 2 Browne, 325. 8 State 0. Rockafellow, 1 Halst. (6 N. J. L.) 332 ; State v. Ricey, 5 Halst. 83; Gross v. State, 2 Carter (Ind.), 329 ; Jones v. State, 2 Blackf. 477 ; State V. Duncan, 7 Yerg. 271. See State V. Greer, 22 W. Va. 800. Infra, §664. A challenge to the array, however, will not be allowed on the ground that in the selection of the grand jurors all persons belonging to a particular fraternity were excluded, if those who ^re returned are unexceptionable, and possess the statutory qualifications. People V. Jewett, 3 Wend. 314, sed quaere. See Com. v. Lippard, 6 S. &B. 395. 239 §• 350.] PLEADING AND PRACTICE. [chap, IV. Personal interest a disqualifi- cation. § 348. In Massachusetts it was held, in an early case,, that the court would not set aside a grand juror because he has originated a prosecution for a crime against a person whose case was to come under the consideration of the grand jury.' In Vermont, a still more extreme doctrine has been maintained, it being held that the court has no power to order a grand juror to withdraw from the panel in any particular case, although it were One of a complaint against himself.^ But these de- cisions cannot be reconciled with the general tenor of authority, nor with the analogies of the English common law. It is a serious dis- credit as well as peril to a man to have a bill found against him ; and if this is likely to be done corruptly, or through interested parties, he has a right to apply to arrest the evil at the earliest moment. Besides, it is far less productive of injury to public jus- tice for a jury to be purged, at the outset, of an incompetent mem- ber, than for the indictment, after the grand jury adjourns, to be set aside on account of such incompetency.^ But interest, to sustain a challenge, must be actual and operative, not remote and inoperative.* § 349. It is no ground for challenge to a grand juror that he belongs to an association whose object is to detect crime.' § 350. The question of the mode in which objections to the organization and constitution' of the grand jury are to be taken depends so largely upon local statutes that "Vigi- lance" member- ship no ground. Objections, when it can be done, • Com. U.Tucker, 8 Mass. 286. SeelT. S. <;. Williams, 1 Dillon, 485. In Kook V. State, 32 Ohio St. 353, having sub- scribed funds to put down the liquor traffic does not exclude a grand juror in a liquor case. 2 Baldwin's case, 2 Tyler, 473. ' In New York, by the Revised Stat- utes, a person held to answer to any criminal charge may object to the com- petency of a grand juror, hefore he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecu- tion, subpoenaed or recognized as such ; 240 and if such objection is established, the juror is to be set aside. But no challenge to the array, or to any per- son summoned on it, shall be allowed in any other cases. 2 R. S. 724, §§ 27, 28. * Com. V. Ryan, 9 Mass. 90 ; Com. v. Strother, 1 Va. Cas. 186. Infra, § 662. In State v. Brainerd, 56 Vt. 532, which was a prosecution for embezzling from a bank, it was held that a juror was not disqualified because his wife was a depositor. 6 Musiok V. People, 40 111. 268. See infra, § 660. CHAP. IV.] GRAND JURIES : CHALLENGES OF. [§ 350. it is impracticable to solve it by any tests which would ™"s* •'« be universally applicable. The following general rules, fore gen- however, may be regarded as generally applicable : — "^^ '^°"^' 1. If the body by whom the indictment was found was neither de jure nor de facto entitled to act as such, then the proceedings are a nullity, and the defendant, at any period when he is advised of such nullity, is entitled to attack them by motion to quash, or by plea in abatement, or, when the objection is of record, by motion in arrest of judgment. He is, in most jurisdictions, sheltered by con- stitutional provisions from prosecution except on indictment found by a grand jury ; and when the body finding the indictment is not a grand jury either de jure or de facto, then its prosecution must fall whenever the question is duly raised.* But a de facto grand jury cannot be deemed a nullity under this provision of the consti- tution.' It is otherwise with a grand jury which has no quorum in attendance.* 2. For such irregularities in drawing and constituting the grand jury as do not prejudice the defendant, he has no cause of com- plaint, and can take no exception.^ 3. For irregularities of this class by which the defendant is pre- judiced he is entitled to redress.* The way, hfwever, in which this redress is to be sought depends upon local statute. It may be generally declared that the defendant must take the first oppor- tunity in his power to make the objection. When, however, does this opportunity occur ? In this relation the following distinctions may be recognized : — (a) Where the defendant is notified that his case is to be brought before the grand jury, he should proceed at once to take exception to its competency, as hereafter stated.® If he lies by until bill is found, then the exception may be too late in all cases where, having prior opportunity and capacity to object, he has made no objection.^ 1 Infra, § 353. See 23 Alb. L. J. by the district attorney, see State v- 324 ; 4 Or. Law Mag. 174-5. Grady, 84 Mo. 220. ' People V. Petrea, 92 N. Y. 128. * State v. Mellor, 13 R. I. 666. See Whart. Grim. Law, 9th ed. §§ 652, 6 Com. v. Barker, 2 Pick. 563, and 1572 d, 1799. cases cited infra, in this section. 3 Doyle ti. State, 17 Ohio, 222. That « See Kemp v. State, 11 Tex. Ap. 174. an indictment found without evidence ' U. S. v. White, 3 Cranch C. C. 457; will he quashed, the fact being proved U. S. v. Talman, 10 Blatch. 21 ; State V. Quimby, 51 Me. 695 ; Com. v. Smith, 16 241 § 350.] PLEADING AND PRACTICE. [CHAP. IV. (J) Where the defendant has no such opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash, or by plea in abatement, the latter, in all cases of contested fact, being the proper remedy. The objection, unless in extraordinary cases of surprise, is waived by pleading over.' But even where the defendant has been notified, by binding over or otherwise, that his case is to come before the grand jury, the courts will permit him, in all cases in which laches are not im- 9 Mass. 107 ; Com. v. Moran, 130 Mass. 281; Gibbs v. State, 45 N. J. 379; People V. Jewett, 3 Wend. 314 ; State V. Rickey, 5 Halst. 83 ; Fitzhugh v. State, 13 Lea, 258, 350 ; Com. v. Morton, 12 Phila. 595 ; State v. Gilbert, 7 Iowa, 287 ; State i>. Ruthven, 58 Iowa, 121 ; State V. Smitb, 80 N. C. 410 ; State v. Clifton, 78 Mo. 430 ; People v. Beatty, 14 Cal. 566 ; Polin v. State, 14 Neb. 540 ; State v. Watson, 31 La. An. 379 ; State V. Miles, 31 La. An. 825 ; State v. Wittington, 33 La. An. 1403; Galla- her V. State, 17 Fla. 370 ; Douglass u. State, 8. Tex. Ap. 520^ By statute in Pennsylvania, plead- ing, or even standing mute, waives errors in precept, venire, drawing, summoning, and returning of jurors. Dyott V. Com., 5 Whart. 67 ; Brown V. Com., 76 Penn. St. 319 ; Com. v. Cbaunoey, 2 Ashm. 90. But this does not preclude advantage being taken of such defects by challenge, motion to quash, or plea in abatement, before issue joined. ' U. S. V. Gale, 109 U. S. 65 ; U. S. V. Rondeau, 4 Woods, 185; 16 Fed. Rep. 109 ; U. S. v. Richardson, 28 Fed. Rep. 61 ; State v. Bnrlinghame, 15 Me. 104 ; State v. Symonds, 36 Me. 128 ; State V. Carver, 49 Me. 588 ; State o. Wright, 53 Me. 328 ; State t>. Flemming, 66 Me. 142 ; State v. Rand, 33 N. H. 216 ; State u. Newfane, 12 Vt. 422 ; State V. Maloney, 12 R. I. 257 ; State v. Davis, 12 R. I. 492 ; People v. Griffin, 2 Barb. 427 ; People v. Harriot, 3 Park. 242 C. R. 112; State v. Rockafellow, 1 Halst. (6 N. J. L.) 332 ; State v. Nor- ton, 3 Zab. 33 ; Com. v. Chauncey, 2 Ashm. 90 ; Com. v. Williams, 5 Grat. 702 ; State v. Martin, 2 Ired. 101 ; State V. Duncan, 6 Ired. 98 ; State v. Griffin, 74 N. C. 316 ; State v. Cannon, 90 N. C. 711 ; State «. Lanier, 90 N. C. 714; State V. Haywood, 94 N. C. 847 ; Doyle V. State, 17 Ohio, 222 ; Huling v. State, 17 Ohio, 583 ; Pointer v. State, 89 Ind. 255 ; Henning v. State, 106 Ind. 386 ; State V, Duncan, 7 Yerg. 271 ; State v. Bryant, 10 Yerg. 527 ; Terrill v. State, 9 Ga. 58 ; Thompson v. State, 9 Ga. 210 ; Reich v. State, 53 Ga. 73 ; State V. Brooke, 9 Ala. 10 ; State ;;. Clarissa, 11 Ala. 57 ; Weston v. State, 63 Ala. 155 ; Barney v. State, 12 S. & M. 68 ; Boles V. State, 24 Miss. 445 ; McQuillan t). State, 8 S. & M. 587 ; Rawls v. State, Ibid. 599 ; State v. Borroum, 25 Miss^r 728 ; State v. Price, 37 La. An. 215 ; State V. Griffin, 38 La. An. 502 ; Van- hook V. State, 12 Tex. 252 ; Jackson b. State, 11 Tex. 261 ; Kitrol v. State, 9 Fla. 9 ; Gladeu v. State, 12 Fla. 562 ; Wilburn v. State, 21 Ark. 198. See Battle V. State, 54 Ala. 93 ; State v. Mahan, 12 Tex. 283 ; State v. Collier, 17 Nev. 275. As to New York, see Dolan V. People, 64 N. Y. 485, and cases cited supra, § 344 ; Whart. Free. § 1158. As to practice on plea, see Birdw. State, 53 Ga. 602. That the remedy is exclusively plea in abate- ment, see Wallace v. State, 2 Lea, 29 ; infra, § 746. CHAP. IV.] GRAND JURIES: CHALLENGES OF. [§ 350. putable to him, or in which the defect is not discovered until after bill found, to raise the objection by plea in abatement or motion to 1 4. The objection that a grand juror is prejudiced must be made, when there is opportunity, before indictment found, by challenge,^ though where there is no such opportunity, or where the delay is not caused by the defendant, the defect may be taken advantage of by plea in abatement, or by motion to quash, before general issue pleaded.' 5. A question that is reserved when raised before indictment found, can be heard as fully after indictment found as before.* 6. Irregularity in selecting and empanelling the grand jury may be met by challenge to the array or motion to quash ;' though this, as we have just seen, does not preclude an exception being taken after 1 Ibid, infra, § 844. In New York the rule as stated by Andrews, J., in Cox t;. People, 80 N. Y. 500 (1880), is that "mere irregularity in the drawing of grand or petit jurors is not a ground for reversing a, conviction, unless it appears that they operated to the in- jury or prejudice of the prisoner." But as to grand juries, see under Rev. Code, supra. That the remedy must be by plea, see Ford v. State, 112 Ind. 373. 2 U. S. V. Williams, 1 Dillon, 485 ; State V. Hamlin, 47 Conn. 95 ; State v. Rickey, 5 Halst. 83 ; RoUand v. Com., 82 Penn. St. 306 ; State v. Easter, 30 Ohio St. 542; Williams v. State, 69 Ga. 11 ; Lee v. State, 69 Ga. 705 ; Boyington V. State, 2 Port. 100 ; Mackin v. People, 115 111. 313 ; State v. Washington, 33 La. An. 896; State v. McGee, 36 La. An. 207 ; State v. Jackson, Ibid. 96. As to challenge, see supra, § 345. That objections to the array must be taken by challenge to the array, see supra, § 344 ; 2 Hale, 155 ; 3 Inst. 34 ; Cro. Car. 134, 147 ; 2 Hawk. c. 25, ss. 18, 26, 29, 30 ; Bac. Ab. Juries, A. ; 1 Ch. C. L. 309 ; State v. Carver, 49 Me. 588 ; People ». Griffin, 2 Barb. 427 ; Rolland u. Com., 82 Penn. St. 306 ; State v. Martin, 2. Ired. 101 ; State V. Ward, 2 Hawks, 443 ; State v. Lamon, 3 Hawks, 175 ; State v. Sea- born, 4 Dev. 305 ; People ». Hidden, 32 Cal. 445. See for form, Whart. Free. § 1158. In Indiana such is, by statute, no longer the law. Ward u. State, 48 Ind. 289 ; overruling State v. Hern- don, 5 Blaekf. 75 ; Vattier v. State, 4 Blackf. 72. > Infra, § 388 ; U. S. v. Gale, 109 U. S. 65 ; Com. v. Clarke, 2 Browne, Pa. 325 ; Com. u. Cherry, 2 Va. Ca. 20 ; Com. a. St. Clair, 1 Grat. 556 ; Doyle V. State, 17 Ohio, 222 ; Musick v. Peo- ple, 40 III. 268 ; State v. Watson, 86 N. C. 624 ; Reich v. State, 53 Ga. 73 ; State V. Middleton, 5 Fort. 484 ; State r. Ligon, 7 Port. 167 ; State v. Clarissa, 11 Ala. 57. That intoxication of a grand juror cannot be taken advantage of by plea in abatement, see Allen ii. State, 61 Miss. 627. * People V. Duff, 65 N. Y. Fr. 365 ; 1 N. Y. Cr. R. 307. 5 Supra, § 344. 243 § 353.] PLEADIN9 AND PRACTICE. [chap. IV. bill found wKen the defendant had no previous opportunity of being heard. But the objection is ordinarily waived by pleading over.' § 351. It is necessary that the plea, in such case, should set Plea forth sufficient to enable the court to give judgment on it should be on demun'er.^ Thus where, upon a presentment by a grand jury for gaming, the defendant tendered a plea in abatement, that one of the grand jurors nominated himself to the sheriff to be put on the panel, who summoned him to serve, without alleging that this nomination of himself by the grand juror was cor- rupt, or that there was a false conspiracy between him and the sheriff for returning him on the panel ; it was held that the plea was bad.^ But that a sufficient number of jurors did not concur in its finding may be tested by plea in abatement.^ § 352. It is not necessary, at common law, that any part of a grand jury finding a bill against an alien should be aliens." Such, it has been determined, is also the rule in Pennsylvania.* The doctrine, that all the grand jurors should be inhabitants of the county for which they are sworn to inquire, admits, it would seem, of no modification.^ § 353. As we have already seen, objections to the grand jury, when such objections are not of record, must be taken before trial of the general issue ; and in some States even record defects are cured by verdict.* It is other- wise, at common law, as to objections of record showing want of jurisdiction. Here, if there be no statutory impediment, a motion in arrest may be entertained.' Aliens not necessary in prosecu- tions against aliens. As to re- cord juris- dictional objections thei-e may be arrest of judg- ment. ' Hasley v. State, 14 Tex. Ap. 217. That a discharge of a grand jury in one case may operate generally, see People V. Fitzpatrlck, 30 Hun, 493 ; 1 N. Y. Cr. E. 425. 2 U. S. V. Tuska, 14 Blatoh. 5 ; State «. Emery, 39 Vt. 84 ; Ward v. State, 48 Ind. 289 ; McClary v. State, 75 Ind. 260; Priest v. State, 10 Neb. 393; Baldwin v. State, 12 Neb. 61. 3 Com. V. Thompson, 4 Leigh, 667. A plea in abatement, that the grand jurors who found the indictment were selected by the board of commissioners 244 on the 6th of May, 1841, and that they had no authority to make the selection on that day, is bad, for not showing that the said 6th of May was not in- cluded in the May session of the board in that year. State v. Newer, 7 Blackf. 307. * Infra, § 376. 5 Hawk. b. 2, c. 43, § 36. 6 Res. V. Mesoa, 1 Ball. 73. ' Roll. Abr. 82 ; 2 Inst. 32, 33, 34 ; Hawk. b. 2, o. 25. 8 Supra, § 350 ; infra, § 766. 9 State V. Harden, 2 Richards. 533 • CHAP. IV.] GRAND JURY: FINDING BILL. [§ 354. But mere irregularities in summoning the jury cannot be thus ex- cepted to.^ "Where the error is of record, its existence must be determined by inspection.* IV. INDICTMENT MUST BE SANCTIONED BY THE PROSECUTING ATTORNEY. § 354. It is essential to the validity of an indictment that it should be submitted to the grand jury by the prosecuting ^^^.^^^.j officer of the State ;' and it is even said that his signature bill must is necessary before such submission,* though the point by prose- has been d'oubted;" and in several jurisdictions it has ^^^'^"'soffl- been ex'pressly decided that an indictment need not be so signed.* In any view, the name of the prosecuting officer need not appear in the body of the indictment.^ See Floyd v. State, 30 Ala. 511 ; State V. Connell, 49 Mo. 282 ; State v. Wat- son, 34 La. An. 669 ; State v. Vahl, 20 Tex. 779. Infra, § 766. That the ob- jection, if not taken before verdict, can- not be taken on motion for new trial, see Potsdamer v. State, 17 Fla. 895. 1 Supra, § 350; U. S. u. Gale, 109 U. S. 65. 2 Smith V. State, 28 Miss. 728. 3 McCuUough V. Com., 67 Penn. St. 30 ; Com. v. Simons, 6 Phil. R. 167 ; Foote V. State, 3 Hayw. 98 ; Hite v. State, 9 Yerg. 198. * Ibid. ; Teas v. State, 7 Humph. 174 ; State V. Bruce, 77 Mo. 193. ' State V. Vincent, 1 Car. Law E. 493; HoUey v. State, 75 Ala. 14; Cooper V. State, 63 Ga. 515. 6 State V. Reed, 67 Me. 127 ; State v. Pratt, 54 Vt. 484 ; State v. Ruby, 61 Iowa, 186 (under statute) ; State t;. Wilmoth, 63 Iowa, 380 ; State v. Mace, 86 N. C. 668 ; State v. Coleman, 8 S. C. 237; Thomas v. State, 6 Miss. 20; Keithler v. State, 10 S. & M. 192 ; Ward V. State, 22 Ala. 16 ; Harrall v. State, 26 Ala. 53; Anderson v. State, 5 Pike, 444 ; People u. Butler, 1 Idaho, N. S. 271 ; contra, Jackson o. State, 4 Kans. 150. See U. S. v. McAvoy, 4 Blatoh. 418. The signature is unnecessary in Texas by statute. Campbell v. State, 8 Tex. Ap. 84. In Indiana it would seem now necessary that the bill should come to court signed by the prosecut- ing attorney. Heacock v. State, 42 Ind. 393 ; though see McGregg v. State, 4 Blackf. 101. Mere formal variances in the title of the prosecuting officer, or abbrevia- tions which can be explained by the record, will not be regarded as affect- ing the validity of the signature. Su- pra, §§ 273 et seq. ; infra, § 354. Van- derkarr v. State, 51 Ind. 91 ; State v. Brown, 8 Humph. 89 ; State v. Evans, 8 Humph. 110 ; Greenfield a. State, 7 Baxt. 18 ; State v. Myers, 85 Tenn. 203 ; State V. Tannahill, 4 Kans. 117 ; State V. Salge, 2 Nev. 321 ; People v. Ash- nauer, 47 Cal. 98 ; see Territory v. ' State V. Pratt, 54 Vt. 484. 245 § 356.] PLEADING AND PBACTICE. [OHAP. iV. § 355. Even where the signature is necessary, the prosecuting attorney will be ordinarily allowed, at any subsequent period when the objection is made, to sign an indictment found without his signature being appended thereto, and a motion to quash for want of such signature will then be overruled.' § 356. The proceedings in bringing an indictment before the court must be conducted by the prosecuting attorney in person, even where the trial before court and jury may be conducted by other counsel.* The indictment being signed and preferred by the attorney-general, it will be presumed, in the absence of anything to the contrary, that an attor- ney-general pro tern., who conducted the trial, was properly ap- pointed.* Name may be signed after find- ing. Prosecut- ing offi- cer's sanc- tion neces- sary. Harding, 6 Mont. 323. But a title in itself unknown to the laws will be fatal. Teas V. State, 7 Humph. 174. The signature of the proper officer may be affixed by his authorized deputy or other official representative. U. S. v. Nagle, 17 Blatch. C. C. 258 ; Com. v. MoHale, 97 Penn. St. 397 ; Choen v. State, 85 Ind. 209 ; Stout v. State, 93 Ind. 150 ; State v. Nulf, 15 Kan. 404 ; People V. Lyman, 2 Utah, 30 ; State v. Gonzales, 26 Tex. 197 ; People v. Darr, 61 Cal. 588. A variance in the name of the prosecuting officer is not ground for reversal. State v. Kinney, 81 Mo. 101. Nor will a variance as to his title be material. State v. Myers, 85 Tenn. 203. 1 Com. V. Lenox, 2 Brewst. 249 ; see Knight u. State, 84 Ind. 73 ; State V. Ruby, 61 Iowa, 86. In Alabama indictments are not usually drawn until the evidence is heard by the grand jury, and the character of the case determined. Banks V. State, 78 Ala. 14. 246 " Infra, §§ 554 et seq.; Hush v. Cav- anaugh, 2 Barr, 187 ; Byrd v. State, 1 How. Miss. 247 ; Jarnagin v. State, 10 Yerg. 529. See Bemis's Webster case, where this practice is reported to have been sustained. The attorney-general may properly assist the circuit attorney at a trial for murder, whether ordered by the gov- ernor to do so or not, and the prisoner cannot take just exception. State v. Hays, 23 Mo. (2 Jones) 287. s Isham v. State, 1 Sneed, 112. (A capital ease.) See infra, § 554. In Pennsylvania, by the first section of the Act of May 3, 1850, providing for the election of district attorney, it is provided that the officer so elected shall sign all bills of indictment, and conduct in court all criminal or other prosecutions in the name of the Com- monwealth, which arise in the county for which he is elected. Pamph. 1850, 654 ; Com. v. Lenox, 3 Brewst. 249. CHAP. IV.] GRAND JURY: FINDING BILL. [§ 358. V. SUMMONING OF WITNESSES AND INDORSEMENT OP THEIR NAMES ON BILL. § 357. In every case where there has been a previous examina- tion and binding over, which, as has been seen, is thp -witnesses regular, and with a few guarded exceptions, the sole way for prose- n . «. 1 1- • 1 ,1 , •!. , cutionto of putting an offender on his trial, the prosecutor, it there te bound be any, and the witnesses, are ordinarily put under re- *° a^PP^ar. cognizance to appear and testify. The practice is, immediately at the opening of the court, to call their names ; and, in case of non- appearance, to secure their attendance by process. At common law, a justice of the peace, at the hearing of a criminal case, has power to bind over the witnesses, as well as the defendant, to appear at the next court, and in default of bail to commit them.' The presence of witnesses not under recognizance to attend is obtained by the ordinary means of a subpoena.^ § 358. The practice is, for the prosecuting attorney, or, in Eng- land, the clerk of the assizes, to mark on the back of ,. ,,.,,, . . Names of each bill the witnesses supporting it; though it has witnesses been held both in England and in this country that the piTe'e/ omission to make such indorsement is not fatal.' Nor, "^ ^^' 1 2 Hale P. C. 52, 282 ; 3 M. & S. 1. For oases see Whart. Grim. Ev. § 352. 2 See Whart. Grim. Ev. § 345. 3 4 M. & S. 9 ; U. S. t. Shepard, 12 Int. Rev. Rec. 10 ; People i>. Naughton, 7 Abbott (N". Y.) Pr. N. S. 421 ; 38 How. Pr. 430 ; State v. Scott, 25 Ark. 107 ; Wyoming Terr. v. Anderson, 1 Wy. Terr. 20; State v. Johnson, 33 Ark. 174. In Iowa, witnesses testifying to im- material facts need not be indorsed. State V. Little, 42 Iowa, 51 ; and see State ». Flynn, 42 Iowa, 164. In Massachusetts, such does not ap- pear to be the course, it being usual for the grand jury to return generally the names of all the witnesses exam- ined by them, without specifying the bills ; but in a leading case, where the prisoner's counsel requested that a list of the witnesses before the grand jury should be given, the court granted the application without doubt, it being remarked by Wilde, J., that such a request had never been refused. Com. V. Knapp, 9 Pick. 498. In Pennsylvania, the Act of 1705 pro- vides that no person or persons shall be obliged to answer to any indictment or presentment, unless the prosecutor's name be indorsed thereupon ; 1 Smith's Laws, 56 ; though it has been held by the Supreme Court that the Act does not go so far as to require that a prose- cutor should be indorsed in cases where no prosecutor exists. R. v. Lukens, 1 Dallas, 5. Undoubtedly the spirit of the com- mon law requires that the bill itself should afford the defendant the means of knowing who are the witnesses on whose evidence the accusation against him is based. Arch. C. P. by Jervis, 247 §358.] PLEADING AND PRACTICE. even when required by statute, is eluded, in cases of surprise, from 13; Barbour's Cr. Treatise, 272. If the grand jury act irregularly in intro- ducing witnesses without the action of the attorney-general, the proper course is to move to qnash. The irregularity cannot be pleaded in bar. Jillard v. Com., 26 Penn. St. 169. It is further provided in Pennsylva- nia by the Revised Act of 1860, that "No person shall be required to an- swer to an indictment for any offence whatsoever, unless the prosecutor's name, if any there be, is indorsed thereon, and if no person shall avow himself the prosecutor, the court may hear witnesses, and determine whether there is such a private prosecutor, and if they shall he of opinion that there is such a prosecutor, then direct his name to be indorsed on such indictment." § 27, Bright. Snpp. 1376. A similar provision exists in Vir- ginia. Com. 0. Dever, 10 Leigh, 685. That the omission cannot be taken advantage of after verdict, see Rodes v. State, 10 Lea, 414. In Illinois, under the statute, it is enough if the names are entered after that of the prosecuting attorney. Scott fc. People, 63 111. 608. See as to prac- tice, Andrews u. People, 117 111. 195. In Mississippi, though the want of the name of the prosecutor indorsed on the back of the bill is fatal (Peter v. State, 3 How. Mias. 433), it is not ne- cessary that the grand jury should re- turn, with the indictment, the names of the witnesses examined, or the evi- dence. King V. State, 5 How. Miss. 730. [CHAP. IV. the prosecution afterward pre- calling non-indorsed witnesses,* In Missouri, the name of the prose- cutor is required to be indorsed upon an indictment for any trespass not amounting to a felony (Rev. Code, 1835, § 451), and under this statute the prosecutor's name must be indorsed upon an indictment for petty larceny (State V. Hurt, 7 Mo. 321), or riot (State V. McCourtney, 6 Mo. 649 ;, Mc- Waters o. State, 10 Mo. 167) ; but it need only be indorsed in cases of tres- pass on the person or property of an- other/ ; State v. Goss, 74 Mo. 592 ; see Lucy V. State, 8 Mo. 134 ; and hence not on an indictment for a disturbance by making loud noises (State v. Moles, 9 Mo. 685) ; and it is a sufficient in- dorsement if the prosecutor's name be written on the face of the bill. Wil- liams V. State, 9 Mo. 270. In Tennessee, the name of the prose- cutor must, by statute, be marked on the back of the bill, and an omission to do so need not be pleaded in abate- ment, but may be taken advantage of at any time. Medaris v. State, 10 Yerg. 239. But if the indictment be founded on a presentment, the name of the prosecutor need not be indorsed on the bill. State o. McCann, 1 Meigs, 91. In Iowa, it is said that although the names of the witnesses should be in- dorsed on the indictment, they need not he made a part of the record. Harri- man ». State, 2 Greene, 1270. In Arkansas, the name of the pro- secutor need not be indorsed on a bill for passing counterfeit coin, that 1 Hill V. People, 26 Mich. 496 ; Bul- liner ». People, 95 111. 394 ; State v. Pagels, 92 Mo. 300 ; State v. Loehr, 93 Mo. 403. See State v. Fowler, 52 Iowa, 103. As will be hereafter seen, the 248 prosecution is not required to call all the witnesses so indorsed, though they should be produced in court. Infra, 6 565. CHAP. IV.] GRAND JURY: EVIDENCE. [§ 358 a. and, in some States, they can be indorsed on the bill after finding, or even after trial has begun, if due notice is given.* As a rule, it may be said that whenever by statute such an in- dorsement is required, its omission can be taken advantage of by mo- tion to quash, demurrer, or plea in abatement.* But after verdict the objection, if it could have been previously taken, comes too late.* VI. BVIDENCP. § 358 a. By the old practice, witnesses to be sent to the grand jury must be previously sworn in open court.^ If a wit- -^jt^egggg ness who is sent to a grand jury be thus sworn, though must be not in the immediate presence of the judge, or even in offence not being a trespass less than felony upon the person or property of another. Gabe v. State, 1 Eng. 519. It is not the practice, it is said, in the courts of the United States, that the name of the prosecutor should be written on the indictment (U. S. v. Mundel, 6 Gall. 245 ; see U. S. State V. Squire, 10 N. H. 558. See Byers v. State, 73 Md. 209. 2 Lowe's case, 4 Greenl. 448 ; State V. Symonds, 36 Me. 128 ; contra, State V. Baker, 20 Mo. 338. Infra, § 379. 3 State V. McNeill, 93 N. C. 552; supra, § 350-1. * Penn. v. Keffer, Addison, 290. 6 1 Chitty Cr. L. 323, 324 ; Lloyd v. Carpenter, 5 Penn. L. J. 60; 3 Clark, Phil. 196, where it was said by King, J. -. "The grand jury are entirely irre- sponsible, either to the public or to individuals aggrieved — the law giving them the most absolute and unqualified indemnity for such an official act." And again : ' ' When the ofiScial exis- tence of a grand jury terminates, they mingle again with the general mass of the citizens, intangible for any of their official acts, either by private action, 264 public prosecution, or legislative im- peachment." See, to same efi^ect. Hun- ter V. Mathis, 40 Ind. 357 : Turpin ». Booth, 56 Cal. 65 ; also cited in 16 West. Jur. 70. 6 See 16 West. Jurist, 8. ' 4 Black. Com. 126, note ; Sykes v. Dunbar, 2 Selw. N. P. 1059 ; Whart. Crim. Ev. § 510 ; 1 Ch. C. L. 322 ; State V. Fassett, 16 Conn. 457 ; Huide- koper V. Cotton, 3 Watts, 56 ; Thomas V. Com., 2 Robinson, 795 ; State v. Offutt, 4 Blackf. 355 ; "Mackin i;. Peo- ple, 115 111. 313 ; People v. Young, 31 Cal. 564 ; and cases cited infra. ' Ibid. ; Crocker v. State, Meigs, 127. See R. W.Hughes, 1 C. &K. 519 ; Com. V. Hill, 11 Cush. 137, and cases cited infra, note 6. s State V. Van Buskirk, 59 Ind. 384. Infra, § 380. CHAP. IV.] GRAND JURORS: IMPEACHING FINDING. [§ 379. witness who had been examined swore differently in the grand jury room,^ though the contrary is now the general and better opinion.* And a grand juror may be called to sustain a witness.* § 379. But the affidavit of a grand juror will not be received to impeach or affect the finding of his fellows,* even for the . , . , . • , , Cannot he purpose or showing how many jurors were present when admitted to the bill was found, which jurors voted in its favor, what a^^jw^ were their views," or that the bill was found without evidence.' But where a grand juror was guilty of gross intoxica- tion while in the discharge of his duty as such, the court, on a pre- sentment of such fact by the rest of the grand jury, ordered a bill to be preferred against him.' And a grand juror may be examined • Imlay v. Rogers, 2 Halsted, 347. See State v. Baker, 20 Mo. 338. » Whart. Crim. Ev. § 510 ; Sykes v. Dunbar, 2 Selw. N. P. 1059 ; R. v. Gibson, 1 Car. & M. 672; U. S. v. Charles, 2 Cranch C. C. 76 ; U. S. i-. Reed, 2 Blatch. 435, 466 ; State v. Ben- ner, 64 Me. 267 ; State v. Wood, 53 N. H. 484 ; Com. v. Hill, 11 Cush. 137 ; Com. V. Mead, 12 Gray, 167 ; Way v. Butterworth, 106 Mass. 75 ; State v. Fassett, 16 Conn. 457 ; People v. Hul- but, 4 Denio, 133 ; Huidekoper v. Cotton, 3 Watts, 56 ; Gordon i^. Com., 92 Penn. St. 216 ; Thomas v. Com., 2 Robinson (Va.), 795 ; Little v. Com., 25 Grat. 921 ; Burnham v. Hatfield, 5 Blackf. 21 ; Granger v. Warrington, 3 Gilm. 299 ; Perkins v. State, 4 Ind. 222 ; Burdiok ». Hunt, 43 Ind. 384 ; State V. Broughton, 7 Ired. 96 ; State V. Boyd, 2 Hill, S. C. 288 ; Sands c. Robison, 20 Miss. 704 ; Roooo v. State, 37 Miss. 357; Beam v. Link, 27 Mo. 261 ; White i;. Fox, 1 Bibb, 369 ; Crocker v. State, 1 Meigs, 127 ; Jones V. Turpin, 6 Heisk. 181 ; People v. Young, 31 Cal. 564. In several States, e. g., Missouri, tlie privilege is regu- lated by statute. 3 People V. Hulbut, 4 Den. 133 ; Perkins v. State, 4 Ind. 222. ' R. V. Marsh, 6 Ad. & El. 236 ; 1 N. & P. 187 ; State v. Doon, R. M. Charl. 1 ; State v. MoLeod, 1 Hawks. 344 ; State V. Baker, 20 Mo. (5 Bennett), 338; State v. Gibbs, 39 Iowa, 318; State V. Davis, 41 Iowa, 311 ; State v. Beebe, 17 Minn. 241. As to jurors generally, see infra, § 847. 5 State V. Fassett, 16 Conn. 457 ; People V. Hulbut, 4 Denio, 133 ; Hui- dekoper V. Cotton, 3 Watts, 56 ; Gor- don u. Com., 92 Penn. St. 216 ; State V. Bait. R. R., 15 W. Va. 362 ; State u. Broughton, 7 Ired. L. 98 ; State v. Baker, 20 Mo. 238 ; State v. Mewherter, 46 Iowa, 88 ; afF. State v. Gibbs, 39 Iowa, 318 ; contra, People v. Shattuck, 6 Abb. N. C. 33 ; Spigener v. State, 62 Ala. 383 ; Compare infra, § 847 ; supra, § 368 ; State v. Oxford, 30 Tex. 428. 6 State V. Grady, 34 Mo. 220. ' Penn. v. Keffer, Addis. 390. Where, on the trial of an indictment for selling liquor without a license, which charged five offences in separate counts, the defeudant,\ in order to limit the proof to a single count, offered to show, by one of the grand jury, that only one offence was sworn to be- fore that body, it was held that the evidence was inadmissible. People v. 265 § 380.] ^ PLEADING AND PRACTICE. [chap, IV. to prove, on a motion to quash a bill, who were the witnesses on whose evidence it was found ;' to show who was the prosecutor ;' and to prove, also, that less than twelve concurred in the finding.^ Where, also, the allegation is that the bill was found on testimony totally incompetent, and where this is ground for quashing, it would follow that grand jurors should be admitted to prove such fact. But the right of revision in such cases should be exercised within narrow limits, since if the action of grand juries is open to be overhauled and supervised by courts, not only would the secrecy of the grand jury as a protective institution be impaired and the solemnity of its proceedings destroyed by being subjected to the subsequent parol attacks of its members, but its findings would take the place of the verdicts of petit juries, and become not certifi- cates of probable cause, but adjudications under the direction of the court on the merits.* § 380. As a grand juror ought not to be received to testify to Prosecut- ^^^ ^^^^ which may invalidate the finding of his fellows, ing officer a prosecuting attorney is incompetent to testify to the tendant in- Same effect.' But, as has been already seen, he should toTmpeadi ^^ received to state what was the issue before the jury, finding. ^j,^ vfh&t was testified to by witnesses.' The same dis- tinctions apply to clerks and other attendants on the grand jury.' Hulbut, 4 Denio, 133. See R. v. Cooke, 8 C. & P. 582. In Missouri, it is provided by statute that no grand juror shall disclose any evidence given before the grand jury. See State v. Baker, 20 Mo. 338. But it has been held that a grand juror is not prohibited by the statute from stating that a certain person, naming him, testified before the grand jury, and the subject-matter upon which he testified. State v. Brewer, 8 Mo. 373 ; Tindle v. Nichols, 20 Mo. 326 ; Beam V. Link, 27 Mo. 261. 1 People V. Briggs, 60 How. (N. Y.) Pr. 17. ' Sykes V. Dunbar, Selwyn, Nisi Prius, 1091 ; Freeman v. Arkell, 1 Car. & P. 135. ' Low's case, 4 Greenl. 430 ; People 266 V. Shattuck, 6 Abb. N. C. 33 ; but see contra, R. v. Marsh, 6 Ad. & El. 236 ; State v. Baker, 20 Mo. 338 ; State v. Womaok, 70 Mo. 410 ; State v. Oxford, 30 Tex. 428. ' See remarks of Nelson, J., in V. S. V. Reed, 2 Blatch.. 466 ; Hulbut v. People, ut supra. 5 1 Bost. Law Rep. 4 ; McClellan v. Richardson, 13 Me. 82 ; Clark v. Field, 12 Vt. 485. 6 See Whart. Crim. Ev. § 513; White V. Fox, 1 Bibb, 369 ; State i: Van Buskirk, 69 Ind. 384. ' U. S. V. Farriugton, 5 Fed. Rep. 343 ; Knott v. Sargent, 125 Mass. 95 ; State V. Fassett, 16 Conn. 470 ; State v. Van Buskirk, 59 Ind. 384; Beam v. Link, 27 Mo. 261. CHAP. IV.] GRAND JURORS : IMPBACHIN9 PINDINa, [§ 381 . § 381. It is not only a contempt of court, punishable sum- marily, but it is a misdemeanor at common law, pun- ^^ tamper ishable by indictment, for volunteers to approach a with grand grand jury for the purpose of influencing its ac- indictable tion.i ' °*'"'='- » Com. V. Crana, 3 Penn. L. J. 442 ; §§ 729, 966, and charge of Justice Field, 2 Clark, Phil. 172 ; Greenl. on Ev. cited supra, § 367. § 252 ; and see supra, § 338 ; infra, 267 § 383.] PLEADING AND PRACTICE. [chap. V. CHAPTER V. NOLLE PROSEQUI. Nolle prosequi a prerogative of sovereign, §383. §383. Will be granted in vexatious prosecu- tions, § 884. A NOLLE PKOSBQOi is the Voluntary withdrawal by the prosecuting authority of present proceedings on a par- ticular bill, and at common law is a prerogative vested in the executive,' by whom alone it can be exercised.* At common law it may be at any time retracted, and is not only no bar to a subsequent prosecution on another indict- ment, but it must become a matter of record in order to preclude a revival of proceedings on the original bill.* It may, at common law, be entered at any time before judgment ;* and it may Nolle prosequi a preroga^ tive of sovereign. > U. S. V. Watson, 7 Blatch. 60; Com. V. Tuck, 20 Pick. 356 ; State v. Thompson, 3 Hawks, 613. See State V. Tufts, 56 N. H. 137 ; Com. v. Smith, 98 Mass. 10. See 5 Crim. Law Mag. 1. 2 Ibid. ; R. v. Dunn, 1 C. & K. 730 ;. R. V. Colling, 2 Cox, 184. In Camp- bell's Lives of the Chancellors, II., 173, we are told that Lord Holt having committed some of a party of fanatics, called "Prophets," for seditious lan- guage, he was visited by Lacy, one of their friends, when the following con- versation took place : " Servant : ' My lord is unwell to-day, and cannot see company.' Lacy (in a very solemn tone) : ' Acquaint your master that I must see him, for I bring a message to him from the Lord God.' The Chief Justice, having ordered Lacy in, and demanded his business, was thus ad- dressed : ' I come to you a prophet from the Lord,God, who has sent me to thee, and would have thee grant a 268 nolle prosequi for John Atkins, his ser- vant, whom thou hast cast into prison.' Chief Justice Holt : ' Thou art a false prophet, and a lying knave. If ,the Lord God had sent thee it would have been to the Attorney-General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi ; but /, as Chief Justice, can grant a warrant to com- mit thee to bear him company.' " ^ U. S. V. Shoemaker, 2 McLean, 114; Com. v. Wheeler, 2 Mass. 172; Com. V. Tuck, 20 Pick. 356 ; Com. v. Miller, 2 Ashm. 61 ; Wortham v. Com., 5 Rand. 669 ; Com. v. Lindsay, 2 Virg. Cas. 345 ; State v. McNeill, 3 Hawks, 183 ; State v. Basket, 3 Hill S. C. 95 ; State V. Blackwell, 9 Ala. 79 ; Clark v. State, 23 Miss. 261. As to position of atlorney-general on trial, see infra, § 554. As to law, see infra, § 447. * East, 307 ; State v. Burke, 38 Me. 574 ; State «. Roe, 12 Vt. 93 ; State v. Smith, 49 N. H. 155 ; Com. v. Briggs, CHAP, v.] NOLLE PKOSEQUr. [§ 383. be entered on objectionable counts so as to confine the verdict to those which are good.* It may be entered, also, at common law, on a portion of a divisible count ;* or as to one of several defendants.' Courts have, it is true, frequently held that the prerogative is one subject to their control, while the case is on trial, and that the attorney-general has no right, after the jury is empanelled and witnesses called, to withdraw the case without their sanction.* In some States no nolle prosequi is operative by statute without such consent." Be this as it may, if the case be withdrawn when on trial, without the defendant's consent, this operates as an acquittal in all cases in which the defendant was in jeopardy at the trial.* 7 Pick. 179;* Com. v. Tuck, 20 Pick. 356 ; Com. v. Jenks, 1 Gray, 490 ; Leri- son V. State, 54 Ala. 520 ; 5 Op. At.- Gen. 729. ' R. V. Rowlands, 2 Den. C. C. 367 ; 17 Q. B. 671 ; R. v. Hempstead, R. & R. 344; R. u. Butterworth, R. & R. 520; U. S. V. Peterson, 1 W. & M. 305 ; U. S. V. Shoemaker, 2 McLean, 114 ; State v. Bruce, 24 Me. 71 ; Anony- mous, 31 Me. 592 ; State v. Burke, 38 Me. 524; State v. Merrill, 44 N. H. 624 ; State v. Roe, 12 Vt. 93 ; State v. LocRwood, 58 Vt. 378 ; Com. v. Briggs, 7 Pick. 177 ; Com. v. Cain, 102 Mass. 487 ; Jennings v. Com., 105 Mass. 586 ; Com. v. Wallace, 108 Mass. 512 ; Com. f. Dean, 109 Mass. 349 ; People V. Porter, 4 Parker, C. R. 524 ; State V. Fleming, 7 Humph. 152 ; Com. v. Gillespie, 7 S. & R. 469 ; though see Agnew u. Commissioners, 12 S. & R. 94 ; Mount v. State, 14 Ohio, 295 ; Wright V. State, 5 Ind. 290 ; Harnett V. State, 54 Ala. 579 ; Lacey v. State, 58 Ala. 385 ; Grant v. State, 2 Cold. 216. « Ibid. ; State ». Merrill, 44 N. H. 624 ; State v. Christian, 30 La. An. Pt. I. 367. In U. S. K. Keen, 1 M'Lean, 429 ; Com. v. Stedman, 12 Meto. 444 ; Com. V. Briggs, 7 Pick. 179 ; Lanning V. Com., 105 Mass. 586 ; State c. Buck, 59 Iowa, 382, this was allowed after verdict. See infra, § 742. » State V. Woulfe, 58 Ind. 17. * U. S. V. Shoemaker, 2 McLean, 114 ; U. S. V. Stowell, 2 Curtis, C. C. 153 ; U. S. V. Corrie, 1 Brunf. U. S. 686 ; State v. I. S. S., 1 Tyler, 178 ; Com. V. Tuck, 20 Pick. 356 ; Com. v. Briggs, 7 Pick. 179 ; Jennings v. Com., 103 Mass. 586; Com. v. Scott, 121 Mass. 33; Mount v. State, 14 Ohio, 295 ; State v. Moody, 69 N. C. 529 ; Statham v. State, 41 Ga. 607 ; Donald- son, ex parte, 44 Mo. 149 ; State v. McKee, 1 Bailey, 651. See State v. Kreps, 8 Ala. 951. See, as to duties of prosecuting attorney, infra, §§ 555 et seq. See 5 Crim. Law Mag. 1. That a federal district attorney has not ab- solute power over a case while pending before a commission or grand jury, is maintained in U. S. v. Schumann, 7 Sawy. 439 ; 2 Abbott U. S. 523. See as to New Jersey, Appar v. Woolston, 14 Vroom, 65 ; State v. Hickling, 45 N. J. (16 Vroom) 154. 5 People V. McLeod, 1 Hill, 377 ; State V. Taylor, 84 N. C. 773-5. 6 Infra, § 447. See McGehee v. State, 58 Ala. 360 ; State v. McKee, 1 Bail. (S. C.) 651. This, however, cannot be claimed when the indictment is defec- tive. Infra, § 507. In New Hamp- 269 § 383.] PLEADING AND PRACTICE. [chap. V. Such, also, is the case when part of a divisible charge is withdrawn.' On the other hand, the defendant, by not insisting on a verdict, may lose his right to set up the nolle 'prosequi as a bar.* shire, in prosecutions instituted in the name of the State, a general discre- tionary power exists in the prosecuting oflScer to enter a rwlle prosequi. Before a jury is empanelled, or, after a ver- dict in favor of the State, this power may be exercised without the respon- dent's consent, and with his consent at any time during the trial, and be- fore the verdict of the jury. State v. Smith, 49 N. H. 155 (Nesmith, J., 1869). In the United States courts, the attorney-general or district attorney has only power to dismiss a prosecu- tion, or enter a nolle prosequi after in- dictment found. U. S. V. Schumann, 2 Abbott U. S. 523 ; 7 Sawy. 437. In Massachusetts, a nolle prosequi may be entered after the empanelling of the jury, against the objection of the defendant, if he does not demand a verdict. Charlton v. Com., 5 Met. (Mass.) 532 ; Com. v. Kimball, 7 Gray, 328'. See Com. v. McMonagle, 1 Mass. 517 ; Com. v. Tuck, 20 Pick. 356 ; Kite V. Com., 11 Met. 581 ; Com. v. Cain, 102 Mass. 214. But if the defendant objects, and demands a verdict, no nolle prosequi can be entered. Com. v. Scott, 121 Mass. 33. In Pennsylvania, by the Revised Act of 1860 :— "Nolle prosequi. — No district at- torney shall, in any criminal case whatsoever, enter a nolle prosequi, either before or after bill found, with- out the assent of the proper court in writing, first had and obtained." Rev. Act, 1860, Pamph. 437. See Com. v. Seymour, 2 Brewst. 567. Before the Revised Act it was held permissible, as it still continues to be with leave of court, to enter a nolle prosequi even after conviction. Com. v. Gillespie, 7 Serg. & R. 469. In this case, a nolle prosequi was entered on a particular count of an indictment, after convic- tion, judgment being rendered on the other counts. Compare Agnew v. Com- missioners, 12 Serg. & R. 94, where the power of the attorney-general, in case of perjury, under the Act of 29th March, 1819, to enter a nolle prosequi, even with leave of court, is doubted. So in New York. People v. McLeod^ 1 Hill, N. Y. 377. As to Connecticut, see State v. Garvey, 42 Conn. 232. After a nolle prosequi, the indictment on which it is entered is extinct. R. V. Mitchell, 3 Cox. C. C. 93; R. v. Allen, 1 B. & S. 850 (though see State V. Thompson, 3 Hawks, 613 ; State v. Howard, 15 Rich. 274). But a new indictment may ordinarily be found for the same offence. Infra, § 447. No personal agreement by the at- torney-general will make a, nolle prosequi a bar. A circuit attorney. In open court, agreed with a defendant, against whom several indictments were pend- ing, that If he would plead guilty as to some, he should be discharged from the others. The defendant accordingly pleaded guilty to four of the indict- ments, and a nolle prosequi in the ordinary form was entered on the rec- ord as to the remainder. It was held that the entering of a nolle prosequi could not have the legal effect of a 1 State V. Bean, 77 Me. 486. 2 Com. V. Kimball, 7 Gray, 270 328; State V. Garvey, 42 Conn. 233. Infra, §487. CHAP, v.] NOLLE PROSEQUI. [§ 384. § 884. A nolle prosequi may be granted either where in cases of misdemeanor a civil action is depending for the same ^^^^^ cause ;* or where any improper or vexatious attempts are prosequi , , . , , 11 ,. granted in made to oppress the deiendant, as by repeatedly prefer- vexatious ring defective indictments for the same supposed offence f ^"' ^' or if it be clear that an indictment be not sustainable against the defendant ;' or if the prosecution desire to withdraw a part of a divisible charge.* And where an indictment is preferred against a defendant for an assault, and at the same time an action of tres- pass is commenced in one of the civil courts for identically the same assault, upon affidavit of the facts and hearing the parties, the attorney-general may, if he sees fit, order a nolle prosequi to be entered to the indictment, or compel the prosecutor to elect whether he will pursue the criminal or civil remedy." It has been held, retraxit Toy reason of the agreement. State V. Lopez, 19 Mo. 254. Infra, § 447. In Wisconsin, it is said that an agreement by a public prosecutor, without the sanction of the court, for immunity to several defendants, on con- dition of one of them becoming state's evidence in other cases, is void as against the policy of the law. Wight V. Rindskopf, 43 Wis. 344. See infra, §536. In Maine, a nolle prosequi can be withdrawn during the term when en- tered. State V. Nutting, 39 Me. 359. In New Jersey the practice has grown up of requiring the assent of court to a nolle prosequi on a pending indictment. State v. Hickling, 45 N. J. L. 152. As to Georgia, see Doyal v. State, 70 Ga. 884. ' 1 Bos. & Pul. 191. 2 1 Black. Eep.' 545. 3 Com. Eep. 312 ; 1 Chitty's Grim. Law, 479. ' State V. Bean, 77 Me. 486 ; Jackson V. State, 76 Ga. 551 ; supra, §§ 158, 246 fif. " Where an offence is not without aggravating circumstances, which en- large the offence, he (the prosecuting olficer) may enter a nolle prosequi as to the aggravation, and obtain a convic- tion for the lesser offence, which is well charged." Morton, C. J., Com. v. Dunster, 145 Mass. 102. But "the prosecuting officer cannot, by means of a nolle prosequi, put the defendant on trial for an offence differing from any offence with which he is formally charged in the complaint or indict- ment." s 2 Burr. 270 ; 1 Chitty's Crim. Law, 479. See infra, §§ 453-4. The following is the form of the affidavit in such a case : — I, A. B., of the county of , etc., make oath and say that I did see the clerk of the peace of the county of sign a certificate hereto annexed, on the day of , at , and that since (or before) the time of preferring the indictment, on the said certificate mentioned, I was served with a copy of a writ of summons, issuing out of court at the suit of C. D., the prosecutor of the said indictment, requiring me within eight days to cause an appearance to be entered for me in the court of , in an action 271 § 384.] PLEADING AND PRACTICE. [CHAP. V. also, that an indictment for adultery should not be pressed against the earnest appeals of the only injured party.' The eflFect of a nolle prosequi, as a bar, is hereafter discussed.' of trespass, at the suit of the said C. D., and that on the day of , I, this deponent, did receive notice of a declaration being filed against me at the suit of the said C. D., the prosecu- tor of the said indictment in the office of the , for assaulting him, the said C. D., which said declaration and indictment, I say, are for the same assault, and not for different offences. A certificate from the clerk of the peace stating the substance of the in- dictment, and the time when it was preferred, must be annexed to this affidavit. Cro. C. C. 25. And if the attorney-general think the case a pro- per one for his interference, he will sign a warrant, under his hand and seal, directed to the clerk of the peace, and if the indictment has been found at sessions, directing him to enter a stet processus, R. v. Fielding, 2 Burr. 719 ; Jones v. Clay, 1 Bos. & P. 191. If the cause of the application be the vexatious conduct of the prosecutor, 272 the attorney-general may direct the proceedings to be removed into the Queen's Bench, where the counsel will be heard in support of the nolle prosequi. 1 Bla. Rep. 545; Archbold's C. P. (13th ed.) 92, 93. The following is the form of entering a nolle prosequi on record : — And now, that is to say, on , in this said term, before , cometh the said C. F. R., attorney-general (as the case may be), who for the said State in this behalf prosecuteth, and saith that the said C. F. R. will not further pros- ecute the said A. B. on behalf of the said State on the said indict- ment (or information). Therefore, let all further proceedings be altogether stayed here in court against him, the said A, B., upon the indictment afore- said. Archbold's C. P. 13th ed. 92. See, as to practice in Massachusetts, infra, § 549. ' People V. Dalrymple, 55 Mich. 519. 2 Infra, § 447. CHAP. VI,] MOTION TO QUASH. [§ 385. CHAPTER VI. MOTION TO QUASH. Indictment will be quashed when no judgment can be entered on it, § 385. Quashing refused except in clear case, §386. Quashing usually matter of discretion, §387. Extrinsic facts no ground for quashing, §388. Defendants may be severed in quashing, § 389. When two Indictments are pending one may be quashed, § 390. Quashing ordered In vexatious cases, §891. And so where finding is defective, § 391 a. Bail may be demanded after quashing, §393. Pending motion nolle prosequi may be entered, § 393. One count may be quashed, § 39i. Quashing may be on motion of prosecu- tion, § 395. Time usually before plea, § 396. Motion should state grounds, § 397. § 385. The court will quash an indictment when it is plain no iudgment can'be rendered in case of conviction.' Thus, r -,. , n 1 ■ , • ..,..'.„ Indictment an indictment lound in a court having no jurisdiction -will win be be quashed in a superior court f and so where the find- ^"Jf/n ^^ ing is on its face bad,^ or the bill charges an ofience Judgment excluded by a statute of limitation.* The same course entered will be taken where the ofi"ence is charged to have been committed on a day which is yet to come, or where no time is laid ; such an error being as fatal as if there were no day laid ;* and so of indictments alleging time as " on or about."* Where there is no Christian name given, or no addition, and no allegation that there is none, or that it is unknown, the defect may be availed of by a ' state V. Robinson, 9 Foster (N. H.), 274 ; State v. Sloan, 67 N. C. 357; State u. Soach, 2 Hay, 352 ; State v. Williams, 2 Hill (S. C), 382 ; State v. Albln, 50 Mo. 419. Supra, §§ 99, 106. ' R. V. Balnton, 2 Str. 1088 ; R. ». Hewitt, R. & R. 158 ; R. v. Heane, 4 B. &S. 947; 9 Cox, 433. ' Supra, §§ 350 et seg. ; State v. Kil- crease, 6 Rich. 444. 18 * state V. J. P., 1 Tyler, 283; State V. Robinson, 9 Foster (N. H.), 274; State V. English, 2 Mo. 182; contra, State V. Howard, 15 Rich. (S. C.) 274. Supra, §§ 136, 318 et seq.; and this cannot be regarded as settled law. s State v. Sexton, 3 Hawks, 184. Supra, § 134. ^ U. S. 0. Crittenden, 1 Hemp. 61. 273 § 386.] PLEADING AND PRACTICE. [chap. VI. motion to quash, as well as by a plea in abatement.^ An informa- tion, also, unsupported by oath or affirmation, will be quashed.' There are several instances, also, where indictments have been quashed because ^he facts stated in them did not amount to an offence punishable by law ;' as, for instance, an indictment for contemptu- ous "words spoken to a justice of the peace, not stating that they were spoken to him whilst in the execution of his office.* In cases of this general class, the trial judge may quash the indictment on his own motion.' § 386. It is in the discretion of the court to quash an indictment for insufficiency, or put the party to a motion in arrest ; but where the question is doubtful, the first remedy must be refused.* The court will not quash an indictment except in a very clear case ;^ and this reluctance is pecu- liarly strong in cases of crimes such as treason, felony ,8 forgery, perjury, or subornation.' The courts have also refused to quash indictments for cheats,'" for selling flour by false weights,'' for extor- tion,'* for not executing a magistrate's warrant" against overseers Quashing refused ex- cept in clear case. 1 State ». McGregor, 41 N. H. 407 ; Gardner v. State, 4 Ind. 632 ; Prell v. McDonald, 7 Kans. 454. Supra, § 98. 2 Eichenlaubu. State, 36 Ohio St. 140. 3 E. V. Burkett, Andr. 230 ; R. v. Sarmon, 1 Burr. 516 ; Huff's case, 14 Grat. 648. * R. V. Leafe, Andr. 226. It has been ruled in the United States Circuit Court for Michigan, under the special procedure prescribed in federal courts, that a motion will be sustained to quash on the allegation that no evi- dence whatever was adduced in support of the application for a warrant of ar- rest ; though the court will not inquire into the sufBoiency of such evidence if any was produced. U. S. ti. Shepard, 1 Abbott U. S. 431 ; but see infra, § 388. 5 R. V. Wilson, 6 Q. B. 620 ; R. v. James, 12 Cox C. C. 127 ; U. S. v. Pond, 2 Curt. C. C. 268. 6 U. S. V. Stowell, 2 Curtis C. C. 153 ; State c.. Burke, 38 Me. 574; State, w. Putnam, Ibid. 296 ; Com. v. Eastman, 274 1 Cush. 189 ; Lambert v. People, 7 Cow. 166; People v. Eckford, 7 Cow. 535; People V. Davis, 56 N. Y. 95 ; State v. Beard, 1 Dutch. 384 ; State v, Rickey, 4 Halst. 293 ; State v. Hageman, 1 Green (N. J.), 314 ; State v. Dayton, 3 Zab. 49 ; Home v. State, 39 Md. 652 ; Click 0. State, 3 Tex. 282; State ». Wishon, 15 Mo. 503 ; see Statew. Zeigler, 46 N. J. L. 307. ' Resp. V. Cleaver, 4 Yeates, 69 ; Resp. V. Buffington, 1 Dallas, 61 ; Bell V. Com., 8 Grat. 726 ; State v. Mathis, 3 Pike, 84 ; State v. Baldwin, 1 Dev. & Bat. 198 ; Stoner ». State, 80 Ind. 89. ^ Com. Dig. Indictment (H.) ; and see R. V. Johnson, 1 Wils. 325 ; People V. Waters, 5 Parker, 661 ; State v. Col- bert, 75 N. C. 368. 8 R. i>. Belton, 1 Salk. 372 ; 1 Sid. 54 ; 1 Vent. 370 ; R. v. Thomas, 3D. & C. 290. i» R. V. Orbell, 6 Mod. 42. 11 R. V. Crookes, 3 Burr. 1841. ■2 R. V. Wadsworth, 5 Mod. 13. is R. V. Bailey, 2 Str. 1211. CHAP. VI.] MOTION TO QUASH. [§ 387. for not paying money over to their successors,* and the like ; and a party in such cases will be left to his demurrer for demurrable defects.* An indictment for not repairing highways or bridges, or for other public nuisances, will not be quashed,^ unless there be a certificate that the nuisance is removed.* The same rule applies to indictments for a forcible entry ,° unless, perhaps, where the posses- sion has been afterwards given up.^ § 387. It has been frequently ruled that as quashing is a discre- tionary aot, error does not lie on its refusal." Even grant- ing the motion has been held a matter of discretion as to usually ^ which there is no revision.^ But an examination of the ™jgjjgy°^ cases will show that error has been sustained in numerous instances to such quashing, either directly or indirectly," and that such a rule is usually only applied to quashing on extrinsic proof of an improper finding.'" And it would be monstrous to assume that an inferior court could defeat revision by putting its judgment in the shape of quashing." And the reason for review is peculiarly strong 1 E. V. King, 2 Str. 1268. 2 Maguire v. State, 47 Md. 485. a R. V. Belton, 1 Salk. 372 ; 1 Vent. 370 ; R. (/. Bishop, Andr. 220. * R. v. Leyton, Cro. Car. 684; R. v. Wigg, 2 Salk. 460 ; 1 Ld. Raymond, 1165. 6 R. V. Dyer, 6 Mod. 96. « R. V. Brotherton, 2 Str. 702. See Com. Dig. Indictment (H.) ; 3 Bao. Abr. 116. In Massachusetts, it is provided by statute that no indictment shall be quashed or otherwise affected by reason of the omission or misstatement of the title, occupation, estate, or degree of the defendant, or of the name of the city, town, county, or place of resi- dence ; nor by reason of the omission of the words "force and arms," or the words " against the statute," etc. Rev. Stat. 0. 138, § 14. ' State V. Putnam, 38 Me. 296 ; State V. Hurley, 54 Me. 562 ; State v. Stew- art, 59 Vt. 273 ; Com. *. Eastman, 1 Cush. 189 ; Stout v. State, 96 Ind. 407 ; State V. Shiver, 20 S. C. 392 ; White v. State, 74 Ala. 31 ; State v. Conrad, 21 Mo. (6 Bennett) 271. See infra, § 777. That this is the case after plea, see Richards v. Com., 81 Va. 110. 8 State V. Hurley, 54 Me. 562 ; State V. Jones, 5 Ala. 666 ; State v. MoWil- liams, 7 Mo. Ap. 99. Infra, § 777. That this is so when the quashing is on motion of the prosecution, see State V. Cooper, 96 Ind. 33. That the Su- preme Court of the United States will not take cognizance of a division of opinion on motion to quash, see U. S. V. Avery, 13 Wall. 251 ; U. S. v. Ham- ilton, 109 D. S. 63. 8 See, as illustrating revision by mandamus. People v. Stone, 9 Wend. 182 ; and see State v. Barnes, 29 Me. 561 ; State v. Maloney, 12 R. I. 251 ; Com. V. Church, 1 Barr, 105 ; Com. v. Wallace, 114 Penn. St. 405 ; State v. Wall, 15 Mo. 208. w Green v. State, 73 Ala. 36. " State V. McNally, 55 Md. 559. 275 § 390.] PLEADING AKD PRACTICE. [chap. VI. in those States in which defendants are required to avail them- selves of certain formal defects exclusively in motion to quash.* § 388. It is error to quash for matter of defence not apparent Extrinsic ^^ *^® indictment or in the caption.^ Hence the illegal facts ueu- selection of the grand iurors, when the fact does not ally no , . "* 1 , . . ,. ground for appear on record, is no cause tor quashing an indictment quae mg. ^^ motion,* and an indictment will not be quashed on the ground of irregularities in the arrest or preliminary hearing,* nor for technical irregularities in the conduct of the grand jury," It is otherwise when there is gross impropriety in the action of the grand jury® or material defects in its constitution.^ In such case the burden of proof is on the party making the motion.' § 389. Wherever an indictment is divisible as to de- fendants, it may be quashed as to one defendant, remain- It is otherwise where, as Defend- ants may be severed in quash- ing. ing in force as to the others.' in conspiracy, there can be no such severance.'" § 890. If a prior indictment be pending in the same court, the course is to quash one before the party is put to plead on the other." 1 Com. V. McGovern, 10 Allen, 193 ; Com. V. Walton, 11 Allen, 238. 2 U. S. V. Pond, 2 Curtis C. C. 265 ; Wiokwire v. State, 19 Conn. 477 ; State V. Rickey, 4 Halst. 293 ; Com. v. Church, 1 Barr, 105 ; State u. Foster, 9 Tex. 65 ; People v. More, 68 Cal. 500 ; and see, also, U'. S. v. Shepard, supra, § 385. By consent, however, extra- neous matter may be brought in. R. V. Heane, 4 B. & S. 947 ; 9 Cox, 433 ; State V. Cain, 1 Hawks, 352. But affidavits denying material averments cannot be read witliout the consent of the prosecuting officers. People o. Clews, 57 How. (N. Y.) Pr. 245. 3 State V. Hensley, 7 Blackf. 324 ; but see supra, §§ 344, 350. ' People V. Rowe, 4 Parker C. E. 253 ; People v. Rodrigo, 69 Cal. 601. Supra, § 27. But see supra, § 385. 5 State V. Tucker, 20 Iowa, 508 ; State V. Cole, 19 Wis. 129 ; State v. 276 Fee, 19 Wis. 562; State v. Logan, 1 Nev. 509. The provision of Massachusetts, in the Rev. Sts. c. 136, § 9, that a list of all witnesses, sworn before the grand jury during the term, shall be returned to the court under the hand of the foreman, is directory merely ; and a non-compliance therewith is no ground for quashing au indictment. Com. v. Edwards, 4 Gray, 1. 6 Supra, § 363. Infra, § 391 a. Green v. State, 73 Ala. 36. ' Supra, § 344. Infra, § 391 a. 8 DeOUes v. State, 20 Tex. Ap. 145. ' Supra, § 301 ; State v. Coiupton, 13 W. Va. 852. » People V. Eckford, 7 Cow. 535. " In New York, if there be at any time pending against the same defend- ant two indictments for the same of- fence, or two indictments for the same matter, althoSgh charged as different CHAP. VI.] MOTION TO QUASH. [§ 394. defectively found. If in different courts, the defendant may abate the lattsr, by plea that another court has cognizance of the case by a prior bill.* It is said, however, that the finding of a bill does indict- not confine the State to that single bill. Another may "ndfnff^* be preferred and the party put to trial on it, although o^« ™ay be the first remains undetermined.^ § 391. Quashing is also sometimes ordered in vexatious cases, as ■where an indictment contains an unnecessarily cumbrous . combination of counts, or where incongruous offences are ojl^ered fu improperly joined ;' or where, after a return of ignora- vexatious mus, a second bill, without special ground laid, is sent in by the prosecution.* § 391a. When the finding of an indictment is a^^-u grossly defective and irregular, it may be quashed on wii is motion of the prosecution." § 392. On quashing an indictment on formal grounds, when no second indictment has been found, the court demanded* will continue the defendant on bail to meet the finding of ^^^''^. o quagning;. the second.* § 393. After a motion to quash an indictment containing two counts, one of which is defective, the prosecutor may p ,. enter a nolle prosequi as to the defective count, which motion will remove the grounds for the motion to quash, and 2«fmly be leave the defendant to be tried upon the charge con- ®"*«''«'^- tained in the good count.' § 394. In clear cases, a judge may, at his discretion, quash a defective count in an indictment, without quashing the one count entire indictment. ^ But if there be one good count, the ™aybe ° ' quashed. offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed. Rev. Stat, part iv. chap. ii. tit. 4, art. 2, § 42. Infra, § 452. ' State V. Tisdale, 2 Dev. & Bat. 159. Infra, § 441. 2 Ibid. ; Com. v. Drew, 3 Gush. 279 ; Duttou V. State, 5 Ind. 533. Supra, §§ 372-3 ; infra, § 452. ' Supra, § 290 ; Weinzorplin v. State, 7 Blackf. 186. * Eowand v. Com., 82 Penp. St. 405. 5 Supra, §§ 350, 363, 383 ; Finley v. State, 61 Ala. 201 ; State v. Tilleys, 8 Baxt. 381. See, however, McElhanon V. People, 92 111. 409. 5 Crumpton v. State, 43 Ala. 31 ; Graves, ex parte, 61 Ala. 381 ; Smith, in re, 4 Col. 532. ' State 0. Buchanan, 1 Ired. 59. Supra, §§ 383-4. 8 Scott V. Com., 14 Grat. 687 ; Jones V. State, 16 Humph. 435; State v. Woodward, 21 Mo. 266. 277 § 396.] PLEADING AND PRACTICE. [CHAP. VI. motion to quash, as a general rule, will not be sustained in those States in which a single good count will sustain a verdict.^ § 395. The practice is to prefer a new bill against the same de- Quashine fcndant, before an application to quash is made on the may be on part of the prosecution f an indictment quashed before prosecu- jeopardy attaches on trial being no bar.' And when the '""' court, upon such an application, orders the former indiqt- ment to be quashed, it is usually upon terms, namely, that the prose- cutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment ;* that the second indictment shall stand in the same condition to all intents and purposes that the first would have stood if it were not quashed ;* and particularly whei-e there has been any vexatious delay upon the part of the prosecutor,* that the prosecutor be put on terms.' And, at all events, as has been seen, the court, when the exceptions are techni- cal, will hold the defendant to bail to await a second indictment.' § 396. The application, if made by the defendant, must for for- Time usu- ™^^ defects, which would be cured by verdict, be made ally before before plea pleaded and must be prompt.* Should the application be made upon the part of the prosecution, it 1 Com. V. Hawkins, 3 Gray, 463 ; 20 Blatoh. 349, 351 ; State v. Burling- Com. V. Pratt, 137 Mass. 98; Kane ». ham, 15 Me. 104; NiohoUs «. State, 5 People, 3 Wend. 364 ; State v. Wishon, South. 539 ; Richards v. Com., 81 Va. 15 Mo. 508; State v. Woodward, 21 110; State v. Rlfife, 10 W. Va. 794; Mo. (5 Bennett) 265 ; State v. Mathis, State v. Jarvls, 63 N. C. 556 ; State ». 3 Pike, 84; State v. Rutherford, 13 Barbee, 93 N. C. 498; Thomasson v. Tex. 24 ; State v. Staker, 3 Ind. 570 ; State, 22 Geo. 499 ; Welnzorpflln v. Jarrell v. State, 58 Ind. 293 ; Dantz v. State, 7 Blaokf. 186 ; though see Com. State, 87 Ind. 398 ; State v. Buchanan, v. Chapman, 11 Cush. 422 ; R. v. Heane, 1 Ired. 59. ' 4 B. & S. 947 ; 9 Cox C. C. 433. 2 R. V. Wynn, 2 East, 226. In England, where the Indictment ' Infra, § 435. had already, upon application of the * R. V. Webb, 3 Burr. 1469. defendant, been moved into the Court ' R. V. Glen, 3 B. & Aid. 373 ; R. v. of King's Bench, by certiorari, the court Webb, 3 Burr. 1468 ; 1 W. Bl. 460. refused to entertain amotion by thede- 6 3 Burr. 1468 ; 1 W. Bl. 460. fendant to quash the indictment, after ' R. V. Glen, 3 B. & Aid. 372. For a forfeiture of his recognizance, by not exceptions, see Mentor v. People, 30 having carried the record down for Mich. 91. trial. Anon. 1 Salk. 380. In State v. * Supra, §§ 83, 392 ; Crumpton v. Morris, 1 Houst. 124, it was said that State, 43 Ala. 31. the motion could be made before the 5 Post. 261 ; R. V. Rookwood, Holt, defendant was in court. 684 ; 4 St. T. R. 677 ; U. S. v. Bartow, 278 CHAP. VI.] MOTION TO QUASH. [§ 397. would seem that it may be made at any time before the defendant has been actually tried upon the indictment ;• and the right as to formal defects continues until after arraignment and the empanelling of the jury.* After empanelling, for formal defects it may be too late.* But in cases where the indictment is plainly bad, as where there is clearly no jurisdiction, or where there are other plain substantial defects, the court will quash at any time, even after plea.^ Kd & 397. The motion should specifically state the ground s'^t^ J' . ^ •' ° grounds. 01 objection.* 1 See R. V. Webb, 3 Burr. 1468. 2 Clark V. State, 23 Miss. 261. Com. V. FitohburgE. R., 126 Mass. 472. In this case it was held that if a jury has once been empanelled in a criminal case, it is too late, under the St. of 1864, c. 250, § 2, to move to quash the indict- ment for formal defects apparent on its face, although the motion is made before the empanelling of the jury for a new trial of the case, the former verdict having been set aside. » R. V. Heane, 4 B. & S. 433 ; 9 Cox C. C. 433 ; R. o. Wilson, 6 a. B. 620 ; R. V. James, 12 Cox C. C. 127 ; Com. V. Chapman, 11 Gush. 422 ; ffichoUs V. State, 2 Southard, 539. See Wilder u. State,. 47 Ga. 522. 5 State V, Van Houten, 37 Mo. 357. See, under statute, State v. Berry, 62 Mo. 595. 279 § 400.] PLEADING AND PRACTICE, [chap. VII. CHAPTER VII. DEMURRER. Demurrer § 400. Demurrer but not Demurrer §402. Demurrer §403. reaches defects of record, may be to particular counts, to parts of counts, § 401. brings up prior pleadings, admits facts well pleaded, In England, judgment for crown on gen- eral demurrer is final, § 404. Otherwise in this country, § 405. Ordinarily judgment against prosecution not final, § 406. Demurrer to evidence brings up suffi- ciency of prosecution's ease, § 407. Joinder in demurrer formal, § 407 a. Demurrer should be prompt, § 407 6. §400. Demurrer reaches de- fects of record. Demukrer, from demorare, is a mode by which a defend- ant may object to an indictment as insufficient in point of law.' Wherever an indictment is defective in sub- stance or in form, it may be thus met ;^ but as at com- mon law all errors which can be thus taken advantage of are equally fatal in arrest of judgment, demurrers, as a means of testing indictments, were, in England, but rarely used until the 7 Geo. 4, c. 64, ss. 20, 21, by which all defects, purely technical, must be taken advantage of before verdict.* In this country, de- murrers, except under similar statutes, are in but little use,* and are of little practical use when the offence is set forth with sub- stantial accuracy." When flaws demurred to are merely formal, they are readily cured, if not by amendment, in any view, by finding a new bill.^ ' Co. Lit. VI, b; 4 Bl. Com. 333 ; Burn's Just. 29th ed. tit. Demurrer ; Ch. C. L. 439. So as to defective averment of jurisdiction. People v. Craig, 59 Cal. 370. As to form of de- murrer see State v. Weeks, 77 Mo. 496. 2 Lazier v. Com., 10 Grat. 708. 3 Arohbold's C. P. 9th ed. 78. Su- pra, § 90 ; Com. v. Hughes, 11 Phila. 430 ; People v. Markham, 64 Cal. 157. See as to Maryland practice, 6 Md. 410. * See supra, § 90. That a demurrer 280 will not be sustained for defects in in- dorsing and filing indictment see State V. Brandon, 28 Ark. 410. As to limits of Massachusetts statute, see Com. a, Kennedy, 131 Mass. 584. ' Deckard v. State, 38 Md. 186 ; Harne v. State, 39 Md. 352 ; see U. S. V. MoUer, 16 Blateh. 65 ; Minor v. State, 63 Ga. 318. « U. S. V. MoUer, 16 Blatoh. 65 ; Jackson v. State, 64 Ga. 344 ; State v. Millsop, 69 Mo. 359. CHAP. VII.] DEMURRER. [§ 404. § 401. A demurrer may be sustained as to a bad count without in anv wav affecting a good count in the same indict- 1 T1J.11-T- Demurrer ment ;* though if a demurrer be general to the whole in- may be to dictment, one good count will prevent a general judg- ^ouX.'but ment for the defendant.^ , That a part of a count is de- °°'^„'° Pf^^;'' fective is, however, no ground for demurrer, if the resi- due of the count sets forth an indictable offence. Hence, where a count contains two offences, one of which is properly stated, and the other of which can be rejected as surplusage, there must be a judgment on demurrer for the prosecution.' § 402. A demurrer puts the legality of the whole proceedings in issue, and compels the court to examine the validity of the whole record ;* and, therefore, in an indictment re- brings up moved from an inferior court, if it appear from the cap- j^y Jf ^n" tion that the court before which it was taken had no prior piead- jurisdiction over it, it will be adjudged to be invalid." Judgment is to be rendered against the party committing the first error in pleading.* § 403. Although a demurrer admits the facts demurred to and refers their legal suflSciency to the court,' it does not admit al- >^ •' . a Demurrer legations of the legal effect of the facts therein pleaded.* admits Nor does it admit any facts that are not well pleaded. ^'^ ^' § 404. Whether a judgment for the prosecution, on a demurrer, is final, depends upon whether the demurrer admits the facts charged in the indictment in such a way as to constitute a In England, ° •' judgment confession of guilt. If a defendant virtually says : " I on general did this, but in doing it I did not break the law," for prose- then, if the conclusion of the court is that if he did be'toai"^'' break the law, judgment is to be entered against him.' 1 Turner v. State, 40 Ala. 21. * Saund. 285, n. 5 ; Com. v. Trim- 2 Ingram v. State, 39 Ala. 247. In- mer, 84 Penn. St. 65. fra, § 909. s 1 T. R. 316 ; 1 Leaoh, 425 ; Andr. ' Muloahy v. R. L. R., 3 H. L. 306 ; 137, 138. Wheeler v. State, 42 Md. 563. « State v. Sweetsir, 53 Me. 438. In Pennsylvania, by the revised ' Holmes v. State, 17 Neb. 73. act, objections to indictment must be ^ Com. v. Trimmer, 84 Penn. St. 18. made before the jury is sworn. Rev. " Burn's Just. 29th ed. tit. Demur- Act, 1860, 433 ; Com. v. Frey, 50 Penn. rer ; 2 Hale, 225, 257, 315 ; 2 Inst. St. 245. 178 ; 2 Hawk. c. 31, s. 5 ; 4 Bla. Com. A similar provision exists in Massa- 334 ; Starkie's C. P. 297 ; 2 Leach, ohusetts. Gen. Stat. 1864, o. 250, § 2. 603 ; Ch. C. L. 439. 281 § 405.] PLEADING AND PRACTICE. [OHAP. VII. On the other hand, when the demurrer is special, pointing out particular alleged flaws in the indictment, and not confessing that the facts charged as constituting the offence are true, then, if the judgment is for the prosecution, the defendant is entitled to plead over.' In England, it is true, judges at nisi prius have held that the defendant was entitled to have judgment of re- apondeat ouster, in every case of felony where his demurrer was adjudged against him ; for it was said that where he unwarily dis- closes to the court the facts of his case, and demands their advice whether it amounts to felony, they will not record or notice the con- fession f and a demurrer was said to rest on the same principle.' In 1850, however, the question was finally put to rest by a judgment of the English Court of Criminal Appeal, that a judgment for the crown on a general (as distinguished from a special) demurrer in- terposed by the defendant, under such circumstances, is final.^ At the same time it is within the discretion of the court to permit the defendant to withdraw his demurrer, and to plead as it were de novo to the indictment." § 405. In this country the distinction above taken is not re cognized, and the practice has been in all cases where otherwise o / x in this there is on the face of the pleading no admission of country. criminality on the part of the defendant, to give judg- 1 1 Salk. 59 ; Cro. Eliz. 196 ; Dyer, ' E. v. Faderman, 4 Cox C. C. R. 38, 39 ; Hawk. b. 2, c. 31, s. 6 ; R. «. 357 ; 3 C. &. K. 359 ; 1 Den. C. C. 565. Faderman, 1 Den. C. C. 360 ; T. & M. '' R. v. Smith, 4 Cox C. C. 42 ; R. v. 286 ; 3 C. & K. 359 ; overruling R. v. Brown, 1 Den. C. C. 293 ; 2 C. & K. Duffy, ut supra; Foster u. Com., 8 509; R. v. Birmingham R. R., 3 Q. B. Watts & Serg. 77 ; see People v. Big- 233 ; R. v. Houston, 2 Craw. & Dix, gins, 65 Cal. 564. 310. See 1 Bennett & Heard's Lead. 2 Arohbold, by Jervis, 9th ed. 429 ; Cas. 336. 2 Hale, 225, 257 ; 4 Bla. Com. 334. A distinction, however, has been •■ R. 0. Duffy, 4 Cox C. C. 326 ; R. taken between felonies and misde- V. Phelps, 1 C. & M. 180 ; R. u. Pur- meanors ; for in the latter, if the de- chase, 1 C. & M. 617 ; Fost. 21 ; 4 Bla. fendant demur to the indictment, Com. 334 ; 8 East, 112 ; 2 Leaoh, 603 ; whether in abatement or otherwise, 2 Hale, 225, 257 ; 1 M. & S. 184 ; Burn, and fail on the argument, it is said that J., Demurrer; Williams, J., Demur- he shall not have judgment to answer rer ; but see Starkie's C. P. 297-8 ; and over, but the decision will operate as a in R. V. Odgers, 2 M. & Rob. 479, and conviction. 8 East, 112 ; Hawk. b. the cases there cited iu note, it was 2, u. 31 ; though see R. v. Birmingham held that it is within the discretion of R. R., 3 Q. B. 223, where the defendant the court, even in felonies, to refuse a was allowed to withdraw the demurrer. respondeat ouster. 282 CHAP. VII.] DEMURRER. [§ 405. ment, quod respondeat ouster, and the English distinction does not seem to be recognized.' In some jurisdictions, however, it has been held, that when a general demurrer to an indictment for a misdemeanor has been overruled, the defendant will not be permitted to plead to the indictment as a matter of right ; he must lay a sufficient ground before the permission will be granted.^ In New York, where the defendant demurred to an indictment for a misdemeanor in the court below, and judgment was there given against the People, which was in the Supreme Court reversed on error, it was held that the court in error must render final judg- ment for the People on the demurrer, and pass sentence on the defendant ; and that he could not be permitted to withdraw the demurrer and plead.' But this is now corrected by statute, and the proper course, even independently of statutes, is, in such case, to permit a plea in bar, and a trial by jury.* And now, even where the disposition is to treat the judgment on a general demurrer as final, the courts in this country generally agree with those of Eng- land in reserving the right to permit the demurrer to be withdrawn at their discretion,' ' Com. ». Goddard, 13 Mass. 456 {sed quaere, Com. v. Eastman, 1 Cash. 189) ; Com. ... Barge, 3 Pen. & W. 262 ; Foster v. Com., 8 Watts & S. 77 ; State V. Polk, 92 N. C. 652 ; Ross v. State, 9 Mo. 687. See Evans «. Com., 3 Met. 453; MoGuire v. State, 35 Miss. 366; Maeder V. State, 11 Mo. 363 ; Austin v. State, Ibid. 366; Lewis v. State, Ibid. 366; Fulkner v. State, 3 Heisk. 33. See for other cases, infra, §§ 419-421. By act of Congress of May 23, 1872, the judgment is respondeat ouster. Eev. Stat. § 1026. 2 State !!. Merrill, 37 Me. 329 ; State V. Dresser, 54 Me. 569 ; State v. Wil- kins, 17 Vt. 151 ; Wickwire v. State, 19 Conn. 478 ; Bennett v. State, 2 Yerg. 472 ; State v. Rutledge, 8 Humph. 32. See People v. King, 28 Cal. 265 ; People V. Joeelyn, 29 Cal. 562 ; Com. v. Foggy, 6 Leigh, 638. See infra, § 419. ' People V. Taylor, 3 Denio, 91 ; but see People v. Corning, 2 Comst. 1, cited infra, § 773. " In Stearns v. People, 21 Wend. 409, the prisoner was indicted for a felony. He demurred to the indict- ment, and Judgment was given upon the demurrer against him to answer over. He refused to do so, when the court directed a plea of not guilty to be entered for him, and a trial upon the plea of not guilty was had. Upon error the court seems to have held, and it seems to us properly, that as he had not voluntarily pleaded over he had not waived the right to review the judgment on his demurrer, but could take advantage of the error, ii any, in overruling it. This, it seems to us, is a very proper course for a fair-minded court to take in a case where a de- murrer is interposed in good faith." Note to 13 Eng. R. 662. For practice in writ of error in such cases see infra, § 773. * R. V. Houston, 2 Crawf. & Dix, 310. 6 State V. Wilkins, 17 Vt. 152 ; 283 § 407.] PLEADING AND PRACTICE, [chap. VII. § 406. Where the prosecution demurs to the plea of autrefois Ordinariiv ^''*''^*''*» ^^ other Special plea of confession and avoid- judgment ance to an indictment, and the demurrer is overruled, against . , , prosecution the defendant is not entitled to be discharged, and the °° ° ■ prosecution may rejoin.* But if the defendant plead in abatement in matter of form, and the plea is demurred to, and the demurrer overruled, the judgment of the court is that the prosecu- tion abate, reserving the right to bring in an amended bill.' Judgment against the prosecution on a special demurrer to the indictment is not final, when the defects are merely formal, but a new bill may be sent in, with the defect cured.* And the defend- ant, in cases of this class, will be held over to await a second in- dictment.* A writ of error lies to a judgment against the prose- cution.* But where the demurrer is general, going to the merits of the offence, then a judgment for the defendant relieves him from further prosecution.* § 407. By the practice of several States, the defendant may Demurrer (^^mur to the evidence, though it is optional for the to evidence prosecutor to join or not.^ The object is to ascertain Bufflciency the law on an admitted state of facts, the demurrer ad- cutfon^r mitting every fact which the evidence legitimately tends whole case. \^ establish.* In such "cases a judgment against the de- fendant is a final judgment for the prosecution.' Evans v. Com., 3 Met. (Mass.) 453; Bennett v. State, 2 Yerg. 472. See infra, §§ 419, 477, 478, 773. That when there are several special pleas, two of which are demurred to, there can be no judgment of guilty based on a sus- taining of the demurrer to these counts alone, see Sipple v. People, 10 111. App. 144. • 1 Barge «. Com., 2 Pen. & W. 262 ; State V. Barrett, 54 Ind. 434 ; State v. Nelson, 7 Ala. 610. 2 Rawls V. State, 8 Sm. & M. 590. » U. S. V. Watkyns, 3 Cranch C. C. R. 441 ; State v. Barrett, 54 Ind. 434. Infra, §§ 425, 487 ; though see supra, 284 § 404, and State v. Dresser, 54 Me. 569. ' Crumpton v. State, 43 Ala. 31. 5 Infra, § 773. 6 Infra, § 457. ' Com. V. Parr, 5 Watts & S. 345 ; Com. V. Wilson, 9 Weekly Notes, 291; Doss 0. Com., 1 Grat. 557 ; Brister v. State, 26 Ala. 108. 8 Bryan v. State, 26 Ala. 65. See cautions in Martin v. State, 62 Ala. 240 ; cf. State v. Marshall, 37 La. An. 26. 8 Hutchison v. Com., 82 Penn. St. 472. CHAP. VII.] ^ DEMURRBE. [§ 407 J. § 407 a. Thd omission of the record to sliow a joinder of issue cannot be objected to after the determination of demurrer the issue of law.' ^°™*i' § 407 6. A demurrer should be promptly made, and it is too late after plea is entered ; though there may be cases of sub- stantial error in which, when a plea has been entered Jj^g^pt* inadvertently, it may in the discretion of the court be withdrawn, in order to enable the question of law to be determined in advance of the trial of the issue on the plea of not guilty." 1 1 Chit. Crim. Law, 481, 482 ; U. S. v. Chapman, 11 Cnsh. 422 ; People v. V. Gibert, 2 Sumn. 19, 66 ; Com. v. Villarino, 66 Cal. 228 ; supra, § 396 McKenna, 125 Mass. 397. For Pennsylvania statute see supra, • ' R. V. Purchase, C. & M. 617 ; Com. § 401. 285 PLEADING AND PRACTICE. [chap. VIII. CHAPTER VIII. PLEAS. I. GOILTT OR NOT GtJILTT. Plea of not guiltyie general issue, §408. Plea is essential to issue, § 409. Omission of similiter not fatal, § 410. In felonies pleas must be in per- son, § 411. Pleas must be several, § 412. Plea of guilty should be solemnly made, and reserves motion in arrest and error, § 413. May at discretion be withdrawn, §414. Mistakes in may be corrected, §415. After plea degi-ee of offence may be ascertained by witnesses, §416. Plea of not guilty may be entered by order of court, § 417. Plea of nolo contendere equiva- lent to guilty, § 418. n. Special Pleas. Bepugnant pleas cannot be pleaded simultaneously, § 419, In practice special plea is tried first, § 420. Judgment against defendant on special plea is respondeat oiister, « § 421. III. Plea to the Jukisdiotion. Jurisdiction may be excepted to by plea, § 422. IV. Plea in Abatement. Error as to defendant's name may be met by plea in abatement, §423. And so of error in addition, §424. Judgment for defendant no bar to indictment in right name, §425. 286 After not guilty plea in abate- ment is too late, § 426. Plea to be construed strictly, §427. Defendant may plead over, § 428. V. Other Special Pleas. Plea of non-Identity only allowed in cases of escape, § 429, Plea of insanity allowed under special statute, § 429 a. Plea to constitution of grand jury must be sustained in fact, §430. Pendency of other indictment no bar, § 431. Plea of law is for court, § 432. Ruling for prosecution on special plea is equivalent to judgment on demurrer, § 433. VI. AuTKEPors AcQtntT or Convict. 1. As to Nature of Judgmetit. Acquittal without judgment a bar, but not always conviction, §435. Judgment arrested or new trial granted on defendant's appli- cation no bar, 435 a. Arbitrary discharge may operate as an acquittal, § 436. Record of former judgment must have been produced, § 437. Court must have had jurisdic- tion, § 488. Judgment by court-martial no bar, § 439. And so of police and municipal conviction or acquittal, § 440. Of courts with concurrent juris- diction, the court first acting has control, § 441. Ofi'ence having distinct aspects separate governments may prosecute, § 442. CHAP. VIII.] PLEAS. Proceedings for contempt no bar, §444. Nor proceedings for Jidbeas cor- pus, § 445. Ignorarmts and quashing no bar, §446. Noris nolle prosequi or dismissal, §447. After verdict nolle prosequi a bar, §448. Discharge for want of prosecu- tion not a bar, § 449. Foreign statutes of limitation when a bar, § 450. Fraudulent prior judgment no bar, § 451. Nor is pendency of prior indict- ment, § 453. Nor Is pendency of civil proceed- ings, § 453. New trial after conviction of minor is bar to major, § 455. Specific penalty Imposed by sov- ereign may be exclusive, § 455 a. S. As to Form of Indictment. If former indictment could have sustained a verdict, judgment is a bar, § 456. Judgment on defective indict- ment is no bar, § 457. Same test applies to acquittal of principal or accessary, § 458. Acquittal on one count does not affect other counts ; but other- wise as to conviction, § 459. Acquittal from misnomer or mis- description no bar, § 460. Nor is acquittal from variance as to intent, § 461. Otherwise as to variance as to time, § 463. Acquittal on joint indictment a bar If defendant could have been legally convicted, § 463. Acquittal from merger no bar, §464. Where an indictment contains a minor offence Inclosed in a major, a conviction or acqult- ■ tal of minor bars major, § 465. Conviction of major offence bars minor when on first trial de- fendant could have been con- victed of minor, § 466. Prosecutor may bar himself by selecting a special grade, § 467. 3. As to Nature of Offence. When one unlawful act operates on separate objects, conviction as to one object does not ex- tinguish prosecution as to other ; e. jr., when two persons are simultaneously killed, §468. Otherwise as to two batteries at one blow, § 469. As to arson, § 469 a. Where several articles are simul- taneously stolen, § 470. When one act has two or more Indictable aspects, if the de- fendant could have been con- victed of either under the first indictment he cannot be con- victed of the two successively, §471. So in liquor cases, § 473. Severance of identity by place, §473. Severance of identity by time, § 474. But continuous maintenances of nuisances can be successively Indicted, otherwise as to big- amy, § 475. Conviction of assault no bar (af- ter death of assaulted party) to indictment for murder, § 476. 4. Practice under Plea, Plea must be special, § 477. Must be pleaded before not guilty, § 478. Verdict must go to plea, § 479. Identity of offender and of offence to be established, § 480. Identity may be proved by parol, §481. Plea, if not Identical, may be de- murred to, § 482. Burden of proof is on defendant, §483. When replication is nul tiel record Issue is for court, §, 484. Replication of fraud is good on demurrer, § 485. 287 PLEADING AND PRACTICE. [chap. VIII. On judgment against defendant he is usually allowed to plead over, § 486. Prosecution may rejoin on its de- murrer being overruled, § 487. Issue of fact is for jury, § 488. Novel assignment not admissible, § 489. VII. Once in Jeopardy. Constitutional limitation taken from common law, § 490. But in some courts held more extensive, § 491. Eule may extend to all infamous crimes, § 493. In Pennsylvania, any separation in capital cases except from actual necessity bars further proceedings, § 493. Bule in Virginia, § 494. In North Carolina, § 495. In Tennessee, § 496. In Alabama, § 497. In California, § 498. In the federal courts a discre- tionary discharge is no bar, § 500. So in Massachusetts, § 501. So in New York, § 503. So in Maryland, § 503. So in Mississippi and Louisiana, § 504. So in Illinois, Ohio, Indiana, Michigan, Iowa, Nebraska, Nevada, Texas, and Arkansas, § 505. So in Kentucky, Georgia, and Missouri, § 506. So in South Carolina, § 606 a. No jeopardy on defective indict- ment, § 507. Illness or death of juror is suffi- cient excuse for discharge, § 608. Discharge of jury from Interme- diately discovered incapacity no bar, § 509. Conviction no bar when set aside for defective ruling of judge, §510. And so of discharge from sick- 288 ness or escape of defendant, §511. Discharge from surprise a bar, §513. Discharge from statutory close of court no bar, § 513. And so from sickness of judge, §514. And so from death of judge, §515. But not from sickness or incapa- city of witness, § 516. Until jury are " charged," jeop- ardy does not begin, § 517. Waiver by motion for new trial, writ of error, and motion in arrest, § 518. In misdemeanors separation of jury permitted, § 519. Plea must be special; record must specify facts, § 530. VIII. Plea of Pakdon. Pardon is a relief from the legal consequences of crime, § 531. Pardon before conviction to be rigidly construed, § 532. Pardon after conviction more In- ^dulgently construed, § 523. Rehabilitation Is restoration to status, § 524. Amnesty is addressed to class of people, and Is In nature of - compact, § 535. Executive pardon must be spe- cially pleaded ; otherwise am- nesty, § 636. Pardons cannot be prospective, §537. Pardon before sentence remits costs and penalties, § 528. Limited in impeachments, §539. And so as to contempts, §530. Must be delivered and ac- cepted, but cannot be re- voked, § 531. Void when fraudulent, §533. Conditional pardons are valid, § 533. CHAP. VIII.] PLEAS. [§ 409. Pardon does not reach second convictions, § 584. Pardon must recite conviction, § 536. Calling a witness as State's evi- dence is not pardon, § 536. Foreign pardons operative as to crimes within sovereign's ju- risdiction, § 537. I. GUILTY AND NOT GUILTY. § 408. When brought to the bar, in capital cases, and at strict practice in all offences whatever, the defendant is formally arraigned, by the reading of the indictment, and the call- guuty is" ing on him for a plea. The clerk, immediately after the ^^^^^ reading, asks, " How say you, A. B., are you guilty or not guilty ?"* Upon this, if the defendant confess to the charge, the confession is recorded, and nothing is done till judgment.* But if he deny it, he answers, " Not guilty," upon which the clerk of assize, or clerk of the arraigns, replies, that the defendant is guilty, and that the State (or Commonwealth) is ready to prove the accusa- tion.' After issue is thus joined, the clerk usually proceeds to ask the defendant, "How will you be tried ?" to which the defendant re- plies, " By Grod and my country ;" to which the clerk rejoins, " God send you a good deliverance."* The plea of not guilty contests all the material averments of the indictment." § 409. The right of arraignment on a criminal trial may in some cases be waived, but a plea is always essential.* The court cannot at common law'' supply an issue after verdict ^J^^. *j ®^ 1 2 Hale, 119 ; R. «. Hensey, 1 Burr. 643 ; Cro. C. C. 7. Infra, § 545. As to arrangement, see fully infra, § 698. 2 4 Harg. St. Trials, 779 ; Dalt. o. 185. Infra, §§ 545, 698. 3 4 Bla. Com. 339 ; 4 Harg. St. Trials, 779 ; Whart. Prec. 1138. 4 2 Hale, 219 ; 4 Bla. Com. 341 ; Cro. C. C. 7. Infra, §§ 545, 698. Though the defendant persists in saying he will be tried by his king and his country, and refuses to put him- self on his trial in the ordinary way, it will not invalidate a conviction. R. v. Davis, Gow's R. N. P. 219, and notes there given. When, however, the clerk of the court, upon the arraignment of 19 the defendants, did not further pro- ceed, upon their pleading not guilty, to ask them how they would be tried, so that they did not make the usual re- ply, "By God and their country," it was held that, under the laws of the United States, the plea of " Not guilty" put the defendants upon the country, by a sufficient issue, without any fur- ther express words. U. S. v. Gibert, 2 Sumn. 20. " Ibid. ; People v. Aleck, 61 Cal. 187. 5 See Warren v. States, 13 Tex. Ap. 348 ; Ray v. People, 6 Col. 231. ' As to nunc pro tunc order, see Long V. People, 102 111. 331. 289 § 413.] PLBADINa AND PRACTICE. [chap. VIII. where there has been no plea, notwithstanding the defendant con- sented to go to trial. ^ And a failure of the record to show a plea is a fatal defect.^ The practice in respect to arraignment will be hereafter more fully detailed.' An omission to insert the similiter, in joining issue in criminal cases, may be corrected, as it is usually only added when the record is made up.^ In any view, going to trial without a joinder of issue by the' prosecution to a plea in bar waives any objection to such non-joinder.* § 411. A plea by an attorney of a party indicted for a felony is a nullity ; the defendant must plead in per- son.* It is otherwise, however, in misdemeanors.^ § 412. The pleas of joint defendants are to be regarded as several ; and a general plea of not guilty by all the defendants is, in law, a several plea.* § 413. By a plea of guilty, defendant first confesses himself guilty in manner and form as charged in the indictment ; and if the indictment charges no offence against the law, none is confessed.' Hence in such cases there may be motions for arrest of judgment or writ of error.'" But formal defects may be cured by this plea." §410. Omiesion of similiter not fatal. In felonies" pleas must be in per- son. Fleas must be several. Plea of guilty should be solemnly made, and reserves motion in arrest and error. ' Hoskins v. State, 84 111. 87 ; Gould V. People, 89 111. 216 ; Bowen v. State, 108 Ind. 411 ; Douglass v. State, 3 Wis. 820 ; Laoefield v. State, 34 Ark. 275 ; People V. Gaines, 52 Cal. 480; Mel- ton V. State, 8 Tex. Ap. 619 ; Bates v. State, 12 Tex. Ap. 139. Infra, § 698. See Spicer v. People, 11 111. Ap. 294, as to effect of announcing readiness for trial. 2 Bates V. State, 12 Tex. Ap. 139 ; Huddleston v. State, 14 Tex. Ap. 73. s Infra, § 698. * Com. V. McCormack, 126 Mass. 258 ; Berrian v. State, 2 Zabr. 9 ; State v. Swepson, 81 N. C. 571. Infra, § 698. 6 Com. V. MoCauley, 105 Mass. 69. 6 State V. Conkle, 16 W. Va. 736; 290 McQuillan v. State, 8 Sm. & M. 587. See infra, §§ 541, 698. ' U. S. V. Mayo, 1 Curtis C. C. 433. See fully, infra, §§ 541, 550, 698, 912. 8 State V. Smith, 3 Ired. 402. Supra, §309. " Com. V. Kennedy, 13 Mass. 584 ; Arbintrode v. State, 67 Ind. 267 ; State V. King, 71 Mo. 551 ; Fletcher v. State, 7 Eng. Ark. 169. That a plea of guilty to homicide goes to the lowest grade in homicide, see Garvey v. People, 6 Col. 559. But see infra, § 742. '» Infra, § 779 b. " Carper v. State, 27 Ohio St. 572. Supra, § 90. See infra, § 759. As to Massachusetts practice, see Com. V. Chiavaro, 129 Mass. 489. CHAP. VIII.] FLEAS. [§ 415. § 414. The court may, at its discretion, allow a plea of guilty to be withdrawn,' even after the overruling of a motion in arrest of judgment.* This is not subject for error ,8 unless guilty may by refusal of the application great injustice has been gretfon ^' done.^ Hence a plea of guilty drawn out by the court ^'t^- by telling the defendant that if he do not plead guilty he will be heavily punished, will be treated as a nullity by the court in error.* Whether the defendant is to be warned of the conse- quences of a plea of guilty, is a matter usually of judicial discretion.* § 415. Pleas entered by mistake, in plain cases, can be amended by court. Thus, where a defendant, against whom several indictments have been found, intending to plead can be guilty to one, by mistake pleaded guilty to another, it '^°"^'^ ^ was held that the error could be corrected after entry of the plea 1 R. V. Brown, 17 L. J. M. C. 145 ; U. S. V. Bayaud, 21 Blatch. 217 ; 15 Rep. 200; State v. Cotton, 4 Foster, 143 ; see State v. HuTjbard, 72 Ala. 176 ; State V. Stephens, 71 Mo. 535 ; Mas- tronada v. State, 60 Miss. 86 ; Gardner V. People, 106 111. 76 ; State v. Buck, 59 Iowa, 382 ; State w. Salge, 2Nev. 321. 2 R. V. Brown, ut supra. 3 Ibid. * People V. Soott, 59 Cal. 341. 5 O'Hara v. People, 41 Mich. 623. Compare article in London Law Times, Deo. 14, 1879. So, if the plea was made in conse- quence of any intimation from the judge that the 'sentence would be more severe in case of conviction upon a trial. It is otherwise, however, if the judge, in answer to importunities, has only shown a disposition to inflict a milder punishment on confession of guilt, and has done so. People v. Brown, 54 Mich. 15. In People v. Lennox, 67 Cal. 113, the Supreme Court held that where a defendant in a murder trial advisedly pleaded guilty, and was sen- tenced to be hung, he could not after- wards withdraw the plea. As discus- sing the points in the text, see 4 Crim. Law Mag. 881 ; 23 Central Law J. 76. That a writ of coram nobis will lie to vacate a plea of guilty entered into through fear of a mob, see Saunders v. State, 85 Ind. 318. Infra, § 779 6. That an appellate court will not review the action of the trial court in refusing to allow the withdrawal of a plea of guilty, unless there was an abuse of discretion, see Conover v. State, 86 Ind. 99 ; Mos- tranda v. State, 60 Miss. 87 ; People v. Lewis, 64 Cal. 401. ^ In Texas this is obligatory in cases of felonies. Berliner v. State, 6 Tex. Ap. 181; Saunders v. State', 10 Tex. Ap. 336. In Michigan the statute re- quiring such warning applies to all cases. Edwards v. People, 39 Mich. 398 ; Hunning v. People, 40 Mich. 733 ; Bayliss v. People, 46 Mich. 221. The warning in such cases should be private. People V. Stickney, 50 Mich. 99. The court must be satisfied that the plea was voluntary. People v. Lear, 51 Mich. 172 ; People v. Lepper, 51 Mich. 196. As to federal practice, see U. S. V. Hare, 1 Brunf. U. S. 686. 291 § 417.] PLEADING AND PRACTICE. [CHAP. VIII. on the minutes of the court.* But it is otherwise as to a mistake made as to the nature of the punishment.* § 416. When there is a plea of guilty the court may may prove ascertain by witnesses the degree of the offence.' degree. ^ ^-j^^. At common law, when a prisoner stood mute, Plea of not a jury was called to inquire whether he did so from be entered dumbness ex visitatione Dei, or from malice ; and unless by order of j,j^g former was the case, he was sentenced as on convic- court. ' tion.^ In England, and in all jurisdictions in this country, however, statutes now exist enabling the court, where the prisoner stands mute, to direct a plea of not guilty to be entered, whereupon the trial proceeds as if he had regularly pleaded not guilty in person." Such a refusal to plead, however, does not admit in any way the jurisdiction of the court.* 1 Davis V. state, 20 Ga. 674. 2 State a. Buck, 59 Iowa, 382. See People V. Brown, 54 Mich. 415. ■■• Infra, §§ 918, 945. * 1 Ch. C. L. 425 ; Turner's case, 5 Ohio St. 542 ; Com. o. Moore, 9 Mass. 402. 6 R. ». Schleter, 10 Cox C. C. 409 ; Dyott V. Com., 5 Whart. R. 67 ; Brown V. Com., 76 Penn. St. 319 (where it- was held that such course waives jury- defects) ; and see Weaver v. State, 83 Ind. 289 ; People v. Bringard, 39 Mich. 22. That such course cures other de- fects, see Com. v. McKenna, 125 Mass. 397. That the order may be made when the defendant refuses to plead either guilty or not guilty uncondition- ally, see State v. Kring, 74 Mo. 612. In R. V. Bernard, 1 F. & F. 240, the finding of the jury that the defendant was mute from nature, was dispensed with. See R. v. Whitfield, 3 C. & K. 121. For pleas of lunatics, see Whart. Cr. Law, 9th ed. § 51 ; U. S. v. Hare, 2 Wheel. C. C. 299. In an English case, where a dumb person was to be tried for a felony, the judge ordered a jury to be empanelled, 292 to try whether he was mute by the visitation of God. The jury found that he was so ; they were then sworn to try whether he was able to plead, which they found in the aflirmative, and the defendant by a sign pleaded not guilty ; the judge then ordered the jury to be empanelled to try whether the defendant was now sane or not, and on this question directed them to say whether the defendant had suffi- cient intellect to understand the course of the proceedings, to make a proper defence, to challenge the jurors, and to comprehend the details of the evidence, and that if they thought he had not, they should find him of .nou-sane mind. R. V. Pritchard, 7 C. & P. 303 ; 1 W. & S. Med. J. § 95. See further for Eng- lish practice, R. v. Berry, 13 Cox C. C. 189. In Massachusetts a deaf and dumb prisoner was arraigned through a sworn interpreter, his incapacity having been first suggested to the court by the solicitor-general, and the trial then proceeded as on a plea of not guilty. Com. v. Hill, 14 Mass. 207. ' People V. Gregory, 30 Mich. 371. CHAP. VIII.] PLEAS. [§ 419. A plea may in this way be entered on informations, though the statute is silent as to informations.' The entry must be made before the trial opens,^ though not necessarily before empanelling of jury.' § 418. The plea of nolo contendere has the same eflFect as a plea of guilty, so far as regards the proceedings on the indict- ment ; and a defendant who is sentenced upon such a ^^°n^°^ plea to pay a fine is convicted of the offence for which equivalent . . to guilty- he is indicted.* The advantage, however, which may attend this plea is, that when accompanied by a protestation of the defendant's innocence, it will not conclude him in a civil action from contesting the facts charged in the indictment.' i It is held within the discretion of the court to accept such a plea, or to require a plea of guilty or not guilty.* II. SPECIAL PLEAS. § 419. Oan a defendant plead simultaneously the general issue, and one or more special pleas? At common law this 1 . I . Repugnant must be answered in the negative, whenever such pleas pleas can- are repugnant ; as at common law all the pleas filed in a pi'eaded case are regarded as one. This is the strict practice in "™iitane- Bngland, where the judges in review have solemnly ruled that special pleas cannot be pleaded in addition to the plea of not guilty.'^ And in this country, in cases where not guilty has been 1 tl. S. V. Borger, 19 Blatch. C. C. it appears by the record that the plea 249 ; Smith, in re (Lowell, J.), 3 Crim. was received with the consent of the Law Mag. 835. prosecutor. Com. v. Adams, 6 Gray, * Davis V. State, 38 Wis. 387. 359. , ' Dillard v. State, 58 Miss. 368. But ' R. v. Charlesworth, 9 Cox C. C. 40 ; see State v. Chenier, 32 La. An. 103. R. v. Strahan, 7 Cox C. C. 85 ; R. v. * See Buck v. Com., 107 Penn. St. Skeen, 8 Cox C. C. 143 ; Bell C. C. 97 ; 486. contra, 1 Stark. C. P. 339. As to issue 6 U. S. V. Hartwell, 3 Cliff. 221 ; Com. of insanity, see article by Prof. Ordro- V. Horton, 9 Pick. 206 ; Com. v. Tilton, naux, 1 Cr. Law Mag. 438. 8 Met. Mass. 232. See Whart. Ev. § 783. The defendant, it should be remem- « Com. V. Tower, 8 Met. Mass. 527. bered, is entitled to enter as many In Massachusetts, under St. 1855, o. pleas as he has matter of defence. 215, § 35, a defendant in a prosecution The difference noticed in the text re- on that statute cannot be adjudged lates to the order of their presentation guilty on a plea of nolo contendere, unless and disposition. 293 § 421.] PLEADING AND PRACTICE. [CHAP. VIII. pleaded simultaneously with autrefois acquit, the same course has been followed, and the plea of not guilty stricken oif until the special plea is disposed of.' And so has it been ruled when not guilty and the statute of limitations has been pleaded together.* § 420. In such case after determining the special plea against the defendant, the present practice in the United States spedaf ''°* is to enter simply a judgment of respondeat ouster, in all pi?a is cases in which the special plea is not equivalent to the general issue. This, which is technically the correct practice, is not, however, always pursued. A short cut is often taken to the same result, by directing when special pleas and the general issue are filed simultaneously, or are found together on the record before trial, that the special pleas should be tried first, and if they are found against the defendant, then the general issue.' But, under any circumstances, it is error to try the special pleas and the general issue simultaneously. The special pleas must be always disposed of before the general issue is tried.* § 421. If a special plea is determined against the defendant, is the judgment always respondeat ouster ? Unless upon a trial by jury on a special plea which embraces the Judgment against de- specMpiea general issue, this question ought now to be answered in the affirmative. The old distinction taken in this respect between felonies and misdemeanors, being no longer founded in reason, should be rejected in practice. And the only consistent as well as just course is to harmonize the present frag- is respon- deat ouster. 1 Infra, § 479 ; State o. Copeland, 2 Swan, 626 ; Hill v. State, 2 Yerg. 248. As to pleas in abatement, see infra, § 423. . 2 Sfete V. Ward, 49 Conn. 429. That both pleas must be disposed of before there can be a conviction, see People V. Helding, 59 Cal. 567. That defects and irregularities not apparent on the indictment must be pleaded in abatement, see supra, § 400 ; Pointer V. State, 89 Ind. 255. ' State v.. Inneas, 53 Me. 536 ; Har- tung 0. People, 26 N. Y. 154 ; People V. Roe, 5 Parker, C. R. 231 ; People v. Gregory, 30 Mich. 371 ; State v. Green- 294 wood, 5 Port. 474 ; Buzzard v. State, 20 Ark. 106. As sanctioning this view see 2 Hawk. P. C. o. 23, ss. 128-9; contra, 1 Ch. C. L. 463. ' Com. V. Merrill, 8 Allen, 545 ; SoUiday u. Com., 28 Penn. St. 13; Foster v. State, 39 Ala. 229 ; Henry V. State, 33 Ala. 389 ; Nonemaker v. State, 84 Ala. 211 ; Mountain v. State, 40 Ala. 344 ; Fulkner v. State, 3 Heisk. 33 ; Dyer v. State, 11 Lea, 509 ; Clem V. State, 42 Ind. 420. Pointer v. State, 89 Ind. 255 ; Savage v. State, 18 Fla. 909. See R. <.-. Charlesworth, ut supra; R. V. Roche, 1 Leach, 160 ; infra, §§ 477, 478. CHAP. Vin.] PLEA TO THE JURISDICTION. [§ 422. mentary rulings in this relation, by adopting the principle that in all cases the question of guilty or not guilty is one which the defen- dant is entitled of right, no matter how many technical antecedent points may have been determined against him, to have squarely decided by a jury.* III. PLEA TO THE JURISDICTION. § 422. Where an indictment is taken before a court that has no cognizance of the offence, the defendant may plead to the jurisdiction, without answering at all to the crime yon^^'*^' alleged;^ as, if a man be indicted for treason at the may be excepted to by plea, quarter sessions, or for rape at the sheriff s tourn, or the like f or, if another court have exclusive jurisdiction of the of- fence ;* Such pleas are not common, the easier and simpler course being writ of error or arrest of judgment. The want of jurisdic- tion may also be taken advantage of under the general issue." 1 Infra, § 486 ; 2 Hale P. C. 255 ; U. S. V. Williams, 1 Dillon, 485; Barge ». Com., 3 Pen. & Watts, 262 ; Foster v. State, 8 W. & S. 77 ; Hard- ing V. State, 22 Ark. 210 ; Buzzard v. State, 20 Ark. 106; Ross v. State, 9 Mo. 687. As to demurrer see con- flicting decisions, supra, § 406. As to misdemeanors, when the special plea involves facts of general issue, see contra, State v. Allen, 1 Ala. 442 ; Guess a. state, 1 Eng. 147 ; and see dicta of Gibson, C. J., in Barge v. Com., 3 Pen. & W. 262. 2 2 Hale, 286. See Blandford u. State, 10 Tex. Ap. 627 ; Kelly v. State, 13 Tex. Ap. 158. 3 2 Hale, 286. * 4 Bla. Com. 383. See Whart. Free. 1145, for forms. A. was indicted in the city of New York for obtaining money from a firm of commission merchants in that city, by exhibiting to them a fictitious re- ceipt signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of produce, for the use of, and subject to the order of the firm. The defendant pleaded that he was a natural born citizen of Ohio, had always resided there, and had never been within the State of New York ; that the receipt was drawn and signed in Ohio, and the ofi'ence was committed by the receipt being pre- sented to the firm in New York by an innocent agent of the defendant, em- ployed by him, while he was a resident of and actually within the State of Ohio. It was held that the plea was bad, and that the defendant was pro- perly indicted in the city of New York. Adams v. People, 1 Comst. 173 ; S. C. 1 Denio, 190. See Com. v. Gillespie, 7 S. V. K. 469 ; supra, § 119. 5 State V. Mitchell, 83 N. C. 674. But see State v. Day, 58 Iowa, 678. 295 § 424.J PLEADINa AND PRACTICE. [chap, VIII. IV. PLEA IN ABATEMENT. § 423. When the indictment assigns to the defendant a wrong Christian name or surname, he can only take advantage defendant's "^ ^^^ error by a plea in abatement, the burden of prov- b* m^euT^ ing which is on the defendant.* Such a plea should be plea in verified by affidavit,* and should expose the defendant's proper name as well as deny that he was known by the name stated in the indictment.' What particularity is necessary in setting forth the name and addition of the defendant has been considered in another place.* Any misnomer, in general, is mat- ter for abatement;' thus, where the indictment charged the de- fendant as George Lyons, it was held he could abate it by showing his true name was George Lynes.* But it has been held that a foreigner may be indicted under a name which is the English equiva- alent of his name in his native tongue, to which he had assented.' A blank instead of a name may be taken advantage of by a motion to quash.* § 424. Want of addition is at common-law ground for abatement,' though the proper course is motion to quash.'" But a error in ad- wrong addition is only to be met by plea in abatement." dition. ^j^^ jjj ^^ indictment on the statute of Maine, prohibit, ing the sale of lottery tickets, giving the accused the name of lottery vendor when his proper addition was broker, furnishes good cause for abatement.'* 1 Scott V. Soans, 3 East, 111 ; Com. V. Dedham, 16 Mass. 146 ; Turns a. Com., 6 Met. (Mass.) 225 ; Com. v. Fredericks, 119" Mass. 199 ; State v. Drury, 13 E. I. 540 ; Lynes . Risley, 72 Mo. 609 ; People v. Horn, 70 Cal. 17. The fact that the acquittal was pro- duced by a mistake of law or miscon- ception of fact makes no difference. Infra, § 785 ; Hines v. State, 24 Ohio St. 134 ; O'Brian v. Com., 9 Bush, 333. See infra, §§ 505, 509. * U. S. V. Herbert, 5 Cranoh C. C. R. 300 87 ; Com. v. Fraher, 126 Mass. 265 ; West V. State, 2 Zab. 212; Penn. v. Huflfman, Addis. 140 ; State v. Mount, 14 Ohio, 295 ; Brennan v. People, 15 111. 511 ; State v. Norvell, 2 Yerg. 24 ; State V. Spear, 6 Mo. 644 ; Lewis a. State, 1 Tex. App. 323 ; though see Preston v. State, 25 Miss. 383 ; Ratzky 0. People, 29 N. Y. 124. 5 Penn. v. Hoffman, Addis. 140. In- fra, § 453. 6 Com. V. Fraher, 126 Mass. 265. See R. V. Reid, 20 L. J. M. C. 70 ; Cole- man V. U. S., 97 U. S. 530; People v. Casborus, 13 Johns. 351. ' State V. Mount, 14 Ohio, 295. ' Gardiner v. People, 6 Park. C. R. 155. Supra, § 421. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 436. celled and unwithdrawn, a verdict of guilty will sustain the plea ;' though it is otherwise, as we have seen, where judgment has been arrested.* A plea of guilty, if outstanding, need not, to be a bar, have a judgment entered on it.* § 435 a. If a new trial be granted, on the defendant's application, this is in itself no bar to a second trial on the same, or ^ , .... , Judgment on an amended indictment , nor is a judgment arrested arrested or on a defective indictment a bar to a subsequent trial on granted* on a good indictment for the same offence.* It is other- defend- a ant's appli- wise, however, when the judgment was erroneously cation no arrested, or the case erroneously dismissed, by a court having jurisdiction, on a good indictment.* § 436. How far a court has a right to discharge a jury is here- after considered more fully. In capital cases, as will be ^r^itrarv seen,' the tendency of opinion is that such discharge, un- discharge less necessary, works an acquittal.' In misdemeanors, rate as and sometimes in felonies, the court, on strong ground *"^i'^'' * • shown, may withdraw a juror or discharge the jury.' But an arbitrary discharge, or one without adequate cause, operates as an acquittal.'" 1 State V. Parish, 43 Wis. 395. 2 State V. Sherburne, 58 N. H. 535. 3 People V. Goldstein, 32 Cal. 432. In those States where a defendant is held to be in jeopardy by a conviction, a conviction without judgment is a bar. See infra, §§ 490 et seq. * Infra, §§ 465, 466, 510, V90. See State V. Blaisdell, 59 N. H. 329 ; Sta'te V. Stephens, 13 S. C. 285 ; Dubose v. State, 13 Tex. Ap. 418 ; People v. Har- disson, 61 Cal. 378. 5 Infra, § 507. And so of quash- ing, supra, § 395 ; R. v. Houston, 2 Cr. & D. 310; Joy v. State, 14 Ind. 139. 6 State V. Elden, 41 Me. 165 ; State V. Parish, 43 Wis. 495 ; State v. Nor- vell, 2 Yerg. 24. Infra, §§ 456-7. In New York, in 1862, in the Court of Appeals, it was determined that when judgment is reversed for an illegal sentence, on a conviction where there was no error, there can be no new trial, but that the plea of autrefois con- vict is good. Shepherd v. People, 25 N. Y. 407. See, also, Hartung v. People, 26 N. Y. 167 ; S. C, 28 N. Y. 400 ; Ratzky V. People, 29 N. Y. 124. ' Infra, §§ 487 et seq. 8 Infra, §§ 490-512. 8 See Com. v. McCormick, 130 Mass. 61. M Infra, §§ 722, 815, 821. See People V. Schoeneth, 44 Mich. 489. In U. S. V. Watson, 3 Benedict, 1, Judge Blatchford said : " The illness of the district attorney, it not appearing by the minutes that such illness oc- curred after the jury was sworn, or that it was impossible for the assistant district attorney to conduct the trial, and the motion to put off the case for the term being made by such assistant, 301 § 437.] H3T PLEADING AND PRACTICE. [chap. VIII. To avail himself of the plea, the defendant should produce an exemplification of the record of his acquittal under the public seal of the State or kingdom where he has been tried and acquitted, there being cases in which an ac- quittal in a foreign jurisdiction is equally effective for this purpose with one at home.' Record of former judgment to be pro- duced. cannot be regarded as creating a mani- fest necessity for withdrawing a juror. So, too, as to the absence of witnesses for the prosecution ; it does not appear by the minutes that such absence was first made known to the law officer of the government after the jury was sworn, or that it occurred under such circumstances as to create a plain and manifest necessity justifying the with- drawing of a juror. The mere illness of the district attorney, or the mere absence of witnesses for the prosecu- tion, under the circumstances disclosed by the record in this case, is no ground upon which, in the exercise of a sound discretion, a court can, on the trial of an indictment, properly discharge a jury, without the consent of the de- fendant, after the jury has been sworn and the trial has thus commenced; . . . The weight of all the authorities on the subject Is, that the position of this case, as it stood when the juror was withdrawn, entitled the defendants, in the absence of their express consent to any other course, to a verdict of ac- quittal, and therefore entitles them to the action of the court, at this time, on their application to the same effect. An order will, therefore, be entered, declaring that the proceedings on the former trial are held to be equivalent to a verdict of not guilty, and dis- charging the defendants and their bail from further liability in respect of the indictment." But in England, where, in case of misdemeanor, the jury is improperly, and against the will of a defendant, 302 discharged by the judge from giving a verdict after the trial has begun, this is not equivalent to an acquittal, nor does it entitle the defendant quod eat sine die. R. v. Charlesworth, 1 B. & S. •460;v9 Cox C. C. 44; S. C. at nisi prius, 2 F. & F. 326. Acting on this general principle, where it appeared that in the course of the trial and dur- ing the examination of witnesses one of the jurors had, without leave, and without it being noticed by any one, left the jury-box and also the court- house, whereupon the court discharged the jury without giving a verdict, and a fresh jury was empanelled and the prisoner was afterwards tried and con- victed before a fresh jury, it was held that the course pursued was right. R. V. Ward, 17 L. T. N. S. 220 ; 10 Cox C. C. 573 ; 16 W. R. 281, C. C. R. See R. V. Winsor, infra, § 722. When a trial is brought to a stand- still before verdict, by the close of the term of the court, this in some juris- dictions is a necessary discharge of the jury, and the trial may he recom- menced at a subsequent term. Infra, §513. Jury discharged from Sickness or Sur- prise. — The discussion of this question falls more properly under a subsequent head. Infra, § 508. ' Infra, § 481 ; Hutchinson's case, 3 Keb. 785 ; and see Beak v. Thyrwhit, 3 Mod. 194 ; 1 Show. 6 ; Bull. N. P. 245 ; R. V. Roche, 1 Leach, 134 ; People V. King, 64 Cal. 338 ; Whart. Crim. Ev. § 153. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 439. § 438. The court, howeyer, must have been competent, having jurisdiction,' and the proceedings regular.* Thus, a con- viction of a breach of the peace before a magistrate, on muS*iiave the confession or information of the offender himself, is tad juris- diction, no bar to an indictment by the grand jury for the same offence.^ Again, an acquittal by a jury, in a court of the United States, of a defendant who is there indicted for an offence of which that court has no jurisdiction, is no bar to an indictment against him for the same offence in a State court.* It is also no bar that the defendant has before been acquitted or convicted of the same offence before a court of the same State, where the offence is one of which the court has not jurisdiction." "Thus, a former examination before a magistrate, and a discharge upon a coniplaint under the New Hampshire Bastardy Act, do not bar further proceedings, as the magistrate has strictly no power to try, but only to examine and discharge or to bind over.* But where a justice has jurisdiction, a conviction or acquittal before him is a bar, although the proceed- ings before the justice were so defective that they might have been reversed for error.^ § 489. It has been ruled in Tennessee that an acquittal by a federal court-martial, established by act of Congress for the punish- 1 E. V. Bowman, 6 C. & P. 337 ; ^ See Com. v. Bosworth, 113 Mass. Com. V. Meyers, 1 Va. Cas. 188 ; State 200 ; Fiuley v. State, 61 Ala. 201. V. Hodgkins, 42 N. H. 475 ; Com. v. ^ Com. v. Alderman, 4 Mass. 477. Goddard, 13 Mass. 456 ; Com. v. Peters, See State v. Morgan, 62 Ind. 35. Infra, 12 Met. 387 ; Canter v. People, 38 How. § 440. (N. Y.)Pr. 91; Dunn u. State, 2 Pike, * Com. v. Peters, 12 Met. (Mass.) 229 ; Campbell v. People, 109 111. 438 ; 387. See Whart. Crim. Law, 9th ed. State V. Odell, 4 Blackf. 156 ; O'Brian §§ 471 et seq. V. State, 12 Ind. 369 ; State v. Morgan, s Com. v. Goddard, 13 Mass. 455 ; 62Ind.35; Foust«.State,85Tenn.362; State v. Payne, 4 Mo. 376; State v. overruling Foust v. State, 12 Lea, 404 ; Odell, 4 Blackf. 156 ; Rector v. State, 1 State V. Nicholson, 72 Ala. 176 ; State Bug. (Ark,) 187. V. Nichols, 38 Ark. 550 ; Norton « Marstou v. Jenness, 11 N. H. 156. V. State, 14 Tex. 387; State v. See Hartley u. Hindmarsh, L. R. 1 C. Payne, 4 Mo. 376 ; Mbntross v. State, P. 553. Infra, § 440. ' 61 Miss. 421 ; Thompson v. State, 6 ' Stevens v. Fassett, 27 Me. 266 ; Neb. 102. See Mikels v. State, 3 Heisk. Com. v. Loud, 3 Met. (Mass.) 328. See 321. As to judgment in unauthorized State v. Thornton, 37 Mo. 360 ; Com. v. term, see infra, § 513. Miller, 5 Dana, 320. Compare cases ■^ cited supra, § 435, and infra, § 440. 303 § 440.] PLEADING AND PRACTICE. [chap. VIII. ment of offences against the United States, is no bar to an indict- ment for murder under the laws of the State of Tennes- by comt-* ^®^*' ^^^ '^^ ^^^ ^®®° ^^^^ ^J *^° eminent attorneys- martial no general (Legare and Gushing), that proceedings by State tribunals are no bar to courts-martial instituted by the military authorities of the United States.^ The tribunals are coordi- nate when there is no legislation giving courts-martial exclusive juris- diction.* At the same time the judgment of a court-martial may con- stitute res adjudicata, so far as concerns the government by which it is pronounced.* And a judgment of conviction by a military court,* established by law in an insurgent State, is a bar to a sub- sequent prosecution by a State court for the same offence.* § 440. A police summary conviction for breach of a municipal And eo of Ordinance is not a bar to a prosecution by the State for police or a breach of the public peace,' or for keeping a gaming- conviction house f nor is a conviction in the name of a township, or acquittal. ^ recover a penalty, a bar to proceedings by indictment 1 state V. Rankin, 4 Cold. (Tenn.) 145. See Whart. Confl. of L. §§ 934, 935 ; Brown v. Wadsworth, 15 Vt. 170. Supra, § 443. 2 3 Opin. Atty.-Gen. 750 ; 6 Ibid. 413. 3 U. S. V. Cashiel, 1 Hugh. 552. * Dynes v. Hoover, 20 Howard U. 8. 65 ; WooUey v. U. S., 20 Law Kep. 631 ; U. S V. Reiter, 4 Am. Law Reg. N. S. 534 ; Hefferman v. Porter, 6 Cold. 391. 5 As to distinction between military- courts and courts-martial, see Whart. Crim. Law, 9th ed. §§ 294-5. 6 Coleman v. State, 97 U. S. 509. In this case it was said by Field, J., that while the plea of former conviction was not a proper plea in the case, as it ad- mitted the jurisdiction of the State court to try the offence if it were not for the former conviction, yet such irregularity would not prevent the courts giving effect to the objection attempted to be raised. The judgment of the Supreme Court of Tennessee, sustaining a conviction of the defend- ant, was therefore reversed, and de- fendant ordered to be delivered up to 304 the military authorities of the United States, to be dealt with as required by law on the judgment of the court- martial. See, also, WooUey v. U. S., 20 Law Rep. 631 ; U. S. v. Reiter, 4 Am. Law Reg. 634. Supra, § 283. « ' Rogers v. Jones, 1 Wend. 261 ; Peo- ple V. Stevens, 13 Wend. 341 ; Howe v. Plainfield, 8 Vroom, 150 ; Levy v. State, 6 Ind. 281 ; Greenwood v. State, 6 Baxt. 567 ; Severin v. People, 37 111. 414; State v. Oleson, 26 Minn. 507; State V. Lee, 29 Minn. 445 ; State v. Bergman, 6 Oregon, 341. Bat see contra, State v. Thornton, 37 Mo. 360 ; Preston v. People, 45 Mich. 486 ; State V. Williams, 11 S. C. 292; State «. Hamilton, 3 Tex. Ap. 643. The distinction between police and State prosecutions is considered in Whart. Crim. Law, 9th ed. § 23 a. On the topic in the text, see Cooley Const. Lim. 199 ; 1 Am. Law J. 49. 8 Bobbins v. Peoplej 95 111. 175 ; Greenwood v. State, 6 Baxt. 507 ; John- son V. State, 59 Miss. 543 ; see Com. v. Bright, 78 Ky. 238. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 44o: in the name of the State.' A discharge by such a police magistrate is a fortiori no bar to proceedings by the State.' The reasons I Wragg V. Penn Township, 94 111. 23. In this case, Dickey, J., said : — "The decisions on this subject by the courts of the several States are ap- parently in hopeless conflict with each other. Dillon on Municipal Corpora- tions, § 301, says : ' Hence the same act comes to be forbidden by general statute and by the ordinance of a mu- nicipal corporation, each providing a separate and different punish- ment But can the same act be twice punished, once under the ordi- nance and once under the statute ? The oases on this subject cannot be recon- ciled. Some hold that the same act may be a double offence, one against the State and one against the corpora- tion. Others regard the same act as constituting a single offence, and hold that it can be punished but once, and may be thus punished by whichever party first acquires jurisdiction.' In Georgia and Louisiana it is held that a municipal corporation has no power to enact an ordinance touching an offence punishable under the general law of the State. Mayor v. Hussey, 21 Ga. 80. In Rice v. State, 3 Kans. 141, the court say : ' It is not necessary in this case to decide whether both the State and the city can punish for the same act ; but we have no doubt that the one which shall first obtain jurisdiction of the person of the accused may punish to the extent of its power.' In Missouri the rule is clearly announced that the same act can be punished but once, and that a conviction under a city or- dinance may be pleaded in bar to an indictment under the State law. State V. Cowan, 29 Mo. 330." So, also. State u. Thornton, 37 Mo. 360. "In Alabama the rule is the other way, and it is held that the same act may be punished 20 under a city ordinance and at the same time under the general law. Mayor v. Allaire, 14 Ala. 400. In Indiana the rule used to be the same as it is now in Missouri, but in Ambrose v. State, 6 Ind. 351, it was modified, and the court there held that a single act might con- stitute two offences — one against the State and one against the municipal government. And in Waldo v. Wallace, 12 Ind. 582, it was held 'that each might punish in its own mode, by its own officers, the same act as an offence against each.' " S. P. Robbins w. rto- ple, 95 111. 178 ; Hankins v. People, 106 111. 628 ; Purdy . State, 11 Tex. Ap. 207 ; Price v. State, 19 Ohio, 423 ; Gerard v. State V. Stewart, 11 Oregon, 52. People, 3 Scam. 363 ; Guedel v. People, 3 R. V. Vandercomb, 2 Leach C. C. 43 111. 226 ; State v. Gleason, 56 Iowa, 708 ; R. t. Sheen, 2 C. & P. 634 ; R. v. 203 ; State v. Moon, 41 Wis. 684 ; State Clark, 1 Bred. & B. 473 ; R. v. Emden, v. Ellison, .4 Lea, 229 ; State v. Ray, 9 East, 437 ; Com. v. Clair, 7 Allen, Rice, 1 ; State v. Risher, 1 Richards. 525 ; Heikes v. Com., 26 Penn. St. R. (2 219 ; State v. Birmingham, 1 Busbee, Casey) 513 ; Com. v. Trimmer, 84 Penn. 120 ; State v. Shiver, 20 S. C. 392 ; St. 65 ; Mitchell v. State, 42 Ohio St. State v. Kuhuke, 30 Kan. 462; Holt v, 383 ; and cases cited infra, §§ 465, 471. State, 38 Ga. 187 ; McElmurray v. State, * Infra, § 471, and oases there cited ; 21 Tex. Ap. 621. Jervis's Archbold, 82 ; Keeler, 58 ; 1 6 state v. Ross, 4 Lea, 442 ; Justice Leach, 448 ; R. u. Emden, 9 East, 437; v. Com., 81 Vt. 209 ; Brewer u. State, R. V. O'Brien, 46 L. J. 177 ; Com. v. 59 Ind. 101 ; State v. Helveston, 38 La. Cunningham, 13 Mass. 246 ; Com. v. An. 314 ; People v. Clark, 67 Cal. 99 ; Wade, 17 Pick. 395 ; Com. v. Tenney, Whitford v. State, 24 Tex. Ap. 489. 97 Mass. 50 ; Com. v. Hoffman, 121 Infra, § 457. 319 § 457.] PliEADINQ AND PKAOTICB. [chap. VIII. been completed, the defendant's acquittal, which the court would have been bound to direct, would have been no bar to an indictment for the felony.' On the other hand, where the doctrine of merger is not held, the prior judgment bars; since, as the defendant in such case could have been convicted of the assault on evidence of the felony, the felony cannot be prosecuted after acquittal of the assault.* When, however, as will hereafter be more fully seen, a new fact supervenes after the first prosecution, which fact materially changes the character of the offence, then the defendant may be prosecuted for the ofience thus evolved.' § 457. A conviction under a defective indictment is no bar, un- less the conviction has been followed by judgment and execution of the sentence.* Hence, after judgment has been arrested or reversed on a defective indictment, or after an indictment has been quashed, or a judgment for the defendant has been entered on demurrer,* a new indictment may be found, correcting the defects in the prior indictment, and to the second indictment the proceedings under the first are no bar.* Judgment on defec- tive indict- ment no bar. > State V. Murray, 15 Me. 100 ; Com. jj. Kingsbury, 5 Mass. 106 ; Com. v. Parr, 5 Watts & Serg, 345 ; People V. Mather, 4 Wend. 265 ; People u. Schmidt, 64 Cal. 260. Infra, §§ 464-5-7. 2 See infra, §§ 465-6. 3 Nicholas's case, Fost. Cr. L. 64, and cases cited infra, § 476. * Intra, § 507 ; U. S. v. Jones, 31 Fed. Rep. 725 ; Com. v. Loud, 3 Met. 328 ; Com. u. Keith, 8 Met. 531 ; Fritz V. State, 40 Ind. 18. See Croft «. Peo- ple, 15 Hun, 484; State v. Hays, 78 Mo. 603 ; State v. Owen, Ibid. 367. 5 Supra, § 406. As to California practice on judgment on demurrer, see People V. Jordan, 63 Cal. 217 ; People V. Giesea, Ibid. 315. ^ Infra, § 507 ; Writhpole's case, Cro. Car. 147 ; R. u. Drury, 3 Cox C. C. 544 ; R. V. Houston, 2 Craw. & D. 310 ; Campbell v. R., 11 Q. B. 799 ; R. v. Wildey, 1 Maule & S. 188 ; Com. v. Flschblatt, 4 Met. (Mass.) 354; Com. V. Gould, 12 Gray, 171 ; Com. v. Ches- 320 ley, 107 Mass. 223 ; People v. Casborus, 13 Johns. R. 351 ; People v. McKay, 18 Johns. 212 ; Com. v. Zepp, 5 Penn. L. J. 256 ; Cochrane v. State, 6 Md. 400 ; Allen V. Com., 2 Leigh, 727 ; Page v. Com., 9 Leigh, 683; Com. v. Hatton, 3 Grat.,623 ; Sutcliffe v. State, 18 Ohio, 469 ; Guedel v. People, 43 111. 226 ; State V. Elder, 65 Ind. 282 ; State v. Knouse, 33 Iowa, 365 ; State v. Ray, 1 Rice, 1 ; Oneil v. State, 48 Ga. 66 ; State V. Phil., 1 Stew. 31; Cobia v. State, 16 Ala. 781 ; Turner v. State, 40 Ala. 21 ; Jeffries ». State, 40 Ala. 381 ; Robinson v. State, 52 Ala. 587 ; State V. Owens, 28 La. An. 5 ; State v. Gill, 33 Ark. 129 ; Simco v. State, 9 Tex. A p. 338; Grisham v. State, 19 Tex. App. 504 ; State v. Priehnow, 16 Neb. 131. See Com. v. Gould, 12 Gray, 171 ; People v. Casborus, 13 Johns. 352, as to barring effect of final defective arrest. A prior indictment, quashed after conviction and motion for new trial on CHAP. VIII.] AUTREFOIS ACQUIT. [§ 458. Bhi an erroneous acquittal (if not fraudulent) is conclusive so that the defendant cannot be retried for any offence of which he could have been convicted under the indictment on which there was an acquittal.' It is otherwise when the acquittal is oil an indictment which is so inadequate or defective that under it the offence charged in the second indictment could not have been legally proved.^ The same rule is held to apply to a new trial on defendant's application.* As we hajve seen, a defective arrest of judgment on a good in- dictment is a bar in all cases where the State could have obtained a reversal of the arrest ; since there is still pending against the de- fendant a good indictment, on which he has been put in jeopardy.* § 458. Whether an acquittal as principal bars an indictment as accessary depends upon the question whether an acces- sary can be convicted on an indictment charging him as principal. That he cannot, was the common law doc- trine ;* and where this is the law, an acquittal as prin- cipal is no bar to an indictment as accessary.^ And on the same reasoning an acquittal as accessary is no bar, in felonies, to an indictment as principal.' It is otherwise under recent codes in which accessaries may be indicted as principals. Same test applies to acquittal as princi- pal or ac- cessary. it, is no bar to a subsequent indict- ment for the same offence. State v, Clark, 32 Ark. 231. Supra, § 446. As to demurrers, see supra, § 406. 1 2 Inst. 318 ; 2. Hale, 274 ; R. v. Sutton, 5 B. & Ad. 52 ; R. v. Praed, 4 Burr. 2257 ; R.«. Mann, 4 M. & S. 337 ; State V. Kittle, 2 Tyler, 471 ; State v. Brown, 16 Conn. 54 ; People v. Maher, 4 Wend. 229 ; State u. Taylor, 1 Hawks, 462 ; Black v. State, 36 Ga. 447 ; State V. Dark, 8 Blackf. 526 ; State v. Nor- vell, 2 Yerg. 24 ; Slaughter v. State, 6 Humph. 410. Supra, § 435. 2 Vanx's case, 4 Coke R. 44 a ; Com. V. Clair, 7 Allen, 525 ; People v. Bar- rett, 1 Johns. R. 66 ; Com. v. Somer- ville, 1 Va. Cas. 164 ; State v. Ray, 1 Rice, 1 ; Whitley v. State, 38 Ga. 50 ; Black V. State, 36 Ga. 447 ; Waller v. State, 40 Ala. 325 ; State v. McGraw, 1 Walker, 208; Munford ti. State, 39 21 Miss. 558 ; Mount v. Com., 2 Duval, 93 ; People V. Clark, 67 Cal. 99. See, how- ever. Berry v. State, 65 Ala. 117. That a former conviction of petit lar- ceny may be no bar to indictment for grand larceny, see Good v. State, 61 Ind. 69. " Lawrence v. People, 1 Scam. 414 ; State V. Redman, 17 Iowa, 329 ; State V. Walters, 16 La. An. 400. See infra, § 518. * Supra, §§ 405, 435a; State v. Norvell, 2 Yerg. 24. 5 Whart. Crim.Law, 9th ed. §§ 238-45. 6 Supra, §§ 238-245 ; 2 Hale, 244 ; Fost. 361 ; 2 Hawk. c. 35, s. 11 ; R. v. Plant, 7 Car. & P. 575 ; State v. Lar- kin, 49 N. H. 36 ; State v. Bnzzell, 58 N. H. 257 ; S. C, 59 N. H. 65 ; Morrow V. State, 14 Lea, 475. ' Ibid. ; Reynolds v. People, 83 111. 479. 321 § 460.] PLEADING AND PRACTICE. [CHAP. VIII. § 459. Where the counts are for distinct offences, a defendant who has been acquitted upon one of several counts is entirely discharged therefrom, nor can he a second time be put upon his trial upon that count. The new trial can only be had on the count as to which there was a conviction. It is otherwise when the variation between the counts is merely formal.* When there is a convic- tion on one count, and no verdict as to the others, a nolle prosequi may be entered as to the others, or the court may regard the action as an acquittal on such counts.^ § 460. An acquittal from misnomer or misdescription is no bar.^ Thus, an acquittal upon an indictment in a wrong county cannot be pleaded to a subsequent indictment for the offence in another county.^ And, as a general rule, an acquittal on a former indictment on account of a vari- ance between pleading and proof, is no bar.* So an acquittal for an attempt to pass a counterfeit note to A. at one time does not bar an indictment for an attempt' to pass it to B. at another time.* But a conviction, followed by an endurance of punishment, will bar a future prosecution for the same offence.^ Acquittal on one count does not affect other counts. Conviction on one count may be an ac- quittal as to others. Acquittal from mis- nomer or misdescrip- tion no bar, 1 See infra, § 895. 2 Bonnell v. State, 64 Ind. 498 ; Logg V. People, 8 111. Ap. 99 ; infra, § 895. 3 See State v. SherrUl, 82 N. C. 694. • Vaux's case, 4 Co. 45 a, 46 b; Com. Dig. Indictment, 1 ; Methard v. State, 19 Ohio St. 363. = R. V. Green, Dears. & B. 113 ; R. V. O'Brien, 46 L. T. 177 ; State v. Sias, 17 N. H. 558 ; Com. v. Sutherland, 109 Mass. 342 ; Com. i;. Trimmer, 84 Penn. St. 65; Burres w. Com., 27 Grat. 934; Robinson v. Com., 32 Grat. 866 y- State V. Williams, 94 N. C. 891 ; State v. Elder, 65 Ind. 282 ; McCoy v. State, 46 Ark. 141 ; Martha v. State, 26 Ala. 72. But see Williams v. Com., 78 Ky. 93; Com. V. Bright, 78 Ky. 238 ; State v. Vines, 34 La. An. 1079. " Burks V. State, 24 Tex. Ap. 526. ' See Com. v. Loud, 3 Met. 328 ; Com. V. Keith, 8 Met. 531 ; Fritz v. State, 40 Ind. 18. See supra, § 443. 322 In a case where the prisoner was on his trial for burning the barn of Josiah Thompson, the prosecutor was asked his name, who replied Josias Thomp^ son, on which the prisoner was ac- quitted without leaving the box; on being indicted for burning the barn of Josias Thompson he cannot plead au- trefois acquit. Com. v. Mortimer, 2 Va. Cas. 325 ; 2 Hale, 247. Supra, § 456. Where the defendant was formerly indicted for forging a will, which was set out in the indictment thus : " /, John Styles," etc., and was acquitted for variance, the will given in evidence commencing "John Styles,'" without the "/," it was ruled that he eould not plead this acquittal in bar of an- other indictment; reciting the will correctly, "John Styles," etc. R. v. Gogan, 1 Leach, 448. It is otherwise when the defendant could have been convicted on the first indictment. Com. CHAP. VIII.J AUTREFOIS ACQUIT, [§ 461. § 461. When a particular intention is essential to the Nor is ac- quittal T»roof of the case, an acquittal from a variance as to fromvari- ^ , 1 • T i J. i. J.- ance as to such intention is no bar to a second indictment stating intent, the intention accurately.* V. Loud, 3 Met. 328 ; Com. v. Keith, 8 Met. 531 ; Fritz v. State, 40 Ind. 18 ; Durham v. People, 4 Scam. 172. The following additional illustrations may be here given : — The defendant was charged with having stolen and carried away one hank note of the Planters' Bank of Tennessee, payable on demand at the Merchants and Traders' Bank of New Orleans. Upon this he was acquitted. The second indictment charged him with having stolen, taken, and carried away one bank note of the Planters' Bank of Tennessee, payable on demand at the Mechanics and Traders' Bank of New Orleans. The former acquittal was pleaded in bar, but it was held to be no bar to the prosecution of the second indictment. Hite v. State, 9 Yerg. 357. The same result took place where the defendant had been indicted for stealing the cow of J. G. and ac- quitted, and was again indicted for stealing the same cow, at the same time and place, and of the same owner, but by the name of J. G. A., which was his proper name ; it was held that the acquittal was no bar to the second in- dictment. State V. Risher, 1 Kichards. 219. See, also, U. S. u. Book, 2 Cranch C. C. 294, In an English case bearing on the same point, the evidence was that the prisoner stole the goods of J. B. from his stall, which at the time was in charge of R. B., his son, a child of fourteen, who lived with his father, and worked for him. The first indict- ment against him for stealing the goods described them as the property of R. B. The sessions thinking this a wrong de- scription directed an acquittal, and caused a new bill to be sent up laying the property in J. B. To this indict- ment he pleaded autrefois acquit. It was held that the plea could not be sus- tained, for the prisoner could not, on the evidence, have been convicted on the first indictment, charging the pro- perty as that of R. B., and that the court could only look at the first in- dictment, as it stood, without consider- ing whether the allegation as to the ownership of the goods might not have been amended so as to have warranted a conviction. E. v. Green, Dears. & B. C. C. 113; 2 Jur. N. S. 1146; 26 L. J. M. C. 17 ; 7 Cox C. C. 186. An acquittal on an indictment charg- ing the defendant with setting fire to the premises of A. and B. is no bar to an indictment charging him with set- ting fire to the premises of A. and C. Com. V. Wade, 17 Pick. 395. An acquittal upon one indictment for receiving stolen goods is no bar to the prosecution of the same defendant upon another, without further proof of the identity of the offences than that the goods described in the second in- dictment are such that the averments of the first indictment might describe them. Com. v. Sutherland, 109 Mass. 342. A trial and acquittal on an indict- ment for stealing a particular article misnamed is no bar to a subsequent prosecution for stealing such article 1 State V. Jesse, 3 Dev. & Bat. 98 ; State V. Hattabaugh, 66 Ind. 223. Whart. Crim. Ev. § 125. See State v. Birmingham, 1 Busbee, 120. 323 § 462.] PLEADING AND PRACTICE. [chap. VIII, § 462. The variance as to time, between the two indictments, must be in matter of substance to defeat the plea. If as'to'var^ ^^® difference be in a point immaterial to be proved, the ance as to acquittal on the first is a bar to the second. Thus, as to the point of time, if the defendant be in- dicted for a murder as committed on a certain day, and acquitted, and afterwards be charged with killing the same person on a differ- ent day, he may plead the former acquittal in bar notwithstanding this difference, for the day is not material, and this is an act which could not be twice committed.' And the same rule applies to accu- sations of other felonies, for though it be possible for several acts of the same kind to be committed at different times by the same person, it lies in averment, and the party indicted may show that the same charge is intended.^ correctly described. Com. v. Clair, 7 Allen, 525 ; State v. McGraw, 1 Walk. 208. An acquittal on a charge of em- bezzling cloth and other materials of which overcoats ' are made is no de- fence to an indictment for embezzling overcoats, although the same facts which were proved on the trial of the first indictment are relied upon in sup- port of the second. Com. v. Clair, 7 Allen, 525. The court: "The obvious and de- cisive answer to the defendant's plea in bar of autrefois acquit is, that the first indictment charges a different offence from that set out in the indictment on which the defendant is now held to answer. The principle of law is well settled, that, in order to support a plea of autrefois acquit, the offence charged in the two indictments must be identical. The test of this identity is, to ascertain whether the defendant might have been convicted on the first indictment by proof of the facts alleged in the second." An insolvent debtor acquitted on a former indictment for omitting goods from his schedule, may be again in- 324 dieted for omitting other goods not specified in the former indictment ; but such a course ought not to he taken except under very peculiar cir- cumstances. R. V. Champneys, 2 M. & R. 26. What misnomers are a variance is considered more fully in another work. Whart. Crim. Ev. §§ 94 e< seq. In Virginia, by statute, " a person acquitted of an offence, on the ground of a variance between the allegations and the proof of the indictment or other accusation, or upon an exception to the force or substance thereof, may be arraigned again on a new indict- ment, or other proper accusation, and tried and convicted for the same of- fence, notwithstanding such former ac- quittal." Code, 1860, c. 199, § 16, p. 814; Robinson v. Com., 32 Grat. 866. 1 2 Hale, 179, 244 ; 2 Hawk. 35. « Ibid. On an indictment for keeping a gam- ing-house, tempore G. 4, the defendant pleaded that at the sessions, 4 G. 4, he was indicted for keeping a gaming- house on the 8th of January, 47 Geo. 3, and on divers other days and times between that day and the taking of the CHAP. VIII. ] AUTREFOIS ACQUIT. [§ 464, § 463. When several are jointly indicted for an offence which ' may be joint or several, and all are acquitted, no one Acquittal can again be indicted separately for the same offence, ^totmenta' since on the former trial any one might have been con- tar if de- • 1 Txri fendant victed, and the others acquitted.' Where, however, the could have former joint indictment is erroneous, for joining persons ly con-*^* ' for an offence which could not be committed jointly, as victed. for perjury, an acquittal thereon will be no bar to a subsequent prosecution against each.^ An acquittal of one defendant .in an offence which is necessarily joint (e. g., adultery), acquits the other.^ § 464. It has been often held in this country, that where, on an indictment for an assault, attempt, or conspiracy, with ^gq^ittg^i intent to commit a felony, it appears that the felony was from mer- '. , ger at com- actually consummated, it is the duty ot the court to charge mon law the jury that the misdemeanor merges, and that the de- "° *'■ fendant must be acquitted. It used to be supposed that at common law, whenever a lesser offence met a greater, the former sank into the latter ; and hence, in a large class of prosecutions, the defend- ant would succeed in altogether escaping conviction. The reason for this is the old commion law rule that a defendant charged with misdemeanor is entitled to greater privileges as to counsel and to a copy of the indictment than would a defendant charged with felony.^ Even where this distinction has ceased, the courts of several States* have held that at common law where a felony is inquisition against the peace of our 27a, 395, 576, 1343 ; Hawk. b. 2, o. 47, lord the said king, with an averment s. 6 ; 1 Ch. C. L. 251, 639 ; R. v. that the offence in both indictments Walker, 6 C. & P. 657 ; R. v. Eaton, 8 was the same ; it was holden no bar, C. & P. 417 ; R. v. Woodhall, 12 Cox because the contra pacem tied the prose- C. C. 240 ; R. v. Cross, 1 Ld. Ray. 711 ; cutor to proof of an offence in the reign 3 Salk. 193; though see R. v. Carra- of Geo. 3, the only king named in that dice, Rus. & R. 205. indictment. R. v. Taylor, 3 B. & C. 502. ^ state v. Murray, 15 Me. 100 ; Com. • R. V. Dann, 1 Moody C. C. 424 ; v. Kingsbury, 5 Mass. 106 ; Com. v. R. ... Parry, 7 C. & P. 836. Infra, Newell, 7 Mass. 245 ; Com. v. Roby, § 488. ' 12 Pick. 496 ; People v. Mather, 4 2 See Com. u. McChord, 2 Dana, 244. Wend. 265 ; Johnson v. State, 2 Dutch. Supra, § 313. 313 ; Com. v. Parr, 5 Watts & S. 345 ; ' Supra, §§ 301, 315 ; State v. Bain, Com. v. McGowan, 2 Pars. 341 ; Black 112 Ind. 335. v. State, 2 Md. 376 ; Com. v. Black- * See Whart. Crim. Law, 9th ed. §§ burn, 1 Duvall, 4 ; Wright v. State, 5 325 § 464.] PLEADING AND PRACTICE. [chap. VIII. proved, the defendant is to be acquitted of the constituent misde- meanor, and though the notion has been sturdily resisted elsewhere,* it has taken deep and general root. The result has been the accu- mulation of pleas of autrefois acquit, in which, through the laby- rinth of subtleties thus opened, the defendant has frequently escaped ; an acquittal being ordered in the first case because there was doubt as to the misdemeanor, and in the second because there was doubt as to the felony. In 1848, however, under the stress of particular statutes, all the judges of England agreed that the doc- trine that a misdemeanor, when a constituent part of a felony, merges, is no longer in force ; that the statutory misdemeanor of violating a young child does not merge in rape f nor a common law conspiracy to commit a larceny, in the consummated felony.' It has also been provided by statute that on an indictment for felony the defendant can be convicted of any constituent misdemeanor duly pleaded.* Similar statutes have been enacted in most jurisdictions in this country, and in others the rule is adopted as at common law.^ These statutes, however, do not apply to cases where the offences are distinct, but only to those where one offence is an ingredient of Ind. 527 ; People v. Richards, 1 Mann. (Mioh.) 216 ; State v. Lewis, 48 Iowa, 578 ; State v. Durham, 72 N. C. 447. Compare comments in § 456. I State V. Scott, 24 Vt. 127 ; State v. Shepard, 7 Conn. 54 ; People v. Jack- son, 3 Hill, 92; People v. White, 22 Wend. 175 ; Lohman v. People, 1 Comst. 379 ; Hess v. State, 5 Ohio, 6 ; Stewart v. State, 5 Ohio, 241 ; State v. Sutton, 4 Gill, 494 ; Canada v. Com., 22 Grat. 899 ; State v. Taylor, 2 Bailey, 49 ; Laura v. State, 26 Miss. 174 ; Hanna V. People, 19 Mich. 316 ; Cameron v. State, 13 Ark. 712. ! R. V. Neale, 1 Den. C. C. 36. See Siebert v. State, 95 Ind. 471 ; State v. Ellis, 74 Mo. 207 ; State v. Woolaver, 77 Mo. 103. 3 R. V. Button, 11 Ad. & El. N. S. 929. See R. <.. Evans, 5 C. & P. 553 ; R. V. Anderson, 2 M. & R. 469 ; Com. v. Andrews, 132 Mass. 263. The bearing of these cases on the 326 question of autrefois acquit is thus stated by Lord Denman, C. J., 11 Ad. & El. N. S. 946 : " The same act ijaay be part of several offences ; the same blow may be the subject of inquiry in consecutive charges of murder and robbery. The acquittal on the first charge is no bar to a second inquiry where both are charges of felonies ; neither ought it to be when the one charge is of felony and the other of misdemeanor. If a prosecution for a larceny should occur after a conviction for a conspiracy, it would be the duty of the court to ap- portion the sentence for the felony with reference to such former conviction." * Infra, § 742. ■■ Com. V. Dean, 108 Mass. 349 ; citing Com. v. Bakeman, 105 Mass. 53 ; Morey v. Com. 108 Mass. 433 ; People V. Arnold, 46 Mich. 268. In New York, by the penal code of 1882, § 685, an attempt does not merge in a consummated crime. CHAP. VIII.j AUTREFOIS ACQUIT. [§ 464. another ;* nor can it be maintained under the statutes that a defend- ant is to be convicted on proof showing him to be guilty of an offence materially different from that charged. It is conceded on both sides that a felony of low grade does not merge in a felony of higher f nor does a misdemeanor merge in a I R. V. Simpson, 3 C. & K. 207 ; R. v. Shott, Ibid. 206. In other words, the prosecution cap say, " We relieve the defendant from the aggravations of the charge, and try him only on one minor offence contained in the indictment ;" hut it cannot say " We will charge him with one offence and try him for another essentially different." As to whether incest merges in rape, see Whart. Crlm. Law (9th ed.), § 1750. See, as gene- rally, infra, § 467 ; Whart. Crim. Law, 9th ed., §§ 27, 576. See, more fully, Whart. Crim. Law, 9th ed., §§ 576, 1343. In Pennsylvania, by the Revised Act of 1860," persons tried for misde- meanor are not to be acquitted if the offence turn out to be felony. A similar statute exists in other States. Com. H. Squires, 1 Met. 258 ; Prindeville v. People, 42 111. 217. Two were indicted in England for having on the 10th November, 1849, assaulted P. They pleaded autrefois acquit, and in their plea set out an in- dictment for murder, the third count of which alleged that they had murdered the deceased, by beatings on the 5th November and 1st December, 1849, and 1st January, 1850, and on divers other days between the 5th November and 1st January ; and the plea averred that the assaults charged in the second indictment were identically the same as those of which they had been acquitted on the trial of the first. The replication was that the prisoners were not acquitted of the felony and murder, including the same identical assaults charged in the indictment. On the first trial the counsel for the crown had stated the assaults as conducing to the death, and had given them in evidence to sustain the charge of mur- der. It was proved, however, that the cause of death was a blow inflicted shortly before the death of the de- ceased, which occurred on the 4th January, but there was no evidence to show by whom the blow was struck, and the prisoners were acquitted. The judge, on the second trial, told the .jury that if they were satisfied that there were several distinct and independent assaults, some or any one of which did not in any way conduce to the death of the deceased, it would be their duty to find the prisoners guilty. The jury found the prisoners guilty. It was held that the conviction was right, as the prisoners could not, on the trial for murder, have been convicted, under 7 Will. 4 & 1 Vict. «. 83, s. 11, of the assaults for which they were indicted on the second trial. R. v. Bird, T. & M. 437 ; 2 Den. C. C. 94 ; 5 Cox C. C. 11 ; 2 Eng. L. & Eq. 448. The Michigan statute, providing that no person shall be acquitted of a mis- demeanor because the proofs show a felony, cannot apply to a statutory offence where the misdemeanor could not be included in any felony, and where the offence proved would be inconsistent with that charged, instead of being an aggravation of it. People V. Chappell, 27 Mich. 486. Otherwise when the misdemeanor is part of the felony. People v. Arnold, 46 Mich. 268. 2 Com. V. MoPike, 3 Cush. 181 ; Peo- ple V. Smith, 57 Barb. 46 ; Barnett u. People, 54 111. 325 ; Bonsall v. State, 327 465.J PLEADINa AND PRACTICE. [chap; VIII. misdemeanor.* Thus, the intent to commit an injury within the statute under which the prisoner is indicted, as a means to the accomplishment of another ultimate and unlawful object, is not taken out of the operation of the statute by the existence of such ultimate design.* § 465. Most indictable offences comprise two or more grades, of any one of which, either at common law or by statute, a jury may convict.' Under an indictment for murder, for instance, a defendant may be convicted of murder in the second degree, of manslaughter, and, in some jurisdic- tions, of assault and battery. Under an indictment for Where an Indictment contains a minor of- fence in- closed in a major, a oraequittal burglary Containing an averment of larceny he may be of minor convicted of larceny.^ Under an indictment for assault oars major. _ ■' with intent, he may be convicted of a simple assault." Under an indictment for the consummated offence, he may, in several States, be convicted of the attempt. It becomes, therefore, a questi"Dn of interest to determine how far a conviction or an ac- quittal on an indictment for an offence comprising several stages affects a subsequent charge for one of these stages. The answer is, that if there could have been a conviction on the first indictment of the offence prosecuted under the second, then the conviction or ac- quittal under the first indictment bars the second. Where on the first trial the conviction or acquittal is of the minor offence, this rule has been frequently recognized.' Thus, where under an indictment for murder the defendant could have been convicted of murder or 35 Ind. 460 ; People v. Bristol, 23 Mich'. 118. Infra, § 1344. 1 Infra, § 1346. See State v. Damon, 2 Tyler, 387. 2 People V. Carmiohael, 5 Mioli. 10; People V. Adwards, Ibid. 22 ; Whart. Grim. Law, 9tli ed. § 119. ' Whart. Grim. Law, 9th ed. § 27. • Infra, §§ 742, 789 ; Com. v. Pre- witt, 82 Ky. 240 ; see Munson v. State, 21 Tex. Ap. 329. 6 Supra, § 247. 6 Infra, §§ 742, 789, 896 ; supra, § 244 ; R. * Oliver, 8 Cox C. C. 384 ; R. V. Yeadon, 9 Cox G. C. 91 ; R. v. Bird, T. & M. 437 ; 3 Den. C. C. 94 ; 5 Cox C. C. 11 ; State v. Waters, 39 Me. 54 ; 828 state V. Dearborn, 54 Me. 442 ; Com. v. Griffin, 21 Pick. 523 ; Com. v. Stuart, 28 Grat. 950 ; Stewart v. State, 5 Ohio, 242 ; Bell v. State, 48 Ala. 184 ; Swin- ney v. State, 8 S. & M. 576 ; State w. Ross, 29 Mo. 32 ; State v. Smith, 53 Mo. 139; State v. Brannon, 55 Mo. 63; State V. Chaffin, 2 Swan, 493 ; Conner V. Com., 13 Bush, 714 ; State v. Delauey, 28 La. An. 434 ; State v. Byrd, 31 La. An. 419 ; State v, Dennison, 31 La. An. 847 ; Cameron v. State, 8 Eng. 13 Ark. 712 ; Jones v. State, 13 Tex. 168 ; Gris- ham V. State, 19 Tex. 504 ; State v. Tay- lor, 3 Oregon, 10. By the N. Y. Penal Code of 1882, § 36, the position in the text is affirmed. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 465. of manslaughter, then his conviction of manslaughter bars after a new trial a subsequent prosecution for theTnurder.* On the same reasoning a conviction of murder in the second degree is an acquittal 1 Infra, §§ 789, 896 ; 2 Hale, 246 ; Post. 329 ; State v. Paygon, 37 Me. 362 ; Com. V. Herty, 109 Mass. 348 ; State v. Flannigan, 6 Md. 167 ; Davis v. State, 39 Md. 365; Lithgow v. Com., 2 Va. Ca. 297; Kirk v. Com., 9 Leigh, 627; Wroe V. State, 20 Ohio St. 460 ; More- head V. State, 34 Ohio St. 212 ; Brennon u. People, 15 111. 511 ; Barnetti). People, 54 111. 325 ; People v. Knapp, 26 Mich. 112; Gordon v. State, 3 Iowa, 410; State V. Tweedy, 11 Iowa, 350 ; State v. Commis., 3 Hill S. C. 241; Jordan v. State, 22 Ga. 545 ; Miller v. State, 58 Ga. 200 ; Bell u. State, 48 Ala. 685 ; De Armand v. State, 71 Ala. 351 ; Syl- vester V, State, 72 Ala. 201 ; Morris v. State, 8 Sm. & M. 762 ; Hurt v. State, 25 Miss. 378 ; Rolls v. State, 52 Miss. 391 ; Watson v. State, 5 Mo. 497 ; State V. Ross, 29 Mo. 32; State v. Sloan, 47 Mo. 604 ; State v. Smith, 53 Mo. 139 ; (but now contra in Missouri under con- stitution of 1875 ; State v. Sims, 71 Mo. 538 ; State v. Bruffey, 75 Mo. 389 ; State o. Martin, 76 Mo. 337 ; State v. Anderson, 89 Mo. 300) ; State v. De- laney, 28 La. An. 434 ; State v. Byrd, 31 La. An. 419 ; State v. Denuison, Ibid. 847 ; Slaughter v. State, 6 Humph. 410 ; State i. Lessing, 16 Minn. 80 ; State V. Martin, 30 Wis. 216 ; State v. Belden, 33 Wis. 120 ; People w. Gilmore, 4 Cal. 376 ; State v. McCord, 8 Kans. 232 ; Wornock v. State, 6 Tex. Ap. 450. See, however, as holding that a new trial opens the whole case, U. S i^. Harding, 1 Wall. Jr. 147; State v. Beheimer, 20 Ohio St. 579 ; State v. Morris, 1 Blackf. 37 ; Veatoh u. State, 60 Ind. 29 ; Livingston's Case, 14 Grat. 134; Com. v. Arnold (Ky. 1884), 6 Crim. L. Mag. 61 ; Bohanan v. State, 18 Neb. 57. In R. V. Tancock, 13 Cox C. C. 217, the prisoner having been previously convicted for the manslaughter of A., was shortly' after his trial indicted for wilful murder upon the same facts. The prisoner pleaded autrefois convict. The facts of identity of the prisoner and deceased having been given in evidence, and the judge (Denman, J.) having read the depositions, which, as he thought, disclosed a case of man- slaughter, he held the plea to be proved, at the same time stating that, if he thought the case would ultimately have resolved itself into one of murder, he should have tried the prisoner, and, if necessary, reserved the point for the consideration of the court for crown cases reserved. Biit this last point was merely intimated and cannot be accepted as of authority. In this case, however, the first indict- ment was for manslaughter, and the view of Deuman, J., is in accordance with the distinction taken infra. In State v. Chumley, 67 Mo. 41, it was held that a conviction on an in- dictment for an assault with intent to kill, bars an indictment on the same facts for an assault with intent to maim. As dissenting from the text, see U. S. V. Keen, 1 McLean, 429 ; Bailey v. State, 26 Ga. 579 ; Veatch v. State, 60 Ind. 291, The argument in the text is, of course, strengthened when there has been a direct acquittal of the major. In such cases the conviction of mur- der in the second degree must be spe- cially pleaded. Jordan «. State, 81 Ala. 20. Infra, § 477. 329 § 465.] PLEADING AND PRACTICE. [chap. VIII. of murder in the first degree ;* a conviction of larceny, on an indictment for burglary and larceny, is an acquittal of burglary f a conviction of robbery in the second degree bars a subsequent prosecution for robbery in the first degree,^ A defendant, also, who is convicted of assault with intent to ravish, under an indict- ment for rape, cannot subsequently be tried for the rape ;* and a defendant who is convicted of an assault under an indictment for an assault with intent to kill, or for assault and battery, cannot be sub- sequently tried for the assault with felonious intent, or for the assault and battery.* On the same hand, where, under the first indictment there could have been no conviction of the major offence, then a conviction or acquittal of the minor on the first indictment does not bar a second indictment for the major ofience.' Thus, a 1 Clem V. State, 42 Ind. 420 ; State V. Belden, 33 Wis. 120 ; Slaughter v. Com., 6 Humph. 410 ; State v. Smith,' 53 Mo. 139 ; Johnson v. State, 29 Ark. 31 ; Lewis v. State, 51 Ala. 1 ; Field v. State, 52 Ala. 348 ; Berry v. State, 65 Ala. 117. Compare People ». Lilly, 38 Mich. 270. 2 Supra, § 244. Infra, §§ 789, 896; State V. Kittle, 2 Tyler, 471 ; State v. Bruffey, 75 Mo. 389 ; 11 Mo. Ap. 79 ; State u. Martin, 76 Mo. 337 ; Morris v. State, 8 S. & M. 762 ; Esmon v. State, 1 Swan (Tenn.), 14. See Smith v. State, 68 Ala. 424. Compare State v. Brannon, 55 Mo. 63, as stated fully infra, § 466, and as to Missouri cases see analysis in prior note. As to cases where the burglary and the larceny are separately indicted, see Smith V. State, 22 Tex. Ap. 350. 3 State V. Brannon, 55 Mo. 63 ; People V. Jones, 53 Cal. 58. * State V. Shepard, 7 Conn. 54. 6 R. V. Dawson, 3 Stark. 62 ; State V. Dearborn, 54 Me. 442 ; State v. Handy, 47 N. H. 538 ; State v. Coy, 2 Aiken, 181 ; State v. Reed, 40 Vt. 603 ; Com. V. Fischblatt, 4 Met. 350 ; State 330 V. Johnson, 1 Vroom, 185 ; Francisco v. State, 4 Zabr. 30 ; State v. Townsend, 2 Harring. 543 ; Stewart v. State, 5 Ohio R. 242 ; White v. State, 13 Ohio St. 569 ; State v. Shepard, 10 Iowa, 126 ; Clark v. State, 12 Ga. 350 ; State V, Stedman, 7 Port. 495 ; Carpenter v. State, 23 Ala. 84 ; Grardenheir v. State, 6 Tex. 348 ; Reynolds v. State, 11 Tex. 120 ; Grisham v. State, 19 Tex. 504 ; Robinson v. State, 21 Tex. Ap. 160 ; McBride v. State, 2 Eng. 374 ; State ». Robey, 8 Nev. 312 ; People v. Apgar, 35 Cal. 389. The reason is, the conviction of the minor is the acquittal of the major. Infra, § 742. 6 R. u. Morris, L. R. 1 C. C. 90 ; R. V. Salvi, 10 Cox C. C. 481, n. ; R. v. Button, 11 Ad. & El. (N. S.) 929; Josslyn V. Com., 6 Met 236 ; Com. u. Evans, 101 Mass. 25 ; Com. v. Herty, 109 Mass. 348; Wilson v. State, 24 Conn. 57 ; People v. Saunders, 4 Par- ker C. R. 197 ; People v. Smith, 57 Barb. 46 ; State v. Nathan, 5 Richards. 213; State v. Warner, 14 Ind. 572; Freeland v. People, 16 111. 380 ; Severin V. People, 37 111. 414 ; Scott v. V. S., 1 Morris, 142 ; People v. Knapp, 26 Mich. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 466. conviction or acquittal on an indictment for an assault with intent to kill or ravish (the acquittal being on the ground of merger) will be no bar to an indictment for the consummated offence.' And when after a trial for assault the assaulted person dies, a prosecution for the murder is not barred by the prior prosecution of the assault.' A conviction of larceny, also, on an indictment for burglary with intent to steal, does not bar a prosecution for the burglary.' We must at the same time remember that the prosecution, as will pre- sently be seen more fully,* by selecting a minor stage, and prose- cuting it witjh the evidence of the major stage, declining to present an averment of the latter, may preclude itself from afterwards pro- secuting for the major offence in a distinct indictment. Otherwise the prosecution might arbitrarily subject a defendant to trials for a series of progressive offences on the same proof tentatively applied ' until at last a conviction should be reached. § 466. Of the rule just expressed the converse is in a large measure true. Thus, whenever, under an indictment containing 112; State v. Martin, 30 Wis. 216; Duncan v. Com., 6 Dana, 295. See Eoberts v. State, 14 Ga. 8. See, how- ever, R. V. Elrington, 9 Cox C. C. 86 ; 1 B. & S. 689 ; 10 W. R. 13 ; cited infra, § 467 ; R. V. Thompson, 9 W. R. 203; State V. Mikesell, 70 Iowa, 176. In Com. V. Curtis, 11 Pick. 134, the rule in the text was held to apply to a case where the court trying the minor case had no j urisdiction of the major. 1 R. V. Morris, L. R. 1 C. C. R. 90 ; State V. Murray, 15 Me. 100 ; Com. v. Kingsbury, 5 Mass. 106 ; People v. Mather, 4 Wend. 265 ; People v. Saun- ders, 4 Parker C. R. 197 ; Com. v. Parr, 5 W. & S. 345. Supra, § 456. In State v. Hattabough, 66 Ind. 223, it was held that a conviction or acquittal of a simple assault and battery, before a court of competent jurisdiction to try the same, does not bar a subsequent prosecution for the same assault and battery with intent to commit a felony. Citing People v, Saunders, 4 Parker C. E. 197 ; Severin v. People, 37 111. 414. (Biddle, C. J., diss.) On the other hand, in R. v. Walker, 2 M. & R. 457, where it was held that an acquittal of an assault barred a sub- sequent prosecution for felonious stab- bing based on the same transaction, it was said by Coltman, J., " Suppose a party had been acquitted of an as- sault, and he was afterwards indicted for the felony which involved that assault ; it is clear, if he did not make the assault, he could not be guilty of that which includes and depends upon the assault." 2 R. v. Morris, L. R. 1 C. C. 90 ; R. V. Salvi, 10 Cox C. C. 481, n. ; Com. v. Evans, 101 Mass. 25 ; Burns v. People, 1 Parker C. R. 182 ; Wright w. State, 5 Ind. 527, and other cases cited infra, §47. s Wilson V. State, 24 Conn. 57 ; Smith V. State, 23 Tex. Ap. 350. But see Roberts v. State, 14 3a. 8. Infra, §§ 466, 471. * See infra, § 467. 331 § 466.] PLBADINa AND PRACTICE. [chap. VIII. successive stages of an oflfence, the defendant could have been con- Conviction ^'°''®<^ °^ ^^^ minor offences at the trial, his conviction oracquittai of the maior offence protects him from a further prose- of major ,. „ , . . -. i i i- offence cution 01 the minor. And the same rule applies to ac- bars minor when on first trial defendant could have been con- victed of minor. quittals, whenever the defendant could have been con- victed of the minor offence and the acquittal goes to the aggregate charge.* It is otherwise when there could have been no conviction of the minor offence under the first indictment.^ Thus, an acquittal of burglary with intent to steal does not bar a prosecution for larceny ;' and an acquittal of 1 4 Co. R. 45 ; 2 Hale, 246 ; Fost. 339 ; R. V. Gould, 9 C. & P. 64 ; R. v. Barrett, 9 C. & P. 387 ; State v. Smith, 43 Vt. 324 ; People v. MoGowan, 17 Wend. 386 ; People v. Loop, 3 Parker C. R 561 ; People v. Smith, 57 Barb. 56 ; Lohman r. People, 1 Comst. 379 ; State V. Cooper, 1 Green, 361 ; Res. v. Roberts, 2 Dall. 124 ; Dinkey v. Com. 17 Penn. St. 126 ; State v. Reed, 12 Md. 263 ; Murphy v. Com., 23 Grat. 460 ; Fritz V. State, 40 Ind. 18 ; Wilcox v. State, 6 Lea, 571 ; State v. Lewis, 2 Hawks, 98 ; State u. Cowell, 4 Ired. 231 ; Johnson v. State, 14 Ga. 55 ; Bell V. State, 48 Ala. 684 ; State v. Smith, 15" Mo. 550 ; State v. Pitts, 57 Mo. 85 ; State V. Keogh, 13 La. An. 243 ; Wil- cox V. State, 31 Tex. 586 ; Thomas a. State, 40 Tex. 36. 2 2 Hawk. c. 25, s. 5 ; 1 Leach, 12 ; R. V. Campbell, 3 C. & P. 418 ; R. v. Henderson, 1 C. & M. 328 ; R. v. Tay- lor, L. R. 1 C. C. 194 ; 11 Cox C. C. 261 ; R. V. Reid, 15 Jur. 181 ; Com. v. Hudson, 14 Gray, 11 ; State v. Nichols, 8 Conn. 496 ; Hilands v. Com., 114 Penn. St. 372; Reynolds v. People, 83 HI. 479 ; Heller v. State, 23 Ohio St. 682 ; State V. Jesse, 2 Dev. & B. 297 ; State V. Morgan, 95 N. C. 641 ; Wood v. State, 48 Ga. 192 ; State v. Standifer, 5 Port. 523 ; State v. Wightman, 26 Mo. 515 ; Boswell V. State, 20 Fla. 869. See, 332 however, R. v. Gould, 9 C. & P. 364. Infra, § 467. ' See State v. Warner, 14 Ind. 572 ; Fisher 0. State, 46 Ala. 717 ; Roberts V. State, 55 Miss. 421 ; Howard v. State, 8 Tex. Ap. 447; People v. Helbing, 61 Cal. 620 ; though see contra, State V. Lewis, 2 Hawks, 98 ; Roberts v. State, 14 Ga. 8 ; State v. De Graffen- ried, 9 Baxt. 287 ; People v. Garnett, 20 Cal. 622. In State v. Brannou, 55 Mo. 63, the defendant was indicted ' ' for robbery in the first degree," which was held to be a sufficient indictment for larceny. The conviction was for robbery "in the second degree." The verdict was set aside, as there were no degrees in robbery. When, subsequently, the de- fendant was again tried upon the same indictment, and convicted of larceny, this was held error ; it being held that as the defendant could, upon the first trial, have been convicted of either robbery or larceny, but was lawfully convicted of neither, the verdict was an acquittal. In Wilson v. State, 24 Conn. 57, a conviction for larceny, as we have seen, was held no bar to statutory house-breaking ; and see infra, § 471. But a conviction for larceny has been held a bar to an indictment for subse- quently receiving the same goods. U. S. V. Harmison, 3 Sawyer, 556. CHAP. VIII ] AUTREFOIS ACQUIT. [§ 467. murder, on the ground that the assaults averred did not contribute to the murder, does not bar a subsequent indictment for the assaults.* § 467. Upon the doctrines above stated an interesting qualifica- tion has been proposed. Suppose the prosecution could, if it chose, have presented the two offences in a single may bar count (e. g., assault, with assault with intent to wound), geLecttoJ^a but did not do so, thereby, as has just been said, virtu- special ally, with the whole case before it, entering a nolle prosequi on the higher grade. Can a second indictment be main- tained for such higher grade ? The answer must be in the negative ;^ since the prosecution cannot take advantage of its own negligence in the imperfect pleading of its case, and since such voluntary with- drawal of the aggravated grade, sanctioned by a verdict, operates as an acquittal of the higher grade. Another reason is the annoy- ance which a contrary rule would capriciously inflict. " The State cannot split up a crime and prosecute it in parts. A prosecution for any part of a single crime" (supposing that at the time the entire crime could be prosecuted) " bars any further prosecution based upon the whole or a part of the same crime."' Should the defendant be acquitted on the first trial, the whole case of the second prosecution being before the jury, then, as he has been acquitted of the essential ingredients of the second case, the second case cannot proceed.* ' E. V. Bird. T. & M. 437 ; 2 Den. C. C. 94; 5 Cox C. C. 11 ; cited supra, § 464. See Moore t/. State, 59 Miss. 529. 2 E. V. Elrington, 9 Cox C. C. 86 ; 1 B. & S. 689 ; 10 W. E. 13, citing E. v. Stanton, 5 Cox C. C. 324; Thompson, in re, 9 W. E. 203 ; U. S. v. Harmison, 3 Sawyer, 556 ; State v. Smith, 43 Vt. 324; Com. v. Miller, 5 Dana, 320; State V. Chaffin, 2 Swan. 493 ; State v. Stanly, 4 Jones L. (N. C.) 290 ; Moore V. State, 71 Ala. 302 ; 4Crim. Law Mag. 429 ; though see People v. Warren, 1 Parker C. E. 338 ; Smith v. Com., 7 Grat. 593 ; State v. Foster, 33 Iowa, 525 ; Price V. State, 41 Tex. 300 ; see Grisham v. State, 19 Tex. Ap. 504; E. v. Elrington, and other cases in the same line, may he sustained on the ground that the with- drawal of the higher charge by the prosecution operates, when sanctioned by the verdict, as an acquittal of such charge ; see supra, § 464, and oases cited infra. The English rulings above cited, however, took place under a statute providing that after a trial by justices there should be no further proceed- ings, civil or criminal, "for the same cause." 3 Jackson v. State, 14 Ind. 327-8 ; Drake v. State, 60 Ala. 42. * To this effect see cases in preceding section, on the question whether a con- viction of burglary with intent to steal bars larceny. 333 § 468.] PLEADING AND PRACTICE. [CHAP. VIII. 3. As to Nature of Offence. § 468. Concurrent injuries to distinct persons may be classified as follows : — (1.) Concurrent Negligent Injuries. — Suppose a railroad cor- Wh ne poration, by negligence in the construction of a bridge, unlawful causes the concurrent deaths of a number of passengers, rates on is the responsibility of the corporation, or of its ofiScers objects ^ whom the negligence is imputable, limited to a single conviction gase of death ? It is alleged, by those maintaining the object does affirmtitive, that as the injury is but one act, there can guish pros- be but one indictment and but one punishment. But is to'other^-^ there, in such cases, only one act ? In civil suits it has e. g., when jjeen decided in multitudes of cases that there are as two per- . -Ill sons are many distinct acts, separately cognizable, as there are sitnultane- >■ -■ i ^n i-i?ii i ousiy persons injured ; and one ot the chiet checks we have killed. upon railroad companies is that when a great disaster occurs from their negligence, they have to pay damages for every person hurt ; and hence they multiply their precautions against the negligences which should produce such great disasters. If a foot- bridge crossing a brook breaks down under a single traveller, the negligent constructor of the bridge is liable to but a single suit, and this may be a sulBcient penalty. If a railway bridge crossing an estuary breaks down, through the negligence of the company constructing it, and a hundred persons are swept into the sea, the company may be liable to a hundred suits ; atrocious negligence hereby receiving signal and conspicuous condemnation. In no other way can care in proportion to peril be legally exacted. Why, then, should it be otherwise in criminal issues ? In criminal as well as in civil issues, the principle is that the guilt of neglect is in propor- tion to the greatness of the duty neglected. It may be said, that in cases of injuries arising from the neglect of railroad officers, a gross punishment can be inflicted in the first case tried and that the others can be dropped. But to this it may be answered as follows : (1.) It is no more just when a man is tried for negligent miscon- duct towards A., to punish him for negligent misconduct to B".,than it would be just when he is tried for negligent misconduct towards A., to punish him for malicious acts done subsequently to B. If the acts are separate they are to be punished separately, and that 334 CHAP. VIII.] AUTREFOIS ACQUIT. [§ 468. they are separate the courts, in civil suits, have repeatedly ruled. (2.) Our statutes do not ordinarily permit a series of offences to be thus lumped in their punishment. Punishments are assigned to specific objective acts of negligence. To impose the statutory pun- ishment in such cases, if we stop with the first prosecution, is often a very inadequate penalty for ^he crime. To this view it may be objected that an offender may be crushed under a load of succes- sive punishments. But this is an objection that goes, not to the responsibility of the party for each offence, but simply to the de- gree in which he is to be punished for his misconduct. The same objection would apply to successive trials in cases where A., at intervals of a day or a month, assaults murderously B., C, and D. The proper course is not to deny his responsibility for the wrong- ful acts, but, in cases where his punishment in the first case is ade- quate, to apply executive clemency. He may, for instance, in the first case, be sentenced to imprisonment for five years, and this may be regarded by the executive as a sufficient penalty to impose on a particular individual. But if he is sentenced in the first case to an imprisonment for one or two years, this may be properly followed by a second prosecution with a similar punishment. If this objec- tion, it may be added, applies to successive criminal prosecutions, it applies still more strongly to successive civil suits, the penalties of which cannot be reduced by the executive. (2.) Concurrent Malice and Negligence. — The characteristics of this concurrence are elsewhere fully discussed.* A. aims a pistol at B., but the ball glances and wounds 0. Here, as we have seen, there is an attempt to kill B., for which the defendant is indictable, and a negligent wounding of C, for which the de- fendant is also indictable. The offences are distinct in purpose, in object, in effect, and ordinarily in mode of punishment. They are consequently to be tried separately. And in this way alone can a proper penalty be infiicted. A trial for neither offence would bring with it such a penalty. An attempt has usually a lenient punishnfent imposed on it ; and such is the case with a negligent wounding. But here we have acts which, if we could join them, would present the features of a malicious wounding, and would deserve the punishment imposed on that high offence. 1 Whart.Crim. Law, 9th ed. § 120. 335 § 468.] PLEADING AND PRACTICE. [CHAP. VIII. But we cannot so join them ; and if we prosecute only for the neglect or the attempt singly, the punishment would be inade- quate. (3.) Concurrent Malicious Acts. — A., for instance, designing to inflict severe physical injury on B. and C, waits till he finds them together. We may suppose the case of poison administered in such a way as not to kill but to seriously hurt, such being the intention. If he administers the dose to them at intervals of half an hour, there can be no question that the ofliences are dis- tinct. Do they cease to be distinct, because in this view, he manages to get them to his table together, and then to poison them by soup, for instance, distributed from the same tureen ? In the Roman law we have cases in which the idea of unification of such offences is sternly rejected, and in which each poisoning is held to be distinct. The English common law tends to the same effect. There can be no question that each party injured, in such cases, supposing death not to ensue, can maintain a civil suit for the damage he has suffered individually. There can be no question, also, that by the English common law, he is obliged, before bringing the civil suit, to bring a criminal prosecution.* Wherever, in such cases, a civil suit lies, there, as a condition precedent, lies a crimi- nal prosecution. It may be said that this also heaps an intolerable burden on the offender. This objection, however, if good, would limit to a single suit all civil retribution sought by the party in- jured. And the question here also, as in the preceding cases, is one for the executive, if it appear that immoderate penalties are about to be inflicted. The objection does not go to the severance of the offences. This severance is required, (1) because the pur- pose in each case is distinct ; and (2) because the object in each case is distinct. The question before us, as it presents itself to us in the concrete, may be treated in a series of cases, of which the following is the first to be discussed : — If A. in shooting at B. kills both B. and C, is his conviction under an indictment for killing B. a bar to a prosecution against him for killing C. ? In answering this question let us remember that to join the killing of B. and C. in the same count would be a 1 See supra, § 453i CHAP. VIII.] AUTKEFOIS ACQUIT. [§ 468. duplicity that would not be tolerated ; and that if joined in the same indictment, in separate counts, the court would compel an election between the offences. It would be necessary, therefore, to prosecute the cases separately ; and if so, it is hard to see how a conviction or acquittal of the one could bar a prosecution of the other. To the indictment for killing B., for instance, A. might set up self-defence, and be acquitted, but this might be plausibly argued to be an issue different from that which would be presented on his trial for killing B., should it appear that the killing of B. was an unprovoked or a negligent act. The killing of B. also may be ma- licious, as where A. designs to shoot B., while the concurrent killing of C. may be negligent ; as where the ball, after striking B., glances and strikes C, whom A. has no possible reason to ex- pect to be at the spot, and whose death may be to him peculiarly abhorrent.* An acquittal or conviction, therefore, for killing 0. ought not, on principle, to bar a subsequent indictment for killing B., though the killings were by the same act.* 1 Whart. Crim. Law, 9th ed. § 120. 2 See R. V. Champneys, 2 M. & R. 26 ; R. ^. Jennings, R. & R. 368 ; State V. Benham, 7 Conn. 414 ; People v. Warren, 1 Parker C. R. 338 ; Vaughan V. Com., 2 Va. Caa. 273 ; Smith v. Com., 7 Grat. 593 ; State v. Fife, 1 Bailey, 1 ; State v. Fayetteville, 2 Murphey, 371 ; Kannon v. State, 10 Lea, 886 ; State v. Standifer, 5 Port. 623 ; Teat v. State, 53 Miss. 439 ; Peo- ple V. Alibez, 49 Cal. 452 ; People v. Majors, 65 Cal. 138 ; and see State v. Horneman, 16 Kans. 452. See, how- ever. State u. Womaok, 7 Cold. 508. In Whart. Crim. Ev. § 587, other points are noticed ; and, as disputing the conclusion of the text, see State v. Da- mon, 2 Tyler, 370 ; Ber v. State, 22 Ala. 9 ; Clem v. State, 42 Ind. 420. In Whart. on Hom. §§ 28-48, will be found a discussion of whether the grade in all cases of double killing is identical. See Forrest v. State, 13 Lea, 103. The following supposed cases may strengthen the argument in the text ; — 22 A. when shooting at B. with intent to kill, by the same shot negligently, as it is alleged, injures C. An acquit- tal on an indictment for the negligent injury to C. is no bar to an indictment for the malicious shooting of B. A., an officer, with a warrant to ar- rest B., shoots B., the shooting being the only means of preventing B.'s es- cape. By the same shot, however, he (either negligently or maliciously) in- jures C. An acquittal in the former case is no bar to a prosecution in the latter. A public executioner, when discharg- ing his office, withdraws the platform in such a way as not only to cause the death of the convict, which he is ap- pointed to effect, but to inflict a serious wound on a by-stander, such wound being maliciously intended by the ex- ecutioner. An acquittal on an indict- ment for the killing is no bar to an in- dictment for the malicious wounding. An artilleryman aims his gun in such a way as to kill not only soldiers of the hostile force, but persons attend- 337 § 469 a.] PLEADING AND PRACTICE. [chap, VIII. § 469. Where the rule is that there can be batteries of two or more persons, introduced in the same count,* it follows on tech- as'to'twtf "^^"^^ grounds, that a conviction or acquittal on an indict- batteries at ment charging a battery of A. and B. is a bar to a one time. o o ^ » -n subsequent prosecution for a battery of B., though on the first trial the verdict went simply to the battery of A. But where the first indictment charges only the battery of A., this, for the reasons stated in the last section, does not bar a subsequent in- dictment for a battery of B.' And where the defendant fired a revolver twice in rapid succession at a crowd, the first shot wound- ing A. and the second wounding B., it was held that a conviction for assault on A. was no bar to an indictment for an assault on B.' § 469 a. The exception above given is extended in a New York case where it is held that an indictment charging as a single act the burning of a number of designated dwel- ling-houses is not bad for duplicity. The criminal act, it was said, is kindling the fire with felonious intent to burn the houses specified, and is consummated when the burning is effected ; and the fact that the houses did not burn at the same time, and that but one was So of arson. ing a hospital, whom he knows to be non-combatants. An acquittal on an indictment for killing the former is no bar to an indictment for killing the latter. A. attacked by B., and driven to the wall, seizes the opportunity when he can kill B. in self-defence to wound C. An acquittal in the first case is no bar to an indictment in the second. ' R. V. Benfield, 2 Bur. 984 ; R. v. Giddings, C. & M. 634 ; Com. o. Mc- Loughlin, 12 Cush. 615 ; Com. o. O'Brien, 107 Mass. 208; Kinney v. State, 5 R. 1. 385 ; State v. MoCliutoek, 8 Iowa, 203 ; Shaw v. State, 18 Ala. 547 ; Fowler v. State, 3 Heisk. 154 ; though see R. o. Scott, 4 B. & S. 368, where it was held that one conviction for several curses on the same day, with a cumulative penalty at the rate of so much per curse, was good. 1 Smith, L. C. 8th Eng. ed. 712. In Hartley, in 338 re, 31 L. J. M. C. 232, it was held that there could be several convic- tions for selling pieces of bad meat at the same stall on one day. See Beal, ex parte, L. R. 3 Q. B. 382 ; State v. Hopkins, 56 Vt. 250. In Ben v. State, 22 Ala. 9, it was held that it was not duplicity to in- clude in one count the administering poison to three persons ; but see con- tra, People V. Warren, 1 Parker C. R. 338. 2 People V. Warren, 1 Parker 0. R. 338 ; Vaughan v. Com., 2 Va. Cas. 273 ; Smith V. Com., 7 Grat. 693 ; Greenwood V. State, 64 Ind. 250; State v. Nash, 86 N. 0. 650; State v. Standifer, 5 Port. 523; see Olathe v. Thomas, 26 Kan. 233. 3 State V. Nash, 86 N. C. 650. As to Mississippi statute in this relation, see Pope V. State, 63 Miss. 53. CHAP, VIII.] AUTREFOIS ACQUIT. [§ 470. set on fire, the fire communicating therefrom to the others, does not make the burning of each a separate offence. It was further argued that if the indictment charges as a distinct oifence the burning of each house, it is subject to the objection of duplicity, and the defect is not cured by a withdrawal, upon the trial, of all claim to convict the prisoner for burning any house but one.* § 470. Where several articles belonging to the same owner are stolen by the same person simultaneously, they may be grouped in the same count, and a conviction or acquittal eevarai'^ on such count, or on any divisible allegation thereof, a'i;icie8 are bars a future indictment for the stealing of any of the neousiy articles enumerated in the count.^ But in States in which it is held that there can be no joinder of larcenies of articles belonging to distinct owners,' it follows that a conviction or acquit- 1 Woodford v. People, 62 N. Y. 117, affirming 3 Hun, 310, 5 Thomp. & Cooke, 539. See Squires k. Com. , 1 Met. 258. The houses in this case, it should he ohserved, were hurned in a block. In State v. Colgate, 31 Kan. 511, it was held that an acquittal for burning a building was a bar to a prosecution for burning some account-books in the building, the act of ignition being in both oases the same ; citing R. v. Cooper, 5 C. & P. 535 ; Com. v. Wade, 34 Mass. 395 ; Hennessy v. People, 21 How. Pr. 239. , 2 R. u. Carson, R. & R. 303 ; Fur- neaux's case, R. & R. 335 ; State v. Snyder, 50 N. H. 150 ; State v. Cam- eron, 40 Vt. 555 ; Com. v. Williams, 2 Cush. 583; Com. v. O'Connell, 12 Allen, 451 ; Com. v. Eastman, 2 Gray, 76; People v. Wiley, 3 Hill (N. Y.), 194 ; Jackson v. State, 14 Ind. 327 ; Fisher v. Com., 1 Bush, 211 ; Nichols V. Com., 78 Ky. 180; 9 Rep. 114; State V. Williams, 10 Humph. 101; Lorton v. State, 7 Mo. 55; State v. Augustine, 29 La. An. 119; State v. Faulkner, 32 La. An. 725 ; Quitzow v. State, 1 Tex. App. 47 ; Hatch v. State, 6 Tex. App. 384; State v. Clark, 32 Ark. 231 ; though see 1 Hale, 241 ; State V. Thurston, 2 McMul. 382. See, also. Woodward u. People, 62 N. Y. 117 ; State v. Egglesht, 41 Iowa, 574 ; State V. McCormack, 8 Or. 236. Compare People v. McGowan, 17 Wend. 386 ; Woodward «. People, 62 N. Y. 117, supra. In Fontaine v. State, 6 Bax. 514, it was held that selling several lottery tickets in one sheet was a single of- fence. The same view was taken in U. S. V. Miner, 11 Blatch. 511, as to possessing in one block two connected plates for counterfeiting. ' Com. V. Andrews, 2 Mass. 409 ; State V. Thurston, 2 McMuU. 382 ; Mor- ton V. State, 1 Lea, 498 ; Phillips u. State, 85 Tenn. 551. As ruling that stealing simultaneously several articles belonging to different owners may be treated as one offence, see R. v. Bleas- dale, 2 C. & K. 765 ; Holies v. U. S., 3 MacArth. 370; Com. v. Williams, Thach. C. C. 84 ; State v. Nelson, 29 Me. 329 ; State v. Merrill, 44 N. H. 624 ; State V. Newton, 42 Vt. 537 ; Com. v. Dobbin, 2 Pars. 380; Fulmer v. Com., 97 Penn. St. 603; State v. Egglesht, 41 Iowa, 574 ; Fisher «. Com., 1 Bush, 212 ; 339 470.] PLEADING AND PRACTICE. [05AP. VIII. tal for stealing or feloniously receiving the goods of B. does not bar a prosecution for stealing or receiving the goods of C, though the acts were simultaneous. Indeed, though the offences were nomi- nally the same, they may be substantially different, since one article may be taken under a claim of right and the other with felonious intent, the only point in common being concurrence in time.* Another reason for the conclusion just given is, that if, in those jurisdictions which hold the joinder of articles belonging to different owners to be duplicity, we should bar a subsequent indictment for goods stolen from an owner different from the owner named in the first indictment, we would' deprive the owner in the second case of his right to a restoration of the goods by sentence of court, when it might be that he had no notice of the first prosecution. But what- ever may be the force of this reasoning, the weight of authority now is that the prosecution, wherever it is at liberty to join in one indictment all articles simultaneously stolen, may be treated, when it selects only one of them, for trial, as barring itself from indicting for the others.^ Nichols V. Com., 78 Ky. 180; Ben v. State, 22 Ala. 9 ; Lorton v. State, 7 Mo. 55 ; State v. Daniels, 32 Mo. 558 ; State V. Morphin, 37 Mo. 373 ; Wilson v. State, 45 Tex. 76; Dodd v. State, 10 Tex. App. 370; see Kilrow v. Com., 89 Penn. St. 480. That there is the same rule in em- bezzlement, see Com. v. Pratt, 137 Mass. 245. In Nichols v. Com., ut sup., it was said that there was a severance when the larceny was of two parcels of poultry 200 yards apart, though on the same night. 1 R. .;. Knight, L. & C. 378 ; 9 Cox C. C. 439 ; R. v. Brettel, C. & M. 609 ; Com. V. Andrews, 2 Mass. 409 ; Com. i'. Sullivan, 104 Mass. 552 ; People v. Warren, 1 Parker, C. R. 338 ; State v. Thurston, 2 McMul. 382; Fisher v. Com., 1 Bush, 211; see State v. Lambert, 9 Nev. 321. As to divisibility in this 340 respect, see Whart. Crim. Law, 9th ed. §§ 27, 931. See Phillips v. State, 85 Tenn. 651 ; Alexander v. State, 21 Tex. App. 406 ; infra, § 473. 2 U. S. V. Beerman, 5 Cranch C. C. 412 ; State v. Nelson, 29 Me. 329 ; State V. Merrill, 44 N. H. 624 ; State v. Hennessy, 23 Ohio St. 339 ; Bell v. State, 42 Ind. 335 ; State v. Eggleaht, 41 Iowa, 574 ; State v. Lambert, 9 Nev. 321 ; Lowe u. State, 57 Ga. 171 ; Ben V. State, 22 Ala. 9 ; State v. Morphin, 37 Mo. 373 ; Wilson v. State, 45 Tex. 170; Fulmer v. Com., 97 Penn. St. 503 ; Shubert v. State, 21 Tex. Ap. 551 ; Willis V. State, 24 Tex. Ap. 586 ; Hud- son V. State, 9 Tex. Ap. 151. See supra, § 252. That a prosecutor may be es- topped by selecting a particular phase of an offence, see infra, § 471 ; and see Whart. Crim. Law, 9th ed. §§ 931-948. In State v. Clark, 32 Ark. 231, it was CHAP. VIII.] AUTREFOIS ACQUIT. [§ 471. What has just been said applies to the sale of lottery tickets. When tickets are sold singly, no matter how short may be the -interval of time between the sales, such sales may be prosecuted singly. When, however, a bunch of them is sold in a block, this constitutes but one offence.' § 471. We have heretofore noticed cases in which a minor ofience, being a stage in the consummation of a maior offence, „ . , . , . , , . ITT 1 ^'len one IS umted m the same count with the major. We have act has two now to approach another class of cases, — those in which dicSwe^"' one particular act has two or more indictable aspects, the^defeud- Although the question has been the subject of much ant could difference of opinion, we may venture to hold that when convicted one act has two or more aspects, if the defendant could under the have been convicted of either under the first indictment first indict- ment he he cannot be convicted of the two on the two indictments cannot be tried successively. In other words, where the evidence of the two necessary to support the second indictment would have gJ^'^elT" been sufficient to procure a legal conviction on the first, the second is barred by a conviction or acquittal on the first.^ If, for instance, the defendant is indicted for holding and uttering forged paper, a conviction for holding, the acts being simultaneous, bars a subsequent prosecution for uttering the same paper, or the held that stealing several articles simultaneously from the. same owner forms but one offence, and after one conviction for stealing a part no further prosecution can be pursued for the rest. 1 Fontaine v. State, 6 Baxt. 514 ; Whart. Crim. Law, 9th ed. § 1494. See U. S. V. Patty, 9 Biss. 429. 2 Archbold's C. P. by Jervls, 82 ; 1 Leach, 448 ; R. v. Emden, 9 East, 437 ; 2N. Y. Rev. Stat. 1856; State <.. In- ness, 53 Me. 536 ; Com. v. Cunning- ham, 13 Mass. 245 ; Com. v. Wade, 17 Pick. 395 ; Com. v. Trickey, 13 Allen, 559 ; Morey v. Com., 108 Mass. 433 ; Com. V. Tenney, 97 Mass. 50 ; People V. Barrett, 1 Johns. R. 66 ; Canter ». People, 38 Hoy. N. Y. Pr. 91 ; State v. Reed, 12 Md. 263 ; Price v. State, 19 Ohio, 423 ; Clem v. State, 42 Ind. 420 ; Gerard v. People, 3 Scam. 363 ; Dur- ham V. People, 4 Scam. 172 ; Guedel v. People, 43 111. 226 ; State v. Egglesht, 41 Iowa, 574 ; State v. Murray, 55 Iowa, 120 ; State v. Gleason, 56 Iowa, 203 ; Wilcox V. State, 6 Lea, 571 ; State v. Ray, 1 Rice, 1 ; State v. Rlsher, 1 Richards. 219 ; State v. Revels, 1 Bus- bee, 200 ; Holt V. State, 38 Ga. 187 ; Hinkle v. Com., 4 Dana, 518 ; Hite v. State, 9 Yerger, 357 ; State v. Keogh, 13 La. An. 243 ; State v. Vines, 34 La. An. 1073. See State v. Inness, 53 Me. 536; Buell v. People, 18 Hun, 487. In Texas it has been held that a con- viction of swindling by/orgery bars a subsectuent prosecution for the forgery. State V. Hirshfield, 11 Tex. Ap. 207. 341 § 471.] PLEADING AND PRACTICE. [OHAP. VIII. converse.* If he is indicted for a riot, of which the overt act is an assault,, and if on the trial of the riot the assault is put in evidence, and he is convicted and sentenced on the basis of the assault, the as- sault cannot afterwards be made the basis of an independent prose- cution f nor when a riot consists in breaking up a religious meeting can the defendant be prosecuted for the two offences successively.' Nor can there be a prosecution for an assault when the defendant has been already convicted of a breach of the peace which constituted the assault.* But where he is convicted of an assault, this does not, for the reasons already given, bar a subsequent prosecution for a riot of which the assault was one of the overt acts, as he could not, under the indictment for the assault, have been convicted of the riot." Nor does an acquittal for obstructing a steam-engine, by putting a rail across the track, bar a prosecution for putting the rail across the track with intent to obstruct, if the defendant could not have been convicted of the latter offence on the indictment for the former ;* nor does an acquittal for arson bar a prosecution for burning an untenanted house, the in- dictment for the former not including the latter offence ;' nor does a conviction for disturbing a religious meeting by firing a pistol bar a prosecution for homicide by the same shot ;* nor does an acquittal of bigamy bar a prosecution for adultery ;' nor does a prosecution for threatening to kill bar an indictment for assault with intent to mur- der, being part of the same transaction ;"• nor does a conviction for lar- ceny, on an indictment for larceny, bar a prosecution for the burglary ' state V. Benliam, 7 Conn. 414 ; v. Kinney, 2 Va. Cas. 139 ; Smith v. People V. Van Keuren, 5 Parker, C. R. Com., 7 Grat. 593 ; State v. Stanly, 4 66. See State u. Egglesht, 41 Iowa, Jones L. (N. C.) 290 ; Price v. People, 574, where the defendant was held 9 111. Ap. 36 ; State v. . Fife, 1 Bailey, guilty of but one oflFenoe in passing 1 ; State v. Standifer, 5 Port. 523 ; four checks at the same time to the though see Scott v. U. S., 1 Morris, same person. But an acquittal for 142 ; Duncan v. Com., 6 Dana, 295. forging does not bar a prosecution for » State v. Townsend, 2 Harring. uttering. Harrison o. State, 36 Ala. (Del.) 543. 248 ; Foster v. State, 39 Ala. 229. * Com. v. Hawkins, 11 Bush, 603. And an acquittal of forging a cer- See Com. v. Miller, 5 Dana, 320. tificate of deposit on one bank does ^ Freeland v. People, 16 111. 380; not bar a prosecution for obtaining M'Rea v. Amerioanus, 59 Ga. 168. money from another bank, by forward- ^ Com. v. Bakeman, 105 Mass. 53. Ing the certificate in a forged letter. ' State v. Jenkins, 20 S. C. 351. See People v. Vard, 15 Wend. 231. 8 state v. Ross, 4 Lea, 442. 2 E. V. Champneys, 2 Mood & R. ' Swancoat v. State, 4 Tex. Ap. 105. 26 ; State v. Locklin, 59 Vt. 654 ; Com. m Lewis v. State, 1 Tex. Ap. 323. 342 CHAP. VIII.] AUTREFOIS ACQUIT. [§ 472. to which the larceny was an incident.^ It may be, however, that where the prosecution elects to prosecute to conviction a particular phase of a crime (e. g., larceny in a case of robbery," or arson in a case where killing was an incident to the arson'), it may be regarded as entering a nolle prosequi as to the other phases. But so far as the strict rule of law is concerned, the proceedings on the first trial cannot bar a prosecution for an offence on which there could be no conviction on the first trial.* An acquittal for larceny, for instance, does not bar an indictment for obtaining the same goods by false pretences, or by conspiracy to cheat,* nor, at common law, for being an accessary before or after the fact to the stealing.* Whether a conviction for burglary with intent to steal bars an indictment for larceny has been already considered.' § 472. In liquor cases we have the rules before us abundantly illustrated. Where, under an indictment for a nuisance, „ the defendant could not be convicted of keeping or sell- liquor ing intoxicating liquors, a conviction or acquittal of the former offence will not bar a prosecution for the latter.* Under 1 See Wilson v. State, 24 Conn. 57 ; State V. Warner, 14 lud. 572. Supra, § 465. See Price v. People, 9 III. Ap. 36. 2 State V. Lewis, 2 Hawks, 98, where it was held that a conviction for lar- ceny on an indictment for hurglary and larceny barred a subsequent prose- cution for robbery on the same facts. See Roberts ». State, 14 Ga. 8 ; Copen- haven v. State, 15 Ga. 264 ; though see contra, § 466. ' People V. Smith, 3 Weekly Di- gest, 162 ; State o. Cooper, 1 Green (N. J.'), 361. See, however, R. v. Greenwood, 23 Up. Can. Q. B. 250 ; and see, as justly criticising State v. Cooper, note to R. v. Tancock, 13 English R. 659 ; S. C, 13 Cox C. C. 217. * Supra, § 456. State v. Ross, 4 Lea, 442. See, however. State v. Lewis, State v. Cooper, ut supra; State V. Fayetteville, 2 Murph. 371 ; Fiddler V. State, 7 Humph. 508 ; in which cases the courts departed from the strict rule of law, and took ground more properly belonging to the execu- tive, namely, that when a defendant has been adequately punished for one of a series of offences, further prose- cutions may be stopped. = R. V. Henderson, 1 C. & M. 328 ; State V. Sias, 17 N. H. 558 ; Dominick V. State, 40 Ala. 680. 6 State a. Larkin, 49 N. H. 36 ; Fos- ter V. State, 39 Ala. 229. Supra, § 458. ' Supra, § 466. An acquittal of fornication with A. has been held no bar to a prosecution for refusal to support bastard child be- gotten with A. Davis v. State, 58 Ga. 173. An acquittal on a charge of killing an unborn child, when attempting to produce a miscarriage of the mother, is no bar to an Indictment for attempting the miscarriage. State v. Elder, 65 Ind. 282. 8 State V. Inness, 53 Me. 536 ; Com. V. McCauley, 105 Mass. 69 ; Com. v, 343 § 472.] PLBADINQ AND PRACTICE. [chap. VIII. the same circumstances, an indictment for a specific sale under one statute is not barred by a conviction under another statute of being a common seller, or of keeping a tippling-house.^ But where the conviction is of being a " common seller of liquor," and on the trial, to prove this, several sales are put in evidence, and the de- fendant is sentenced on the aggregate case, he cannot be subse- quently convicted on an indictment charging a sale within the period covered by the first trial.^ But for distinct successive sales there may be distinct indictments, if the evidence in the subsequent cases is not part of the proof of the first.^ This is eminently the case when the sales are to distinct persons.* It is otherwise, however, when the first indictment is for a continuous oifence of which the second indictment presents an ingredient.* Hardiman, 9 Allen, 487 ; Com. v. Cut- ler, 9 Allen, 686 ; State u. Williams, 1 Vroom, 102 ; Martin v. State, 59 Ala'. 34. See Whart. Crim. Law, 9th ed. § 1508 ; State v, Moriarty, 50 Conn. 415 ; State v. Kuhuke, 30 Kan. 462. 1 State V. Coombs, 32 Me. 527 ; State V. Maher, 35 Me. 225 ; State v. Inness, 53 Me. 536 ; Com. v. Cutler, 9 Allen, 486 ; State v. Moriarty, 50 Conn. 415 ; State V. Johnson, 3 E. I. 94 ; Heikes v. Com., 26 Penn. St. 513; Roberts v. State, 14 Ga. 8 ; Morman v. State, 24 Miss. 54. See contra, under varying statutes. State V. Nutt, 28 Vt. 598 ; Miller v. State, 3 Ohio St. 475. In Com. V. Jenks, 1 Gray, 490, it was held that after a conviction of be- ing a common seller the defendant could not be charged with particular sales at the same time ; but in Com. v. Hudson, 14 Gray, 11, it was held that an acquittal as a common seller did not bar a prosecution for single sales. See Com. V. Kennedy, 97 Mass. 224. 2 State u. Nutt, 28 Vt. 598 ; and see Com. «. Welch, 97 Mass. 593 ; Com. v. Connors, 116 Mass. 35 ; State v. An- drews, 27 Mo. 267. As to continuous offences, see infra, §§ 473 ff. A convic- tion for keeping a tenement for sale of 344 intoxicating liquors from Aug. 1 to Oct. 4 bars a complaint for keeping the same tenement for the same purpose from May 1 to Nov. 17 of same year. Com. V. Dunster, 146 Mass. 101. ' State V. Brown, 49 Vt. 437; State V. Cassety, 1 Rich. 90. See Com. v. Mead, 10 Allen, 396. * Ibid. ; State m. Ainsworth, 11 Vt. 91. See Com. v. Mead, 10 Allen, 396. 5 Infra, §§ 474 ff. Com. v. Robinson, 126 Mass. 259. In this case, Lord, J., said: "In Morey v. Com. 108 Mass. 433, Gray, C. J., says ' a conviction or acquittal upon one indictment is no bar to a subse- quent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.' In Com. V. Armstrong, 7 Gray, 49, as well as in several other cases, it is de- cided that an indictment for being a common seller of intoxicating liquors, from a day named to the day of the finding of the indictment, is supported by proof of three sales made on any one day between the days named in the indictment. That case further decides that, although where the offence con- CHAP. VIII.] AUTREFOIS ACQUIT. [§ 474. § 473. "When the performance of a continuous act runs through successive jurisdictions, then it is broken into separate gg^erance offences cognizable in each iurisdiction.* And where of identity horses belonging to different owners were stolen by the defendant at places a mile apart, it was held that a conviction in one case did not bar the other." This distinction has been applied to goods of different owners stolen in different parts of the same room.' § 474. The mere passage of time does not by itself break up into parts an offence otherwise continuous.* If the transaction geverance is set on foot by a single impulse, and operated by an of identity unintermittent force, it forms a continuous act, no matter how long a time it may occupy.* So has it been held in reference to gas abstracted continuously for a long period from the prosecutor's pipes,' and to ore fraudulently quarried for several years through sists of but a single act, the day on which the act is alleged to have been committed is immaterial if it appears to have been a day on which the offence charged might have been committed ; but when, on the other hand, the offence charged is continuous in its nature and requires a series of acts for its commis- sion, the time within which the offence is alleged to have been committed is material, and must be proved as al- leged. So when a person is charged with an offence continuous in its nature and requiring for its commission a series of acts, and such offence is alleged to have been committed upon a single day, evidence of any facts tending to estab- lish the offence at any other time than upon the day named is inadmissible. Applying these principles to the case at bar, the same evidence which would have warranted a conviction upon the first complaint would have warranted a conviction upon the present complaint, for upon the second complaint the jury would have been required to convict the defendant if it should appear that he committed the acts complained of at any time between the first day of Janu- ary and the first day of June, 1878." In Com. V. MoShane, 110 Mass. 502, it was held that a conviction may be had on an indictment upon the Gen. Stats. 0. 87, §§ 6, 7, for maintaining a tenement for the illegal keeping and sale of intoxicating liquors, although the only evidence is as to liquors for keeping which with intent to sell the defendant has been already indicted, and punished. 1 Whart. Confl. of L. § 931 ; Whart. Crim. Law, 9th ed. §§ 27, 287. Supra, § 442 ; infra, § 475, note ; Moore v. 111., 14 How. U. S. 13 ; State v. Rankin, 4 Cold. 145. See Campbell v. People, 109 111. 565. 2 Alexander v. State, 21 Tex. Ap. 406. Supra, § 470. 3 Phillips V. State, 85 Tenn. 551. * "All offences involving continuous action, and which may be continued from day to day, may be so alleged." Carpenter, J., State v. Bosworth, 54 Conn. 1. 5 Smith V. State, 79 Ala. 257. See, as to separate stealings. State i'. Martin, 82 N. C. 672 ; Rioord v. R. R., 15 Nev. 167. 6 R. u. Firth, L. R. 1 C. C. 172 ; 11 Cox C. C. 234. See R. v. Jones, 4 C. & P. 217. 345 § 475.] PLBADINS AND PKACTICB. [chap. VIII. innocent agents by means of one orifice in the defendant's quarry, such orifice being made at one specific time.* And when inculpatory facts rapidly succeeding each other are put in evidence in one case by the prosecution, it cannot bring a second indictment for a part of these facts, relying on evidence which was introduced at the first trial.^ But a series of illegal acts following each other with time for specific thought between debauch are separately indictable.' It is said to be otherTOse as to acts of gambling at one sitting.* But this cannot be sustained unless the acts were part of one transaction. § 475. Where, therefore, there is each day new action on the part But contin- of ^^^ inculpated parties, adding to the offence, then for each day's increment there can be a new indictment." Thus, an acquittal for a prior stage of the same nuisance is no bar to an indictment for a nuisance at the present time, though the offences on the record are identically the same, each day's continuation of the nuisance being a repetition of the offence.* And a conviction of selling illegally at one time is no bar to a conviction for selling illegally at another time.^ But the periods of time in which the offence is charged must not in any point coincide, or the second prosecution fails.* And a uous main- tenance of nuisances can be suc- eessiyely Indicted, aliter as to bigamy. » E. V. Bleasdale, 2 C. & K. 765. 2 Com. V. Robinson, 126 Mass. 259 ; cited supra, § 472. But see Brewer v. State, 5 Ind. 501. Com. v. Robinson is adopted as law by Blatchford, J., in Snow, in re, 120 tJ. S. 274 ; citing, also, Whart. Cr. Law, 9tU ed. §§ 27, 931 ; Huffman v. State, 23 Tex. Ap. 461. 8 See infra, § 475. Supra, § 472. * Wingard v. State, 13 Ga. 396. s See Campbell v. State, 22 Tex. Ap. 262. 6 R. V. 'Fairie, 8 E. & B. 466 ; 8 Cox C. C. 66 ; People v. Townsend, 3 Hill (N. Y.), 479; Gormley v. State, 37 Ohio St. 120 ; though see U. S. ». Mo- Cormick, 5 Cranoh C. C. R. 104 ; Whart. Crim. Law, 9th ed. §§ 37, 931, 1419 ; and see State w. Ainaworth, 11 Vt. 91 ; State V. Cassety, 1 Rich. 90. ' State V. Derichs, 42 Iowa, 196. Su- pra, §§ 462, 472. 346 8 Com. V. Robinson, 126 Mass. 259 ; cited supra, §§ 472-4. The several theories oil this topic are thus given by Berner, Lehrbuch, § 140 :— Formal concurrence, which exists when a particular act has several crimi- nal aspects. A particular sexual trans- action, for instance, may be both rape and incest. A stealing may be both lar- ceny and an attempt. Material concurrence, where several successive acts form part of the same apparently continuous transaction. In cases of formal concurrence, the rule, as has been seen, is, that there should be a conviction only of the crime to which the higher penalty is attached, though the minor crime may be taken into consideration in adjust- ing punishment. In cases of material concurrence CHAP. VIII.] AUTKEFOIS ACQUIT. [§ 477. conviction under the act of congress, of cohabiting with more than one woman, precludes another conviction for the same ofifence at a different time.' & 476. Where, after a conviction of assault, the as- „ ' ..„,., Conviction saulted person dies, the conviction of assault is no bar of assault to a conviction for murder or manslaughter.^ The reason murder, is that as at the time of the conviction of assault there J^^^ jg could have been no conviction of the homicide, the prose- after con- cution for the homicide is not barred by the conviction of the assault. 4. Practice Under Plea. § 477. A former conviction for the same offence, even though in the same court, should be specially pleaded f the plea, when there the following theories have been pro- pounded.- . 1. Absorption or Merger. — In this case the lesser offence is lost sight of in the greater. Poena major absorbet minorem. Only the most heinous of the concurrent crimes is to he punished, and the others are only to be considered as affording grounds for the adjustment of the sentence. Against this view it is argued that it violates the public sense of justice that any crime, proved in a court of justice, should go unpun- ished, and that the commission of a greater crime should not be a free pass to the commission of a lesser crime. 2. Cumulation. — Each distinct offence, though several follow each other in rapid succession as part of the same transac- tion, is to he punished separately, and for this is invoked the maxim, Quot de- licta, tot poenae. To this the objection is made that public justice is suffi- ciently satisfied if the criminal has ap- plied to him in his sentence such an increase of punishment as the aggra- vation of the transaction requires, and that this is one of the objects of giving to the judges discretion in the dispen- sing of punishment. ' 3. Intermediate Vieio. — By this view the cumulation of the entire penalties of the several concurrent crimes is re- jected, while the theory of the merger of the lesser in the greater is repudi- ated. The criminal is sentenced on the heaviest of the imputed crimes ( poena major), while in the sentence due con- sideration is taken of the lesser crimes, provided they appear in evidence as part of the aggravating circumstances of the case. 1 Snow, in re, 120 U. S. 274. See People V. Otto, 70 Cal. 523. 2 R. V. Salvi, 10 Cox C. C. 481, n. ; Nicholas's case, Foster Cr. L. 64 ; State V. Littlefield, 70 Me. 452 ; Com, V. Evans, 101 Mass. 25. See R. v. Morris, L. E. 1 C. C. 90 ; Com. v. Roby, 12 Pick. 496 ; Burns v. People, 1 Park. C. R. 182; Wright v. People, 5 Ind. 527 ; State v. Hattabough, 66 Ind. 223 ; Curtis V. State, 22 Tex. Ap. 227. See supra, §§ 465, 466, and cf. criticism in 17 Am. Law Reg. 746. 3 State V. Buzzell, 58 N. H. 257; S. C, 59 N. H. 65 ; Justice v. Com., 81 Va. 209 ; DeArman v. State, 77 Ala. 10 ; Wilson v. State, 68 Gar. 827 ; Zaoh- ary v. State, 7 Baxt. 1 ; Williams u. 347 § 480.] PLEADING AND PRACTICE. [CHAP. Vllt. Plea must be special. §478. Autrefois acquit must be pleaded first. are several counts, designating the count it meets.' It cannot be put in evidence under the general issue,'' or avail in arrest of judgment,' or on habeas eorpus* or on demurrer.' The plea may go only to part of a divisible count.' When autrefois acquit and not guilty are pleaded to- gether, the former must be tried first.^ In strict prac- tice, the two pleas cannot be concurrently pleaded.' Autrefois acquit comes first ; and if determined against the defendant, he then pleads over.' But the verdict must be special.'" When the justice of the case requires, as when the ground of the plea arises after plea, the plea may be filed when such defence is first presented." § 479. A verdict of guilty on the two is bad,'' "VGrdict must go to and so, when tried together, of a verdict upon one plea the plea. ^j^^^is § 480. The plea must consist of two matters: first, matter of J, . record, to wit, the former indictment and acquittal, or offender conviction for the count ; second, of matters of fact, to to bees- wit, the identity of the person acquitted, and of the ^ '^ ® • offence of which he was acquitted, which is for the jury." State, 13 Tex. Ap. 285. That the prior record should be set out, see Gris- ham V. State, 19 Tex. Ap. 504. 1 Campbell v. People, 109 111. 565. 2 Com. V. Chesley, 107 Mass. 223; Rickles v. State, 68 Ala. 538 ; State v. Washington, 28 La. An. 129 ; though see Clem v. State, 42 Ind. 420. Aliter in Illinois, Hankins v. People, 94 111. 628. 3 State V. Barnes, 32 Me. 530 ; Com. V. Maher (Pa.), 4 Crim. Law Mag. 477 ; State V. Salge, 2 Ner. 321. * Pitner v. State, 44 Tex. 578. 6 U. S. V. Moller, 16 Blatoh. 65. 5 State V. Littlefield, supra ; Com. v. Curtis, 11 Pick. 133. ' Supra, § 420; Com. v. Merrill, 8 Allen, 645 ; Foster v. State, 39 Ala. 229 ; SoUiday v. Com., 28 Penn. St. 13 ; Clem v. State, 42 Ind. 421 ; Davis V. State, 42 Tex. 494 ; and cases cited 348 supra, § 420. But see Faulk v. State, 62 Ala. 415. " R. V. Roche, 1 Leach. C. C. 135. See People v. Briggs, 1 Dak. Terr. 302. 9 Supra, § 421 ; infra, § 486. M People V. Helbing, 59 Cal. 567. " People V. Stewart, 64 Cal. 60. 12 Mountain v. State, 40 Ala. 344. 13 SoUiday v. Com., 28 Penn. St. 13 ; Nonemaker v. State, 34 Ala. 211 ; Moody V. State, 60 Ala. 78 ; People i^. Helbing, 59 Cal. 567 ; People v. Fuqua, 61 Cal. 377. See, as to waiver, Dom- inic V. State, 40 Ala. 680. 1* 2 Hale P. C. 241 ; Hawk. b. 2, c. 35, s. 3; Burn, ,1., Indictment, xi.; 1 M. & S. 188 ; 9 East, 438 ; 2 Leach, 712 ; 4 Co. Rep. 44 ; Com. v. Myers, 3 Wheel. C. C. 650 ; Smith v. State, 52 Ala. 407 ; Rocoo v. State, 37 Miss. 357. That such a plea is sufficient, see Austin V. State, 2 Mo. 393 ; State v. Cheek, 63 Mo. 364. CHAP. VIII.] AUTREFOIS ACQUIT. [§ 482. To support the first matter, it is necessary to show by the record that the defendant was legally acquitted or convicted on an indict- ment free from error in a court having jurisdiction.* § 481 . The prosecution, however, may tender an issue as to the identity of the defendant, or the identity of the offence, as well as to the existence of the record.'' When such ^^y be^ issue is tendered, the burden of proof (the plea being proved by one of confession and avoidance) is on the defendant.* To prove it, he has, first, to produce the record ;* and, secondly, to prove, orally or otherwise, the averment of identity contained in his plea.* Hence, in cases of dispute, parol testimony is admissible to pi-ove (what the record cannot sufficiently show) that the (jffences are or are not identical, or that the party charged is or is not the party tried on the former procedure.' § 482. If the plea on its face exhibits a variance between itself and the record, the plea may be demurred to when defective on 1 4 Black. Com. 335 ; 2 Hawk. o. 35, s. 1 ; Com. a. Sutherland, 109 Mass. 342 ; Com. v. Handley, 140 Mass. 457 ; Jacobs V. State, 4 Lea, 196 ; Com. v. Maher (Pa.), 4 Crim. Law Mag. 411. Supra, §§ 435 et seq. See, for forms of replication and rejoinder, Whart. Prec. 1155, 1156; Burk v. State, 81 Ind. 128. 2 Whart. Crim." Ev. § 593 ; Buhler v. State, 64 Ga. 504 ; State v. Vines, 34 La. An. 1079. As to identity of de- fendant, see R. V. Crofts, 9 C. & P. 219 ; as to identity of offence, infra, §§ 481, 483. See, for forms of pleas, Whart. Prec. 1150 et seq, ' Infra, § 483 ; Com. v. Daley, 4 Gray, 209 ; Bainbridge v. State, 30 Ohio St. 264 ; Cooper v. State, 47 Ind. 61 ; Dunn v. State, 70 Ind. 47 ; State V. Small, 31 Mo. 197 ; State v. Moore, 66 Mo. 372 ; though see State v. Smith, 22 Vt. 74. * Supra, § 437. Where the second indictment is pre- ferred at the same term, the original indictment and minutes of the verdict are receivable in evidence in support of the plea of autrefois acquit, without a record being drawn up. R. v. Parry, 7 C. & P. 836. But where the pre- vious acquittal was at a previous term in the same jurisdiction or in a differ- ent jurisdiction, it can only be proved by the entire record. R. v. Bowman, 6 C. & P. 101, 337. 6 See 2 Russ. 721, n. ; Faulk v. State, 52 Ala. 415 ; State v. Thornton, 37 Mo. 360. !>; Whart. Crim. Ev. § 693. Supra, § 480 ; R. V. Bird, 2 Den. C. C. 94 ; 6 Cox C. C. 20; Flitters v. Allfrey, L. R. 10 C. P. 29 ; Com. v. Dillane, 11 Gray, 67 ; Porter v. State, 17 Ind. 415 ; Duncan v. Com., 6 Dana, 295 ; State V. Andrews, 27 Mo. 267 ; State «. Small, 31 Mo. 197. That tlie defend- ant is entitled to have the issue de- termined as one of fact, see Troy v. State, 10 Tex. Ap. 319. That name maybe prima /ocie proof of identity, see State II. Kelso, 11 Mo. Ap. 91 ; 76 Mo. 505 ; Whart. Crim. Ev. § 802. 349 § 483.] PLEADING AND PRACTICE. [chap. VIII. Senticai°* ^*^ face,* or, when otherwise, advantage may be taken maybede- of the variance upon a replication of nut tiel record? But if the variance be non-essential, demurrer will not be sustained.' Where the only issue is the identity of the oflfences, a technical difference between the description of property in the first indictment and the second will be disregarded, when no proof is offered to show the offence was the same.* § 483. The burden of proving a prior conviction of the offence g , „ charged against a defendant being upon him,* must be proof is on sustained by a preponderance of proof.* If there be a replication of fraud, the burden of such replication is on the prosecution.^ 1 state V. Locklin, 59 Vt. 654. 2 R. V. Bowman, 6 C. & P. 101, 337 ; Hite V. State, 9 Yerg. 357 ; MoQnoid v. People, 3 Gilm. 76. See Shubert v. State, 21 Tex. Ap. 406. 3 Goode V. State, 70 Ga. 752; see Buhler's case, 64 Ga. 504. * People V. MoGowan, 17 Wend. 386. See Whart. Crim. Ev. § 593. 5 Jenkins «. State, 78 Ind. 133 ; Hozier v. State, 6 Tex. Ap. 501 ; Willis I.-. State, 24 Tex. Ap. 586. 6 Supra, § 481 ; R. v. Parry, 7 C. & P. 836 ; Com. v. Daley, 4 Gray (Mass.), 209. See 2 Hale, 241 ; Rake v. Pope, 7 Ala. 161 ; Page v. Com., 27 Grat. 954 ; State «. Small, 31 Mo. W7 ; State V. Thornton, 37 Mo. 360. See Whart. Cr. Law, 9th ed. § 62. Where four persons were tried for rape, upon an indictment containing counts charging each as principal and the others as aiders and abettors, they were acquitted ; and it being proposed on the following day to try three of them for another rape upon the same person (the second Indictment being exactly the same as the first, with the omission only of the fourth prisoner), th,ey pleaded autrefois acquit to the second indictment, averring the iden- 350 tity of the offences, and to this plea there was a replication that the offences were different. The prisoners' counsel put in the commitment and the former indictment, and also the minutes of the former acquittal written on the indict- ment. On this evidence the Jury found that the offences were the same ; and it being referred for the opinion of the judges whether there was any evidence to justify and support the verdict, and if not, whether such verdict was final, and operated as a bar to any further proceedings by the crown upon the second indictment, the court held that the verdict of the jury was final, and the prisoners were discharged. R. v. VsLic^j, 7 C. & P. 836. Supra, § 463. ' State V. Buzzell, 58 N. H. 257. In this case, Allen, J., said: "It (a plea of autrefois acquit) being new affirmative matter, and not a denial of any allega- tion of the indictment, the burden of proof, on a traverse of the plea, is on the defendant ; Com. v. Daley, 4 Gray, 209, 210 ; State v. Small, 31 Mo. 197 ; R. V. Parry, 7 C. & P. 836, 839 ; 1 Arch. Cr. Pr. & PI. 113, n. ; and he has the opening and close. R. v. Sheen, 2 C. & P. 634, 638, 639. But if the State replies fraud (State v. Little, CHAP. VIII.] AUTREFOIS ACQUIT. [§ 485. If there be no replication, the similiter will be assumed if not at the time formally filed, or may be filed nunc pro tunc} § 484. Wherever the offences charged in the two indictments are capable of being legally identified as the same ofience by averments, it is a question of fact for a jury to determine ucation is whether the averments be supported and the oifences be ""J^ri^^ the same. In such cases the replication ought to con- issue is ° for court, elude to the country. But when the plea of autrefois acquit upon its face shows that the offences are legally distinct, and incapable of identification by averments, as they must be in all ma- terial points, the replication of nul tiel record may conclude with a verification. In the latter case, the court, without the intervention of a jury, may decide the issue.* § 485. Where the former conviction was effected by fraud, the plea of autrefois convict, in such case, being replied to ^ reniicap specially, the replication, which sets forth such fraudulent tion of prosecution and conviction being well drawn, is a suffi- good on cient answer to the defendant's plea, and should be ad- ^""i'^''^'^- judged good on demurrer.^ The demurrer admits the allegation of fraud. 1 N. H. 257), or other new affirmative matter, the burden of proof on the lat- ter issue is on the State. In some jurisdictions, when, after an acquittal on part of an indictment, there is a new trial of the rest, a special plea in bar of the further maintenance of so much of the charge as has been disposed of is not required. State v. Martin, 30 Wis. 216, 222, 223 ; S. C, 11 Am. Eep. 567." See State v. Buzzell, 59 N. H. 65. 1 Supra, § 411 ; Swepson v. State, 81 N. C. 571. 2 Hite V. State, 9 Yerger, 357. It is the duty of the court to declare the legal effect of a record which is offered to sustain the plea of autrefois acquit or discontinuance, and the record itself cannot be gainsaid by parol evidence ; therefore, the court may charge the jury that the pleas are not sustained by the proof when that is the fact. Martha v. State, 26 Ala. 72. See State V. Haynes, 36 Vt. 667. On the general question of pleading, see Foster v. State, 39 Ala. 229. ' State V. Little, 1 N. H. 257 ; State V. Brown, 16 Conn. 54; State v. Reed, 26 Conn. 202 ; Com. v. Jackson, 2 Va. Cas. 501 ; State v. Clenny, 1 Head. 270. Supra, § 451. As cases of practice under plea and replication, see Com. v. Curtis, 11 Pick. 134 ; Dacy v. State, 17 Ga. 439. In other States, similar provisions exist. In Massachusetts, by Gen. Stat. 1864, c. 250, § 4, it is sufficient in autrefois acquit or convict to set forth simply a prior lawful acquittal or conviction. 351 § 486.] PLEADING AND PRACTICE. [CHAP. VIII. § 486. When the plea of autrefois acquit or convict is determined On judg- against the defendant, in this country, in most cases, he ™™* g^ de- '^ allowed to plead over, and to have his trial for the fendanthe offence itself.^ In England, however, though this is is usually , . „ , . . . . . , » /->« allowed to allowed in telomes, it is not in misdemeanors.'' Of the p ea over. JQJygtjgg ^f ^jfjjg distinction a pregnant illustration is found in a case which, in 1850, attracted great attention in Eng- land.* On the plea of autrefois acquit to an assault, issue was taken by the crown, and after verdict, judgment entered against the prisoners, who were thereupon sentenced to hard labor for two years. In pronouncing sentence, Martin, B,, did not hesitate to express his compunctions at sentencing a man for an offence for which he was never tried. " I cannot but feel," he said, addressing the prisoners, " that you stand in the condition of persons whose case has not been heard. If you wish me to postpone the sentence, I will do so. I feel it to be a great hardship that the prisoners should be punished without a trial, and with no opportunity given to them of answering or explaining the charge laid against them."* It was the hardship of a judge thus sentencing a man of whose guilt he knew nothing, that led Judge Grier and Judge Kane, in the U. S. Circuit Court in Philadelphia, to decline sentencing a man who had been convicted capitally before Judge Randall, the district judge, who since the conviction and the application for sentence had died." This diflSculty, however, has not deterred the Supreme Court of New York from holding that where, in an inferior tribunal, judgment against the People had been entered on a demurrer, on reversing the judgment, they would not permit the defendant to withdraw his demurrer, but would sentence him themselves.® 1 Com. V. Goddard, 13 Mass. 455 ; C. 11. For a fuller report of this case, MoFarland v. State, 68 Wis. 400 ; Com. see supra, § 464. Compare, as to plead- V. Grolding, 14 Gray, 49 ; Barge u. Com., ing over, supra, §§ 404-7, 421. 3 Pen. & W. 262; Foster v. Com., 8 < Supra, §§ 420-1. Watts & S. 77 ; Him o. State, 1 Oliio = U. S. y. Harding, 6 P. L. J. 14 j 1 St. R. 16; Falkner w. State, 3 Heisk. Wall. Jr., 127 ; and see People u. Shavr, 33. See supra, §§ 404-5, 421. 63 N. Y. 36 ; State v. Abram, 4 Ala. 2 R. V. Gibson, 8 East, 107 ; R. v. 272. Infra, § 898. Taylor, 3 B. & C. 502 ; S. C, 5 Dow. & ^ People v. Taylor, 3 Denio, 91. See R. 422. See fully, supra, § 421. State v. Green, 16 Iowa, 239 ; and see " R. V. Bird, 15 Jur. 193 ; 2 Eng. L. supra, §§ 408-11-12. & E. R. 448 ; 2 Den. C. C. 94 ; 5 Cox C. 352 CHAP. VIII.] ONCE IN JEOPAEDT. [§ 490. & 487. Where the prosecution demurs to the plea of Jrosecu- autrefois convict to an indictment for a capital felony, rejoin on and the demurrer is overruled, the defendant is not en- rer being ' titled to he discharged, and the State may rejoin.^ overruled. § 488. In cases where the defendant pleads over to the felony at the same time with the issue in the plea of autrefois j^^^^ ^^ acquit, the jury are charged again to inquire of the sec- fact for end issue, and the trial proceeds as if no plea in bar had been pleaded.' But when both pleas are submitted to the jury at the same time, there must be a verdict on each, and it is error to take a verdict on the plea of not guilty alone .^ An arbitrary dis- charge of the jury before verdict may bar future prosecutions.* § 489. A novel assignment is not admissible in a crimi- ^^^^^ ^^ nal case, and the proper mode of replying to a plea of a signment ... 1 11 1 > 1 > R ^o*' admis- former conviction is to traverse the alleged identity.* siWe. VII. ONCE IN JEOPAKDY.* § 490. By the Constitution of the United States it is provided : " Nor shall any person be subject for the same oiFence to be twice put in jeopardy of life and limb ;"^ and al- tionai limi- though this restriction does not affect cases arising dis- taken from tinctively in the States,' yet the same restriction, taken common from the federal Constitution, exists in most of the State constitutions. Whether this amounts to anything more than the common law doctrine involved in the plea of autrefois acquit has been much doubted. What that doctrine is has been already stated. It is founded, to adopt the summary of Mr. Chitty, upon the prin- ' State V. Nelson, 7 Ala. 610. Supra, also, this subject further examined, In- § 406. fra, §§ 712, 821. 2 E. V. Vapdercomh, 2 Leach, 708 ; ' Const. U. S. Amend, art. 5. R. V. Cogan, 1 Leach, 448 ; R. v. Sheen, ' See Fox v. Ohio, 5 Howard, 410 ; 2 C. & P. 635. Supra, §§ 420-1. See U. S. v. Gibert, 2 Sumner, 19 ; Colt Burks V. State, 24 Tex. Ap. 326. v. Ives, 12 Conn. 243 ; Barker u. Peo- ' Soliday v. Com., 28 Penn. St. 14. pie, 3 Cow. 686 ; qualifying People See People v. Klnstrey, 51 Cal. 278. v. Goodwin, 18 Johns. 187 ; Com. v. Supra, § 479. Cook, 6 S. & R. 577 ; State v. Shivers, * People V. Jones, 48 Mich. 554. 20 S. C. 392. See State v. Sutphin, 22 ' Duncan i>; Com., 6 Dana, 295. W. Va.490. As doubting this position, ^ See, for plea of " Once in Jeop- see Com. v. Purchase, 2 Pick. 521. ardy," Wharton's Preo. 1157. See, 23 353 § 490.] PLEADING AND PKACTICE. [chap. VIII. ciple that no man shall be placed in peril of legal penalties more than once upon the same accusation.' It has, therefore, been gene- rally agreed, that after a verdict of either acquittal or conviction on a valid indictment or appeal, the party indicted cannot afterwards be indicted again upon a charge of having committed the same sup- posed offence.* In other words, at common law, as the rule is ap- plied in England, when there has been a final verdict, either of acquittal or conviction, on an adequate indictment, the defendant cannot a second time be placed in jeopardy for the particular offence ; and at the first glance the constitutional provision appears nothing more than a solemn asseveration of the common law maxim.' " Thus we see," says Mr. Justice Story, in commenting on the rule, " that the maxim is imbedded in the very elements of the com- mon law ; and has been uniformly construed to present an insur- mountable bar to a second prosecution where there has once been a verdict of acquittal or- conviction regularly ha^ upon a sufficient indictment.* 1 4 Co. Eep. 40 ; 4 Bla. Com. 335 ; 2 Hawk. 0. 85, s. 1. Infra, §§ 518, 712, 821. 2 2 Hawk. c. 35, s. 1 ; 4 Bla. Com. 335. For English rule, see supra, §§ 835 eisej. ; infra, § 518. » Ned V. State, 7 Porter, 188 ; U. S. V. Gibert, 2 Sumner, 41. In the leading case of Eiohard and William Vaux, reported in 4 Coke, 44, it was held, " that the reason of autre- fois acquit was because .the maxim of the common law is, that the life of a man shall not be twice put in jeopardy for one and the same offence ; and that is the reason and cause why autrefois acquitted or convicted of the same of- fence is a good plea ; yet it is intended of a lawful acquittal or conviction, for if the conviction or acquittal is not law- - ful, his life was never in jeopardy ; and because tlie indictment in this case was insufficient, for this reason, he was not legitimo modo acquietatus," etc. And in England it is settled that the maxim, that a man cannot be put in perir twice 354 for the same offence, means that a man cannot be tried again for an offence upon which a, verdict of acquittal or conviction has been given, and not that a man cannot be tried again for the same offence where the first trial has proved abortive, and no verdict was given. Hence, as a judge has, by the English law, a discretionary power, in cases of necessity, to discharge the jury, even without the prisoner's con- sent, this discharge is no bar to a sec- ond trial. And such necessity exists when the jury have shown themselves unable to agree. The exercise of this discretion cannot be renewed on error affirmed on appeal. R. u. Winsor, 6 B. & S. 143; 1 L. R. Q. B. 289 ; 1 L. R. Q. B. 390 ; S. C, in Ex. Ch. 7 B. & S. 490. See, also, R. v. Ward, 10 Cox C. C. 573 ; R. V. Charlesworth, 1 B^ & S. 460; S. C, 9 Cox C. C. 44. * U. S. w. Gibert, 2 Sumn. 42. See, for a learned article on this head, 4 West, L. J. 97. CHAP. VIII.] ONCE IN JEOPARDY. [§ 493, § 491. In this country the constitutional provision has, in some instances, been construed to mean more than the common „ . . ' uut m law maxim, and in several of the States it has been held some that where a jury in a capital case has been discharged held more without consent before verdict, after having been sworn ^^'^"^we. and charged with the offence, the defendant, under certain limita- tions, may bar a second prosecution by a special plea setting forth the fact that his life has already been put in jeopardy for the same oiFence.' But between the pleas of autrefois acquit or convict, and once in jeopardy, there is this im^rtant distinction, that the former presupposes a verdict, the latter, the discharge of the jury without verdict, and is in the nature of a plea puis darrein continuance. The cases in this respect may be placed in two general classes : First. Where any separation of the jury, except in case of such overruling necessity as may be considered the act of God, is held a bar to all subsequent proceedings. Secondly. Where it is held that the dis- charge of the jury is a matter of sound discretion for the court, and that when, in the exercise of a sound discretion, it takes place, it presents no impediment to a second trial.* § 492. In Pennsylvania the rule is now held to be applicable only to such cases as are capital in that State .^ In other States it has been extended to all infamous crimes.^ And p^*ff?^^ to an in- there are authorities in States holding the first view, famous which apply to all cases except misdemeanors.* § 493. In 1822 the question was brought before the Supreme Court of Pennsylvania (a State whose Constitution contains a pro- 1 Williams's case, 2 Grat. 567 ; Com. « intra,, § 519. V. Cook, 6 S. & R. 577 ; Com. v. Clue, 3 In Lange, ex parte, 18 Wall'. 163, it Rawle, 498 ; State v. Garrigues, 1 Hayw. was held that under the constitutional 241 ; Spier's case, 1 Dev. 491 ; Ned State V. Hays, 2 Lea, 156 ; State v. infra, §§ 896-8, as to judge sitting in a Pool, 4 Lea, 363. case in which he heard only part of the 2 Ned V. State, 7 Porter, 188. evidence. » Ibid. 187. See infra, §§ 722, 821. « People v. Webb, 38 Cal. 467. * State V. Abram, 4 Ala. 272. See ^ People v. Cage, 48 Cal. 324. 359 § 500.] PLEADING AND PRACTICE. [CHAP. VIII. the ground that the defendant, on a trial for manslaughter, was guilty of murder, is a bar.* . § 499. On the other hand, we have a series of courts holding that the separation of the jury, when it takes place in the exercise of a sound discretion, is no bar to a second trial. This is substan- tially the view of the Supreme Court of the United States, of Wash- ington, J., Story, J., and McLean, J., sitting in their several circuits ; and of the courts of Massachusetts, New York, New Jersey, Iowa, Maryland, Ohio, Indiana, Michigan, Nebraska, Nevada, Georgia, Missouri, Illinois, Kentucky, Texas, and Mississippi. § 500. "It is contended," said Washington, J., in a case where the jury on a homicide trial had been discharged in con- erai courts sequence of the alleged insanity of one of them, "that adiscre- although the court may discharge in cases of misde- diecharge meanor, they had no such authority in capital cases ; and is no bflii* V 1. the fifth amendment to the Constitution of the United States is relied upon as justifying the distinction. We think other- wise ; because we are clearly of opinion that the jeopardy spoken of in this article can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereupon. This was the meaning affixed to the expression by the common law, notwithstanding some loose expressions to be found in some elementary treatises on the opinions of some judges, which would seem to intimate a different opinion. Upon this sub- ject we concur in the opinion^ expressed by the Supreme Court of New York in Goodwin's case, although the opinion of the Supreme ' Court of this State in Cook's case is otherwise. We are, in short, of opinion that the moment it is admitted, that in cases of necessity the court is authorized to discharge the jury, the whole argument for applying this article of the Constitution to a discharge of the jury before conviction and judgment is abandoned, because the ex- ception of necessity is not to be found in any part of the Constitu- tion ; and I should consider this court as stepping beyond its duty in interpolating it into that instrument, if the article of the Con- stitution is applicable to a case of this kind. We admit the excep- tion, but we do it because that article does not apply to a jeopardy short of conviction. If we are correct in this view of the subject, 1 People V. Hunokeler, 48 Cal. 331. 860 CHAP. VIII.] ONCE IN JEOPARDY. [§ 500. then there can be no difference between misdemeanors and capital cases, in respect to the discretion possessed by the court to dis- charge the jury in cases of necessity ; and, indeed, the reasoning before urged in relation to a plea of this kind, if sound, is equally applicable to capital cases aa to misdemeanors. By reprobating this plea, we do not deny to a prisoner the opportunity to avail himself of the improper discharge of the jury as equivalent to an acquittal, since he may have all the benefit of the error, if commit- ted, by a motion for the discharge, or upon a motion in arrest of judgment." ' In the Supreme Court of the United States, the subject was brought up in 1824, upon a certificate of division in the opinions of the judges of the Circuit Court for the Southern District of New York. The jury were discharged in the court below on account of mere disagreement. " The question arises," was the language of the court, " whether the discharge of the jury by the court from \ giving any verdict upon the indictment with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offence. If it be, then he is entitled to be dis- charged from custody ; if not, then he ought to be held in imprison- ment until such trial can be had. We are of opinion, that' the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury frOm giving any verdict, whenever, in their opinion, taking all th© circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject ; and it is impossible to define all the circumstances which would render it impossible to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ; and, in capital cases, especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But after all they have the right to * U. S. V. Haskell, 4 Wash. C. C. U. S. v. Watson, 3 Ben. 1 (cited supra, 409. See, also, U. S. v. Gibert, 2 Sum- § 436) ; Kelly v. V. S., 27 Fed. Rep. ner, 19; U. S. w. Coolidge, 2GaU. 364; 616. Compare infra, §§ 722, 814, U. S. V, Shoemaker, 2 McLean, 114; 821. 361 § 501.] PLEADING AND PKACTICE. [CHAP. VIII. order the discharge ; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests in this, as in other cases, upon the responsibility of the judges, under their oaths of ofiRce. We are aware that there is some diversity of opinion and practice on this subject in the American courts ; but after weighing the question with due deliberation, we are of opinion that such a discharge constitutes ho bar to further proceedings, and gives no right of exemption to the prisoner from being again put on trial." » It has been held in the United States Circuit Court for New York, that a man is not put in jeopardy by the empanelling and swearing of a jury by inadvertence, when it was dismissed before he is arraigned.* § 501. In Massachusetts the practice, from an early period, was So in ^^ discharge juries at the discretion of the court, in Massachu- cases both capital and otherwise.' But in 1823 a case setts and . . .,.,,., Connect!- Came up Where a jury, m a capital trial, having been out ""*■ eighteen hours, were discharged on account of inability to agree. The defendant was tried again, and convicted of man- slaughter, and the point was argued on arrest of judgment. Parker, C. J., in delivering the opinion of the court, after maintaining that there was no jeopardy till verdict, said : " By necessity cannot be intended that which is physical only ; the cases cited are not of that sort, for there is no application of force upon the court or the jury which produced the result. It is a moral necessity, arising from the impossibility of proceeding with the cause without pro- ducing evils which ought not to be sustained."* And the practice in this State is to regard the constitutional provision as a mere ex- pression of the common-law rule.* In Connecticut a discharge, in a murder case, in consequence of the incompetency of a juror, which incompetency was not discovered until after the trial began, does not bar a subsequent trial.* 1 IT. S. V. Perez, 9 Wheaton, 579. Com. v. Sholes, 13 Allen, 554 ; and But see, as qualifying this case, Lang, infra, §§ 722, 814, 821. ex parte, 18 Wall. 163, supra, § 492 ; * Com. v. Purchase, 2 Pick. 521. infra, §§ 780, 913, 981. Infra, §§ 722, 821. ' U. S. V. Riley, 5 Blatch. C. G. ° See as to peculiar practice in this 204. State, infra, § 719. ' Com. V. Bowden, 9 Mass. 494. See ^ state v. Allen, 46 Conn. 531. 362 CHAP. VIII.] ONCE IN JEOPARDY. [§ 502. § 502. In New York the point arose and was elaborately argued on an indictment for manslaughter, where the jury, after the whole cause was heard, being unable to agree, were l?^^ ^*^ discharged by the court without the consent of the pris- oner. The question was whether, under these circumstances, the defendant could be again put on his trial. On the part of the de- fendant it was contended that he could not, among other reasons, because the Constitution of the United States had declared, " nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ;" and that putting the party upon trial was putting him, in jeopardy of life and limb. The argument on the other side was, that this clause did not apply to State courts ; and, if it did, it was inapplicable to the cause, for if the cause was sent to another jury, the defendant would not be twice in jeopardy, nor twice tried, for there never had been a trial in which the merits had been decided on. The court inclined to the opinion that the clause was operative upon the State courts ; and, at all events, that it was a sound and fundamental principle of the common law ; that the true meaning of the clause was that no man shall be twice tried for the same offence ; that the true test by which to decide the point whether tried or not, is by the plea of autrefois acquit or autrefois convict ; and, finally, that a " defendant is not once put in jeopardy until the verdict is rendered for or against him, and if for or against him, he can never be drawn in question again for the same offence." And the court accordingly held, that the discharge of the jury before giving a verdict was no bar to another trial of the defendant.* In 1862, however, in the Court of Errors, it was held, that when the defendant had been once put in jeopardy and convicted, and the judgment reversed for an error in the sentence, the other proceedings being regular, he could not afterwards be tried.* And in 1863, in the same court, the same rule was applied to a case of murder, and in aid of the rule the constitutional provision was expressly invoked.* But as a general rule, under the statute, a discharge of the jury without rendering a verdict is 1 People V. Goodwin, 18 Johns. E. a Shepherd v. People, 25 N. Y. 407. 187. See, also, People v. Oloott, 2 Supra; § 435. John. Cas. 301. s People v. Hartung, 26 N. Y. 167 ; S. C, 28 N. Y. 400 ; 23 How. Pr. 314. 363 § 505.] PLEADING AND PRACTICE. [chap. VIII. So In Maryland § 504. So in Mis- sisBJppi, MiBeouri, and Louisi- ana. no bar to a second trial.* Under the Constitution of New Jersey the same view obtains.' § 503. In Maryland, in 1862, the view of the Su- preme Court of the United States was expressly adopted.' In Mississippi, after a cursory review of the authorities, the same result was reached.* In 1860 it was held, that though a discharge, merely because the jury were " unable to agree on a verdict," there being no evidence as to the length of deliberation, worked an acquittal, yet it is otherwise when the term of the court is about to expire, and there is no possibility of agreement.* An illegal or improper discharge is in any view a bar ;• but this is not the case when the discharge is on account of the inability of the jury, after deliberation suffi- ciently protracted, to agree. But a deliberation of three and a half hours is not sufficient.^ In Missouri* and Louisiana' the ques- tion is largely left to the discretion of the court. § 505. In Illinois, the same view was taken, and in this State the rule laid down by the federal courts must be considered as obtaining." In Ohio, in 1863, it was determined that when the jury had been long enough together " to leave very little doubt that their opinions must have been inflexibly So in Illi- nois, Ohio, Indiana, Iowa, Ne- braska, Michigan, Nevada, Arkansas, and Texas. 1 Canter v. People, 38 How. Pr. 91 (1867). Where the jury, after the cause was committed to them, and before they had rendered or agreed upon a verdict, had separated without having been legally discharged ; it was held in 1871, that, as any verdict in the case, to be afterwards rendered by that jury, would have been invalid and set aside, there was a necessity for the exercise of the power of the court in its discretion, and in furtherance of justice, to dis- charge the jury. And that such power having been exercised by a competent court, the discharge constituted no bar to a new trial of the prisoner. People V. Reagle, 60 Barb. 527. See, also, S. P., M'Kenzie v. State, 26 Ark. 334. » Smith V. State, 41 N. J. L. 598. 364 » Hoffman v. State, 20 Md. 425. In this case the court treated the provi- sion in the State Constitution as con- vertible with that in the Federal Con- stitution. ' Moore v. State, 1 Walker, 134; Price V. State, 36 Miss. 533. ' Josephine v. State, 39 Miss. 613; Woods V. State, 43 Miss. 364. ° Finch V. State, 53 Miss. 363; Teat V. State, 53 Miss. 439. ' Whitten ». State, 61 Miss. 717. ' See supra, § 506. State ». Jeffers, 64 Mo. 376; State v. Copeland, 65 Mo. 497 ; State v. Dunn, 80 Mo. 681. > In Louisiana it is held that when there is a trial not imputable to the prosecution there is no jeopardy. State V. Blackman, 35 La. An. 483. 1° State V. Stone, 2 Soam. 326. . CHAP, vin.] ONCE IN JEOPARDY. [§ 506. formed," and were unable to agree, the court, at its discretion, could discharge.^ And noyr, by the Code of Criminal Procedure, this is established by statute. But the record should set forth the necessity of the discharge.' The same test is now adopted in Indiana, though after some vacillation in the earlier cases.' But there should be no discharge as long as the ' court thinks agreement possible ; and a discharge without good cause shown on record operates as an acquittal.* And an arbitrary and capricious separation of the jury, however, on their own motion, may be a bar.* In Michigan,® lowa,^ Nebraska,' Nevada,' and Texas," the same views prevail. In Arkansas, while a capricious discharge is a bar,^' it is otherwise when the discharge is from settled inability to agree," § 506, In Kentucky it was originally ruled that it is not pos- sible to support the defence of a former acquittal by anything short > Dobbins v. State, 14 Ohio St. R. 493. 8 Hines v. State, 24 Ohio St. 134; and see infra, § 815. In Mitchell v. State, 42 Ohio St. 383, it was held that a discharge is only to be sustained where the defendant has consented to the discharge, or been guilty of such fraud in respect to the conduct of the trial as that he was in no real peril, or where there is urgent necessity for the discharge, such as the death or serious illness of the presiding judge or a juror, the serious illness of the prisoner, the ending of term before verdict, or the inability of the jury to agree, after spending such length of time in deliberation as, in the opinion of the judge, sustained by the facts dis- closed in the record, renders it unrea- sonable and improbable that there can be an agreement. 3 State w. Nelson, 26 Ind. 366; Shaffer v. State, 27 Ind. 131, But allowing the jury to go unattended to a public square, operates as a dis- charge. State u. Lennig, 42 Ind. 541. Infra, §§ 727, 814. * State V. Walker, 26 Ind. 346 ; Shaffer v. State, 27 Ind. 131. " Maden v. Emmons, 83 Ind. 331. « People V. Balding, 53 Mich. 482. ' State V. Redman, 17 Iowa, 329 ; State V. Vaughan, 29 Iowa, 286. See State V. Parker, 66 Iowa, 386, where it was held that a discharge agreed to by defendant was no bar. 8 Card V. People, 2 Neb. 357. ' Maxwell, ex parte, 11 Nev. 428. The record, however, must show the necessity. » Moseley v. State, 33 Tex. 671 ; Parchman v. State, 2 Tex. Ap. 228, where it is held that there is no jeo- pardy until verdict. In Varnes v. State, 20 Tex. Ap. 107, it is held that under the code the discharge may be at discre- tion of court. Brady », State, 21 Tex. Ap. 659. See Powell's case, 17 Tex. Ap. 345 ; Pizano v. State, 20 Tex. Ap. 129. " Williams v. State, 42 Ark. 35. J* Potter V. State, 42 Ark. 29. 365 § 507.] PLEADING AND PRACTICE. [CHAP. VIII. So in Ken- of a final judgment or verdict, on a second indictment Georgia. for the same offence.' But recently this view has been recalled, and it is now held that an arbitrary discharge may be a bar.^ A discharge, in Georgia, on account of disability to agree, does not necessarily work an acquittal.* § 506 a. In South Carolina the rule is regarded Carolina?'^ simply as an expression of the common law doctrine of autrefois acquit.* Judge Story, in his treatise on the Constitution, mentions that the question of discharge of a jury from inability to agree is largely at the discretion of the trial court.* Judge Tucker, an eminent Virginia jurist, distinguished for his general tendency to give a strict interpretation to all constitutional limitations, takes substan- tially the same ground, advising, however, that the question of dis- charge should become a matter of record, so as to be the subject of revision.' § 507. Where, however, there is no jurisdiction,^ or where the in- No ieoD- dictment is defective, even in a capital case, it is agreed on ardy on all sides the defendant has never been in ieopardy, and defective . . . . indictment Consequently, if judgment be arrested, a new indiptment or process. ^^^ ^^ preferred, and a new trial instituted, without violation of the constitutional limitation.* Even partial endurance ' Com. V. Olds, 5 Little, 140; S. P., that it may not operate as a bar to a 0' Brian u. Com., 6 Bush, 563, over- future prosecution for the same oflFence. ruled in Wilson ». Com., 3 Bush, 105. It was, however, conceded that even 2 O'Brian v. Com., 9 Bush, 333. after jeopardy has attached, and in In Williams v. Com., 78 Ky. 93, the cases of necessity, an indictment may court was called on to act on § 243 of be dismissed or a prosecution disoon- the Criminal Code, which provides that tinned without operating as a bar to a "the attorney of the Commonwealth, future prosecution for the same oflfenoe. with permission of the court, may, at ' Lester v. State, 33 Ga. 329. any time before the case is finally sub- * State v. Shiver, 20 S. C. 392. mitted to the jury, dismiss the indict- ^ 3 Story on the Const. 660. ment as to all or a part of the defeu- " 1 Tuck. Black. App. 305. dants, and such dismissal shall not bar ' Supra, § 438 ; Montross v. State, a future prosecution for the same 61 Miss. 429. offence." This was held to be uncon- s Supra, § 457 ; infra, §§ 722, 821 ; stitutional so far as it attempts to au- Com. v. Purchase, 2 Pick. 521 ; Com. thorize, after jeopardy attaches, dis- v. Loud, 3 Met. 328 ; Com. v. Keith, 8 missal of an indictment for felony so Met. 531 ; State v. Woodruff, 2 Day, 366 CHAP. VIII.] ONCE IN JEOPARDY. [§ 507. of punishment under a defective indictment will be no bar when the proceedings are reversed on the defendant's motion ;' though it is otherwise when the judgment is unreversed.^ But a judgment erroneously arrested on a good indictment may be a bar.* Whether a judgment is necessary to the plea is elsewhere dis- cussed.* A trial in which the indictment has been dismissed for variance has been held not to constitute jeopardy.* A defendant is not in jeopardy who has had leave to withdraw a plea in law, and to plead in abatement, which plea is found for him ; and he may be indicted a second time in his true name.' It has been held that when the jury has been discharged in con- sequence of the verdict being taken in the defendant's absence, there is no jeopardy.^ 504 ; People v. Barrett, 1 Johns. R. 66 ; Com. K. Cook, S. & R. 577 ; Com. «. Clue, 3 Rawle, 498 ; State v. Crutch, 1 Houst. 204 ; State v, Williams, 5 Md. 62 ; Robinson o. Com., 32 Grat. 866 ; Gerard v. People, 3 Scam. 363 ; State V. Garrigues, 1 Hayw. 241 ; State v. England, 78 N. C. 552; Pritchett v. State, 3 Sneed. 285 ; State v. Sherborn, 58 N. H. 535 ; White v. State, 49 Ala. 344; Kohlheimer v. State, 39 Miss. 548; Bedee v. People, 73 111. 320; Phillips V. People, 88 111. 160 ; State v. Hays, 78 Mo. 600 ; State v. Owen, 78 Mo. 367 ; State v. Cheek, 25 Ark. 206 ; People V. March, '6 Cal. 543 ; People y. McNealy, 17 Cal. 333 ; State v. Prieb- now, 16 Neb. 131. As English rulings to same eflFeot, see Vaux's case, 4 Co. 44 ; R. V. Richmond, 1 C. & K. 240. So where the indictment was found by an unqualified grand jury. Finley v. State, 61 Ala. 201 ; Kohlheimer v. State, itt sup. Even a judgment arrested on motion of the prosecution is no bar when indictment is defective. R. v. Houston, 2 Craw. & D. 311 ; People v. Larson, 68 Cal. 18. See People v. Corning, 2 Comst. 9. The logical ac- curacy of the statement that there is no jeopardy ou a defective indictment is disputed in an ingenious article in 4 Crim. Law Mag. 489 (July, 1883), though the fact that the courts unite in sustaining the position taken is not disputed. It is argued that as there is punishment inflicted on a defective in- dictment, therefore there is pro ianto jeopardy. If this be true, however, it would follow that there is jeopardy in a trial before an unauthorized court, and if so, jeopardy in a mob attack, and if so, jeopardy in the discipline in- flicted by private revenge. 1 Jeffries v. State, 40 Ala. 382. 2 Supra, § 435. See Cochrane v. State, 6 Md. 406. ' Supra, §435a. * See Gardiner v. People, 6 Park. C. R. 155, and cases cited supra, §435. '= Rogers, ex parte, 10 Tex. Ap. 655. Supra, § 461. « Com. V. Parrell, 105 Mass. 189. See Com. v. Sholes, 13 Allen, 554. Su- pra, § 425. ' Infra, § 549 ; Ford v. State, 34 Ark. 649. 367 § 508.] PLEADING AND PRACTICE, [chap. VIII. Generally, Illness or death of juror forms sufficient ound for fri i! § 508. It is submitted, in conclusion, that the two classes of opinions which have been the subject of discussion may be reconciled, should it be conceded that the "-.discre- tion," in exercise of which a court, when intrusted with it, is justified in discharging a prisoner, must be a " legal iischarge. necessity," such as would, if spread on tlie record, enable a court of error to say that the discharge was correct. The cases are clear that the term " legal necessity" is not confined to cases such as death, etc., when the discharge becomes inevitable.* Thus, if a juryman, during the trial, be taken so ill as to be unable to attend to the evidence or deliberate on the verdict, the jury must be discharged, and the prisoner tried afresh ; and even in those States where the law of " once in jeopardy" is most stringent, " serious illness" is enough.* The escape of a juryman,' the sick- ness of the judge,* or that of a party,' and the closing of* the term of the court,* have been said to have the same efifect.^ In such » People V. Webb, 38 Cal. 467. » R. V. Scalbert, 2 Leach, 620 ; E. v. Barrett, Jebb, 106 ; R. o. Leary, 3 Crawford & Dix, 212 ; R. v. Edwards, R. & R. 224 ; State v. Emery, 59 Vt. 84 ; U. S. «. Haskell, 4 Wash. C. C. 402 ; Com. v. Fells, 9 Leigh, 613 ; Ma- hala V. State, 10 Yerg. 532 ; State v. Curtis, 5 Humph. 601 ; Fletcher ». State, 6 Humph. 249 ; Mixon v. State, 55 Ala. 129; Hector v. State, 2 Mo. 135 ; People v. Webb, 38 Cal. 467. In- fra, §§ 712, 821, 953. ' State V. Hall, 4 Halst. 256 ; State V. McEee, 1 Bailey, 651 ; Hanscom's case, 2 Hale P. C. 295. * Infra, § 514. « Infra, § 511. 6 Infra, § 513. ' Powell V. State, 19 Ala. 577. According to the English practice, a sick juror may be attended by another juror, qr a surgeon, accompanied by a bailiff, sworn to remain constantly with him. The juror or surgeon, on his re- turn, may be questioned on oath, to make true answer to such questions as 368 the court shall demand of him respect- ing the state of the absent juror. If it appear that he will in all probability speedily recover, he is to have what- ever refreshment may be beneficial (see Com. v. Clue, 3 Rawle, 498 ; Rulo V. State, 19 Ind. 298) ; but if not, or if he die, the eleven jurors must be dis- charged from giving any verdict. Their names should then be called over again instanter, and another person on the panel of jurors called into the box. The prisoner must then be offered his challenges to all twelve, after which each of them, or of those substituted for them on challenge, must be sworn de novo, and be charged with the pri- soner. The trial must then begin again. See, by eleven judges, in R. v. Edwards, 3 Camp. 207. See R. v. Scalbert, Leach, 620 ; 1 Chit. Cr. L. Ist ed. 414, 655 ; 2 Hale, 216 ; 1 Shower, 131 ; How's case, 1 Vent. 210; R. V. Woodfall, 5 Burr. 2667; R. ». Beere, 2 M. & Rob. 472. See infra, §§ 722, 821. In an English case where the eleven were all resworn without CHAP. VIII.] ONCE IN JEOPARDY. [§ 509. cases it is not necessary to say, as is said in some, of the cases, that the defendant was not in jeopardy. He certainly was in jeopardy, if the court was one legally authorized to inflict punishment. But, on the other hand, it cannot he said, on the second trial, that he has been put twice in jeopardy, since the jeopardy in which he was put on the first trial has never ceased to exist.* What has been said of sickness of a juror applies to the miscon- duct of a juror breaking up the trial. Were it not so, it would be in the power of any one juror, by misconduct, to work an acquittal.^ This is a fortiori the case where the juror's misconduct is imputable to the defendant.' § 509. Judge Curtis, on a trial for a misdemeanor (in which, however, according to the doctrine of the federal courts, ^. , !• ■ • 1 j> 1 • \ 1 ij Discharge the same restriction applies as in capital felonies), held of jury that it was no bar that a juror had been withdrawn and mediately' the jury discharged on a prior trial, on the motion of the ?jgapadty prosecuting attorney, on the ground of the then dis- of juror covered evidence of the juror's bias.* The same rule has been extended to other cases of incapacity.* But it has been elsewhere held that the court has no power to discharge the jury on such grounds, unless upon application of the defendant, or unless the defect was such that the defendant was really never in jeopardy.* challenge, the evidence which had been given was read by consent, from the judge's notes, before them and the twelfth juror ; and each witness was asked whether it was true. See R. v. Edwards, R. & Ry. 224 ; 2 Leach, 621, n. ; 3 Camp. 207, n. ; 4 Taunt. 309 ; 1 Ch. Cr. L. 629 ; Foster 31. • On this point I accept the reasoning of the criticism in the article in 4 Crim. Law Mag. 487, already noticed. 2 R. V. Ward, 10 Cox C. C. State i). Hall, 4 Halst. 256. 3 State V. Bell, 81 N. C. 591. * D. S. V. Morris, 1 Curtis, 23. also. People v. Damon, 13 Wend. Stone V. People, 2 Scam. 326 ; Watkins v. People, 60 Ga. 601 ; and cases cited infra, § 517. See infra, § 844. 24 574; See, ,351; 5 R. V. Phillips, 11 Cox C. C. 142 ; U. S. 0. Haskell, 4 Wash. C. C. 402. 6 R. V. Wardle, C. & M. 647 ; R. v. Sullivan, 8 Ad. & El. 831 ; R. v. Sutton, 8 B. & C. 417 ; Poage v. State, 3 Ohio St. 239 ; Stone v. People, 2 Scam. 827 ; Com. V. Jones, 1 Leigh, 399 ; State v. MoKee, 1 Bailey S. C. 651 ; O'Brian v. Com., 9 Bush, 333; McClure v. State, 1 Yerg. 219 ; Johnson v. State, 29 Ark. 31. Infra, § 793. In O'Brian v. Com., 9 Bush, 333, after the jury had been sworn, and while the evidence was being taken, one of the jurors arose and said that he had formed one of the grand jury which found the indictment, and there- upon the court, of its own motion and against the objection of the prisoner, 512.J PLEADING AND PRACTICE. [chap. Till. Conviction no bar when set aside on defendant's motion. If the defendant has been really in jeopardy, and the discharge is not necessitated by misconduct of a juror or of the defendant, such discharge is a bar to a subsequent trial. § 510. A conviction set aside, on the defendant's motion, on account of erroneous ruling by the judge, is no bar to a second trial. The defendant, by setting up the position that the ruling was erroneous, is afterwards estopped from disputing this. He affirms that he never was in legal jeopardy, and that the ruling of the judge against him, putting him in jeopardy, was not law. When he gains his point he cannot afterwards plead jeopardy.* And he waives jeopardy by a motion for new trial." § 511. Sickness of defendant has been sometimes held a sufficient ground, on the defendant's, request, to discharge a jury ; and this consent may, it seems, be implied from sudden incapacitating illness. In such case, the first trial is no bar to the second.' Nor when the jury is discharged in consequence of the defendant's escape from the court during trial can he set up the trial as a bar.* § 512. Surprise in sudden Ireahing down of case of prosecution, Discharge ^^ ^^^ York and North Carolina, has been held, in mis- from sur- demeanors, to be ground for withdrawing a juror." But And BO of discharge from sick- ness of defendant discharged the juror and had another summoned. The court held that this amounted to an acquittal, and that the plea of auirefms acquit to a further trial was good. 1 See Infra, § 793 ; Morrisette v. State, 77 Ala. 71 ; Thompson v. State, 9 Tex. Ap. 649. 2 Infra, § 518. 3 R. V. Stevenson, 2 Leach, 546 ; R. V. Streek, 2 C. & P. 413 ; R. v. Kell, 1 tCraw. & Dix, 151 ; People v. Goodwin, 18 Johns. 187 ; Smith v. State, 41 N. J. L. 598 ; State v. MoKee, 1 Bailey, 651 ; Lee y. State, 26 Ark. 260. See, also, Sperry v. Com., 9 Leigh, 623 ; State v. Wiseman, 68 N. C. 204. See infra, §§ 724, 821. Mr. Justice Talfourd (Diokina. Quar. Sess. 570) thus states the law on this 370 point: "Where, after the jury have heeu charged, a prisoner indicted for felony becomes, from sudden illness, incapable of remaining at the bar dur- ing the trial, the jury must be dis- charged. If he recovers during the session, he may be retried, the whole of the proceedings in his trial being com- menced de novo; R. v, Stevenson, 2 Leach C. C. 546 ; R. v. Streek, 2 C. & P. 413. See R. v. Fitzgerald, 1 C. & K. 201 ; — Cresswell, J. ; Foster's Crown Law, 22, Wedderburn's case ; if not, the recognizances must be respited till the next session." • People V. Higgins, 59 Cal. 857. » People V. Ellis, 15 Wend. 371 (though see Klock v. People, 2 Park. C. R. 676) ; State v. Weaver, 13 Ire- dell, 203. See infra, §§ 516, 724, 821. CHAP. VIII.] ONOB IN JEOPARDY. [§ 516. this is contrary to the better opinion, which is that in no criminal trial can such a power be exercised.* § 513. Statutory close of term of court, except in oigg^^rge North Carolina,* has been held to iustify a discharge, from statu- 1 • 1 • A 1 ^^ close which is no bar to a second trial.^ A court, however, of court can adjourn beyond the term to receive a verdict.* ^° ^^^' § 514. Sickness of judge, as has been already noticed, ^^^ ^^ is a suflScient ground, under the same limitation, as the from sick- , ness of Sickness of a juror.' judge. § 515. The death of a judge, to whom a case was submitted by consent, for decision without a jury, such And so death being before decision rendered, does not relieve a of'judge?^ defendant, in an indictment for misdemeanor, from a second trial.® And the same rule exists as to the death of a judge during a trial before a jury.' § 516. The sickness of a witness is held not to constitute ground to discharge the jury, even though the witness was es- ^^^ ^^^ sential to the prosecution ; and when a discharge was from siek- ,. , . 1111 IIP! 11 ii^^s or in- made in such case, it was held that the defendant could capacity of not be tried again.* Such sickness has been held in '^^"'^^^• America ground for postponing a trial, but not, unless misconduct of defendant be shown, for discharging a jury? 1 Supra, § 436 ; Kinlook's case, Foat. 16; R. V. Jeffs, 2 Strange, 984; U. S. V. Shoemaker, 2 McLean, 114 ; People V. Barrett, 2 Caines, 305 ; Klook v. People, 2 Park. C. R. 676. 2_Spier's case, 1 Devereux, 491 ; State V. McGimpsey, 80 N. C. 377; though see State v. Tillotson, 7 Jones, 114. 3 R. V. Newton, 13 a. B. 716 ; S. C, 3 Cox C. C. 489 ; R. v. Davison, 2 F. & F. 250 ; People v. Thompson, 2 Wheel. C. C. 473 ; Com. o. Thompson, 1 Va. Cas. 319 ; State v. MoLemor«, 2 Hill S. C. 680 ; Ned v. State, 7 Porter, 187 ; State V. Battle, 7 Ala. 259 ; Powell v. State, 19 Ala. 577; State v. Moor, 1 Walker, Miss. 134 ; Josephine v. State, 39 Miss. 613 ; Mahala v. State, lOYerg. 132 ; State v. Brooks, 2 Humph. 70 ; Hines v. State, 8 Humph. 5S7 ; Wright V. State, 5 Ind. 290 ; State v. Jeffers, 64 Mo. 376 ; People v. Cage, 48 Cal. 323. See R. v. Bowman, 9 C. & P. 438. * Briceland v. Com., 74 Penu. St. 463. 5 Nugent V. State, 4 Stew. & P. 72 ; State V. Tatman, 59 Iowa, 471. 6 Bescher v. State, 32 Ind. 480. See People V. Webb, 38 Cal. 467. Infra, §§ 898, 929. ' Peoples. Webb, 38 Cal. 467. Infra, §§ 898, 929. 8 R. V. Kell, 1 Crawford & Dix, 151. See R. V. Wade, 1 Mood. C. C. 86 ; R. V. Oulaghan, Jebb's C. C. 270. Supra, §512. 9 U. S. V. Coolidge, 2 Gallis, 364 ; Com. V. Wade, 17 Pick. 397. See infra, §§ 722, 821-4. 371 § 517.] PLEADING AND PRACTICE. [chap. VIII. does not begin, Whether the court will adjourn a trial on account of the incapa- city of a witness is hereafter discussed.' § 517. However discordant the cases may be as to what legal necessity justifies a discharge, they unite in the position jury are t^"** "'^til t^e jury are " charged" with the offence, on I'eo^'arf^^" ^"^ ^ssue duly framed, that is to say, until the jury is sworn, and the case committed to them, the jeopardy does not begin.* Until this period the defendant is not technically " in jeopardy."' Even a juror who is found to be in- competent after swearing, but before opening the case, may be set aside without vitiating the procedure.* A fortiori, therefore, neither a nolle prosequi, when entered before empanelling a jury,' nor an ignoring by a grand jury,' nor a discharge on habeas corpus,'' has the effect of relieving the defendant from further prosecution, " Charging" the jury is addressing the jury as follows : — " Gentlemen of the jury, look upon the prisoner and hearken -to his charge ; he stands indicted by the name of A. B., late of the parish of, etc., laborer, for that he, on, etc. {reading the indictment to the end]. Upon this indictment he hath been arraigned; upon his arraignment he hath pleaded not guilty; your charge, therefore, is to inquire whether he be guilty or not guilty, and hearken to the evidence."* > Infra, §§ 722, 821, and cases in this section. ' See Alexander v. Com. 105 Penn. St. 1 ; Nolan v. State, 55 Ga. 521 ; Wat- kins V. State, 60 Ga. 601 ; Atchison R. R. V. Franklin, 23 Kan. 74 ; Taylor v. State, 11 Lea, 708 j People v. Horn, 70 Cal. 17. Where, upon an indictment for mur- der, there la a preliminary trial, on a plea in abatement of misnomer, the de- fendant is not, on such preliminary trial, in jeopardy of his life or liberty, though the indictment was for murder ; and it is discretionary with the court whether or not to keep the jury se- cluded during the trial of such issue. Alexander v. Com., ut supra. ' Com. t>. Myers, 1 Va. Cas. 188 ; 372 Epes's case, 5 Grat. 676 ; Com. v. Drew, 3 Cush. 379; People i. Fisher, 14 Wend. 9 ; Com. v. Miller, 2 Ashm. 611 ; Hlnes V. State, 8 Humph. 597 ; State v. Clifford, 58 Wis. 477 ; infra, § 821. * Stone V. State, 2 Scam. 326 ; Com. V. McFadden, 23 Penn. St. 12. As further rulings to same effect, see People V. Damon, 13 Wend. 351 ; State V. Redman, 17 Ind. 329 ; Bell v. State, 44 Ala. 10 ; Watkins v. State, 60 Ga. 601, and cases cited supra, § 508. 5 Supra, § 447. 6 Supra, § 446. ' Supra, § 445. ' See, for a shorter form, trial of R. Smith, Philadelphia, 1816, Wharton on Homicide, App. CHAP. VIII.] ONCE IN JEOPARDY. [§ 518. This does not take place until after the jury are sworn," and is not usual in misdemeanors.* A plea duly entered on arraignment is an essential prerequisite to " charging."* The subject of the seclusion of the jury is hereafter discussed.* § 518. It has been frequently ruled that the defendant may waive his constitutional privilege by a consent to the dis- -yp^j^gy ,,y charge of the jury," or to their separation,* and that this motion for may be by a motion m arrest or vacation of judgment.' writ of er- It is conceded that this may be done by a motion for a motion in new trial, which pervades the whole case, asking that it ai^est. may begin de novo^ and also by writs of error.' It is true that it 1 1 Ch. C. L. 555 ; Dicken. Q. Seas. 493; Alexander u.Com., 105 Pelin. St. 1 ; Mitchell v. State, 42 Ohio St. 383. « Ibid. Infra, § 817. 3 U. S. V. Riley, 6 Blatoh. 204; Weaver v. State, 83 Ind. 289 ; 4 Crim. Law Mag. 27, and note thereto ; Davis V. State, 38 Wis. 487 ; Grogan v. State, 44 Ala. 9 ; Bell v. State, 44 Ala. 393 ; Lee V. State, 26 Ark. 260. * Infra, §§ 727, 814. 5 See infra, § 817 ; R. v. Deane, 5 Cox C. C. 501 ; State v. Gurney, 37 Me. 156 ; Com. v. Andrews, 3 Mass. 126 ; People V. Rathhun, 21 Wend. 509 ; Stewart v. State, 15 Ohio St. R. 161 ; People Whart. Crim. Law, 9th ed. § 144, . citing Smith a. Com., 14 S. & R. 69. Under Kansas statutes there can be generally no waiver. State v. Myrick, 38 Kan. 238. In Hopt v. Utah, 110 U. S. 674. Harlan, J. gave the opinion of the court as follows : — " We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirements as to his personal pre- sence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be de- prived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, ' cannot legally be disposed of or destroyed by any individual, CHAP. IX.] PRESENCE OF DEPENDANT IN COUKT. [§ 544. § 542. On principle, the better practice would be for the defend- ant to appear in court and there make the waiver.* But , it has been held that it is sufficient if he execute, in cases may the excepted cases of quasi civil prosecutions, a special by attor- power of attorney for this purpose, filing it in court.^ ^^^' In other cases the waiver must be by defendant personally .^ § 543. That a waiver may be so implied, was held in a trial for perjury, in the United States Circuit Court for New Removal York, where the defendant's conduct during a portion of of defend- the trial was so violent that it was necessary to remove turbulent him from the court-room, and place him in sequestration.* does not And unless such a check be applied, the defendant, by ^aiiTgt'' violent and turbulent conduct, could at any time either "^^• bring his trial to an end, or compel its extension under circumstances destructive of public decorum. On the same reasoning rests a case already noticed, in which it was held in Ohio that a defendant in a case of counterfeiting, in which he was under bail, could not stop a trial by running away from the court." And it was held in Illi- nois, in 1882, that where a prisoner, on trial for burglary, escaped from the court-room, this was a waiver of the privilege, after which the court might proceed to final judgment in his absence.* § 544. Involuntary illness is not to be regarded as a waiver ; and hence, in an English trial for misdemeanor, where the defendant was taken ill, and was necessarily removed J°''°^}J?- ' •' tary illness irom the court-house, the judge discharged the jury, "ota though the defendants' counsel consented to going on in neither by the person himself, nor The right of the court to remove by any other of his fellow-creatures, the defendant from the court-room merely upon their own authority.' 1 under such circumstances was dig- Bl. Com. 133." See Elick v. Torr, 1 cussed by me in a note to Guiteau's Wash. Ter. 136. case, 10 Fed. Rep. 161. On general doctrine of waiver see ' Shipp v. State, 11 Tex. Ap. 46. infra, § 595, and see, also, Mirick v. * U. S. o. Davis, 6 Blatch. C. C. People, 8 Col. 440. 464. That temporary absence during ar- 6 pight „. state, 7 Ohio, 180. gument in non-capital cases (counsel 6 Sahlinger v. People, 102 111. 241, being present), does not vitiate, see citing Wilson v. State, 2 Ohio St. 319 ; State V. Paylor, 89 N. C. 539 ; State v. Rose v. State, 20 Ohio St. 33 ; HoUiday Sheets, 89 N. C. 544. v. People, 4 Gilm. Ill ; Hill v. State, " See People v. Petry, 2 Hilt. 523. 17 Wis. 697. See, also, Barton v. State, ' U. S. V. Mayo, 1 Curt. C. C. 433. 67 Ga. 653. 391 § 546,] PLEADING AND PRACTICE. [CHAP, IX. his absence.' It is otherwise as to temporary voluntary absence during one of the speeches of counsel.* § 545. By the old common law form, each juror is required to look on the prisoner and the prisoner on the juryman, before the juryman is sworn. Nor can the prisoner's presence at essential at ^^^^ period be dispensed with or waived in any cases in ment^nd ' ''^hich Corporal punishment may be inflicted.' Hence in empanel- felonies the record must show defendant to have been present at the arraignment,* and also at the calling and testing of the jurors.* § 546. The constitutions of most of the United States, incor- Aiso at re- P^^ating in this an old common law principle, provide ception of that the accused, in criminal cases, shall have a right to testimony. ,i -, • i • ^ /. ^ meet the witnesses against him face to face. Even where this rule is' not a part of the fundamental law of the land, it is held obligatory by the courts.* This rule, even in capital cases, however, does not exclude dying declarations ; nor the testi- mony of deceased witnesses previously taken on a trial of the same issue.'' The defendant, also, as has been seen, may in misdemean- ors waive this privilege either expressly or by implication ; and in California, even in a murder case, it has been held that a defend- ant's absence from necessity or other strong reasons, during part of a trial, was no ground for reversing the sentence, if no prejudice arose to him from his absence.' A defendant, also, may, to defeat 1 R. V. Street, 2 C. & P. 413. « See People v. Perkins, 1 Wend. 91 ; 2 State V. Grate, 68 Mo. 22. Dougherty v. Com., 69 Penn. St. 286 ; " Dougherty v. Com., 69 Penn. St. Dunn v. Com., 6 Barr, 385 ; Jackson v, 286 ; Dunn v. Com., 6 Barr, 385 ; Rolls Com., 19 Grat. 656 ; Andrews v. State, V. State, 52 Miss. 391. 2 Sneed, 550 ; State v. Hughes, 2 Ala. * Jacobs V. Com., 5 S. & R. 315; 102; State y. Cross, 27 Mo. 332 ; State Hall V. State, 40 Ala. 698 ; State v. v. Smith, 90 Mo. 57 ; People ». Kohler, Jones, 61 Mo. 232 ; Dodge v. People, 4 5 Cal. 72. In State v. Greer, 22 W. Neb. 220. See, however, Tuttle v. Va. 546, it was held that such absence State, 6 Baxt. 556. In Texas this is was not made less fatal by reading the limited to capital cases. Nolan w. State, testimony to him and telling the jury 8 Tex. Ap. 585 ; Grisham v. State, 19 to disregard all done in his absence. Tex. Ap. 504. ' Whart. Cr. Ev. §§ 227, 277. " Hopt V. Utah, 110 U. S. 545 ; State * People v. Bealoba, 17 Cal. 389. V. Sntfin, 22 W. Va. 771. As to plead- And see U. S. c. Santos, 5 Blatch. C. ing not guilty in defendant's absence C. 104; Rutherford v. Com., 78 Ky. by his attorney, see State v. Jones, 70 639. Iowa, 505. The defendant's absence from the 392 CHAP. 1X.J PRESENCE OF DEFENDANT IN COUKT. [§ 548. a motion for a continuance, agree to accept the statement of an absent witness as if it were proved.^ But ordinarily no testimony should be taken in the defendant's absence. Even if the jury go to view the place of the crime, he should be present.^ § 547. It is clear that the defendant must be present at the charge of the court.* Even where, after the jury had ,, retired to deliberate upon their verdict, they returned charge of into court and asked certain questions of the court as to what had been the evidence on particular points, to which the court replied, giving the information requested in the defendant's absence, it was held that this was error, for which the conviction must be re- versed,* and this though defendant's counsel were present." § 548. Presence at the making and arguing of motions cannot be exacted as an absolute rule, as there are some cases — Presence e. g., motions to bring the prisoner into court — which pre- g°*°^u^^ suppose his absence, and other cases, such as motions of making 1 • 1 1 • 1 • 11, s-nd argu- course, m which to require his presence would be pro- ing of ductive of great inconvenience, and might work some- '^°''°°^- times prejudicially to himself.* In misdemeanors in which the pun- ishment is not corporal, it is clear that such presence, even as to motions for new trial, is not necessary.^ And in the higher order court-room for a few moments on busi- was not error where no prejudice was ness does not, under the New York shown. statute, vitiate the proceedings. Peo- * Maurer v. People, 43 N. Y. 1 ; pie V. Bragle, 88 N. Y. 585 ; S. C, 26 Wade v. State, 12 Ga. 25 ; State v. Hun, 378. As to temporary absence of Davenport, 33 La. An. 231 ; though defendant during argument, see State see Jackson v. Com., 19 Grat. 656. V. Paylor, 89 N. C. 539. Infra, § 830. ' Infra, § 595. See State v. Poison, In Ohio, however, it has been ruled 29 Iowa, 133, as to consent curing re- not to be ground for new trial that the ception of evidence from a former trial, court, in the absence of the parties, and People v. Murray, 52 Mich. 288, sent a copy of the statutes of the State as to consent to receiving depositions, to the jury, calling their attention to And see Miriok v. People, 8 Col. 440. particular sections. Gaudolfo v. State, 2 Infra, § 707. See Rutherford u. 11 Ohio St. 114 ; and see State v. Pike, Com., 78 Ky. 639. 65 Me. Ill ; and cases cited infra, 3 Jackson v. Com., 19 Grat. 656 ; § 830. State V. Blaokwelder, 1 Phillips (N. " Bonner v. State, 67 Ga. 510. C), 38; Wade v. State, 12 Ga. 25 ; ^ gee Godfreidson k. People, 88 111. Wilt V. State, 5 Cold. 11 ; People o. 284 ; State !'. Elkins, 63 Mo. 159 ; Hall Kohler, 5 Cal. 72. See infra, §§ 799, v. State, 40 Ala. 698 ; State v. Outs, 30 830. In Meece v. Com., 78 Ky. 586, it La. An. 1155. was held that absence at part of charge ' R. v. Parkinson, 2 Den. C. C. 459: 393 § 649.] PLEADING AND PRACTICE. [chap. IX. of misdemeanors, and in felonies, the courts are not now disposed, on the hearing of motions, to insist on the defendant's presence.' Hence his absence will not invalidate such proceedings,^ unless in matters where his identification or assent is required.' On the making of a motion for new trial the defendant need not be present.^ In motions for arrest of judgment, and in error, the old practice was to require the attendance of the defendant.* In the United States, this presence has not been generally required ;' nor is it usual to exact it in proceedings in error ;'' and in England, at least in misdemeanors, appearance on proceedings in error will not be re- quired, where it appears that the defendant, who is plaintiff in error, cannot attend without great inconvenience and risk of health.' But at the decision, at least, of motions for new trial, the defend- ant should be present.' § 549. In felonies, presence at verdict is essential ; and there have been cases where the courts have refused to permit this essential at right to be waived." Thus, a verdict of burglary was set of°verdict. ^side in Pennsylvania, when it was taken in the defend- ant's absence, although his counsel waived his right to be ' Jewell V. Com., 22 Penn. St. 94; E. v. Boltz, 8 D. & R. 65 ; 5 B. & C. 334 ; R. V. Hollingberry, 6 D. & R. 844 ; 4 B. & • C. 329 ; People v. Van Wyck, 2 Caines, 333 ; though see R. v. Caudwell, 17 Q,. B. 503 ; R. v. Scully, 1 Alo. & Napier, 262 ; Epps v. State, 102 Ind. 539 ; State V. Clark, 32 La. An. 558 ; infra, § 892. 2 Com. V. Costello, 121 Mass. 371 ; State V, Harris, 34 La. An. 118 ; and see Com. v. Andrews, 97 Mass. 543 ; Anon., 31 Me. 592. But see, contra, Hooker v. Com., 13 Grat. 763 ; Long v. State, 52 Miss. 23. 3 See Simpson v. State, 56 Miss. 295 ; Rothschild v. State, 7 Tex. Ap. 519. * State V. Lewis, 80 Mo. 110. 5 R. V. Spragg, 2 Burr. 930; 1 W. Black. 209. 6 See People v. Ormsby, 48 Mich. 494; Territory v. Young, 2 New Mexico, 93 ; 394 but see, as requiring presence, State v. Hoffman, 78 Mo. 250. ' Clark V. People, 1 Park. C. R. 360 ; Donelly v. State, 2 Dutch. 464, 601 ; State V. Bubs, 18 Mo. 319. Waiver will be presumed from attendance of counsel without objection to the defendant's absence. State v. David, 14 S. C. 428. 8 Murray v. R., 3 D. & L. 100 ; 7 Q. B. 700. That the defendant need not be required to be present on the argu- ment of motions for new trials and in arrest, see People v. Vail, 6 Abb. (N. Y.) Sel. Ca. 206 ; 57 How. Pr. 81 ; State V. Jefooat, 20 S. C. 383. 9 Berkley v. State, 4 Tex. Ap. 122 ; see Griffin v. State, 34 Ohio St. 299. That this is necessary in capital cases, see Simpson v. State, 56 Miss. 267. That the right may be waived, see State V. Somnier, 33 La. An. 237. '» Supra, § 541 ; infra, ^ 733, 747 ; Green v. People, 3 Col. 68. CHAP. IX.] PRESENCE OF DEFENDANT IN COURT. [§ 549. present.* Where, however, the defendant, being out on bail, happens to be voluntarily absent for a few moments, during which time the jury come in and render their verdict, his counsel bejng present, it has been held, and not without reason, that such inadvertence is not ground for a new trial ;* and so where the defendant escapes as the jury is coming in.' On the other hand, when the defendant is a pris- oner in custody of the court, absence during rendition of the verdict, without waiver, vitiates the proceedings, since his absence is not under such circumstances to be regarded as voluntary.^ And in fact this, as we have seen, is exacted by the common law form, which requires the jury to look on the prisoner and the prisoner to look on the jury, when the verdict is rendered. If the verdict in a case of felony is taken in the defendant's absenpe this is a mistrial, but does not, in felonies not capital, entitle the defendant to a 1 Prine v. Com., 18 Penn. St. 103 ; Dougherty v. Com., 63 Penn. St., 386 ; Jackson v. Com., 19 Grat. 656; Andrew f . State, 2 Sneed, 550 ; Smitli v. State, 51 Wis. 615. 2 U. S. 0. Santos, 5 Blatoh. C. C. 104 (see, as to misdemeanors. Sawyer v. Joiner, 16 Vt. 497) ; People v. Stephen, 19 N. Y. 549 ; Holmes v. Com., 25 Penn. St. 221 ; Barton v. State, 67 Ga. 653 ; Hill V. State, 17 Wis. 675; State v. Vaughan, 29 Iowa, 286. As doubting, see R. V. Street, 2 C. & P. 413 ; and see supra, § 540. In Lynch v. Com,, 88 Penn. St. 189, it was held that where a prisoner on trial for larceny who is out upon bail has been present during the entire trial, but voluntarily absents himself just before the bringing in of the verdict, it is not error for the court, having had the prisoner called, to receive the ver- dict and sentence the prisoner without first having him brought in. It has been held in Virginia that presence is not necessary when the jury is brought into court, during its deliberation, as a mere matter of form. Lawrence v. Com., 30 Grat. 845. In Georgia it is held that ordinarily the record need not show presence. Smith V. State, 59 Ga. 514; Smith v. State, 60 Ga. 430. 3 State u. Kelly, 97 N. C. 404. See supra, § 540. * R. V. Duke, Holt, 299 ; 1 Salk. 400 ; State V. Hurlbut, 1 Root, 90 ; People v. Winchell, 7 Cow. 521 ; Tabler v. State, 34 Ohio St. 127 (but see Fight v. State, 7 Ohio, 180) ; State v. Hughes, 2 Ala. 102 ; Cook V. State, 60 Ala. 39 ; Stubbs V. State, 49 Miss. 716 ; State v. Cross, 27 Mo. 332 ; State v. Braunschwieg, 36 Mo. 397 (under statute) ; State v. Muir, 32 Kan. 481 ; State v. Ford, 30 La. An. 311 ; State v. Bailey, 30 La. An. 326 ; Clark V. State, 4 Humph. 254 ; State v. France, 1 Tenn. 434. That the absence of one defendant does not preclude a verdict against a defendant who is present, see supra, § 313 ; State v. Bradley, 30 La. An. Pt. I. 326. As to absence «f counsel, see Lassiter V. State, 67 Ga. 739. As to sealed verdict, see infra, § 740 ; and see, also, supra, § 540. 395 § 550.] PLEADING AND PEACTICE. [chap. IX. discharge.' And in some States this is the case even in capital cases.' The better view is that in capital, if not in all felonies, the record must show that the defendant was present at trial, verdict, and sentence," though as to misdemeanors less strictness is insisted on.* § 550. Absence of the defendant is not permitted at sentence in any case punishable corporally." Where, however, the offence is a misdemeanor, partaking of the nature of a civil process, and where the punishment is simply a fine, such absence, the defendant being under recognizance to submit to the sentence of the court, has been allowed.* ADd at sentence. 1 State V. Jenkins, 84 N. C. 812; supra, § 518. 2 Supra, § 507 ; State v. Conkle, 16 W. Va. 736. ' Dunn V. Com., 6 Barr, 385 ; Dough- erty V. Com., 69 Penn. St. 286 ; Nolan V. State, 55 Ga. 521 ; Sylvester v. State, 71 Ala. 17 ; Stubbs v. State, 49 Miss. 716 ; Rolls V. State, 52 Miss. 391 ; State V. Davenport, 38 La, An. 231 ; Hartigan V. Terri,, 1 Wash. Terr. 447. Infra, §§ 741, 906. See, however. Smith ^. State, 60 Ga. 430 ; State v. Collins, 33 La. An. 152. * Stephens v. People, 19 N. Y. 549 ; Holmes v. Co., 25 Penn. St. 221 ; State o. Craton, 6 Ired. 164 ; Grimm v. Peo- ple, 14 Mich. 300. In those States and in those cases in which there is no constitutional bar, the setting aside the verdict for this cause does not interfere with a retrial. People V. Perkins, 1 Wend. 91 ; State V. Hughes, 2 Ala. 102 ; Younger v. State, 2 W. Va. 579. But a verdict rendered in a felony when prisoner is not in court, and a consequent discharge of jury, works in capital cases an acquittal of the defend- ant. Cook V. State, 60 Ala. 39. In Texas, defendant's presence is by statute not necessary in misdemeanors. Gage V. State, 9 Tex. Ap. 259 ; see Mapes V. State, 13 Tex. Ap. 85. And 396 in Illinois, if a prisoner escapes just before verdict, this does not interfere with the verdict being taken. Sah- linger v. People, 102 111. 241. See, also. Barton v. State, 67 Ga. 633. 5 State V. Hurlbut, 1 Root, 90 ; Dougherty v. Com., 69 Penn. St. 286 ; Peters v. State, 39 Ala. 681 ; Stubbs v. State, 49 Miss. 716 ; Rolls v. State, 52 Miss. 391 ; see Waterman, ex parte, 33 Fed. Rep. 29. See People v. Sprague, 54 Cal. 92 ; and apparently contra, Price V. Com., 33 Grat. 819. But if present when the verdict is returned, but absent when sentence is pronounced, he is not entitled to a new trial, but only to a new sentence. If the former judgment is reversed on error for the prisoner's absence, he is simply remanded for sentence accord- ing to law. Cole v. State, 5 Eng. 318 ; Kelly V. State, 3 Sm. & Mar. 518; Cent. L. J. Jan. 25, 1878. And see Lynch v. Com., 88 Penn. St. 189, cited supra. 6 R. V. Templeman, 1 Salk. 55; Duke's case. Holt, 399 ; R. v. Constable, 7 D. & R. 663 ; R. v. Boltz, 8 D. & R. 663 ; 5 B. & C. 334 ; U. S. ... Mayo, 1 Curt. C. C. 435 ; Son v. People, 12 Wend. 344; People v. Winchell, 7 Cow. 525 ; Hamilton v. Com., 16 Penn. St. 129 ; Hughes v. State, 4 Iowa, 354 ; Price V. State, 36 Miss. 531 ; Canada v. CHAP. IX.] PRBSBNOE OP DEFENDANT IN COURT. [§ 551. § 551. When the record shows that the defendant was in court at the opening of the session, the presumption is that he Pr6S6DC6 continued in court during the entire day.* And this pre- presumed sumption has been extended to the whole trial.* conunuous. Com., 9 Dana, 304 ; Holliday v. People, 4 Gilm. Ill ; Warren v. State, 19 Ark. 214. ' Whart. Crim. Ev. ' §§ 816, 829 ; Kie V. U. S., 27 Fed. Rep. 351 ; State V. Lewis, 69 Mo. 92. 2 Cluverius v. Com., 81 Va. 787; Speer v. State, 69 Ala. 159 ; Folden v. State, 13 Neb. 328 ; Irvin v. State, 19 Fla. 872 ; State v. Cartwright, 13 R. I. 193 ; People v. Sing Lum, 61 Cal. 538 ; People V. Sing Jung, 70 Cal. 469; Territory v. Yarberry, 2 New Mex. 391. See infra, § 875. That presence may be inferred from the averment that the prisoner was remanded, see Cluverius 0. Com., 81 Va. 787. 897 § 554.] PLEADING AND PRACTICE. [CHAP. X. CHAPTER X. COUNSEL. I. Counsel fob Peosecution. Prosecuting attorneys may employ associates, § 555. Prosecuting attorney occupies semi-judicial post, § 556. II. Counsel fob Defence. Defendants entitled to counsel by Constitution, § 557. Counsel, if necessary, may be as- signed by court, § 558 . Such counsel may sue county for their fees, § 559. III. Duties op Counsel. Order and length of speeches at discretion of court, § 560. Prosecuting attorney Hot to open confessions or matter of doubt- ful admissibility, § 561. Counsel on both sides should be candid in opening, § 562. Opening speeches not to sum up, §563. Examination of witnesses at dis- cretion of court, § 564. Prosecution should call all the witnesses to the guilty act, §565. When notice of, must be given to defendant, § 565 a. Order of testimony discretionary with court, § 566. Impeaching testimony may be re- stricted, § 567. Witness to see writings before cross-examination, § 568. Witnesses may be secluded from court-room, § 569. Defendant's opening to be re- stricted to admissible evidence, §570. Beading books is at discretion of court, § 571. Counsel may exhibit mechanical evidence in proof, § 572. If defendant offers no evidence, his counsel closes, § 573. Otherwise when he offers evidence, §574. Defendants may sever, § 575. Priority of speeches to be de- termined by court, § 576. Misstatements not ground for new trial if not objected to at time, § 577. Ordinarily counsel are not to argue law to jury, § 578. Party may make statement to jury, § 579. I. COUNSEL FOR THE PROSECUTION. § 554. The position of the prosecuting attorney, in reference to the inception and direction of prosecutions, has been already noticed.' It has been seen that his sanction is essential, either ex- pressly or by implication, to the inception of all prosecutions. His power as to a nolle prosequi has also been previously dis- cussed.^ I See supra, §§ 354, 355. 398 Supra, §§ 383 et seq. CHAP. X.] COUNSEL FOR PROSECUTION. [§ 555. § 555. The right of the prosecuting officer to avail himself of the assistance of associates cannot, under ordinary circum- ,, ' •' Prosecut- stances, be questioned. To impose such a restriction ing officers would be an absurdity, since there are few cases in pioyasso- which counsel, with practice as large as that of most "*''^^- prosecuting attorneys, are not compelled to avail themselves, at least in the preparation of briefs, of extrinsic professional aid. We have, in addition, to observe that most prosecutions represent com- plex interests, to each of which may be properly awarded a distinct representative, provided always that such representative acts in subordination to the constituted officer of the law. According to the prevalent American practice, the prosecuting attorney for a county is appointed by the county ; but there are many cases in which the attorney-general of the State may properly apply for permission to attend, to watch the interests of the State ; and others in which a like privilege may be claimed by the legal representative of the United States. It is hard also to see how, where there is a distinct prosecutor, with his own particular injuries to redress or future protection to secure, the prosecuting attorney can refuse to permit such prosecutor to be represented by counsel at the trial, however strictly it may be necessary to lay down the rules by which such counsel are to be governed. Of course this is not of right, but by the courtesy of the prosecuting attorney ; yet cases can well be imagined in which a prosecuting attorney might incur heavy re^ sponsibility by rejecting such aid. In the practice of the courts, however, this aid is rarely declined, though the prosecuting attorney always, as a public officer, reserves to himself the direction of the case. And this practice has been repeatedly sanctioned by the courts.* > U. S. II. Hanway, 2 Wall. Jr. 139 ; v. Mangrun, 35 La. An. 619 ; State v. Com. V. Scott, 123 Mass. 122 ; Com. v. Hayes, 23 Mo. 287 ; State v. Shark, 72 Williams, 2 Cnsh. 582 ; Com. v. R. R., Mo. 37 (under statute) ; Jarnagiu v. 15 Gray, 447 ; Webster's case, Semis's State, 10 Yerg, 529 ; Siebert v. State, report ; Rush v. Cavenaugh, 2 Barr, 95 Ind. 471 ; State v. Fitzgerald, 49 187; Hopper v. Com., 6 Grat. 684; Iowa, 260; State v. Montgomery, 65 Griffin v. State, 15 Ga. 476 ; Williams Iowa, 483 ; Bradshaw v. People, 17 V. State, 69 Ga. 11 ; Ward v. State, 92 Neb. 147 ; Rounds v. State, 57 Wis. 45 ; Ind. 269 ; Engle v. Chipman, 51 Mich. People v. Blaokwell, 27 Cal. 65 ; Peo- 525 ; Byrd v. State, 1 How. (Miss.) pie a. Strong, 46 Cal. 302 ; People u. 247 ; SUte v. Mays, 28 Miss. 706 ; Murphy, 47 Cal. 103 ; State v. Harris, Edwards v. State, 47 Miss. 581 ; State 12 Nev. 414 ; see Lawrence v. State, 50 399 § 556.] §556. Prosecut- ing attor- ney occu- pies semi- judicial post. PLEADING AND PRACTICE. [chap. X. A prosecuting attorney is a sworn officer of the govern- ment, required not merely to execute justice, but to pre- serve intact all the great sanctions of public law and liberty. No matter how guilty a defendant may in his opinion be, he is bound to see that no conviction shall take place except in strict conformity to law.* It is the Wis. 507. Burkhead v. State, 18 Tex. Ap. 599 ; Mclnturf v. State, 20 Tex. Ap. 336. In People v. Stokes, N. Y. Sup. Ct. 1872, the appearance of "pri- vate" counsel assisting the district attorney was sustained hy Judge In- graham. Even a, statute forbidding county attorneys from receiving fees from prosecutors does not preclude such an attorney receiving as professional assistants counsel paid by the prosecu- tion. State V. Wilson, 24 Kan. 189. In Maine, the practice is for the court, on application, to appoint any counsellor of the court it may deem suitable and proper, to assist the at- torney for the State ; and the fact that such counsellor may expect compensa- tion from private persons for services thus rendered will not deprive the court of the power to appoint him. State V. Bartlett, 55 Me. 200. In Com. V. Scott, 123 Mass. 122, the Massachusetts practice was stated to he, "that while, as a general rule, the district attorney, or other prosecuting officer, should conduct the trial of crim- inal cases, yet it is within the power of the court in particular cases, in which from peculiar circumstances the inte- rests of public justice seem to require it, to appoint a counsellor of the court to assist the public officer in the trial. Com. V. Williams, 2 Cush. 582 ; Com. V. Knapp, 10 Pick. 477 ; Com. v. Gibbs, 4 Gray, 146 ; Com. o. King, 8 Gray, 501. And the question whether the circumstances require such appoint- ment, and whether the person recom- mended -by the public officer is a fit 400 and proper person, are, in a large de- gree, within the sound discretion of the court below, by which they must, in the first instance, be decided." In some jurisdictions the court is ap- plied to for the sanction of such assist- ance. Bradshaw v. State, 17 Neb. 147 ; Shular v. State, 105 Ind. 290 ; see State V. Griffin, 87 Mo. 668. In Pennsylvania, under the Act of March 12, 1868, private counsel may be employed as substitutes for the pros- ecuting attorney, if the latter fails in his duty. As assistants to the prosecu- ting attorney, private counsel are con- stantly employed. In Texas it is held that the court may appoint any competent person to assist or represent the prosecuting at- torney, during the latter's temporary disability. State v. Gonzales, 26 Tex. 197. The post to be assigned to such counsel is for the prosecuting attorney to determine, though the order of pre- cedence is subject to the discretion of the court. Jarnagin v. State, ut supra. Infra, §§ 560 et seq. In Michigan private counsel are not admissible on behalf of the prosecu- tion when acting in the interest of a client. People v. Hurst, 41 Mich. 328. Evidence may be offered to show prose- outing counsel to be specially retained. Sneed v. People, 38 Mich. 248. And such person may be precluded from acting as counsel. Merster v. People, 31 Mich. 99 ; see People v. Hendryx, 56 Mich. 319. 1 See infra, § 561 ; State v. Sanford, 1 Nott & McC. 512 ; State v. Ruby, 61 CHAP. X.] COUNSEL FOR DEFENCE. [§ 557. duty, indeed, of all counsel to repudiate all chicanery and all appeal to unworthy prejudice in the discharge of their high office ; but eminently is this the case with public officers, elected as represent- ing the people at large, and invested with the power which belongs to official rank, to comparative superiority in experience, and to the very presumption here spoken of, that they are independent officers of state.* Such officers are bound to open carefully all the material facts bearing on the case, and to call all material witnesses of the litigated facts •? and to scrupulously avoid all unfairness in the pre- sentation of the law.* II. COUNSEL FOR DEFENCE. § 557. In England, until recently, the right of defendants in criminal cases to be represented by counsel on trial was Defendants denied or abridged. At present in that country, these entitled to restrictions are removed. In the United States they theCousti- never existed. And the right to appear by counsel is Iowa, 817 ; State v. Maynes, Id. 119 ; Ingle V. Chapman, 51 Mich. 525 ; Peo- ple V. Quick, 56 Mich. 321 ; State v. Pagels, 92 Mo. 300; State v. Brooks, 92 Mo. 542. 1 Talfourd, in his review of Twiss's Eldon, thug speaks : "In deciding on the charges to be preferred against the parties accused of treason, for their share in the English combination of 1794, he manifested a nobleness of de- termination beyond the suggestions of expediency, as, in the conduct of the prosecutions, he maintained a courtesy of demeanor which won the respect of his most ardent opponents. He be- lieved the offence to be treason ; and although a conviction for that crime was more, than doubtful, while a con- viction for seditious conspiracy might have been regarded as almost certain, he rejected the safer and baser course, and acted on the severe judgment of his reason. The analysis of these trials by Mr. Twiss — one of the most masterly and striking passages of his work — while it may leave the prudence of the 26 attorney-general open to question, must satisfy every impartial mind of the elevation of the motive by which he was impelled. "While he dreaded any relaxation of the criminal law — as if all its old ' terrors to evil-doers' would vanish in air if its most awful penalty were removed from crimes against which it had long been threatened — ^he endured the most anxious labor to pre- vent its falling on an innocent sufferer, or one who, however guilty, was not subjected to its infliction by the plain- est construction of law." See, also, remarks of Gurney, B., in R. v. Thurs- field, 8 C. & P. 269. The duties of prosecuting attorneys are discussed in 1 Steph. Hist. Cr. L., chap. XL, and in an excellent article in 17 Am. Law Rev. 529. 2 Infra, §§ 561, 562, 565 ; State v. Sanford, 1 Nott & McC. 512 ; Hurd v. People, 25 Mich. 405. ' That unfairness in this respect may be ground for a new trial, see infra, §§ 577, 852. 401 § 569.] PLEADING AND PRACTICE. [CHAP. X. guaranteed by the Constitution of the United States, and by the constitutions of most of the States. A prisoner under arrest is en- titled to be visited by his counsel at all stages of the procedure.' § 558. By the usual practice a defendant has a right to be rep- Counsel 'f I'^sented on a trial by any counsel admitted to practice necessary, in the court in which the trial is had. There are, how- will be 3r6- signed by ever, cases in which the defendant is too poor to employ "°"' ■ counsel ; and in such cases counsel are assigned him by the court. And as officers of the court, counsel thus assigned cannot, if at the time capable of the work, and not otherwise engaged, refuse the trust. It has been said that the court will assign and compel the services of any counsel whom the defendant may sug- gest. But this view is incompatible with the fact that the obligatory nature of such assignment rests on the power of the court over its officers, a power which the court will not exercise in such a way that any particular officer shall be overburdened by compulsory work. The court, therefore, will not, simply because the defendant requests it> compel any one particular counsel to undertake a duty incompatible with his other engagements. The defendant has a right to some counsel, not to any particular counsel.^ If he fails to request the appointment of counsel, he cannot afterwards complain of being unrepresented.' § 559. Can counsel thus assigned sustain an action against the county for their fees? The first impression is in the seimaysue negative. Counsel are officers of the court, and are thek*fees.'^ obliged as such to render to the court any services that may be necessary to the maintenance of public justice. Counsel, with the emoluments, must take the burdens of their pro- fession. Among the burdens is the gratuitous defence of the poor ; and the remuneration for this, in those cases in which no remunera- tion can be had from the State, must be found, it is urged, in the general income of a profession of which such service is one of the incidents, as well as in the consciousness of duty performed. For these and other reasons it has been held that counsel cannot recover 1 People V. Risley, 1 N. Y. Cr. R. Moice, 15 Cal. 329 ; Pennington v. 492. State, 13 Tex. Ap. 44. 2 See Com. i-. Knapp, 9 Pick. 496 ; » State v. De Serrant, 33 La. An. Burton v. State, 75 Ind. 477 ; People v. 979. 402 CHAP. X.] DUTIES OF COUNSEL. [§ 560. from the county compensation for such services.* Yet a more care- ful examination teaches us that this view is not consistent either ■with English precedent or sound public policy.* Counsel for the defence are as essential to the due examination of the case as are counsel for the prosecution ; and to leave the services of the one unremunerated is as impolitic as it would be to leave the services of the other unremunerated. If the State pays to convict its guilty subjects, it should also pay counsel to acquit such as are innocent. III. DUTIES OF COUNSEL ON TRIAL. § 560. We may here, departing somewhat from chronological sequence, state at the outset that, so far as concerns the q^^^^ ^^^ order in which counsel shall speak, the number and dura- length of . , . 1 , speeches at tion of their speeches, and the mode in which they shall discretion examine witnesses, the discretion of the court is to rule.^ Thus, the court is authorized to limit the time of speeches within rea- sonable bounds,^ and to stop an argument to the jury which either con- 1 Wayne Co. v. Waller, 7 Weekly- Notes, 377 ; Vise v. Hamilton, 19 111. 78 ; Rowe v. Yuba, 17 Cal. 61. 2 K. V. Fogarty, 5 Cox C. C. 161. See, to same effect, Blythe v. State, 4 Ind. 525 ; Dane v. Smith, 13 Wis. 585 ; Hall V. Washington, 2 Greene (Iowa), 473. See Davis v. Linn, 24 Iowa, 508. 3 R. V. Bernard, 1 F. & F. 240 ; R. v. Hasell, 2 Cox C. C. 220 ; R. v. Martin, 3 Cox C. C. 56. See State v. Waltbam, 48 Mo. 65 ; Dobbins v. Oswalt, 20 Ark. 619 ; Hull V. Alexander, 26 Iowa, 569 ; State V. Beebe, 17 Minn. 241. In Cali- fornia, the practice is regulated by Statute. People o. Fair, 43 Cal. 137 ; People V. Haun, 44 Cal. 96 ; People v. Ah Wee, 48 Cal. 236. ' Weaver v. State, 24 Ohio St. 584 ; State V. Collins, 70 N. C. 241 ; Lee v. State, 51 Miss. 566 ; State v. Linney, 52 Mo. 40 ; State v. Collins, 81 Mo. 652; Williams v. Com., 82 Ky. 640; State V. Riddle, 20 Kans. 711 ; HofEinan V. State, 65 Wis. 46 ; Hart v. State, 14 Neb. 572. See, however. Hunt v. State, 49 Ga. 255, where it was held that a limitation to forty minutes, against th6 protest of counsel, in a complicated homicide case, is ground for reversal. In State v. Hoyt, 47 Conn. 518, it was held that a limitation of four hours on a side in a homicide case was not un- reasonable. That an arbitrary limita- tion is reason for reversal, see, further. People V. Keenan, 13 Cal. 581 ; Dills v. State, 34 Ohio St. 617 ; Williams v. State, 60 Gfa. 367. As denying right, see State v. Miller, 75 N. C. 73, quali- fying State b. Collins, ut supra. In White V. People, 90 111. 17, it was held tbat a limitation of five minutes to counsel to address the jury on an in- dictment for grand larceny, where the evidence is conflicting, is an unreason- able exercise of the discretion of the court, citing Word's case, 3 Leigh, 744; People v. Keenan, 13 Cal. 581. To same effect, see Proffatt on Jury Trial, § 254. The subject is discussed at large in 1 Alabama L. J., pp. 345 et seq. As to division of time under Connecticut statute, see State v. Ny- man, 55 Conn. 17. 403 § 561.] PLEADING AND PRACTICE. [chap. X. troverts the law laid down by the court,* or introduces facts unproved on the trial.' All this is an inherent function of the judge, as tl^e presiding officer of the court-room, charged with the preservation of order,* and is a subject for his particular discretion. If, however, he goes further, and in his interference abridges the fundamental legal rights of the parties, this is ground for revision by an appel- late court.* § 561. The prosecuting attorney opens the case, stating the facts he proposes to prove, and the law he expects to maintain.* If the defendant have no counsel, it is better for the prose- cuting attorney simply to submit the facts without an ad- dress, or, if he speak, to limit himself to a fair and brief statement.® In the preannouncement of his case his duty is to be eminently cautious and exact.'' He has no right, either directly or indirectly, to appeal to any popular prejudice which may exist against the defendant.' He has no right to refer to the defendant's prior character, no matter how flagrant that may have been ; because character can only be put in issue by the defence.' While he must open declarations as well as facts,'" it is indecorous for him to open confessions, evidence of which it is for the court to first weigh before it is admitted, and Prosecut- ing attor- ney not to open con- feesions or matters of doubtful admissi- bility, nor unfairly prejudice jury. 1 See infra, § 573. 2 Hatcher v. State, 18 Ga. 460. See R. V. Courvoisier, 9 C. & P. 362 ; Fry V. Bennett, 3 Bosw. 200 ; Thompson v. Barkley, 27 Penn. St. 263 ; Cluck v. State, 40 Ind. 263 ; State v. Caveness, 78 N. C. 484 ; State v. Lee, 66 Mo. 165. ; infra, § 677. See 3 Crim. Law Mag. 621 ; Shars. Leg. Ethics, 97. 3 See Cobb v. State, 27 Ga. 648 ; Morris v. State, 104 Ind. 457 ; Wartena V. State, 105 Ind. 445 ; Brooks v. Perry, 23 Ark. 32. ' See, as illustrating this, U. S. u. Fries, Pamph. 1800 ; Whart. St. Trials, 598 ; and the evidence on this point in Judge Chase's impeachment. See, also, Sullivan v. State, 47 N. J. L. 151 ; Stewart v. Cora., 117 Penn. St. 239 ; State v. Bryant, 65 Mo. 75 ; WU- ley V. State, 52 Ind. 421 ; Williams v. 404 state, 60 Ga. 367 ; Kizer v. State, 12 Lea, 564 ; Wings v. State, 62 Miss. 311 ; Brooks V. Perry, 23 Ark. 32. Infra, §§ 847, 881. !- See 18 Cent. L. J. 363. 6 E. V. Gascoine, 7 C. & P. 772. If he fail to open he may lose the right to reply. Infra, § 661. ' See State v. Meshek, 61 Iowa, 316 ; State V. Schnelle, 24 W. Va. 767. ^ Ferguson v. State, 49 Ind. 33 ; Coble V. Coble, 79 N. C. 589 ; Pierson V. State, 18 Tex. Ap. 624. s Cluck V. State, 40 Ind. 265 ; Brow V. State, 103 Ind. 133 ; State v. Smith, 75 N. C. 306 ; People v. Dane, 59 Mich. 650 ; Martin v. State, 63 Miss. 505 ; Moore v. State, 21 Tex. Ap. 666. Infra, § 853. w R. i). Orrell, 1 Moo. & R. 467 ; R. V. Davis, 7 C. & P. 785. CHAP.-X.] DUTIES OF COUNSEL. [§ 562. which only in strong cases can be made the basis of conviction.' If the prosecuting officer violates these rules, the court may order a juror to be withdrawn, or, in case of conviction, a new trial may be granted when an unfair attempt to prejudice the jury has been suc- cessfully made.* In general, counsel for the prosecution should consider themselves not as advocates for a party on the record, struggling for a verdict, but as ministers of public justice, called upon to develop evidence for the adjudication of the court ; and any attempt on their part to pervert or misstate evidence, or to insinuate facts not capable of being put in testimony, should meet with judicial rebuke,' and a new trial will be granted if by such misconduct a verdict was in part obtained.* Except, however, in flagrant cases of surprise or fraud, objection to such misconduct in the prosecuting attorney must be made at the time.' After verdict it will be too late.« § 562. The opening speeches for both prosecution and defence should be full and candid.^ Neither party has a right Q^u^ggj qjj to take the other by surprise by reserving the disclosure i^otii sides of material facts or points of law until it is too late for candid in them to be duly weighed and examined.^ If by such °P^°'°&- surprise a conviction is unfairly obtained, a new trial will be granted.' And the court, in proper cases, will compel counsel to open in advance what they expect to prove by each particular witness offered, and will confine the witness to the evidence thus opened, 10 1 R. V. Davis, 7 C. & P. 785 ; R. v. State, 102 Ind. 539 ; Petite ... People, Hartel, 7 C. & P. 773. See R. v. Deer- 8 Col. 518. jng, 5 C. & P. 165. « Infra, §§ 577, 853 ; and see next 2 See infra, §§ 577, 849, 853 ; State section. V. Smith, 75 N. C. 306 ; State v. Mahly, ' Se6 State v. Sheets, 89 N. C. 543 ; 68 Mo. 315 ; Ferguson v. State, 49 Ind. State v. Meshek, 61 Iowa, 316. 33 ; Shepherd v. State, 64 Ind. 43 ; « gge R. „. Hartel, 7 C. & P. 773 ; Brown v. State, 103 Ind. 133 ; Laubaoh R. v. Orrell, 1 Mood. & R. 467 ; Morales V. State, 12 Tex. Ap. 583, 592. v. State, 1 Tex. Ap. 494. In State v. ' R. V. Berens, 4 F. & F. 842 ; and Honig, 78 Mo. 249, it was decided that cases cited infra, §§ 847, 881. In Peo- under the criminal code the counsel pie V. Benson, 52 Cal. 381, it was said for the prosecution cannot reply unless that prosecuting counsel should avoid he open, merelyteohuical objections to evidence. 9 Infra, §§ 847, 881. See Com. v. Baldwin, 129 Mass. 481. m People o. White, 14 Wend. 111. * Infra, §§ 577, 853. See State v. Waltham, 48 Mo. 55. ' See, as to effect of this, Epps v. 405 § 563.] PLEADING AND PRACTICE. [chap. X. Opening speeches not to sum up. § 563. Ordinarily speaking, it is not permissible for counsel to argue a case when opening it. A stratagem not un- known at the bar is to break this rule by fully arguing the case in an opening, and then, by declining to address the jury in summing up, deprive the opposite party of a final reply. But where this is attempted, the court may either restrict in his opening the counsel thus proceeding, or may give to the counsel on the other side full rights to reply at the close.* And while counsel, in opening, may refer hypothetically to points that may possibly be made by the defence, and answer such points,^ yet, if this is done, counsel for the defence should be permitted t6 reply. But openings will not be interrupted except in clear cases of abuse.^ The order of speaking, as has just been seen, is at the discretion of the court.* 1 See 0. S. V. Mingo, 2 Curt. C. C. 1. See State v. Williams, 63 Iowa, 135. 2 R. u. Courvoisier, 9 C. & P. 362. 3 People V. Wilson, 55 Mich. 506. * Supra, § 560. The English prac- tice, as stated in 1871, in the 17th ed. of Archbold's C. P., is as follows: ' ' When the prisoner is given in charge to the jury, the counsel for the prose- cution, or, if there be more than one, the senior counsel, opens the case to the jury, stating the leading facts upon which the prosecution rely. In doing so, he ought to state all that it is pro- posed to prove, as well declarations of the prisoner's as facts, so that the jury may see if there be a discrepancy between the opening statements of counsel and the evidence afterwards adduced in support of them (per Parke, B., R. u. Hartel, 7 C. & P. 773; R. ... Davis, Ibid. 785) ; unless such declara- tions should amount to a aonfession, where it would be improper for counsel to open them to the jury. Per Bosan- quet, J., and Patteson, J., 4 C. & P. 548 ; per Parke, B., 7 C. & P. 786 ; per BoUand, B., Ibid. 775. The reason for this rule is, that the circumstances under which the confession was made 406 may render it inadmissible in evi- dence. " The general effect only of any con- fession said to have been made by a prisoner ought, therefore, to be men- tioned in the opening address of the prosecuting counsel. When any ad- ditional evidence, not mentioned in the opening speech of counsel, is discovered in the course of a trial, counsel is not allowed to state it in a second address to the jury. R. v. Courvoisier, 9 C. & P. 362. It may further be remarked, that, in opening a case for murder, the counsel for the prosecution may put hypothetically the case of an attack upon the character of any particular witness for the crown, and say that should any such attack be made he shall be prepared to meet it. Per Tin- dal, C. J., and Parke, B., Ibid. 362. He may, also, as it was ruled by the same learned judges, read to the jury the observations of a judge in a former case, as to the nature and effect of cir- cumstantial evidence, provided he adopts them as his own opinions, and makes them part of his address to the jury. "And In R. ». Dowling, Central CHAP. X.] DUTIES OP COUNSEL. [§ 565. § 564. The opening of the prosecution is followed by the intro- duction of the prosecution's testimony.' Whether more Examina- than one counsel can take part in the examining of wit- tion of wit- 1 1 • 1 1 1 1 1. nesses at nesses is a matter regulated either by local usage, or by diecretion rules of court. Unless limited, the usual course is for °f '=°"''*- the junior counsel, who is supposed to be more familiar with the tes- timony, to begin the examination of each particular witness, and for the examination to be taken up by the senior counsel on the same side.' It is scarcely necessary to say that it is incumbent on the prosecution to prove, either expressly or by implication, all the essential ingredients of its case.' § 565. The prosecution is not at liberty to put in part of the evi- dence making out its case, and then rest. It is bound, prosecu- under ordinary circumstances, and when this can be done Hon must . Ill- '^^ii *ii ^i'- without undue cumulation of testimony,* to call the wit- nesses to nesses present at the commission of the act which is the ^^^ ^ ^'^ ' subject of the indictment," and it is a breach of official duty for a Criminal Court, 1848, the attorney- general having, in his opening address to the jury, made reference to disturb- ances in Ireland, Erie, J., held, on ob- jection made, that such reference was not irregular, it being laid down in books of evidence that allusion might be made in courts of justice to notori- ous matters, even of contemporaneous history. ' ' 1 See Willey v. State, 52 Ind. 421, where a case was reversed because the court below required the defence to open immediately after the opening of the prosecution. 2 That the court may limit the num- ber of impeaching witnesses, see Wh. Cr. Ev. § 487. In State w. Bryant, 55 Mo. 75,' where two defendants in a criminal trial were represented each by separate counsel, and required different defences, it was ruled, that a rule of court forbidding more than one counsel on either side to examine witnesses, in so far as it deprived either of said attorneys of the right to cross-examine witnesses, was null and void. 3 Wh. Cr. Ev. § 319. The modes in which witnesses may be attacked and supported are elsewhere discussed. See Wh. Cr. Ev. §§ 481-495. * That this is unnecessary, see R. v. Ritson, 50 L. T. (N. S.) 727 ; Winsett V. State, 56 Ind. 26 ; Bowker v. People, 37 Mich. 5. 5 See oases cited in Wh. Cr. Ev. § 448. See, also, R. v. Holden, 8 C. & P. 609 ; R. V. Stroner, 1 C. & K. 650 ; State v. Magoon, 50 Vt. 338 ; State v. Small- wood, 75 N. C. 109 ; State m. Johnston, 76 Mo. 121. In Donaldson v. Com., 95 Peun. St. 21, it was held that it was the duty of the prosecuting attorney, in a rape case, to call the physician by whom the prosecutrix was examined immediately after the assault. And see Terr v. Hanna, 5 Mont. 245. " The prosecution," such is the opin- ion of the court in Hurd o. People, 25 407 § 565 a.] PLEADING AND PRACTICE. [chap. X. prosecuting officer not to open and present all material evidence of this class. ^ In any view, all witnesses on the back of the indictment must be summoned by the prosecution,' so that, when not called by the prosecution,* they can be called for the defence ; but, if so called, they become the defendant's witnesses.* The practice as to in- dorsing witnesses has been already discussed." § 565 a. The Revised Statutes of the United States, § 1033, pro- vide for the delivery to the defendant of a copy of the indictment and of a list of the witnesses two days before the trial begins. Mich. 405, "can never, in a criminal case, claim a conviction upon evidence which expressly or by implication shows but a part of the res gestae, or whole transaction, if it appear that the evidence of the rest of the transaction < is attainable. This would be to de- prive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. . . . According to the well established rules of the English courts, all the witnesses present at the transaction should be called by the prosecution before the prisoner is put to his defence, if such witnesses be pre- sent or clearly attainable. See Maher V. People, 10 Mich. 225, 226. The English rule goes so far as to require the prosecutor to produce all present at the transaction, though they may be the near relatives of the prisoner. See Chapman's case, 8 C. & P. 559 ; Orch- ard's case. Ibid, note ; Eoscoe's Crim. Ev. 164. Doubtless, where the number present has been very great, the pro- duction of a part of them might be dis- pensed with, after so many had been sworn as to lead to the inference, that the rest would be merely cumulative, and there is no ground to suspect an intent to conceal a part of the transac- tion. Whether the rule should be en- forced in all cases, as where those not called are near relatives of the prisoner, or some other special cause for not call- ing exists, we need not determine ; but 408 certainly, if the facts stated by those who are called to show primd fade, or even probable, reason for believing that there are other parts of the trans- action to which they have not testified, and which are likely to be known by other witnesses present at the transac- tion, then such other witnesses should be called by the prosecution, if attain- able, however nearly related to the prisoner." See, also, R. v. Holden, 8 C. & P. 609; Thomas v. People, 39 Mich. 309 ; People v. Gordon, 40 Mich. 716. ' See R. V. Thursfield, 8 C. & P. 269. 2 See Whart. Crim. Ev. § 448 ; and see to this effect, R. v. Simmonds, 1 C. & P. 84 ; R. V. Whittread, Ibid. If the prosecutor does not call any witnesses so indorsed, the judge may. Ibid. R. V. Bodle, 6 C. & P. 186. ' That this is not obligatory, see State V. Cain, 20 W. Va. 679 ; State v. Eaton, 75 Mo. 586. * R. V. Woodhead, 2 C. & K. 520 ; E. V. Cassidy, 1 F. & F. 79. See R. v. Gordon, 2 Dowl. 417 ; Morrow v. State, 57 Miss. 836. As to the duty of the prosecution to call all the witnesses to the act, see Harrison v. Bank, cited London Law Times, July 5, 1844, p. 174, where Lord Coleridge maintained that it was the duty of the prosecution to make a candid exposition of all rele- vant evidence in their possession. 5 Supra, § 358. CHAP. X.] DUTIES OF OOUKSEL. [§ 566. Under this statute the delivery must be made two days prior to the swearing of the jury ; and a delivery is not in time if made ^j^^^ ^^ after the trial begins, though the court should adjourn ^^^^f^^ three days so as to prevent a surprise to the defendants.* given by § 566. The order of testimony is for counsel to arrange, tion?"'^' subject to the discretion of the court.'' The general rules ^^^^^ ^^ nrescribed (e. a., that each party must make out its case teBtimony ^ vi?' PIT •!. 1 diBcretion- in its evidence in chief) are founded on right reason, and ary with will be usually maintained. But it is within the discre- court. ' U. S. V. Neverson, 1 Mack. 152. 2 Arohboid's C. P. v 17th ed. 296; Creevy v. Carr, 7 C. & P. 64; E. u. Burdett, Dears. 431 ; R. v. Wood, 6 Cox C. C. 224 ; State v. Blodgett, 50 Vt. 142; State o. Magoon, 50 Vt. 333; Wilke V. People, 53 N. Y. 525 ; McCar- ney v. People, 83 N. Y. 408 ; Webb v. State, 29 Ohio St. 351 ; Herring v. State, 1 Clarke (Iowa), 205; State v. Euhl, 8 Clarke (Iowa), 447 ; State v. Porter, 34 Iowa, 241 ; State v. Bruce, 48 Iowa, 330 ; State v. Haynes, -71 N. C. 79 ; State v. Laxton, 78 N. C. 564 ; State V. Linney, 52 Mo. 40 ; State v. Colbert, 29 La. An. 715; People v. Cotta, 49 Cal. 166; and see, fully, Whart. Crim. Ev. § 493. See Dove v. State, 3 Heisk. 348 ; Queen's case, 2 Brod. & B. 302 ; Doe v. Eoe, 2 Camp. 280. Formerly, in English practice, it was held that the objection for incompe- tency must have been made before the witness was sworn in chief; but it has been generally allowed to be made at any time during the trial. Stone v. Blackburn, 1 Esp. 37 ; Turner v. Pearte, 1 T. E. 717. See, as to English practice in this relation, Hartshorne v. Watson, 5 Bing. N. C. 477 ; WoUaston v. Hake- wills, 3 Scott N. R. 593 ; Dewdney v. Palmer, 4 M. & W. 664 ; Yardley v. Ar- nold, 10 M. & W. 141 ; Jacobs v. Lay- born, 11 M. & W. 685. As to competency of witnesses, see Whart. Crim. Ev. §§ 357 et seq. In England, if a judge has admitted a witness as competent to give evidence, but upon proof of subsequent facts af- fecting the capacity of the witness, and upon observation of his subsequent- de- meanor, the judge changes his opinion as to his competency, the judge may stop the examination of the witness, strike his evidence out of his notes, and direct the jury to consider the case ex- clusively upon the evidence of the other witnesses. R. v. Whitehead, L. E. 1 C. C. 33;35L.T. (M.C.)186. Archbold's C. P. ut supra. See further, as to English practice, R. V. Parkins, Ry. & M. 168 ; R. v. White, 3 Camp. 98 ; Parker v. Moon, 7 C. & P. 408 ; R. o. Hardy, 24 How. St. Tr. 755 ; infra, § 579. It is not usual to cross-examine wit- nesses to character, unless the counsel cross-examining have some distinct enlarge on which to cross-examine them (see R. 0. Hodgkiss, 7 C. & P. 298) ; and if the only evidence called on the prisoner's part is evidence as to charac- ter, though the counsel for the prose- cution is in strictness entitled to a re- ply, it is not usual to exercise it, except in extreme cases. See R. v. Stannard, 7 C. &P. 673 ; R. w. Whiting, Ibid. 771. Archbold's C. P. ut supra. Infra, § 573. For American authorities as to cross- examination, see Whart. Crim. Ev. §§ 481 et seq. I 409 § 569.] PLEADING AND PRACTICE. [chap. X. tion of the court trying the case to permit these rules to be suspended for the purpose of justice ; and a deviation in this respect from the usual practice is not a subject for revision by an appellate court.* Even after a case is closed, evidence will be received, if the party was not able to produce it in due time.^ But, though ordinarily this is not the subject of error,' it is otherwise when the decision of the court invades fundamental rules of law.^ Thus, it is error to suiFer to go to the jury any evidence given by a witness on direct exami- nation, where by sudden illness or by death of such witness, or other cause without th^ fault of and beyond the control of the opposing party, he is deprived of his right of cross-examination." § 567. When a party introduces witnesses to impeach a witness produced by the opposing party, it is within the discretion of the court to limit the number of im- peaching witnesses to be produced.* § 568. When a witness is to be impeached by written statements alleged to have been made by him, the writ- ing, at common law, should be submitted to him for examination.'' It is within the power of the court to order that the wit- nesses should be excluded from the court-room, with the exception of a particular witness under examination, and Impeach- ing tes- timony may be re- stricted. Witness to see writ- ings before cross-ex- amination. §569. Witnesses may be ex- from court- witnesses by whom this demand is disobeyed may be, ^°°'^- as to credibility, open to grave criticism, and punished 1 U. S. V. Noelke, 17 Blatoh. 554; Mudge v. Pierce, 32 Me. 165 ; Day v. Moore, 13 Gray, 522 ; Chadbourn v, Franklin, 5 Gray, 312 ; Com. v. Moul- ton, 4 Gray, 39 ; Com. v. Dam, 107 Mass. 210; State v. Alford, 31 Conn. 40 ; State c. Hoyt, 47 Conn. 518 ; Be- dell V. Powell, 13 Barb. 184 ; Finlay v. Stewart, 56 Pemi. St. 183 ; Webb v. State, 29 Ohio St. 351 ; BuUiner u. People, 95 111. 394 ; State v. Clyburn, 16 S. C. 375. As to Texas statute, see Donahoe v. State, 12 Tex. Ap. 297. In- fra, § 777. 2 See infra, § 861 ; Whart. Crim. Er. §§ 446, 493 et seq.; Com. v. Blair, 126 Mass. 40. 410 » See Whart. Crim. Ev. § 495. See infra, § 779. * Thompson v. State, 37 Tex. 121. 5 People V. Cole, 43 N. Y. 508. As to negligence of counsel in this respect, see infra, § 801. 6 People V. Murray, 41 Cal. 66. See Whart. on Et. § 505 ; supra, § 560. ' Whart. Crim. Ev. § 156 ; Rosooe's Crim. Ev. § 13 ; Gaffuey v. People, 50 N. Y. 416 ; People v. Finnegan, 1 Park. C. R. 147. See State v. George, 8 Ired. 324 ; Smith u. People, 2 Manning (Mich.) 415; Stamper v. Griffin, 12 Ga. 450; Cavanah u. State, 56 Misa. 299. Contra, Randolph v. Woodstock, 35 Vt. 291. CHAP. X.} DUTIES OF COUNSEL. [§ 570. for contempt.' At the same time, the action of the court trying the case will not be revised in this respect in error, unless it appear that manifest injustice has been done.'' And the disobedience of a witness in this respect, unless promoted by the successful party, is not ground for a new trial.' § 570. The opening of the defence is, by the usual American practice, assigned, when there are two counsel, to the oefend- junior. In two respects, greater liberty is allowed to i^l'lohe^' counsel in this opening than is usual in the opening for restricted the prosecution. (1.) Counsel, in opening tor the de- weevi- fence, may comment on the prosecution's case.* (2.) ^°°®' As the defendant is at liberty to put his character in issue, so his counsel may open on the subject of character. But it was formerly held irregular for counsel to introduce into an opening the defend- ant's own statement of his case, except so far as this statement can be supported by testimony aliunde ;° and although this restriction cannot be maintained in those States in which defendants can be examined as witnesses in their own behalf, yet the opening must, even in those States, be limited to what the defendant expects to swear to. Nor is it proper for counsel, in any stage of the case, to state their personal conviction of their client's innocence. To do so is a breach of professional privilege, well deserving the rebuke of the court. On legal evidence alone can the case be tried ; and that which would be considered a high misdemeanor in third parties can- not be permitted to counsel.' And where any undue or irregular comment by counsel cannot be stopped at the time by the court, the mischief may be corrected by the court when charging the jury, or on a motion for a new trial.'' ' Whart. Grim. Ev. § 446 ; R. w. « See infra, §§ 577, 829, 847-52. Wylde, 6 C. & P. 380 ; People v. ' R. v. Berens, 4 F. & F. 842 ; State Spragne, 53 Cal. 422. v. Cameron, 40 Vt. 555 ; Com. v. Smith, 2 Laughlin v. State, 18 Ohio St. 99. 10 Phila. 189 ; Dailey v. State, 28 Ind. See R. V. Colley, M. & M. 329 ; R. v. 285 ; State v. O'Neal, 7 Ired. 251 ; Murphy, 8 C. & P. 297 ; R. v. Brown, State u. Whit, 5 Jones, N. C. 224 ; 4C. &P. 588,n. Infra, § 777. Northingtou w. State, 14 Lea, 424 ; Peo- 3 See Whart. Grim. Ev.§ 446, for oases, pie v. Tyler, 36 Cal. 522; State v. * Such is the English practice ; other- Mahly, 68 Mo. 315 ; Collins v. State, 20 wise in New York, in civil cases. Ay- Tex. Ap. 255,; Molnturf v. State, Ibid. rault V. Chamberlain, 33 Barb. 229. 336 ; Bend . State, 46 Ga. 208. 2 Com. V. Millard, 1 Mass. 6 ; State 420 V. Zellers, 2 Halst. 220 ; Mull's case, 8 Grat. 695 ; State v. Files, 3 Brevard, 304 ; 1 Const. R. 234 ; People v. Cleve- land, 49 Cal. 578 ; Guoganden v. State, 41 Tex. 626. 3 U. S. ii.Gibert, 2 Sumner, 19. See R. V. D'Eon, 1 W. Bl. 610 ; Hurd v. Com., 5 Leigh. 715 ; infra, § 589 ; Mull's case, 8 Grat. 695; State o. Files, 3 Brev. 304 ; State v. Lewis, 1 Bay, 1. * White V. Com., 80 Ky. 480; Mo- Dermott v. State, 89 Ind. 187 ; State v. Klinger, 43 Mo. 127. 5 People «. Lewis, 64 Cal. 401. 6 8 East, 37 ; 1 Blackstone, 514 ; Com. V. Millard, 1 Mass. 9 ; Com. v. Gross, 1 Ashm. 281 ; Holt v. Com., 2 Va. Cas. 156 ; Bledsoe v. Com., 6 Rand. 673; Fiott v. Com., 12 Grat. 564; CHAP. XI.] CONTINUANCES. [§ 589. connivance.* Thus in a case in the Court of Errors of Virginia, it was held that where, after one continuance obtained jfot—ant- by the prisoner, who was charged with uttering a forged ed when note, he asked for another, the court below was right in been compelling him to disclose what the absent witness would *° ^^' prove ; and was justified in refusing the continuance, though the witness was shown to be material, due diligence not having been used to procure his attendance.* And where a continuance was asked on account of the absence of witnesses, but the evidence of one of them, according to the affidavit, would have been entitled to but little influence, and the others were merely to impeach the prin- cipal witness for the prosecution, the case having been continued before, and it not appearing why the witnesses were not attached, nor that they would attend at the next term, it was held that the application was properly refused.' § 589. The affidavit must itself show due diligence in summoning the absent witnesses,* or good grounds for expecting their attendance at a future court." Thus where a prisoner ^'gjj'^as indicted for felony made affidavit that he had four mate- due dm- rial witnesses who were absent, and resident in another State, without naming them, or stating that he had made any effisrt to procure their attendance, or that he expected to be able to pro- cure their attendance, and thereupon prayed a continuance, it was Eousell's case, 28 Grat. 930 ; Brown v. i Wormley v. Com., 10 Grat. 658. State, 65 Ga. 332 ; State v. Taylor, 11 2 Holt v. Com., 2 Va. Cas. 156. La. 709; Gibson w. State, 59 Miss. 341 ; » Earp v. Com., 9 Dana, 302. See Fletcher v. State, 60 Miss. 675 ; Thomas Holden v. State, 13 Tex. Ap. 601. V. State, 61 Miss. 60 ; State v. Burns, * State v. Fox, 79 Mo. 109 ; McDer- 54 Mo. 274 ; State v. Simms, 68 Mo. mott v. State, 89 Ind. 187 ; People v. 305; Gladden v. State, 12 Fla. 562; Lampson, 70 Cal. 204 ; Atkins u. State, Anderson v. State, 28 Ind. 22 ; Earp v. 11 Tex. Ap. 8 ; Pullen o. State, 11 Com., 9 Dana, 302; Dingmanw. State, Tex. Ap. 89. See Taylor u. State, 11 46 Wis. 485 ; Coward v._ State, 6 Tex. Lea, 708 ; Davis v. State, 85 Tenn. Ap. 59 ; Cardova v. State, 6 Tex. Ap. 522. 445 ; Gaston v. State, 11 Tex. Ap. 143 ; = State v. Whitton, 68 Mo. 91 ; Mur- Evans v. State, 13 Tex. Ap. 225; ray u. State, 1 Tex. Ap. 417 ; Strick- Walker v. State, 13 Tex. Ap. 618; land .;. State, 13 Tex. Ap. 364, and Mapes V. State, 14 Tex. Ap. 129 ; Hart cases cited to last section. See, also, V. State, 14 Tex. Ap. 657 ; O'Neal v. Mapes v. State, 14 Tex. Ap. 129 ; State, 14 Tex. Ap. 582 ; People v. O'Neal v. State, 14 Tex. Ap. 582. Jocelyn, 29 Cal. 562. 421 § 591.J PLEADING AND PRACTICE. [CHAP. XI. held the motion for a continuance was properly overruled.' The court may examine the party as to the grounds of his affidavit.^ § 590. A continuance will not be granted on such an aflSdavit, Not grant- ^^isre, on the court's requiring such particularity (which, ed when at least when the application is made for the second time, testimony .. i/.-i\!.- , i. » is immate- it IS usual for it to do),^ it appears on the face of the de- fendant's application that the object for which the absent witness is to be called is not material to the issue,* or would not, if granted, have an appreciable effect." § 591. The affidavit must be sworn a sufficient period before trial, to give notice to the opposite side, unless the facts affect- Affidavit .°, . *^, .'. ,. must be mg the witness were not known in time, when it may be specia . sworn in court, and from the proof offered the judge will decide if the witness is material.' The affidavit must, as a rule, be made by the party on whose behalf the postponement is sought; but his absence, age, sickness, or other sufficient cause will let in his attorney, or even a third person, to swear it.' The illness of the absent witness, or of a child of which she is the nursing mother, is best established by the affidavit of the medical attendant. The name and place of abode of the expected witness, his continued absence or actual incapacity to attend at any time during the session, and the use of every reasonable effort to compel such attendance, must be distinctly specified, and the materiality of his evidence in the case shown.* . Nor will these facts suffice to post- 1 Hurdw. Com., 5 Leigh, 715. State, 20 Tex. Ap. 12; Henning v. 2 State V. Betsall, 11 W. Va. 703. State, 24 Tex. Ap. 316. 8 Nelson v. State, 2 Swan, 482. = People v. Anderson, 53 Micli. 60 * Steel V. People, 45 111. 152 ; State Varnadoe v. State, 67 Ga. 768 V. Pagels, 92 Mo. 300 ; Bledsoe v. Com., Allison v. State, 14 Tex. Ap. 402. 6 Randolph, 673 ; Hurd v. Com., 5 « Adams «. People, 109 111. 444 Leigh, 715 ; Earp v. Com., 9 Dana, 302 ; Dunn v. People, 109 111. 635. Davis V. State, 85 Tenn. 522 ; State ' Moody v. People, 20 111. 315. But V. Files, 3 Brev. 304 ; Dacy v. State, see R. v. Langhurst, 10 Cox C. C. 353 ; 17 Ga. 439; Jones u. State, 60 Miss. 4 F. & F. 969, where the affidavit of the 117 ; People v. Thompson, 4 Cal. 238 ; attorney was refused. Bruton v. State, 21 Tex. 337. See « Beavers u. State, 58 Ind. 530 ; Pinckford v. State, 13 Tex. Ap. 468 ; Moody v. People, 20 III. 315 ; Crews v. Nolan V. State, 14 Tex. Ap. 474 ; Phelps People, 120 111. 317 ; State v. Under- V. State, 15 Tex. Ap. 45 ; Irvine u. wood, 76 Mo. 630 ; Comstock v. State, 14 Neb. 205 ; Polin v. State, 14 Neb. 540. 422 CHAP. XI.] CONTINUANCES. [§ 592. pone the trial, unlesss the affidavit is positive in its verification of them.' Thus, it must state that the absent person is a material wit- ness, without whose evidence the applicant cannot safely proceed to trial, and that he has endeavored, without effect, to serve on him a subpoena ; specifying the exertions used. It should then state in plain terms that there is reasonable ground for believing that the delay sought for will tend to the furtherance of justice, and that the testimony of the witness may be obtained at the time to which the trial is proposed to be deferred." Unless there be such exactness, a continuance will not be granted.^ In proper cases, counter-affidavits may be presented.* § 592. Unless there be auxiliary grounds, a continuance will not be granted on account of the absence of impeaching impeach- witnesses. Thus, where it appeared that two witnesses ^fg^g'^^^ out of three, on the ground of whose absence a continu- witnesses ance was asked, were merely to impeach the chief wit- ter not nesses for the prosecution, and that the third was imma- ?'^mate-^ terial, a continuance was refused." On account of the "*'■" absence of witnesses to character, a continuance will rarely be ■granted.* A fortiori the continuance will be refused in such case where the prosecution admits that to which the absent witness is to testify. Thus where in a New York case it was proved on the part of the government, and was not disputed by the accused, that no living person save the prisoner was present at the alleged murder, nor was there claim of an alibi, and it appeared by the affidavits that the absent witnesses were expected to testify to the defendant's good character before the alleged murder, which the prosecution ad- mitted ; the motion was denied.^ 1 See Pnllen v. State, 11 Tex. Ap. » Williams u. State, 10 Tex. Ap. 89. 114 ; People v. Gams, 2 Utah, 260. 2 Dick. Q. S. eth ed. 469 ; Foster, * State v. Simien, 30 La. An. Pt. I, 40 ; 1 Wheel. C. C. 30 ; Com. v. Ful- 296. See Johnson v. State, 65 Ga. 74 ; ler, 2 Ibid. 323 ; Holt v. Com., 2 Va. State v. Williams, 69 Ga. 11. Gas. 156 ; Mull's case, 8 Grat. 695. = Earp v. Com., 9 Dana, 302. See, as to requisites of afBdavit, Cutler ^ r, „. Jones, 8 East, 34, Lawrence, V. State, 42 Ind. 244 ; Miller v. State, J. ; Rhea, «. State, 10 Yerger, 258 ; 42 Ind. 544 ; Jim v. State, 15 Ga. 535 ; State v. Klinger, 43 Mo. 127 ; but see State V. Lange, 59 Mo. 418 ; People v. contra, State v. Nash, 7 Iowa, 347. Francis, 38 Cal. 183 ; People v. Mc- ' People v. Wilson, 3 Park. C. R. Crory, 41 Cal. 458. 199. 423 § 595.] PLEADING AND PRACTICE. [CHAP. XI. If object be delay, reason ceases. Refusal cured by subsequent examina- tion of ' witness. § 595. § 593. It is in the discretion of the court, even where the materiality of the absent evidence is exposed on affi- davit, to refuse a continuance, if it should appear that the defendant's sole object was delay.' § 594. Refusal by the court to continue a capital trial because of a witness's absence, on the ground of want of diligence on the part of the defendant, is, whether erro- neous or not, no ground for a new trial, if the witness was brought in and tbstified before the end of the trial." A continuance, according to the general practice, may be refused, if the adverse party will admit that such witness would testify as is supposed by the party i^oving for a continuance.* It has, however, been said that it is not sufficient that the opposite party should admit that the witness would have testified to the specific facts ; the^e must be an admission that those facts are absolutely true.'' But the better view is that contradictory evidence may be introduced by a party who has admitted statements made in an affi- davit for continuance, and that the same questions of competency may be raised as would be allowed if the witness were sworn in court.* Such an admission is a waiver of the defendant's constitu- tional right to hear the witnesses produced against him.* Circum- stances, however, may exist, when, upon the defendant making an affidavit for a continuance, it will be held that the prosecution can- not force him into a trial by admitting the truth of what the alleged absent witness would depose to, such witness being attainable at a Usually continu- ance is refused when op- posite party con- cedes facts. 1 Vance v. Com., 2 Va. Cas. 162; Bledsoe u. People, 6 Randolph, 674; State V. Duncan, 6 Ire. 98 ; People v. Thompson, 4 Cal. 238. 2 Mitchell V. State, 22 Ga. 211. ' People u. Wilson, 3 Parker C. R. 199 ; Van Meter v. People, 60 111. 168 ; Wise V. State, 34 Ga. 348 ; Browning v. State, 33 Miss. 48 ; People v. Brown, 59 Cal. 345. That Missouri statute mak- ing this obligatory is unconstitutional, see State V. Hickman, 75 Mo. 416 ; State V. Berkeley, 92 Mo. 41. 424 * See People v. Vermilyea, 7 Cow. 369 ; Brill v. Lord, 14 Johns. 341 ; but see cases in last note. 6 Olds V. Com., 3 Marsh. 467; State ti. Geddis, 42 Iowa, 164. Upon the witness turning up he may be exam- ined, notwithstanding the agreement to take his testimony as oflfered in ad- vance. Hackett v. State, 13 Tex. Ap. 406. 6 State V. Wagner, 78 Mo. 644 ; Han- cock V. State, 14 Tex. Ap. 392. CHAP. XI.] CONTINUANCES. [§ 598. future trial.' And in any view the admission must be as broad as the offer.* § 596. A continuance will not be granted on such an Not affidavit, where it appears that the absent witness had Ifhen wit- notice of the time of trial, and was duly summoned, un- °s^? ^^^ 1 . notice, un- less he had secreted himself, or had been spirited away less he se- i , . , cretes him- by the opposite party .^ self. \ 2. InaMlity of Defendant or his Counsel to attend. § 597. On affidavit setting forth the inability of the defend- ant,* and in certain extreme cases, e. g., sickness," of his counsel\ to attend the trial, the motion may be granted,* to auend and the same indulgence will be granted when the de- may be a 11 ground. fendant Las been suddenly and without notice abandoned by his counsel, so that he cannot properly prepare for trial.'^ Death or sickness pf counsel, occurring so suddenly as to prevent the en- gagment of others, is generally good ground f but mere absence of counsel is rarely received as in itself adequate,' and this is emi- nently the case when the absent counsel is one of two or more em- ployed.'" Certainly such excuse cannot be made available more than once in th^same case." 3. J^proper Means to prejudice Case. § 598. A continuance may also be granted on affidavit showing that means had beW improperly taken to influence the jury and ' Goodmau v. State, 1^ Meigs, 195 ; State V. Baker, 13 Lea, 326 ; Wassels V. State, 26 Ind. 30 ; De Warren v. State, 29 Tex. 464; People ti. Dodge, 28 Cal. 445. Aliter where witaess is out of jurisdiction. Petty v. State, 4 Le^, 328. ' People V. Brown, 54 Cal. 243. ' Barnes, 442. * See Hays v. State, 68 Ga. 833. " Loyd V. State, 45 Ga. 57 ; Blown V. State, 38 Tex. 482 ; People v. Lo- gan, 4 Cal. 188. But see Harvey v. State, 67 Ga. 639 ; State v. Stegner, 72 Iowa, 13. Sickness of prosecuting officer is ground for continuance. Peo- ple V. Shufelt, 61 Mich. 237. « Say. Rep. 63. ' Wray v. People, 78 III. 212. 8 Hunter v. Fairfax, 3 Dall. 305. " M'Kay " Turner v. State, 70 Ga. 769 ; Wal- ker o. State, 13 Tex. Ap. 618. " State V. Dubois, 24 La. An. 309. 425 §599a,J PLEADINa AND PRACTICE. [chap. XI. And so when op- posite par- ty takes improper means to prejudice case. And so of sur- prise. the public at large, so a8 to prevent, at that time, an impartial trial,* and that the public excitement was such as to in- timidate and swerve the jury.^ But the fact of ordinary newspaper paragraphs existing on the subject is not enough.* "Where the excitement is the result of the de- fendant's own action, the application will be refused;^ and it is not a good ground for a new trial, that at the time of trial there was a great excitement in the puHic mind against the accused." A continuance also may be grantei in cases of non-culpable surprise.® § 598 a. A continuance, also, may be granted when by the treachery or misconduct of counsel, due preparaiion for Treachery ? i r of counsel, trial is prevented.^ 4. Inability of Witness to understand the Obligation of an Oath. § 599. A continuance, also, will sometimes be granted where a witness, whose evidence is material to the case, has no sense of the obligation of an 'oath ; in such a case, the trial may be adjourned until the witness is instructed in the principles of moral duty.' And so of inability of witness to understand oath. 5. Pendency of Civil Proceedings. § 599 a. The court will not continue a prosecution because a civil suit is pending when the prosecution is the proper remedy for the wrong.' It is otherwise, however, when the prosecutor resorts to civil proceedings as a means of redress for which they are peculiarly suited.'" 1 1 Burrow, 510. 2 Com. V. Dunham, Thaoh. C. C. 516. ' Com. o. Carson, Mayor's Court of Philadelphia, June, 1823, _per Eeed, Recorder ; 1 Wheel. C. C. 488. * U. S. V. Porter, 1 Baldwin, 78. 5 Infra, § 889. See State v. Ford, 37 La. An. 444. 6 Lutton V. State, 14 Tex. Ap. 518. ' State V. Lewis, 74 Mo. 222 ; infra, § 878. » 1 Leach's Cases, 430. See Whart. Crim. Ev. §§ 366, 370. 9 Taylor v. Com., 29 Grat. 780. See 426 Foster v. Com., 8 W. & S. 77 ; Drake V. Lowell, 13 Mete. 292 ; supra, § 453. 1" See Fielding's case, 2 Burr. 719 ; E. V. Simmons, 8 C. & P. 50 ; Com. ». Bliss, 1 Mass. 32; Com. v. Elliot, 2 Mass. 372 ; Resp. v. Gross, 2 Yeates, 479 ; Com. v. Dickinson, 3 Clark, Phil. 365; Com. v. Dickerson, 7 Weekly Notes, 433. Supra, § 453. Compare Buokner v. Beek, Dudley (S. C), 168 ; Richardson v. Luntz, 26 La. An. 313 ; State t>. Wilson, 33 La. An. 261 ; Whart. Crim. Law, 9th ed. § 618. CHAP. XI.] CHANGE OF VENUE. [§ 602. III. NEW TRIAL. § 600. If, on a motion for new trial, the court is convinced, after hearing all of the evidence, that the continuance should have been allowed, the motion should be granted ;' to°giTC"^^ and if it be refused, the party excepting may, in those °°°"°^g^ iurisdictions where a bill of exceptions lies in such cases, trial may ■' .... be granted. obtain, in a strong case, a revision in error.'' IV. QUESTION IN EKKOR. § 601. As a general rule, error does not lie to the action of the court on a motion for continuance, which is in the dis- cretion of the court ;3 though when a bill of exceptions ^"t usually is taken, the decision, in a strong case, may be re- subject of viewed.^ V. CHANGE OF VENUE. § 602. In some jurisdictions at common law,. in others by local statute, the venue of a case may be changed on the defendant's application,* at the discretion of the court, on due cause shown.® 1 See cases cited infra, § 793, and in next note, and see Heath v. State, 68 G-a. 287. 2 Infra, §§ 777, 882-3 ; McDaniel v. State, 8 S. & M. 401. See Malone w. State, 49 Ga. 212 ; Moody v. State, 54 Ga. 660 ; Jones u. State, 10 Lea, 585. 3 Infra^ §§ 777, 883 ; Com. v. Dono- van, 99 Mass. 425 ; De Arman v. State, 77 Ala. 10; Eighmy v. People, 79 N. Y. 546; Webster v. People, 92 N. Y. 422 ; State v. Dodson, 16 S. C. 463 ; Cox v. State, 64 Ga. 374 ; Strauss V. State, 58 Miss. 63 ; Jones v. State, 60 Miss. 117 ; State v. Lewis, 74 Mo. 222 ; State v. Shreve, 39 Mo. 90 ; State V. Wilson, 23 La. An. 658 ; Morgan v. State, 13 Fl. 671 ; State v. Chevalier, 36 La. An. 81 ; Eldridge v. State, 12 Tex. Ap. 208; Edmonds v. State, 34 Ark. 720. * Johnson v. State, 42 Ohio St. 207 ; Taylor u. Com., 7? Va. 692; Wassels V. State, 26 Ind. 30 ; Hurt v. State, 26 Ind. 106 ; Sturm v. State, 74 Ind. 335 ; State V. Eorabaoher, 19 Iowa, 164; State u. Painter, 40 Iowa, 298 ; Salis- bury V. State, 79 Ky. 426 ; State v. Scott, 78 N. C. 465 ; Long v. State, 38 Ga. 491 ; Whitely Com. V. Porter, 1 Gray, 476. 2 Com. u. Austin, 7 Gray, 51. In- fra, § 666. 3 Com. w.^Hill, 4 Allen, 591. See criticism, infra, § 661. * Com. V. Thrasher, 11 Gray, 57. 5 State V. Potter, 18 Conn. 166. "The opinion," said Butler, C. J., in 1871, "must be formed in such a, •w&j, or be of such a character, that hostility or prejudice toward the pris- oner may be inferred from its existence or expression. But hostility or preju- dice cannot, as a rule, be inferred from an opinion formed and expressed simply from reading, or hearing stated, as current news of the day, the fact of a homicide and the circumstances at- tending it. There should be found some other circumstances of relation7 446 ship, partiality, prejudice, hostility, or ill-will, acting at the same time upon the mind and giving it a bias, or the juror should be accepted." Butler, C. J., State V. Wilson, 38 Conn. 140. See, also, State v. Hoyt, 47 Conn. 518. 6 People V. Mather, 4 Wend. 229 ; People V. Bodine, 1 Denio, 281 ; Free- man V. People, 4 Denio, 9, 35 ; Blake V. Millspaugh, 1 Johnson, 316 ; Pringle V. Huse, 1 Cowen, 432 ; ex parte Ver- milyea, 6 Cowen, 555. ' People !). Rathbun, 21 Wend. 509. See supra, § 625 ; Armsteadt). Com., 11 Leigh, 657 ; Heath v. Com., 1 Robin- son, 735. 8 People V. Honeyman, 3 Denio, 121 ; People V. Hayes, 1 Edm. Sel. Ca. 582 ; O'Brien v. People, 36 N. Y. 276 ; S. C, 48 Barb. 274 ; People v. Balbo, 19 Hun, CHAP. XII.] CHALLENGES TO JUKOES. [§ 633. ical* or indecisive opinion.* But it is otherwise as to an opinion formed by reading a report, no matter how incomplete, of a former trial, when this opinion is so settled as to make a change difficult.* § 632. By the New York Criminal Code, § 376, a juror is not disqualified by the fact that he has formed and expressed g^^ , an opinion in respect to the case on trial, if he shall de- statute no , , ., , ,. , , ^ disqualifi- clare on oath that he verily believes that he can render an cation if impartial verdict according to the evidence submitted to the not'under jury on such trial, and that such previously formed opinion ^'^^• or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror.* The statute, however, does not prevent such opinion from being ground of a challenge for favor.* By an act passed May 7, 1853, all challenges are to be deter- mined by the trial court, without the interposition of triers,* though the decision of such court is open to review on appeal.^ § 633. In JVew Jersey, a hypothetical opinion, which is based on 424 ; 80 N. Y. 484 ; Cox v. People, 80 N. Y. 500 ; People v. Oyer and Termi- ner Court, 83 N. Y. 436. 1 People V. Fuller, 2 Park. C. R. 16 ; Stout V. People, 4 Park. C. R. 71 ; Loh- man w. People, 1 Comst. 379. 2 People V. Mallon, 3 Lansing, 225 (MuUin, P. J.), 1870 ; Thomas «. Peo- ple, 67 N. Y. 218. » Greenfield v. People, 74 N. Y. 277 ; 6 Abb. New Cas. 1 ; as explained by Andrews, J., in People v. Balbo, ut supra ; see Thomas v. People, 67 N. Y. 218 ; Ponder v. People, 18 Hun, 560. * See People v. Cornetti, 92 N. Y. 85 ; People v. Casey, 93 N. Y. 115. See Stokes v. People, 63 N. Y. 164; Cox «; People, 80 N. Y. 500 ; Balbo v. People, ut supra. In Phelps V. People, 72 N. Y. 334 (S. C, 13 N. Y. Sup. Ct. 6 Hun, 44), it was held that a juror who says he has formed and expressed an opinion, but that he believes he can render an im- partial verdict, according to the evi- dence, unbiased and uninfluenced by the previously formed opinion, is com- petent. The above section of the Criminal Code is considered in Young v. Johnson, 53 N. Y. Sup. Ct. (46 Hun), 167, where it is held, following People v. Casey, ut supra, that, to make a juror who has formed an opinion competent, he must declare (1) that such an opinion will not influence his verdict ; (2) that he can render an impartial verdict ; and (3) the court must be satisfied as to his freedom from such bias. In People v. Beokwith, 108 N. Y. 67, it is ruled that mere difficulty in procuring a juror is no evidence that the jurors chosen were under bias. 5 Thomas v. People, 67 N. Y. 218. ^ See infra, § 684, note. ' Greenfield v. People, ut supra; Balbo V. People, ut supra. 447 § 635.] PLEADING AND PRACTICE. [chap. XII. In New Jersey hy- pothetical opinion does not exclude. In Penn- sylvania opinion (though not impres- sions) dis- qualifies. the supposition that certain facts are true, does not by itself exclude.' § 684. In Pennsylvania, if a juror forms an opinion without waiting to hear the testimony, he is incompetent. But an impression from reading a newspaper or hearing reports, without any opinion or prejudice which will prevent him from doing impartial justice when he hears the testimony, will not disqualify.' And the opinion must be founded on the evidence to be given, or must be a fixed belief.^ If he swears that he would act impartially, and decide according to the evidence, he is competent, no matter hqjv strong his impression may have been.* § 635. In Delaware, the test adopted by Marshall, C. J., in Burr's case, appears to have been received." In Mwni- SoinDela- ,,,.-„,.„ t • m • , ware and land, the View 01 Ohiei Justice Taney, as given above, ary an . j^ adopted, impressions derived from newspapers being held no disqualification. " The newspaper is now read ^by every one, and the press is ever ready and eager to furnish the details of crime, and although persons may, upon such statements, form an opinion, yet it is one in most cases liable to qualification, according to the real facts of the case The opinion which should ex- clude a juror must be a fixed and deliberate one, partaking, in fact, of the nature of a pre-judgment."^ ' state V. Spencer, 1 Zabr. 196 ; cit- ing Mann v. Glover, 2 (Jreen, 195. See State V. Fox, 1 Dutch, 566. 2 Irvine v. Kean, 14 Serg. & R. 292 ; Com. u. Lenox, 3 Brewst. 249 ; see Com. V. Flanagan, 7 W. & S. 415; Com. V. Gross, 1 Ashm. 281 ; Com. v. Work, 4 Crumrine, 493 ; Shevlin v. Com., 106 Penn. St. 862; Weston v. Com., Ill Penn. St. 257. 3 Curley v. Com., 84 Penn. St. 151 ; 4 Weekly Notes, 141. In this case a juror testifies on his voir dire that he had a fixed opinion from what he had read, but that it was not such an opinion as would influence him in any degree as a juror to give undue weight to evidence against the prisoner, and that he felt certain he could divest his mind of all prejudice, 448 and he controlled only by the evidence. It was held by the Supreme Court that he was competent, inasmuch as he had no fixed belief of the guilt of the prisoner, and had no opinion founded upon the evidence to be given. S. P., Ortwein v. Com., 76 Penn. St. 414; O'Mara u. Com., 75 Penn. St. 424. Otherwise where the witness said he had an opinion from reading a former trial, which opinion "it would take some evidence to remove." Staup v. Com., 74 Penn. St. 458. * Allison V. Com., 99 Penn. St. 17. ? State V. Bonwell, 2 Earring. 529. See State v. Anderson, 5 Barring. 493. 6 Waters v. State, 51 Mdi 430 ; Zim- merman V. State, 56 Md. 536— Robin- son, J. CHAP XII.] CHALLENGES TO JURORS. [§ 637. § 636. In Virginia, decided prejudice or bias excludes, though not mere hypothetical opinion,' which would not prevent the juror from giving the defendant a fair trial.* ginia. & 637. In North Carolina, the rule is that an opinion - ' , - , . . , ^ So in North fully made up and expressed against either party, on and South the subject-matter of the issue to be tried, is good cause *'^°i™*- of principal challenge ; but an opinion imperfectly formed, or one merely hypothetical, that is, founded on the supposition that facts are as they have been represented or assumed to be, does not con- stitute a cause of principal challenge, but may be urged by way of challenge to the favor, which is to be allowed or disallowed, as the triers may find the fact of favor or indifferency.' In the same State on a challenge for cause, the juror stated "that he had formed and expressed an opinion adverse to the prisoner, upon rumors which he had heard ; but that he had not heard a full statement of the case, 1 Lithgow V. Com., 2 Va. Cas. 297 ; Clore's case, 8 Grat. 606 ; Jackson v. Com'.,23Grat.919. 2 Spronce v. Com., 2 Va. Cas. 375 ; Brown v. Com., 2 Leigh, 769 ; Osiander V. Com., 3 Leigh, 780 ; Hendriok v. Com., 5 Leigh, 708 ; Cluverius v. Com., 81 Va. 789 ; Armistead v. Com., 11 Leigh, 357 ; Heath v. Com., 1 Robinson, 735 ; Hailstook's case, 2 Grat. 564 ; Page V. Com., 27 Grat. 954 ; Pollard v. Com., 5 Randolph, 659. In Wright v. Com., 32 Grat. 941, it was held that the juror's statement that he did not tliink he could do the defendant justice, was ground for challenge, though the juror modified this by say- ing that if the evidence was different from what he had heard he believed he would be unprejudiced. In Dejarnette v. Com., 75 Va. 867, a juror was held disqualified who stated that he had formed an opinion which he could not say whether evi- dence would remove, though he be- lieved he could give the defendant a fair trial. See Com. v. Bnzzell, 16 Pick. 158. In West Virginia an adverse opinion, 29 which the juror cannot say will be re- moved by evidence, disqualifies. State V. Sohnelle, 24 W. Va. 767. It is not enough to disqualify a juror, according to the view of Leigh, J., "that if the facts and circumstances proved on the trial should be the same with those which the jurors had heard, then they had a decided opinion." Epes's case, 5 Grat. 676. An opinion founded on mere rumor ought primd facie to be regarded as a mere hypo-- thetical opinion, forming no ground for challenge, unless it appear that the opinion formed is a decided one, likely to influence the juror in his decision. Armistead's case, 11 Leigh, 657 ; Epes's case, 5 Grat. 681. See Worme- ley V. Com., 10 Grat. 658 ; Montague v. Com., 10 Grat. 767, 768 ; and see Page V. Com., 27 Grat. 954 ; Bristow v. Com., 15 Grat. 634; Dilworth v. Com., 12 Grat. 689. ' State V. Benton, 2 Dev. & Bat. 196 ; State u. ^one, 7 Joneg, 121 ; see State 0. Cockman, 2 Wins. (N. C.) No. 2, 95, Triers are now dispensed with in this State. State v. Kilgore, 93 N. C. 533. 449 § 640.] PLBADma and practice. [chap. xii. and that his mind was not so made up as to prevent the doing of impartial justice to the prisoner." The court found the juror indif- ferent, and the Supreme Court refused to reverse the decision.^ And in South Carolina the mere contingent opinion of the juror that if the defendant is guilty he should be punished, does not exclude.* § 638. In Ohio, under § 7278 of the Revised Statutes, a juror whose opinion is formed, not from the testimony of wit- Ohi?. nesses, but from newspaper reports, is not incompetent, if he testify that if selected he could render an impartial verdict, the court agreeing with him in this conclusion.' But it is otherwise where the juror's opinion is formed from reading the testimony at the coroner's inquest.* § 639. In Alabama, in a capital case, it is held not to be ground of challenge of a juror that upon common report he has Alabama, fori^ed and expressed an opinion of the guilt of the prisoner, if the juror believes that such opinion would have no influence in the formation of his verdict, should the evi- dence on the trial be difierent from the report of the facts.* Under the statute of Alabama of 1831, which provides that if a juror, in a capital case, has formed and expressed an opinion founded upon rumor, he shall be sworn in chief, it must appear that such opinion was founded upon mere rumor. Where it appears that a fixed opinion was. formed, it is good ground for challenge for cause.' But a hypothetical opinion based on rumor does not disqualify." § 640. In Mississippi the rule is, that while it is not necessary to exclude a juror, that he should have formed and ex- s^^prt '^ pressed his opinion against the accused with malice or 1 State?). Ellington, Tired. 61; State M'Hugh v. State, 38 Ohio St. 153; c. Kilgore, 93 N. C- 533 ; see State v. (S. C.) 40 Ohio St. 154. Eller, 85 N. C. 585, to the effect that ^ state v. Williams, 3 Stewart, 454; the prejudice must he against the chal- State v. Morea, 2 Ala. 275 ; Carson o. lenging party. State, 50 Ala. 134 ; Hall u. State, 51 2 State t). Coleman, 20 S. C. 441. Ala. 9 ; De Arman ». State, 71 Ala. " Cooper V. State, 16 Ohio St. 328 ; 351 ; Jackson v. State, 77 Ala. 18. Frazier v. State, 23 Ohio St. 651 ; « Queseubury v. State, 3 Stew. & McHugh V. State, 38 Ohio St. 153 ; P. 308. See Ned v. State, 7 Port. 187 ; see Fonts v. State, 70 Ohio St. 471. Bales v. State, 63 Ala. 30. * Frazier v. State, 23 Ohio St. 551 ; ' Season v. State, 72 Ala. 191. Erwin v. State, 29 Ohio St. 186; 450 CHAP. XII.] CHALLENGES TO JURORS. [§ 642. ill-will, a mere hypothetical opinion, from rumor only, and sub- ject to be changed by the testimony, does not disqualify.* If a juror, however, has formed a settled opinion, as distinguished from a mere hypothetical conception based on rumor, he ought to be excluded,* though he may never have expressed that opinion.* It is otherwise, however, as to a juror who has formed an opinion from what he has heard had been said by some of the witnesses in the case, though he himself had not heard any of the witnesses say anything on the subject, and though he states that his opinions are not such as would influence his verdict, but that he would be governed by the evidence. A fortiori the formation of an opinion by one who had heard all the testimony is a disqualification. And while absolute freedom from preconceived opinion should be required where it can be had, yet where, from the notoriety of the transac- tion or other cause, that cannot be obtained, as near an approxi- mation to it as possible should be had.* § 641. In Missouri, by statute, opinion formed only on rumors or newspaper reports, and producing no bias which evi- dence cannot remove, does not disqualify." It is otherwise Missouri with an opinion formed on evidence before the coroner.' A juror may be asked whether he could give an impartial verdict.'^ § 642. In Tennessee, it has been declared that loose impressions and conversations of a juror, as to the prisoner's guilt or innocence, founded upon rumor, would not have the nesSe^*°' effect to set him aside as incompetent ; nor, if disclosed 1 Ogle V. State, 33 Miss. 383 ; Noe v. Burnside, 37 Mo. 343 ; State v. Davis, State, 4 How. (Miss.) 330; Lee v.- 29 Mo. 391 ; State w. Core, 70 Mo. 491 ; State, 45 Miss. 114. State v. Barton, 71 Mo. 491. This 2 Logan t. State, 50 Miss. 269 ; statute is constitutional, Hayes v. Brown v. State, 57 Miss. 424. Missouri, 120 U. S. 68 ; Spier v. Mis- 3 State V. Johnson, 1 Walk. 392 ; souri, 123 U. S. 131 ; see Hayes v. State V. Flower, Ibid. 318 ; see King v. State, 78 Mo. 307 ; State v. Wilson, 85 State, 5 Howard's Miss. R. 730 ; White Mo. 135 ; State v. Hopkirk, 84 Mo. V. State, 62 Miss. 216 ; Sam. v. State, 278 ; State v. Walton, 74 Mo. 270 ; 13 Sm. & M. 189; Nelms v. State, 13 State v. Baber, 74 Mo. 292; State v. Sm. & Marsh. 500. Farrow, 74 Mo. 531 ; State v. Snell, 78 * Cotton V. State, 31 Miss. 504 ; Ogle Mo. 243. V. State, 33 Miss. 383 ; Alfred v. State, « State v. CuUen, 82 Mo. 323 ; State 37 Miss. 296 ; Parker v. State, 65 Miss. v. Bryant, 92 Mo. 273. 414. 1 State v. Brooks, 92 Mo. 273. = State V, Rose, 32 Mo. 660 ; State v. 451 ^ 644.] PLEADING AND PRACTICE. [CHAP, XII. after verdict, be a cause of new trial.' But an emphatic opinion of guilt excludes.^ The statute, however, providing that no opinion formed on published reports shall be ground for challenge, has been held unconstitutional.* But mere opinion that the defendant should be punished does not exclude, when such opinion was not founded on evidence to be introduced on trial.* § 643. In Indiana it is ruled that when the juror answers that he has formed or expressed an opinion of the defendant's diaBa. ?,^^^^ *^i^ nature and cause of the opinion must be in- quired into ; and, if it appear that the juror has formed or expressed an opinion of the defendant's guilt out of ill-will to the prisoner, or that he has such a fixed opinion of the defendant's guilt as would probably prevent him from giving an impartial ver- dict, the challenge ought to be sustained.* If, however, it was said, the opinion be hypothetical, or of that transient character formed when we hear any reports of the commission of an offence — such an opinion merely as would probably be changed by the relation of the next person met with — it is not a sufficient cause of challenge.^ § 644. In Illinois, the rule is said to be that a juror is disquali- fied if he has formed or expressed a decided opinion noi8°^''' upon the merits of the case.^ If , on the contrary, he says he has no prejudice or bias of any kind for or against either party; that he has heard rumors in relation to the case, but has no personal knowledge of the facts, and from the rumors has formed and expressed an opinion in a particular way, if they are true, without expressing any belief in their truth ; he would not be disqualified.* Howerton v. State, Meigs, 262 Alfred v. State, 2 Swan, 581 ; Major Bradford v. State, 15 Ind. 347 ; Morgan V. State, 4 Sneed, 597 ; Moses w. State, 11 Humph. 232 ; Cartwriglit v. State, 12 Lea, 620 ; but see M'Gowau f. State 9 Yerg. 154. 2 Brakefield v. State, 1 Sneed, 215 See Fleming v. State, 11 Ind. 234; V. State, 31 Ind. 193 ; Fahnestock v. State, 23 Ind. 231 ; Clem v. State, 33 Ind. 419 ; Cluck v. State, 40 Ind. 263 ; Harfw. State, 57 Ind. 102; Gillooley p. State, 58 Ind. 182 ; Guetig v. State, see Norfleet v. State, 4 Sneed, 340. 66 Ind. 94 ; Noe f. State, 92 Ind. 92 ; 5 Eason v. State, 6 Baxt. 466. see Elliott o. State, 73 Ind. 10, cited ' Johnson v. State, 11 Lea, 47. supra, § 624. 6 McGregg v. State, 4 Blackford, 101 ; ' Gates «. People, 14 111. 433 ; Neely Brown v. State, 70 Ind. 576 ; but see v. People, 13 111. 685 ; Gray v. People, Heacock v. State, 42 Ind. 393. 26 111. 344. 6 Ibid. ; Rice v. State, 7 Ind. 332. » Smith v. Eames, 3 Scam. 78 ; Gard- 462 CHAP. XII.] CHALLENGES TO JURORS. [§ 646. It is held, also, the formation of a vague unformulated opinion* is not good cause for a challenge,* A juror was held incompetent who declared that no amount of circumstantial evidence would in- duce him to convict a defendant.' And the same ruling was had with another who declared that he would not convict, even if con- vinced of the prisoner's guilt.* The statute of Illinois, providing that rumor shall not disqualify if the juror testifies he could give a fair verdict, is interpreted by the courts of that State to mean that the juror is to give his ver- dict on the evidence produced on trial, and in this sense is not unconstitutional." § 645. In Arkansas, if a juror in a criminal case state upon his voir dire that he has formed an opinion as to the guilt or innocence of the prisoner from rumor, he should be re- lansaf^"^' quired to state, also, that the opinion was not such as to bias or prejudice his mind, in order to render him competent ; and if he state that he has conversed with persons about the case, and formed his opinion from such conversations, he should be required to state further, that such persons did not profess to have a personal knowledge of the matters stated by them ; but it is not necessary that he should know or be able to state whether such persons were witnesses in the case.' In any view a hypothetical opinion does not exclude.' But if there be a fixed opinion, the juror's belief that he could fairly try the case does not qualify him.* § 646. In Creorgia, it is said, that while a juror who states that he has formed and expressed an opinion in a particular case, upon the guilt or innocence of the prisoner, is not 1°^^ ;^ competent to sit in such case ;' and that while the opinion which disqualifies depends upon the nature and strength of the opinion, and not upon its source or origin,'" yet the mere formation of an opinion by a juror, from rumor, without having expressed that ner v. People, 3 Scam. 83 ; Thomson v. * Ibid. People, 24 111. 60 ; and to the same » Spies v. Illinois, 123 U. S. 131. eflfeot, Baxter v. People, 3 Gilm. 386 ; 6 Meyer v. State, 19 Ark. 156. Leach v. People, 53 111. 311. ' Dolan v. State, 40 Ark. 454. 1 Supra, §§ 628 et seq. s Chiles v. State, 45 Ark, 165. 2 Noble V. People, Breese, 54. See ' Reynolds v. State, 1 Kelly, 222 ; supra, § 625. Anderson v. State, 14 Ga. 709. ' Gates V. People, 14 111. 433. Infra, i" Boon v. State, 1 Kelly, 631. §665. 453 § 648.] PLEADING AND PRACTICE. [chap. XII. So in Iowa, opinion, or expressed it otherwise than jocularly,* is not good cause of challenge.' The opinion must be settled and abiding.' And an opinion on one fact in the prosecution's case does not disqualify.^ § 647. In Iowa, an unqualified opinion as to the guilt or inno- cence of the prisoner, formed from rumor, is sufficient to exclude a juror.* But the opinion must be absolute, and not such as, in the judgment of the juror, would leave him without bias in the case.* Nor does it exclude that such a qualified opinion is formed on reading partial reports of the case.' And a conditional or hypothetical opinion does not exclude.* When the opinion is as to the killing, and not as to the defend- ant's guilt, it does not exclude.* § 648. In Wisconsin, a juror on his examination stated that he had an opinion on the question of the defendant's guilt or innocence if what he had heard was true ; that he had heard the story talked about, but had pot read the report of the examination before the coroner, or heard the story from witnesses, or those who had heard the testimony, and that his opinion would not prevent his hearing testi- mony impartially. It was held that this was cause for challenge to the favor, but not for principal cause.'" In Wis- consin opinion may be ground for challenge for favor. Kule in Nebraska. 1 John V. State, 16 Ua. 200 ; Baker o. State, 15 Ga. 498. 2 Hudgins v. State, 2 Kelly, 173 ; Baker u. State, 15 Ga. 498 ; Griffin v. State, Ibid. 476. See Anderson o. State, 14 Ga. 709. " Wright V. State, 18 Ga. 383. * Lloyd V. State, 45 Ga. 57. Infra, § 653. One formed from mere report will not exclude. Thompson v. State, 24 Ga. 297 ; Maddox o. State, 32 Ga. 581 ; Westmoreland v. State, 45 Ga. 228 ; qualifying Boon v. State, 1 Kelly, 618 ; Ray V. State, 15 Ga. 223 ; Jim v. State, 15 Ga. 635. The words, " If that is so, the prisoner deserves to be hung," used before a trial by a juror, in reply to a statement by a third person, does not show a fixed opinion of guilt that would be sufficient ground for a new trial. Mercer v. State, 17 Ga. 146. 454 On the other hand, it has been held a sufficient disqualification of a juror, on a trial for murder, that he was heard to say before the trial, "that from what he knew, he would stretch the prisoner." Monroe v. State, 5 Ga. 85. See, as to practice in this State in re- ference to triers, Willis v. State, 12 Ga. 444 ; Copenhaven v. State, 14 Ga. 22. ^ Wau-kou-ehau-neek-kaw v. U. S., 1 Morris, 332 ; State v. Shelledy, 8 Iowa, 477. 6 State «. Sater, 8 Iowa, 420 ; S. P., State f. Nelson, 58 Iowa, 208. ' State t'. Bruce, 48 Iowa, 530 ; State u. Shelton, 64 Iowa, 333. 8 State V. George, 62 Iowa, 682. s State V. Thompson, 9 Iowa, 188; State V. Ostrander, 18 Iowa, 434. But see State v. Bryan, 40 Iowa, 379. In- fra, § 652. » Schceffler v. State, 3 Wis. 823. CHAP. XII.J CHALLENGES TO JURORS. [§ 651. gan opia- ion must be unqual- ified. And so in California, In Nebraska mere impression or hypothetical opinion does not exclude.* It is otherwise as to a firm helief.* § 649. In Michigan, &xi opinion "partial" but not "positive" does not disqualify.* Hence mere vague impression does j^ jjj^.y_ not disqualify.* But it is otherwise when evidence would be required to overcome the prepossession." § 650. In CaZ«form'a,having formed and expressed an opinion from report does not disqualify a person to sit as a juror if he declares he can sit on the jury without bias, that evidence can change his opinion, and that he will be governed by the evidence.* It was formerly otherwise when the opinion was unqualified,' but now by statute such an opinion does not exclude if the juror believes he can decide according to the evidence.' The challenge must specify the particular cause.' It is not material that the juror did not state wAlther his opinion was for or against the prisoner. The courts will not permit the juror to be questioned on that point.'" \ § 651. In i/om'si'awa, opinion based on common rumor, such opinion being without any prejudice or bias against the accused, does not disqualify." If the juror believes he could Louis^^na render an impartial verdict, he is not on this ground open to challenge.'^ But a fixed opinion disqualifies," and so of ascertained prejudice." 1 Curry v. State, 4 Neb. 545 ; S. C, 5 Neb. 412 ; Carroll v. State, 5 Neb. 3 ; Smith V. State, 5 Neb. 183 ; Murphy v. State, 15 Neb. 383 ; though see Carroll v. State, 5 Neb. 31. As to construction of Nebraska statute (similar to that of New ■York), see Palmer v. State, 4 Neb. 68. 2 Olive V. State, 11 Neb. 1. " Holt V. People, 13 Mich. 224. See Burden v. People, 26 Mich. 162. i Holt V. People, 13 Mieh. 224 ; Stewart v. People, 23 Mich. 63 ; Cargan V. People, 39 Mich. 540; People «. Barker, 60 Mich. 277 ; People v. Shu- felt, 61 Mich. 237. 5 Stephens v. People, 38 Mich. 156. See tJlrioh v. People, 39 Mich. 245; Stephens v. People, 38 Mich. 739. 6 People V. Mahony, 48 Cal. 180 ; People V. Murphy, 45 Cal. 137 ; People V. Johnston, 46 Cal. 78. ' People V. Edwards, 41 Cal. 640 ; People t>. Brotherton, 43 Cal. 530; People V. Johnston, 46 Cal. 80 ; People V. Brown, 48 Cal." 253. 8 People V. Cochran, 61 Cal. 548 ; see People 0. Macauley, 1 Cal. 379. 9 People V. Walsh, 43 Cal. 447. ><> People V. Williams, 6 Cal. 206. " State V. Ward, 14 La. An. 673 State 0. Caulfield, 23 La. An. 148 State V. Birdwell, 36 La. An. 857 State V. Ford, 37 La. An. 444. ^ State u. Hugel, 27 La. An. 375 ; State V. Coleman, 27 La. An. 691. See State u. Guidry, 28 La. An. 630 ; ^ State V. Ricks, 32 La. An. 1098; State V. Jackson, 37 La, An. 768. 1* State V. Barnes, 34 La. An. 895. 455 § 654.J PLEADING AND PRACTICE. [chap. XII. § 652. In Kanms a mere hypothetical opinion or floating im- . , pression does not exclude,* nor an impression received Kansas, from newspaper reports,* thoi^gh it is otherwise as to a Texas, and settled helief.^ In Florida the same rule obtains in all Colorado, cases where the juror states he can give"a fair verdict ;* and in Texas,^ and in Colorado.^ §653. Opinion must go to whole case. (6*.) Creneral Propositions as to Prejudice. The opinion, to disqualify, must go to the whole case. If it touches merely insulated portions, it may not be ground for challenge.'' Thus, a juror will not be set aside because he believes that there was an offence com- mitted ;' because he believes that if certain facts be true the defendant is guilty ;' because he has drawn an inference from a single inculpatory fact ;'" or because he even holds that the fact of homicide, though not its malice, is to be traced to defendant, the issue being on malice}^ But a fixed opinion of a principal's guilt may disqualify on trial of the accessary." § 654. The prevailing opinion, in this country, is that a juror . must answer, under oath, any question asked him with Juror must ' . regard to his competency as a juror, providing such answer but not to question does not tend to degrade him, or make him inculpate ;nfamnn<5 '3 himself. iniamous. Hence, he will not be excused from stating state V. Johnson, 33 La. An. 889 ; State V. De Ranee, 84 La. An. 186 ; State v, Diskins, 35 La. An. 46 ; State o. Revells, Id. 302. ' Roy V. State, 2 Kans. 405. 2 State V. Medllcott, 9 Kans. 257; State V. Crawford, 11 Kans. 32. 3 State V. Brown, 15 Kans. 400. See State V. Bancroft, 22 Kan. 170 ; State V. Spaulding, 24 Kan. 1 ; State v. Miller, 29 Kan. 43 ; State v. Paterson, 28 Kan. 204. ' O'Connor v. State, 9 Fla. 215 ; Montague v. State, 17 Fla. 662 ; Metz- ger V. State, 18 Fla. 481. 5 Grisaom v. State, 4 Tex. Ap. 374 ; Rothschild v. State, 4 Tex. Ap. 519 ; Post 'v. State, 10 Tex. Ap. 579 ; Thomp- son V. State, 19 Tex. Ap. 594. 6 Jones V. People, 6 Col. 452. 456 ' State V. Thompson, 9 Iowa, 18 ; State V. Ostrander, 18 Iowa, 434 ; Holt V. People, 13 Mich. 224. 8 Holt V. People, 13 Mich. 224 ; Stewart v. People, 23 Mich. 63 ; State V. Ostrander, 18 Iowa, 434. 8 Lee V. State, 45 Miss. 114. w Lloyd V. State, 45 Ga. 57. " Lowenberg v. People, 27 N. Y. 336 ; S. C, 5 Park. C. R. 414 ; Wright V. State, 18 Ga. 383 ; State v. Thomp- son, 9 Iowa, 188 ; State v. Ostrander, 18 Iowa, 434. See Conatser v. State, 12 Lea, 436. 12 Arnold v. State, 9 Tex. Ap. 435. This is required by statute. Stagner V. State, 9 Tex. Ap. 440; Lewis v. State, 15 Tex. Ap. 647. " Infra, §§ 674, 682; 7 Dane's Abridgment, 334 ; Edward's Juryman's CHAP. XII.] CHALLENGES TO JUBORS. [§ 658. whether he has any prejudice against a religious sect, on the ground that the answer would tend to disgrace him.* But questions that would disgrace or oriminate him he will not be compelled to answer.' §-655. He must, of course, be sworn on his voir dire before he can be interrogated.^ And this is the usual j^"^*orn* practice.* But the question may be determined, without o° ««>»»• examining him, on extrinsic proof." § 656. As it is the duty of the court to empanel, for the trial of each case, a competent and impartial jury, the courts may propound to the jurors returned other interroga- ask'quS-^ tories than those which they are required to put by ♦'o^s not statute.' § 657. A challenge of a juror, because of his having formed and expressed an opinion on the question to be tried, can be made, at common law, only by that party against whom p°^^|^e'J it was so formed and expressed. In such case the other ™ay chai- _ lenge. party cannot interpose.' § 658. If the juror answers that he has -not formed or expressed an opinion on the merits, the examination is not closed, but either party' may proceed to ask him such questions be exam- as may further test his competency, and in case of suffi- "gtaifs! *° Guide, 85 ; Com. v. Knapp, 9 Pick. ^ Ibid. ; Burt v. Panjand, 99 U. S. 496 ; People v. Bodine, 1 Denio, 281 ; 180 ; Hudson v. State, 1 Blaokf. 317. State V. Zellers, 2 Halst. 220 ; Howser » King v. State, 5 How. Miss. 730 ; V. ,Com., 51 Penn. St. 338 ; Staup v. State v. Flower, 1 Walk. 518 ; Com. v. Com., 74 Penn. St. 458; State v. Bon- Jones, 1 Leigh, 598. See infra, § 682. well, 2 Harring. 529 ; Lithgow v. Com., The right extends to cross-examiua- 2 Va. Cas. 297 ; Heath v. Com., 1 Rob- tion. Infra, § 682. inson, 735 ; Epps v. State, 19 Ga. 102; ' O'Mara v. Com., 75 Penn. St. 424; State V. Crank, 2 Bailey, 66 ; State v. Staup v. Com., 74 Penn. St. 458. Benton, 2 Dev. & B. 196 ; Fletpher v. = State v. Hoyt, 47 Conn. 518. State, 6 Humph. 249 ; State v. Maun, « Infra, §§ 683, 684, note ; Pierce v. 83 Mo. 589. In England the practice State, 3 N. H. 536 ; Com. v. Gee, 6 is not accepted. E. v. Edmonds, 4 B. Cush. 177 ; Montague v. Com., 10 & A. 471 ; and see State v. Baldwin, 3 .Grat. 767 ; Stephens v. Com., 38 Mich. Brevard, 309 ; Const. E. 289. See, 739. See infra, §'§ 672, 683, 684, as to contra, State v. Spencer, 1 Zabr. 196 ; manner 6f putting questions, and, as doubting, see Dilworth v. Com., ' State u. Benton, 2 Dev. & Bat. 12 Grat. 689. Numerous cases where 196. the right is exercised will be cited s jjowser u. Com., 50 Penn. St. 333? hereafter. State v. Brown, 35 La. An. 340 ; Hardin ' People V. Christie, 2 Parker C. E. v. State, 4 Tex. Ap. 355 ; Eay v. State, 579. 4 Tex. Ap. 450. 457 § 658.] PLEADING AND PRACTICE. [chap, XII. cient reason appearing on the voir dire to form cause for challenge, he may be challenged for favor, and at common law the question of his bias, as will be seen more fully hereafter, submitted to triers.' 1 People V, Bodlne, 1 Denio, 281 ; Heath v. Com., 1 Robinson, 735. Infra, §§ 670, 684. Questions which have been allowed by the courts. — The following qaestions, in the several cases in which they occur, were adopted as determining the com- petency of the juror : — "Have you formed and expressed an opinion about the guilt of Colonel Burr ?" Marshall, C. J., Burr's Trial. 1 Burr's Trial, 367. ' ' Have you formed and delivered an opinion on the subject-matter of this indictment?" Chase, J., in U. S. ». Callender, Callender's Trial, Pamph- let, 19-21. " Have you heard anything of this case, so as to make up your mind?" " Do you feel any bias or prejudice for or against the prisoner at the bar?" Parker, J., Selfridge's Trial. Pamph- let, p. 9. ' ' Have you formed and expressed an opinion of the guilt or innocence of the prisoner?" Marshall, C. J., in U. S. u. Hare, etc., U. S. Circuit Court for Baltimore, May T. 1818, Pamphlet. " Have you formed and expressed an opinion as to the general guilt or innocence of all concerned in the com- mission of the offence ?" (namely, the burning of the convent in Charles- town, Mass.) Supreme Court of Mass., on trial of the Charlestown rioters.< Com. V. Buzzell, 16 Pick. 153. " Have you made up your minds as to which of the two parties was in the wrong in the Kensington riots ?" Rogers, J., Supreme Court of Pennsyl- vania, April 29, 1845, in Com. v. Sherry, one of the Kensington rioters, MSS. 458 1. "Have you, at any time, formed or expressed an opinion, or even en- tertained an impression, which may influence your conduct as a juror ?" 2. " Have you any bias or prejudice on your mind for or against the pris- oner ?" Ogden, J., on a homicide trial. People v. Johnson, 2 Wheel. C. C. 367. 1. " Have you expressed or formed any opinion relative to the matter now to be tried ?" 2. "Are you sensible of any preju- dice or bias therein ?" 3. " Had you formed an opiniofl that the law of the United States, known as the Fugitive Slave Law of 1850, is unconstitutional — so that you cannot convict a person indicted under it for that reason, if the facts alleged in the indictment are proved and the court held the statutei to be constitu- tional ?" 4. "Do you hold any opinion upon the subject of the Fugitive Slave Law, so called, which would induce you to refuse to convict a person indicted under it, if the facts set forth in the indictment and constituting the offence are proved against him, and the court direct you that the law is constitu- tional?" Curtis, J., in U. S. v. Morris, charged with attempting to rescue a fugitive slave, Boston, 1851, and approved by Grier, J., and Kane, J., in Phila., 1852, U. S. v. Hanway, 2 Wall. .Ir. 139. On the trial of Dorr, the following questions asked by the attorney-gen' eral were rejected by the court : — "Did you vote for the Dorr consti- tution ?" "Do you believe the defendant to CHAP. XII.] CHALIiBNQES TO JURORS. [§ 660. But after the court has approved a juror the right to question is closed.* § 659. The bias, however, must go to- the particular issue ; and on autrefois acquit the question is not opinion as to guilt, but general bias for or against the defendant." fat^"^^ Prejudice as to a particular kind of evidence, how- ^^^^ ever, on which the case depends, may exclude.' An opinion that the defendant killed the deceased does not exclude, when the killing is conceded, and the question is self-defence, as to which the juror had formed no opinion.* That a bias against crime does not disqualify we have already seen." § 660. There are other causes of challenge, which, though less common in this country than that which has been just jjgjation- noticed, have been frequently acted on. Thus, a prin- ship and cipal challenge will be allowed if the juror be within the asBocia- age of twenty-one ;* if a female ;^ if he be of blood or ^^^^l foj. kindred to either party,* within the prohibited degrees ;' challenge, if he be intimately connected by aflBnity with either party," though if the relationship be remote, as where the juror's sister was the have been governor of Rhode Island ?" 7 Bost. Law Rep. 347. A juror may be asked whether he belongs to an association for punishing crime. State v. Mann, 83 Mo. 581. Infra, § 668. 1 Bales V. State, 63 Ala. 30. 2 Supra, § 623 ; Josephine v. State, 39 Miss. 613. And see State v. Car- rick, 16 Nev. 120. 3 Infra, § 665. * State V. Wells, 28 Kan. 321. 5 Supra, § 624. 6 1 Inst. 157. See infra, § 846. ' Burn's Justice, tit. Jurors, viii. p. 965. In State v. Ketchey, 70 N. C. 621, it was ruled that because of a juror's being first cousin to the prisoner is no good cause of challenge by the prisoner, unless it be shown that ill-feeling or bad blood exists between the juror and the prisoner. 8 1 Inst. 157 ; State v. Baldwin, 80 N. C. 390. 9 Jacques v. Com., 10 Grat. 690; State V. Perry, 1 Busbee, 330 ; Smith V. State, 61 Miss. 754 ; Parrish v. State, 12 Lea, 655 ; O'Connor u. State, 9 Fla. 215. Under the Missouri statute a juror who said that his father was second cousin to the defendant's mother was excluded. State v. Walton, 74 Mo. 270. See, also, Wirebaeh v. Bank, 97 Penn. St. 543. See infra, § 846. But see Todd v. Gray, 16 S. C. 635. " Bank v. Hart, 3 Day, 491 ; Hiuch- man v. Clark, Coxe, 446 ; Stevenson v. Stiles, 2 Pen. (N. J.) 543. But if the affinity is ruptured by the death of the intermediate link (e. g., where the prisoner's wife, who was cousin to the juror^ is dead without issue), then the rule does not apply. State v, Shaw, 3 Ired. 532. See infra, § 846. 459 § 661.] PLEADINa AND PRACTICE. [chap. XII. And so of prior con- nection with case. wife of the nephew of one of the parties, the rale is otherwise.* By the old English common law it was held a disqualification that the juror was godfather to the child of the defendant, or the defendant to his child.* It is cause for challenge that the juror is in the employment of one of the parties.* § 661. It is no ground of challenge that the juror on a prior case had found a verdict against the defendant on a prosecu- tion for a distinct oiFence.^ This has been pushed so far that in Massachusetts" jurors who had just convicted the defendant for keeping a liquor nuisance at one date, were held competent to sit on a prosecution against him for keeping the same kind of nuisance at a subsequent date. But this is a hard decision. The quality of proof in the two cases was the same, the question of date being merely technical ; and the jurors in the first case must be viewed as having in the most solemn way formed and expressed an opinion on the second. But it is good ground for challenge that the juror has given a prior verdict on the same sub- ject-matter, though against another defendant ;' that he was one of the grand jury who found the particular bill ;' that he was counsel, ' Rank v. Shewey, 4 Watts, 218. If, during the trial of a case of felony, it is discovered that the prisoner has a relation on the jury, this is no ground for discharging the jury, and the case must proceed. R. v. Wardle, 1 C. & M. 647. See, also, Moses v. State, 11 Humph. 232 ; and see infra, §§ 845, 846. ' 1 Inst. 157. ' Hubbard v. Rutledge, 57 Miss. 7 ; Central R. R. v. Mitchell, 63 Ga. 173 ; Springer v. State, 34 Ga. 379. See Other oases cited Infra, § 661. ' Sawdon's case, 2 Lewin C. C. 117 ; U. S. i,. Shackelford, 3 Cranch C. C. 178. 6 Com. V. Hill, 4 Allen, 591. See supra, § 629. ° 1 Inst. 157. Jacobs v. State, 9 Tex. Ap. 278. Merely having been sworn as a juror, in a prior trial, how- ever, on which there was a nolle pro- sequi before testimony received, is not 460 a, disqualification. Reed v. State, 50 Ga. 556. ' K. 0. Percival, 1 Sid. 243 ; R. v. Cook, 13 St. Tr. 334; 2 Rev. Stat. N. Y. 734, § 8; Rev. Stat. Mass. c. 137, § 2; Stewart „. State, 15 Ohio St. 155 ; Rice v. State, 16 Ind. 298 ; Barlow v. State, 2 Blackford, 115 ; Rogers v. Lamb, 3 Blackford, 155 ; Birdsong v. State, 47 Ala. 68 ; Finch t;. State, 81 Ala. 41 ; State v. McDonald 9 W. Va. 456. But being on the list of a grand jury without sitting on the case does not disqualify. Rafe v. State, 20 Ga. 60. And it has been ruled too late to take the objection after the jaror has been accepted. Davis v. State, 64 Ala. 93. In Florida, serving on a coroner's inquest, without forming an opinion, is said not to disqualify, when the question of the guilt of the defendant did not come up. O'Connor V. State, 9 Fla. 215 ; State v. Madoil, 12 Fla. 151. CHAP. XII.] CHALLBNSES TO JUKORS. [§ 662. servant of, or under close obligations to either party ;' that he was concerned in gettijig up the prosecution ;'' though it is no cause of challenge that he is brother of one of the counsel of the opposite party ;' that he is client of the prisoner, who is a member of the bar ;* that, being a clergyman, he had preached the funeral sermon of the deceased, the prosecution being for murder ;* or that he lodges as a pay boarder with the defendant.' But he is incom- petent if he has been bond fide summoned as a witness for either of the parties ;' if he be bail for the defendant ;^ and if, on an indictment for riot, he be an inhabitant of the town where the riot occurred, and had taken an active part in the matter which led to it.9 § 661 a. A juror is incompetent who is indicted for an offence of the same character as that charged against the de- ^^^ ^^ ^^ fendant, the offences being grouped under the same participa- general law, e. g., in cases of liquor selling.'" Living in cognate polygamy disqualifies a juror from sitting on a prosecu- °^^"^'^- tion for polygamy ;" and so, under the Act of March 22, 1882, does the belief that polygamy is right."" § 662. A pecuniary interest merely as a member of the town or county to whose treasury a fine is to be paid or from which ex- ' 1 Inst. 157 ; Springer v. State, 34 on the same occasion would tend to Ga. 379 ; and cases cited supra, § 660. prove such a bias on Ms part." Rip- 2 Dumas v. State, 62 Ga. 58. ley, C. J. Ibid. ' Pipher v. Lodge, 16 Serg. & R. « Cummings v. Gann, 52 Penn. St. 214. 484. * R. V. Geach, 9 C. & P. 499. Mere business relationship, or even 5 State V. Stokeley, 16 Minn. 282 social intimacy, does not, per se, dis- (1871). "Searching questions were qualify. Ibid, put by the defendant's counsel as to ' Com. v. Jolifife, 7 Watts, 585. his state of mind in reference to the « 1 Wheeler's C. C. 391 ; Com. v. case, and the guilt or innocence of the M'Cormick, 130 Mass. 61 ; Anderson defendant ; and he emphatically de- v. State, 63 Ga. 675 ; Brazleton v. clared himself entirely impartial in State, 66 Ala. 96. the case. The presumption is that » R. v. Swain, 2 M. & Rob. 112 ; he told the truth. That he officiated see infra, § 668. at the funeral in his capacity as a « McGuire «. State, 37 Miss. 369. clergyman had, of itself, no more ten- « Reynolds v. U. S., 98 D. S. 145 ; dency to prove a mental bias against aSF. S. C, 1 Utah, 226. defendant, than a performance by the ^ Cljwson v. U. S., 114 U. S. 477. undertaker of the duties oikis calling 461 § 664.J PLEADING AND PRACTICB. [chap. XII, penses are to be taken does not incapacitate,' nor does a mere specu- And 60 of lative or inoperative interest in an institution or corpora- p^"°^?''7 tion which claims to have been injured by the defendants.* the result. It is otherwise, however, when the juror has an individual claim to a fine or forfeiture which a conviction would produce. § 663. Where a juror said, when on a jury in another cause in the same term, " that he was a Tom Paine man, and would as lief swear on a spelling-book as on a Bible," this was held a good ground for challenge ;* and so is a conviction of an infamous crime. ^ Mental incapacity also disqualifies.^ § 664. Where a juror, on being called in a capital case, de- clared " that he had conscientious scruples on the sub- ject of capital punishment, and that he would not, be- cause he conscientiously could not, consent or agree to a verdict of murder in the first degree, death being the punishment, though the evidence required such a ver- dict ;" it was held by the Supreme Court of Pennsylvania a prin- cipal cause of challenging by the prosecution ; Gibson, C. J., dis- senting.^ The same opinion is adopted in New York ;" even though the juror does not belong to a religious denomination scrupulous on the subject, which seems to have been the qualifica- tion of the revised statute ;* in Maine ;' in New Hampshire ;" in Vermont ;" in Indiana ;'2 in Ohio ;'^ in Massachusetts ;" in Virginia ;" And so of irreligion, infamy, in- capacity. And so of conscien- tious scrU' pies as to capital punish- ment. 1 Middletown v. Ames, 7 Vt. 166. Doyal V. State, 70 Ga. 134. This is the uniform practice in Pennsylvania. But see State v. Williams, 30 Me. 484. 2 Supra, § 348. 3 Com. u. McFadden, 23 Penn St. 12. * 1 Inst. 158 ; Brown v. Crashaw, 2 Bulstr. 154 ; 2 Hale, 277. 6 State V. Rountree, 32 La. An. 1144 ; infra, § 669. 6 Comi u. Lesher, 17 S. & R. 155. ' People V. Damon, 13 Wend. 351 ; Lowenberg v. People, 5 Park. C. R. 414 ; 27 N. Y. 336 ; O'Brien v. People, 36 N. Y. 276. 8 Walter v. People, 32 N. Y. 147 ; People V. Damon, 13 Wend. 351 ; 462 People V. Wilson, 3 Parker C. R. 199. 9 State V. Jewell, 33 Me. 583. » State V. Howard, 17 N. H. 171. " State V. Ward, 39 Vt. 226. ^ Jones V. State, 2 Blackf. 475 ; Gross V. State, 2 Carter (Ind.) 329 ; Driskill V. State, 7 Ind. 338 ; Fahnestock v. State, 23 Ind. 231 ; Greenley v. State, 60 Ind. 141. " State V. Town, Wright's R. 75 ; Martin v. State, 16 Ohio, 364. By the Ohio Code of Cr. Proo. this is made a statutory cause of challenge, § 134. Warren's Ohio Cr. Law, 1870, p. 131. w Rev. Stat.c. 137, § 6; Gen. Stat, c. 172, § 5. 15 Clore's case, 8 Grat. 606. CHAP. XII.] CHALLENGES TO JUKORS. [§ 665. in West Virginia ;' in North Carolina ;^ in Georgia ;' in Alabama;^ in Louisiana ;° in Mississippi ;* in Texas ;' in California ;* in Florida ;' in Nevada j'" in Nebraska ;" in Colorado ;" and in the United States Circuit Court for the Eastern District of Pennsyl- vania, by Baldwin, J." Nor is the disqualification in such cases removed by the fact that the jurors have by statute the option of reducing the punishment to imprisonment for life." But when, not- withstanding objections to capital punishment, the juror thinks he could do justice in the case, he may be competent." In Arkansas, jurors are not rejected because they are opposed to capital punishment, unless they go further, and bring themselves under the disqualifications prescribed by the statute. *° In Alabama, the exclusion is extended to scruples as to peniten- tiary punishment." The defendant has no ground of complaint if a juror having such conscientious scruples should not be set aside.'* In Indiana, the rule in the text is prescribed by statute." § 665. Any other conscientious scruples which will prevent a just verdict may be ground for challenge. Thus, a juror is incompetent who declares that no amount of circum- So of other _ r ^ eonscien- stantial evidence would induce him to find a verdict of tious ecru- guilty,"" and so of a juror called in a polygamy case, ' State V. Greer, 22 W. Va. 546. i» State v. Hing, 16 Nev. 307 ; State 2 State V. Bowman, 80 N. C. 432. v. Pritchard, 16 Nev. 101. » Williams v. State, 3 Kelly, 453. " Bradshaw v. State, 17 Neb. 147. * Stalls V. State, 28 Ala. 25 ; Jack- ^ Jones v. People, 6 Col. 452. son V. State, 74 Ala. 26. i3 U. S. v. Wilson, 1 Baldwin, 78. 5 State V. Nolan, 13 La. An. 376 ; " Spain v. State, 55 Miss. 191. State V. Baker, 30 La. An. 1134 ; State ^ Com. v. Webster, 5 Cush. 295 ; V. Diskin, 34 La. An. 919 ; State v. Al- Williams o. State, 32 Miss. 389 ; Peo- phonse, 34 La. An. 9. pie v. Stewart, 7 Cal. 140 ; Stratton v. s Lewis K. State, 9 S. & M. 115 ; People, 5 Col. 276. Williams v. State, 32 Miss. 389 ; For- ^ Dig. § 158, c. 2 ; Atkins v. State, tenberry v. State, 55 Miss. 403 ; Spain 16 Ark. 568. V. State, 55 Miss. 19 ; Cooper v. State, " Stalls v. State, 28 Ala. 25. 65 Miss. 207 ; see Smitt ». State, 55 « Murphy v. State, 37 Ala. 25. *fiss. 410. 19 Greenley v. State, 60 Ind. 141. ' Burrell v. State, 18 Tex. 713 Clanton v. State, 13 Tex. Ap. 139 Thompson u. State, 19 Tex. Ap. 594 «> Gates V. People, 14 111. 433 ; Smith V. State, 55 Ala. 1 ; Coleman v. State, 59 Miss. 484 ; Jones v. State, 57 Miss. Kennedy v. State, 19 Tex. Ap. 618. 424 ; State v. Pritchard, 15 Nev. 74 ; 8 People V. Tanner, 2 Cal. 267. People v. Ah Chung, 54 Cal. 398. But 9 Melzgar v. State, 18 Fla. 481. mere prejudice against circumstantial 463 § 667.] PLEADING AND PKACTICB. [CHAP. Xir. who believes that polygamy is divinely prescribed!* And on the trial of a nuisance for erecting a mill-dam, a juror is incompetent who conscientiously believes all mill-dams to be nuisances, though he swears that as to such particular mill-dam he knows nothing, and has -formed no opinion.' It has been also ruled that it is a good ground for challenge that the juror held that the offence for which the accused was to be tried (burning a convent) is no crime,' and so in Pennsylvania, as to a juror who declared in a prior case that be would acquit any one the judge wanted him to convict.* The prosecuting officer may inquire of a person presented as a juror in the trial of a case of counterfeiting, whether he has taken an oath to acquit all persons of counterfeiting, but the person may refuse to answer ;* and in a case in which a Chinese is defendant, a juror may be asked whether he has a prejudice against Chinese witnesses.* § 666. Belief that a statute is unconstitutional, so as to preclude s f b li f ^^^®°* *o ^ conviction under it, disqualifies ;' but the that Stat- converse is not true, for a statute is presumed to be con- constitu- stitutional until otherwise determined by the court.* tional. ^ QQ^^ j^ jjg^ y^j.]j jj. jjg^g ^^^^ jjgj^ ^^ ^g jj^ gj^jjgg But not in of challenging a juror that he is a freemason, where one a mason is of the parties to a suit is a freemason, and the other is thatluror °°''"' ^^ *^® obligation, it was observed, assumed by a was a free- royal arch mason, and said to be in these words : " I mason. "^ . ' i x -n • ■■ -i • promise and swear that 1 will aid and assist a companion royal arch mason when engaged in any difficulty, and espouse his cause so far as to extricate him from the same, if in my power, whether he be right or wrong," there is a discrepancy in the rela- tion given of it by masons ; while some say that such is the form of evidence does not disqualify. State v. * Fletcher v. State, 6 Humph. 249 ; Shields, 33 La. An. 991. see Com. u. Eagan, 4 Gray, 18 ; supra, In Garrett v. State, 76 Ala. 18, a § 653. juror was held incompetent who said ^ People v. Car Soy, 57 Cal. 102. he would convict, but would not hang ' Com. v. Austin, 7 Gray, 51. on circumstantial evidence. * Com. v. Abbott, 13 Met. 120. 1 U. S. u. Miles, 103 D. S. 304. « People v. Horton, 13 Wend. 9 ; 2 Crippin v. State, 8 Mich. 117. see Burdine v. Grand, 37 Ala. (N. S.) 3 Com, V. Buzzell, 16 Pick. 153. 478. * Com. V. McFadden, 23 Penn. St. 12. 464 CHAP. XII.] CHALLENGES TO JURORS. [§ 668. the oath, others deny it ; but all concur in stating that the obliga- tion is always accompanied with an explanation as to its meaning, which is, that if a royal arch mason sees a brother mason engaged in a quarrel with another person, it is his duty to take his brother mason by the arm and extricate him, without inquiring into the merits of the controversy. On such an interpretation, the oath taken by a master mason, or a royal arch mason, on his admission, it was ruled, does not disqualify him from serving as a juror in an action between a mason and a person not a mason.* § 668. The members of any association of men, combining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute ship of money for that purpose, are incompetent to sit as jurors y?gfiance on the trial of an indictment for violating that law,^ and associa- ° tionsor it has been held error in Illinois to refuse, on a prose- proscrip- cution for selling spirituous liquor, to permit the follow- izltionf^"' ing questions to be put : " Are you a member of a tern- ™*^f ^^" perance society ?" " Are you connected with any so- but not •i 1 -1^1 o ■ of general ciety or league organized tor the purpose or prosecuting associa- a certain class of people under what is called the new put'down temperance law of the State, or have you ever contrib- crime. uted any funds for such a purpose ?"' It has also been held error to refuse to permit a juror to be asked whether he belonged to any secret society binding its members by oath not to give a fair trial to foreigners.* But members of an association to prosecute oflfences against certain laws, who have each, by subscribing a certain sum to the funds of the association, rendered themselves liable to pay, to the extent of their subscriptions, their proportion of expenses incurred in such prosecutions, are not incompetent to sit as jurors on the trial of such a prosecution, commenced by the agent of the association, and carried on at its expense, if it appear that they paid their subscriptions before the prosecution was commenced." ' People V. Horton, ut sup. defendant to exercise his right of per- ' Com. V. Eagan, 4 Gray, 18. See emptory challenge, supra, § 624. 4 People v. Reyes, 5 Cal. 347. 3 Lavin v. People, 69 111. 303. These = Com. v. O'Neil, 6 Gray, 343. See rulings may be harmonized with the Com. v. Thrasher, 11 Gray, 55 ; Wil- foUowing by the distinction suggested liams b. State, 3 Kelly, 453 ; Heaoocli by the Illinois court, that such ques- v. State, 13 Tex. Ap. 97. tions are proper at least to enable the aO 465 § 669.] PLEADING AND PRACTICE. [chap. XII. And it has been held that a juror is not rendered incompetent by the fact that he belongs to an association for prosecution of crimes of the same class as that under trial.^ Connection with the police is by itself no disqualification.' To a grand juror it is no cause for challenge that he belongs to an association for the prosecution of crime.* A bias or prejudice against crime generally, or against the crime on trial, is no disqualification.^ Alienage, or non-residence, or ignorance of language. § 669. In those jurisdictions where alienage or non- residence is a disqualification, the objection is good if made by way of challenge. After verdict it may be too late to state such objection when the disqualification is one which due diligence would have discovered, and which is not moral but technical." Ignorance of the English language is a ground for challenge when the jury can be made up of persons familiar with the language.* Drunkenness, also, may be ground for challenge.^ Alienage and non- residence may be disqualifi- cation. And so may igno- rance of language and drunk' enness. • State u. Wilson, 8 Clarke (Iowa), 407 ; Boyle v. People, 4 Col. 176. 2 People V. Reynolds, 16 Cal. 128. 3 Musick 17. People, 40 111. 268. See E. V. Swain, 2 M. & R. 112. * Williams v. State, 3 Kelly, 453 ; State V. Burns, 85 Mo. 47. Supra, §624. As to conscientious objections to polygamy, see U. S. v. Reynolds, 1 Utah, 226 ; 98 D. S. 145. 5 See infra, § 846 ; R. v. Sutton, 8 B. & C. 417 ; R. v. Despard, 2 Man. & R. 406 ; Sweeney u. Baker, 13 W. Va. 156 ; Presbury v. Com., 9 Dana, 203 ; Raganthall v. Com., 14 Bush, 457 ; State V. Nolan, 13 La. An. 276 ; Seal V. State, 13 Sm. & M. 286 ; Sohumaker V. State, 5 Wis. 324 ; State v. Hinkle, 27 Kan. 308 ; Yanez v. State, 6 Tex. Ap. 429. s Fisher 'v. Phil., 4 Brewst. 375 ; Com. V. Jones, 12 Phila. 550 ; Sutton V. Fox, 56 Wis. 531 ; State v. Ring, 29 Minn. 78 ; State v. Marshall, 8 Ala. (N. S.) 302 ; Lyles ». State, 41 Tex. 172 ; Dunn v. State, 7 Tex. Ap. 600 ; Wright V. State, 12 Tex. Ap. 163; Garcia v. State, 12 Tex. Ap. 335; Bonneville v. State, 53 Wis. 680. That the court may take notice of such disqualification, see infra, § 683. In Trinidad v. Simpson, 5 Col. 65, we hare the following from Elbert, J. : — " We are not unmindful that there are many serious objections to the ' Supra, § 663 ; infra, § 841 ; Quioe may in such cases excuse, see infra, V. State, 60 Miss. 714. That the court § 683. 466 CHAP. XII.] CHALLENGES TO JURORS. [§ 670. (c.) Challenges to Polls for Favor. § 670. Challenges to the polls for favor take place when, though the juror is not so evidently partial as to amount to a challenges principal challenge, there are reasonable grounds to sus- aretho°e pect that he will act under some undue influence or pre- ^^J°^™S iudice, and when these grounds involve disputed questions questions - -. , . „ 1- i. i.1. ij ,.• of fact, of fact, such challenges, according to the old practice, being submitted to triers on the questions of disputed fact.^ The distinction, however, between challenges for favor and those for principal cause is in many jurisdictions disregarded. Thus, in the federal courts, it is settled law that when a challenge for favor would be sustained, a court of error will not reverse because the challenge was in form for cause.* Consequently, what has been already said under the head of challenges for principal cause is to be examined as connected with challenges for favor.' The fact, however, that in some jurisdictions all challenges are decided by the court, without the intervention of triers, does not do away with the distinction between the two classes.* The question. interposition of interpreters in judicial proceedings, and while we hold it with- in the power of the court to appoint an interpreter under the circumstances of this case, it was also within its dis- cretion to exclude the jurors named from the cause assigned. People v. Arceo, 32 Cal. 49 ; Atlas M. Co. v. Johnson, 23 Mich. 37 ; State v. Mar- shall, 8 Ala. (N. S.) 302. Such persons are not disqualified, but whenever it is practicable to secure a full panel of English-speaking jurors, a wise dis- cretion would excuse from jury duty persons ignorant of that language. The cases of Fisher v. Philadelphia, 4 Brewst. 375, and Lyles v. State, 41 Tex. 172, are cited against the con- clusion arrived at in this opinion. The first authority we have been unable to obtain. With the reasoning of the last we are not satisfied. If our con- clusion as to the power of the court to appoint an interpreter be correct, the foundation upon which the conclusions in that case appear to rest disappears." This, however, can only hold good in cases where the panel can in no other way be constituted ; and even in such cases it is hard to see how the delibera- tions can be conducted of a jury who have no common language. To put an interpreter in with them would be to make the interpreter the arbiter. 1 Infra, § 686 ; supra, § 621 ; Co. Lit. 157 6; Bac. Abr. Juries, E. 5; Williams's J., Juries, v.; Dick. Sess. 188 ; People v. Bodine, 1 Denio, 9, 35, 281 ; Schoeffler v. State, 3 Wis. 823 ; Freeman v. People, 4 Denio, 39 ; State u. Benton, 2 Dev. & B. 212. 2 Reynolds v. U. S., 98 U. S. 145. 3 See supra, § 621. * State 0. Howard, 17 N. H. 171 ; Greenfield v. People, 6 Abb. New Cas. 1, reversing S. C, 1 Hun, 212. 467 § 672.] PLEADING AND PRACTICE. [chap. XII. in challenges for favor, is, whether the juryman is altogether in- different as he stands unsworn,* because he may be, even uncon- sciously to himself, swayed to one side, and indulge his own feelings when he considers himself influenced entirely by the weight of evi- dence ;^ or may be under such influences, indirect or direct, as to create in him a bias to one or the other side.^ § 671. As will hereafter be more fully seen,* persons to be afl"ected by the finding of jurors may object to their fitness, but have nothing to do with the question whether the juror is privileged from actiiig as such. Whether a person is privileged on account of his age comes under the latter class of questions.* The Court may excuse a juror on ground of exemption without the prisoner's consent.* Challenges cannot moot ques- tions of mere per- sonal privi- lege to juror. §672. Challenge must be prior to oath. III. MODE AND TIME OF TAKING CJIALLENGBS. The order in which challenges are to be made is, as we have seen, a matter of local practice, sometimes settled by statute.' The challenge, either by the prosecution or the defence, must be before the oath is commenced, down to which period the right exists ;' and the usual 1 People V. Horton, 13 Wend. 8. 2 Ibid. ' See, fully, supra, § 621 ; and see Co. Lit. 157 ; Bac. Abr. Juries, E. 5 ; Burn's, J., Jiiror, iv. 1 ; Williams's J., Juries, v. ; State v. Mann, 83 Mo. 589. Properly speaking, challenges for "bias," in the English practice, fall under the present head, though they have necessarily been considered, from circumstances connected with our dis- tinctive American practice, under the title of Principal Challenges. The reason of this confusion of nomen- clature is to be traced to the circum- stance that the question of precon- ceived opinion or prejudice on the juror's part, as a mere matter of opin- ion, is examined into in England as a conclusion of law, to be drawn from certain conditions (e. g., that the juror 468 and the defendant are intimate friends), while with us it is treated as an inde- pendent objective fact, capable of de- termination by a personal examination of the juror under oath. See supra, § 621. * Infra, § 692. " Breeding v. State, 11 Tex. 257; and cases cited infra, § 692. 6 Jesse V. State, 20 Ga. 156 ; Spigener V. State, 62 Ala. 383. ' Supra, § 613 ; see State v. Steely, 65 Mo. 218 ; Spigener v. State, 62 Ala. 883. 8 Supra, § 617 ; Munly v. State, 7 Blackf. 593 ; Morris v. State, Ibid. 607 ; Williams v. State, 3 Kelly, 453 ; State V. Patrick, 3 Jones N. C. (L.) 443; State V. Vestal, 82 N. C. 563 ; State v. Varn, Ibid. 631 ; Powell o. State, 48 Ala. 154; Murray v. State, 48 Ala. CHAP. XII.] MODE AND TIME OP TAKINS CHALLENGES. [§ 672, course is to make the challenges separately, as the jurors are called and appear.' The moment the oath is begun it is, in ordinary cases, too late." The oath is begun by the juror taking the book, having been directed by the officer of the court to do so ; but if he take the book without authority, neither party wishing to challenge is prejudiced thereby.^ The rule, however, rests on the supposition that the defendant, when the objection is raised by him, had the opportunity of discovering the juror's bias before the oath was ad- ministered. If he has no such opportunity, the objection may be taken after the oath ;* and when such bias is discovered after verdict, it is, as will presently be seen, ground for new trial." Such being the case, when the party discovers such disqualification subsequent to oath but before opening the case, the objection should be allowed by the court. Hence it has been ruled that after a juror has been sworn in chief, and taken his seat, if it be discovered that he is incompetent to serve, he may, in the exercise of a sound discretion, be set aside by the court at any time before evidence is given,* and this may be done even in a capital case, and as well for cause existing before as after the juror was sworn ;' though as a general rule it is 675 ; Drake u. State, 51 Ala. 30 ; Bat- tle V. State, 54 Ala. 93 ; State v. Harris, 30 La. An. Pt. 90 ; State v. Armingron, 25 Minn. 29 ; People v. Kohle, 4 Cal. 198; People v. Jenks, 24 Cal. 11; People V. Coffmau, 24 Cal. 230 ; People V. Sanford, 43 Cal. 29 ; People v. Sam- sels, 66 ' Cal. 99 ; Williams v. State, 81 Ala. 20 ; State v. Larkiu, 11 Nev. 314; Clarke v. Terr., 1 Wash. T. 82; Henry «. State, 77 Ala. 75. Even if the juror has been accepted, this does not preclude his challenge. People v. Montgomery, 53 Cal. 576. But see Drake v. State, 5 Tex. Ap. 649. A rule by the trial court that the State should exercise one of its peremptory challenges, and then the defendant should exercise two of his, and so on alternately, was held not error (the State having by statute six peremptory challenges and the defendant twelve). State V. Bailey, 32 Kan. 83. ' Smith V. State, 61 Miss. 754. 2 People V. Dolan, 51 Mich. 610. 3 R. V. Giorgetti, 4 F. & F. 546 ; R. v. Frost, 7 C. & P. 129 ; Com. v. Knapp, 10 Pick. 477; McClure v. State, 1 Yerg. 206 ; Rash v. State, 61 Ala. 89. See State v. Pritchard, 16 Nev. 101. * Supra, § 617 ; Com. v. Twombly, 10 Pick. 480 ; State v. Allen, 46 Conn. 531 ; Hendrick v. Com. , 5 Leigh, 708 ; MoFadden v. Com., 23 Penn. St. 12 ; Evans v. State, 6 Tex. Ap. 513. e Infra, § 844. 6 Infra, §§ 683, 722 ; Wesley v. State, 65 Ga. 731 ; State v. Diskins, 34 La. An, 919 ; but see Ellison v. State, 12 Tex Ap. 557. ' U. S. V. Morris, 1 Curtis C. C. 23 People V. Damon, 13 Wend. 351 ; Peo pie V. Bodine, 1 Edm. (N. Y.) Sel. Cas 36 ; Tooel v. Com., 11 Leigh, 714; Com V. MoFadden, 23 Penn. St. 12 ; Briatow V, Com. , 15 Grat. 634 ; Dilworth v. Com., 469 § 676.] PLEADING AND PRACTICE. [chap. XII. When for favor must specify reasons. Juror must be sworn on voir dire. too late, after the jury is empanelled, to inquire into the impar- tiality of a juror.' § 673. A challenge for favor or bias must specify the specific reasons of objection. It is not enough to challenge for " bias." The kind of bias must be stated.* § 674. The correct practice is, immediately after the juror is challenged, to swear him on his voir dire, as a condition precedent to his examination.^ The form of oath to the juror on the voir dire is as follows : " You shall true answer make to all such questions as the court shall demand of you. So help you God." The questions to be put to the juror have been already noticed.* In some jurisdictions the examination is by the court.* The answers are not final, but may be traversed.' § 675. It is no waiver of the right to challenge for cause for the defendant to pass the juror over to the court, or to the opposite side for examination.^ § 676. The mere fact of a juror purging himself from disqualifi- Afterprin- Cation on his voir dire does not preclude the party questioning him from challenging him for favor, and producing evidence before the court or the triers, as the practice may be, to disprove his testimony. Otherwise, an incompetent juror could qualify himself by adding perjury to his other disqualifications.' over to court no waiver. cipal chal- lenge is disallowed, there may be chal- lenge for favor. 12 Grat. 689; McGuire v. State, 37 Miss. 369. See §§ 820, 844, etc., as to the withdrawal of jurors. > Com. V. Knapp, 10 Pick. 477 ; Gillooley v. State, 58 Ind. 182 ; Ward V. State, 1 Humph. 253. See State v. Harris, 30 La. An. 90. 2 People V. Renfrow, 41 Cal. 37 ; People V. MoGungill, 41 Cal. 429 ; Peo- ple V. Buokly, 49 Cal. 241. » Supra, §§ 654-5 ; infra, § 682. * Supra, § 685. When, under a local statute, a sick juror may be discharged and a new juror called in his place, this revives the defendant's right of challenge, although previously ex- hausted. People V. Stewart, 64 Cal. 60. 470 5 Ibid. State v. Coleman, 20 S. C. 441. 6 Infra, § 688 ; State v. Barnes, 34 La. An. 395. ' McFadden u. Com., 23 Penn. St. 12 ; Hendriok v. Com., 5 Leigh, 708 ; and see supra, §§ 617-18. 8 Carnal v. People, 1 Parker C. R. 273 ; Freeman v. People, 4 Denio, 9 ; People V. Bodine, 1 Denio, 281 ; Com. V. Heath, 1 Robinson, 735 ; State v. Mann, 83 Mo. 589 ; though see Com. v. Wade, 17 Pick. 395. A juror's answers on a challenge for favor are not admissible on a challenge for principal cause ; but when a chal- lenge for principal cause and that for favor are tried successively by the CHAP. XII.J MODE AND TIME OP TAKINS CHALLENGES. [§ 679. § 667. We have already seen,' that it is doubted whether a de- fendant can make a peremptory challenge after he has pgrg^p. passed the iuror over to the court or to the prosecution : tory chai- .... 1 , lenge may though the better opinion is that on due cause shown the be made right may be exercised at any period down to the com- fenge'for ' pletion of the panel. But the better opinion is that the cause. defendant has the right of peremptory challenge to a juror after he has made such answers on the voir dire as do not authorize a challenge for cause,' though by high authority this has been questioned.' § 678. It has been said that the defendant must personally, and not through counsel, make such challenges as are per- emptory.* This, however, is a mere arbitrary and m^y"br^®* forced extension of the fiction of the iuryman and made by "' "" counsel, prisoner looking on each other, to see if there is any personal reminiscence which would touch the question of indifference. The usual practice is for this kind of challenge, as is the case with all others, to be made by counsel. ^ 679. It is said that the court, in its discretion, will ^ ' , In oases of not permit a peremptory challenge to be recalled, after surprise the juryman is set aside, in order merely to admit a chaiienge"^^ challenge for cause." But in case of surprise such dis- '^^^jf'ga cretion may be properly invoked. court, the answers on the trial for prin- cipal cause may be referred to on the trial of the challenge for favor. Green- field V. People, 6 Abbott's New Cas. (N. S.) 1 ; 74 N. Y. 277. 1 Supra, § 617. 2 See cases cited supra, §§ 617, 673 ; and see 6 T. R. 531 ; Co. Lit. 158 a; 4 Black. Com. 363 ; 2 Hawk. c. 43, s. 10 ; Bao. Abr. Juries, E. 11 ; State v. Pot- ter, 18 Conn. 166 ; Hooker v. State, 4 Ohio, 350. See People v. Bodiue, 1 Denio, 281 ; Hoobach v. State, 43 Tex. 242. ' Com. V. Rogers, 7 Met. (Mass.) 500. * State V. Pric«, 10 Rich. L. 351. 6 State V. Price, 10 Rich. L. 351 ; State V. Coleman, 8 S. C. 237. See R. V. Parry, 7 C. & P. 836 ; State v. Lautenschlager, 22 Minn. 514. Supra, §619. In Connecticut, B., having been called as a talesman , and examined as to his bias, and no reason to except to him appearing, the counsel for the prisoner were informed by the court that they could then challenge B. per- emptorily if they desired to do so. They declined to exercise the right at that time, as the panel was not then full ; and B. was directed to take his seat as one of the jurors. After the panel was full, and but six peremp- tory challenges had been made, the prisoner's counsel claimed the right to challenge B. peremptorily. It was held that in the absence of any reason for a peremptory challenge then, which did 471 § 683.] PLEADING AND PRACTICE. [chap. XII. § 680. While in some jurisdictions joint defendants are limited to a single set of challenges,' yet -where this limitation dantcannot ^^^^ ^ot obtain, the right to challenge a juror, as has object to challenge of co-defen- daut. been observed, is a right to reject, not to select ; and therefore neither of two defendants in an indictment on a joint trial has cause to complain of a challenge by the other.^ § 681. If a juror be challenged on one side and be found indifferent, he may still be challenged on the other side.^ The juror, as has been seen, may be examined under oath as to his qualifications ; though he is not to be so examined when the question involves disgrace.^ He is of course subject to cross-examination by the party op- posing the challenge," and to traverse.' As has been already seen, the court, of its own motion, without the suggestion of either party, may examine upon oath all who have been summoned to serve upon the jury> touching any disability, such as infancy, infamy, want of freehold or property qualifications, or, in a capital case, conscientious scruples on the subject of capital punishment, or similar incapacity, and upon any such disability Ueing thus made to appear, may set aside any such juror of its own action, without Jnror in- different on one side may be challenged by other. § 682. Juror may be cross- examined and contra- dicted. §683. Court may of its own motion examine and excuse. not exist before, when the exercise of the right was declined, it was too late to challenge B. peremptorily. State v. Potter, 18 Conn. 166. See supra, § 617 ; State v. Cameron, 2 Chandler (Wis.), 172 ; but see Heudrick v. Com., 5 Leigh, 708. 1 Supra, § 614 a. 2 U. S. V. Marchant, 4 Mason, 160 ; 12 Wheaton, 480 ; State v. Doolittle, 58 N. H. 92 ; State v. Meaker, 54 Vt. 112 ; Bixbe V. State, 6 Ohio, 86 ; Matow v. State, 15 111. 536 ; Brister ... State, 26 Ala. 107 ; State v. Smith, 2 Ired. 402. See supra, § 620. 3 Co. Lit, 158 a; Bao. Abr. Juries, E. 16 ; 1 Ch. C. L. 545. Where the prosecution, without challenge, passes 472 the jury to the defendant, declining to exercise any challenge, and the defen- dant exercises his right of peremptory challenge hy objecting to one juror, the action of the court in subse- quently permitting the prosecution to peremptorily challenge a juror is not ground for reversal. People v. Majors, 65 Cal. 138. * Supra, § 654. 6 Cook's case, 13 How. St. Tr. 312 ; People V. Bodine, 1 Denio, 281 ; People V. Knickerbocker, 1 Parker C. R. 302 ; Howser v. Com., 51 Penn. St. 333 ; Heath v. Com., 1 Robinson, 735. « Infra, §§ 686 et seq.; State v. Barnes, 34 La. An. 395. CHAP. XII.] HOW CHALLENGES ARE TO BE TRIED. [§ 684. objection made by either party.^ And the court, of its own motion, without the suggestion or consent of either party, may excuse or set aside a juror who, though in all other respects competent, is dis- abled physically or mentally by disease, domestic affliction, igno- rance of the vernacular tongue, loss of hearing, or other like cause, from properly performing the duties of a juror.^ But the erroneous exercise of this power is a matter of exception by the defendant, for which, in an extreme case of abuse, the judgment of the court may be reversed.' And when both parties accept a juror he cannot be stricken off by the court, except on grounds of absolute unfitness or incompetency.* ' IV. HOW CHALLENGES ARE TO BE TRIED. § 684. If the array be challenged, the mode of trial is at com- mon law at the discretion of the court.* The trial some- times is by two coroners, and sometimes by two of the ^^*^at"^^'^ jury ; with this difiference, that if the challenge be for cretion of kindred in the sheriif, it is most fit to be tried by two of the jurors returned ; if the challenge be for favor or partiality, then by any other two assigned thereunto by the court.* Upon a challenge to the array, the persons making the challenge must be prepared strictly to prove the cause.' 1 Infra, § 692 ; supra, § 671 ; State State, 1 Ohio St. 66 ; Stephen v. Peo- V. Howard, 17 N. H. 171 ; People v. pie, 38 Mich. 739 ; People v. Carrier, Christie, 2 Park C. R. 579 ; U. S. v. 46 Mich. 442 ; Jesse v. State, 20 Ga. Blodgett, 35 Ga. 336 ; MoCarty v. State, 156 ; Breeding v. State, 11 Tex. 257 ; 26 Miss. 299 ; Coleman v. State, 59 State v. Marshall, 8 Ala. 302. Supra, Miss. 484; State v. Guice, 60 Miss. 714; §§ 669, 671 ; infra, §§ 692-3. State V. Diskins, 34 La. An. 919. See ^ Montague v. Com., ut supra. But State V. Henderson, 29 W. Va. 147 ; the case, to reverse, must be one of op- State V. Boone, 80 N. C. 461. pression to the defendant. State v. In Massachusetts the right of pro- Ostrander, 18 Iowa, 435 ; People v. pounding questions is for the court ex- Lee, 17 Cal. 76 ; Stratton v. People, 5 clusively, and not for parties. Cal. 276. Infra, §§ 692-3. 2 Whenever this incompetency is ' Greer v. People, 14 Tex. Ap. 149, exhibited to the court, no matter how citing People v. Mather, 4 Wend. 231. far the case may have progressed, = As limiting this discretion, see the court may set aside the juror, Supra, §§ 669, 675; infra, § 722 Montague d. Com., 10 Grat. 767 State u. Baber, 74 Mo. 292. See Com, V. Hayden, 4 Gray, 18 ; Stewart v. People V. Neilson, 22 Hun, 1. « 2 Hale, 275. Supra, § 609. ' R. V. Savage, 1 Mood. C. C. 51. Supra, § 611. The trial in Pennsylvania is by sta- 473 § 685.J PLEADma AND PRACTICE. [chap. XII. As to array triers are appointed on issues of fact ; otherwise when there is demur- rer. § 685. When the array is thus challenged, the opposite party may either plead to it, or demur to its sufficiency in law.' If he plead, then the triers are sworn and charged to inquire " whether it be an impartial array or a favor- able one ;" if they affirm it, the clerk enters under it, " affirmatur ;" but if they find it to be partial, the words " calumnia vera" are entered on record.* The court may either decide the demurrer at once, or adjourn its consideration to a future period.* Where the judges, upon hearing the argu- ments, overrule the challenge, the decision is entered on the original record, and at nisi prius appears on the postea ; but if it is over- ruled without demurrer on being debated, the objections may after- wards be made the subject of a bill of exceptions.* Should the challenge be admitted, and the array be quashed, a new venire is awarded the coroners or elisors, in the same manner as if it had been prayed by one of the parties to be so directed, to prevent the delay at an earlier stage of the proceedings." tute assigned to the court. Rev. Act, Bill II. § 39. In New York, by the Act of May 7th, 1873, " all challenges of jurors, both in civil and criminal cases, shall be tried and determined by the court only," but to the action of the court exceptions may be taken by writ of error or certiorari. See su- pra, § 632. In Ohio, by the Code of Criminal Procedure, "all challenges for cause shall be tried by the court on the oath of the person challenged, or on other evidence, and such challenge shall be made before the jury is sworn and not afterward." A challenge to the array should be in writing, so that it may he put upon the record, and the other party may plead or demur to it ; and the cause of challenge must be stated specifically. R. V. Hughes, 1 C. & K. 235, 519 ; 47 E. C. L. R. " When the opposite party pleads to the challenge, two triers are appointed 474 by the court ; either two coroners, two attorneys, or two of the jury, or indeed any two indifi'erent persons. If the array be quashed against the sheriff, a venire facias is then directed instanter to the coroner ; if it be further quashed against the coroner, it is then awarded to two persons, called elisors, chosen at the discretion of the court, and it can- not be afterwards quashed. Co. Lit. 158a." Roscoe's Cr. Ev. p. 208. In the United States courts, triers are dispensed with. Act of March 3, 1865, § 2. See Rev. Stat. U. S., § 1031. 1 See forms, 10 Wentw. 474. ' 4 Black. Com., 353, n. 8 ; Bao. Abr. Juries, E. 12 ; 1 Ch. C. L. 549. In the New England States challenges to the array are usually tried iy the court. Com. v. Walsh, 124 Mass. 32. 3 Ibid. * 1 Ch. C. L. 549 ; Bac. Abr. Juries, E. 12. s Co. Lit. 158 a. CHAP. XII.] HOW CHALLENGES ARE TO BE TRIED. [§ 686. § 686. In many States, as has been seen, challenges to the polls are tried by the court.* In others statutory provisions exist allowing triers. In .others, the court, at common mon law, law, chooses the triers ; if two are sworn, they then lenges to try f and if they try one indifferent, and he be sworn, ^rieS°are then he and the two triers try another : and if another appointed bv coiirt. be tried indifferent, and he be sworn, then the two triers cease, and the two that be sworn on the jury try the rest.^ • This is the case in North Carolina. State V. Kilgore, 93 N. C. 533. 2 McGuffle V. State, 17 Ga. 497. 3 Supra, § 670 ; Finch. 112 ; 1 Inst. 158; Co. Lit. 158 a; 2 Hale, 275 ; Bac. Abr. Juries, E. 12; Burn's J., Jurors, iv. 3; Williams's J., Juries, v. ; Dick. Sess. 190. " If the party pleads to the challenge" (Arohbold's C. P. 17th ed. (1871) p. 154), "two triers are (in the case, at least, of a challenge for favor, and also, it would seem, in the case of a principal challenge, unless the fact be admitted or apparent) appointed by the court, who are sworn, and charged to try whether the array be an impartial or favorable one. See O'Brien w. E., 2 Ho. Lords Cas. 465. These triers are generally two of the jurymen returned. The court may, however, in its discretion, refer the trial to the two coroners, or to two at- torneys, or to any other two indifferent persons. 2 Hale, 275 ; 4 Blk. Com. 353 ; 2 Roll. Rep. 363. If they find in favor of the challenge, a new venire is awarded to the coroners, or, if they be interested, to the elisors. See 1 Inst. 158 ; R. V. Dolby, 2 B. & C. 104. There the defendant, being indicted for a seditious libel, challenged the array on the ground that the prosecution was Instituted by an association called the Constitutional Association, and that one of the sheriffs who returned the jury was one of the association. The counsel for the prosecution there- upon took issue ; the chief justice then appointed two triers to try the issue, who were accordingly sworn ; the coun- sel for the defendant first addressed these triers, and called a witness, who proved that the sheriff named was one of the subscribers to the association. The counsel for the prosecution then addressed the triers, and called a wit- ness to prove that the sheriff had ceased to be a subscriber to or member of the association before the return of the jury process, but failed in proving it for want of the letter by which the sheriff had withdrawn himself from it. The triers were then addressed by the counsel for the defendant in reply. The chief justice summed up. The triers found in favor of the challenge, and the cause was adjourned. If the triers find against the challenge, the trial proceeds as if no such challenge had been made. The improper dis- allowance of a challenge is ground, not for a new trial, but for a venire de novo. R. V. Edmonds, 4 B. & Aid. 471." " If the challenge is to the first juror called, the court may select any two indifferent persons as triers ; if they find against the challenge, the juror will be sworn, and be joined with the triers in determining the next chal- lenge ; but as soon as two jurors have been found indifferent, and have been sworn, every subsequent challenge will be referred to their decision. 2 Hale, 275; Co. Lit. 158 o; Bac. Abr. Juries, E. 12." Where, on a trial for murder, a juror 475 § 688.] PLBADINa AND PRACTICE. [chap. XII. No chal- lenge to triers. When triers are not asked for, parties are bound by decision of court. § 687. From the necessities of the case, no challenge of triers is admissible.' § 688. When the facts on which a challenge rests are disputed,* the proper course is to submit the question to triers ; but if neither of the parties ask for triers to settle the issue of the fact, and submit their evidence, whether consisting of the juror's voir dire or of extra- neous evidence, to the judge, and take his determination thereon, they cannot afterwards object to his competence to decide that issue.8 The production of evidence to the judge without ask- ing for triers will be considered as the substitution of him in the place of triers ; and his decision will be treated in like manner as would the decision of triers ; and, therefore, although the deter- mination of the judge should be against the weight of evidence, a new trial will not be granted for that cause when the defendant is acquitted, in analogy to the principle, that if on a main question in a criminal case the defendant was found not guilty, there cannot be a new trial.* The same distinction has beenapplied by the Supreme Court of the United States on a writ of error to the decision of the trial court upon a challenge for principal cause.* was challenged for favor, and the first two jurors sworn having been ap- pointed triers, sworn as auoh, and on hearing the evidence, arguments, and charge, could not agree, it was held that the next two (the third and fourth) should be selected to rehear the matter as triers ; and they were so sworn. People 0. Dewiok, 2 Park. C. E. (N. Y.) 230. Triers' Oath. — The oath of the triers, as given in the 17th edition of Areh- Ijold's Criminal Pleading, published in 1871, pp. 154, 155, Is : " Yok shall well and truly try whether A, B., one of the jurors, stands indifferently to try the pri-/ soner at the bar, and a true verdict give according to the evidence. So help you God." It has been ruled in New York to be error to swear the triers simply to find whether the juror is in- different " upon the issue joined." Freeman v. People, 4 Denlo, 9. 476 1 Archbold's C. P. 17th ed. 154, 155. Oath of Witness before Triers. — The form of oath to be administered to a witness sworn to give evidence before the triers is as follows : " The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth, and nothing but the truth. So help you God." The topic of exam- ination of the challenged juror has been already noticed. Supra, § 682. 2 See supra, §§ 611, 670. » People V. Rathban, 21 Wend. 509 ; People v. Mather, 4 Wend. 229 ; People V. Doe, 1 Mann. (Mich.) 451 ; Stewart v. State, 8 Eng. (13 Ark.) 720. * People V. Mather, 4 Wend. 229. 5 U. S. V. Reynolds, 98 U. S. 145. It was further held that the finding* of the trial court upon the question of fact ought not to be set aside in a re- CHAP. XII.] HOW CHALLENGES AKE TO BE TRIED. [§ 689. § 689. Upon the trial of a challenge for favor, it is erroneous to limit the evidence to such as goes to establish a fixed and jjyjaenpe absolute opinion touching the guilt or innocence of the tending to ,„,..«, ., . ~ show bias prisoner. A fixed opinion of the guilt or innocence of admissible the prisoner, though it may be necessary to sustain a °^ "* ' challenge for principal cause, need not be proved where the chal- lenge is for favor. A less decided opinion may be shown and ex- hibited to the triers, who must determine upon its effect. Thus, when the question is submitted to the triers, a juror challenged for favor, if examined, may be asked whether he ever thought the pris- oner guilty ; or what impressions statements which he had heard or read respecting the evidence had made upon his mind ; and, on the same reasoning, an opinion imperfectly formed, or one based upon the supposition that facts are as they have been represented, may be proved before the triers upon such a challenge.' The question is to be submitted as a question of fact, upon all the evidence, to the conscience and discretion of the triers, whether the juror is indifferent or not, and any fact or circumstance from which bias or prejudice may justly be inferred, although weak in degree, is admis- sible evidence.* viewing court, unless the error is man- ifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trials because the verdict is against the evidence. If a juror is challenged for principal cause, and the challenge sustained, the judgment, it was ruled, will not be reversed upon error if it appears that, although the challenge was not good for cause, it was for favor. Ibid. 1 People V. Puller, 2 Parker C. R. 16 ; Barber v. State, 13 Fla. 675. 2 People o. Bodine, 1 Denio, 281 ; Moon V. State, 68 Ga. 687. In New York, under the old practice, it is said that the court should not instruct the triers how to find. People v. MoMahon, 2 Parker C. R. (N. Y.) 663. Upon a challenge for favor, if the court err in admitting or rejecting the evidence, or instructing the triers upon matters of law, a bill of exceptions lies. The remedy would be the same if the court should overrule such a challenge when properly made, or re- fuse to appoint triers. Per Beardsley, J. The fact that a prisoner did not avail himself, as he might, of a per- emptory challenge to exclude a juror, who was found indifferent upon a chal- lenge for cause, may not, as we will soon see more fully, prevent him from taking advantage of an error committed on the trial of the challenge for cause, though it appears that his peremptory challenges were not exhausted when the empanelling of the jury was com- pleted. See infra, § 693. In Georgia, where a juror is put upon the triers to ascertain his com- petency, the trial should be conducted 477 must be shown to set aside juror. § 692.] PLEADING AND PRACTICE. [CHAP. XII. § 690. Though it is not a good ground of challenge to a juror for But bias principal cause that he has an impression as to the defen- dant's guilt or innocence,* yet, upon a challenge for favor, evidence as to such impression is admissible ; but the juror should not be set aside unless it is found that he has formed a settled opinion.* And when he has denied such bias on the voir dire, it must be proved by a preponderance of proof.' V. PEESONAL PRIVILEGE OF JUROR TO BE EXCUSED, WHICH, HOWEVER, A PARTY CANNOT ADVANCE AS GROUND OP CHALLENGE. § 692. Independently of the reasons heretofore specified, there are cases in which a juryman may be privileged from serving, but in which, as we have already seen, the privilege must be set up by himself or by the court,* and cannot be technically regarded as a ground of challenge," and, a fortiori, not for error or motion in arrest.* Thus, a juror may be excused from serving on ground of old age f of deafness or other infirmity incapacitating him frem proper discharge of duty ;* and of holding excusatory oflSces.' And the excusing of the juror for reasons of this class is always within the discretion of the court, irrespective of the statutes relating to challenges.'" Allowing such excuses, therefore, is not ordinarily ground for exception." in the presence of the court ; but it is not error if the triers are allowed to retire with the juror and question him in private. Epps v. State, 19 Ga. 102. 1 People V. Honeyman, 3 Denio, 121. 2 People V. Lohman, 2 Barb. 216. Where a challenge for principal cause is overruled by the court, and the juror is then challenged for favor, it is erroneous to instruct the triers that the latter challenge is in the nature of an appeal from the judgment of the court upon the facts ruled on by the court. Freeman v. People, 4 Denio, 9, 35. 3 Davison v. People, 90 111. 221 ; Goree v. State, 71 Ala. 7. < Supra, § 671. 5 Supra, § 671. 478 6 State V. Quimby, 51 Me. 395 ; State V. Wright, 53 Me. 328 ; Munroe v. Brig- ham, 19 Pick. 368 ; State v. Forshner, 43 N. H. 89 ; Green v. State, 59 Md. 123 ; State v. Gilliok, 7 Clarke, Iowa, 287 ; State v. Adams, 20 Iowa, 486 ; see ProfFatt on Jury Trials, § 130. ' Davis V. People, 19 111. 74 ; Breed- ing V. State, 11 Texas, 257. 8 Jesse V. State, 20 Ga. 156 ; Green V. State, 59 Md. 123. See Mulcahy i'. R. L. R., 3 H. L. Cas. 306. Supra, § 671. 9 State I'. Quimby, 51 Me. 396 ; Burns V. State, 12 Tex. Ap. 269. w State V. Marshall, 8 Ala. 302. See Doyal V. State, 70 Ga. 134; Ladd o. State, 17 Fla. 215. Supra, 5 671. » State V. Gill, 14 S. C. 410. CHAP. XII.] REVISION BY APPELLATE COURT. [§ 694. VI. REVISION BY APPELLATE COURT. § 693. Can a defendant, -who has not exhausted his peremptory challenges, object in error to the action of the court below jjgfg^^^^t in decidiing against him a challenge for favor ? TJiere not ex- is good authority for holding that in ordinary cases he his peremp- cannot. He is bound, it is argued, if he objects to the i°n|e'fcln- juror, and his objection is overruled by the court to chal- ?ot except lenge such juror peremptorily, supposing the case ulti- court over- mately shows that he has challenges to spare. ^ But if iTnge^for*' it appear that the defendant was misled by the actioft of ^^^°''- the court, or that he was in any way excluded from making a peremp- tory challenge of the juror, in question, then he should be allowed to review the decision in error .^ And we may also hold that where the defendant peremptorily challenges the juror after admission by the court, without exhausting his peremptory challenges, no error lies.' But error lies when the defendant's peremptory challenges have been exhausted so that he has been unable to correct the mis- ruling by challenge.* § 694. Where the defendant exhausts his peremptory challenges on trial, if in such case the statute gives a writ of error to rulings of » Hopt V. Utah, 120 U. S. 430 ; see Spies u. Illinois, 123 U. S. 90, 644 ; Burt V. Panjaud, 99 U. S. 180 ; State v. Gaffney, 56 Vt. 451 ; State v. Hoyt, 47 Conn. 518 ; People v. Knickerbocker, 1 Park. C. E. 302 ; Wilson v. People, 90 111. 229 ; Collins v. People, 103 111. 21 ; State V. Winter, 79 Iowa, 627 ; State v. George, 62 Iowa, 682 ; State v. Benton, 2 Dev. & B. 196 ; State v. McQuaige, 5 S. C. 429 ; State v, Anderson, 26 S. C. 599 ; MoGowan v. State, 9 Yerg. 154 ; Norfleet v. State, 4 Sneed, 340 ; Taylor V. State, 11 Lea, 708 ; People v. Stone- cifer, 6 Cal. 405 ; People v. McGungill, 41 Cal. 429 ; Bohannon v. State, 15 Nev. 209. See Burt v. Panjaud, 99 U. S. 180 ; Capehart v. Stewart, 80 N. C: 101; Iverson v. State, 52 Ala. 170; State V. Farrer, 35 La. An. 815 ; Gris- som V. State, 8 Tex. Ap. 386 ; Holt v. State, 9 Tex. Ap. 571 ; Lum v. State, 11 Tex. Ap. 483. But see Brown v. State, 70 Ind. 576. Of. Johns v. State, 55 Md. 350 ; Sullings v. Shakespeare, 46 Mich. 408. 2 See Lithgow v. Com., 2 Va. Cas. 297 ; Baxter v. People, 3 Gilm. 386 ; People V. Bodine, 1 Denio, 282 ; People V. Freeman, 1 Denio, 9, 35 ; State v. Clyburn, 16 S. C. 375 ; Morlarity o. State, 62 Miss. 655 ; State u. Melton, 37 La. An. 77 ; State v. Redmond, Id. 774; Birdsong v. State, 47 Ala. 68.; Loggins V. State, 12 Tex. Ap. 65 ; Wright V. State, 12 Tex. Ap. 163. ' U. S. u. Neverson, 1 Mackay, 152 ; State ;;. Lawlor, 28 Minn. 216 ; Ogle v. State, 33 Miss. 383 ; Stewart v. State, 8 Eng. (Ark.) 720; Burrell <.. State, 18 Tex. 713 ; Sharp v. State, 6 Tex. Ap. 650. See cases cited supra, § 617. Stephenson v. State, 110 Ind. 358. * People V. Casey, 93 N. Y. 38. 479 § 695.] PLEADING AND PRACTICE. [CHAP. XII. * courts on challenges, there can be no question that an erroneous action of the court below, on admittins a iuror after chal- Otherwise „ » ■ in i , -r when he lenge for favor, is ground for reversal.' In some junsdic- Ms per-^ tions, however, the action of the court on challenges for ^™Pj°''y favor is exclusively a matter of judicial discretion, and not ground for error.* § 695. When the action of the court, as in cases of challenges to the array and peremptory challenges, is placed on whenchai- '"^coi'd, and there is a regular issue and joinder, and lenge is on iudgment on this issue, then error lies to this at corn- record. ., . mon law.' 1 See Wright v. State, 12 Tex. Ap. v. State, 24 Ga. 282. Infra, §§ 777 163; Loggins ». State, 12 Tex. Ap. 65; et seq. Wade V. State, 12 Tex. Ap. 358. » Infra, § 777 ; and see Thomas v. 2 See R. V. Edmonds, 4 B. & Aid. People, 67 N. Y. 218 ; People v. Vas- 471; Heath?;. Com., 1 RoWnson, 735; quez, 49 Cal. 860; People v. Colson, Costly V. State, 19 Ga. 614 ; Buchanan 49 Cal. 679 ; see Phillips v. State, 68 Ala. 469. 480 CHAP. XIII.] FURNISHIN& COPT OP INDICTMENT. [§696. CHAPTER XIII. CERTAIN SPECIAL INCIDENTS OF TRIAL. I. FuENisHiNG Copt or Indict- ment. This sometimes prescribed by statute, § 696. II. CONCURKENT TeIAL OF SEPARATE Indictments, § 697. III. Severance op Defendants on Trial, § 698. IV. Arraignment. Defendant usually required to hold up the hand, 699. Failure to arraign may be fatal, § 700. Defendant may waive right, §701. V. Bill op Particulars. May be required when indict- ment is general, § 703. Affidavit should be made, § 703. Particulars may be ordered on general pleas, § 704. Action on particulars not usually subject of error, § 705. VI. Demurrer to Evidence. Demurrer to evidence brings up whole case, § 706. Vli. View op Premises. Such view may be directed when conducive to justice, § 707. VIII. Charge op Court, Questions of law are for court, § 708. Defendant has a right to full statement of law, § 709. Misdirection a, cause for new trial, § 710. Judge may give his opinion on evidence, § 711. Must, if required, give distinct answer as to law, § 712. Error to exclude point from jury unless there be no evidence, § 713. Charge must be in open court, and before parties, § 714. When required must be in writ- ing,' §715. I. FURNISHING COPY OF INDICTMENT. § 696. In some jurisdictions, adopting in this respect English statutes, passed at a time when but for such a provision a defendant might have been precluded from learning the quired by actual charge against him, the defendant is entitled to ^*^''^*^' have delivered to him a copy of the indictment, duly certified,^ and in some jurisdictions, also, he is entitled to a list of the wit- ' U. S. V. Curtis, 4 Mason, 232 ; v. State, 70 Ala. 4 ; Tidwell v. State, State V. Fuller, 39 Vt. 74 ; Fouts v. 70 Ala. 33 ; Hubbard v. State, 72 Ala. State, 8 Ohio St. 75 ; Ben v. State, 22 164; Wright v. State, 42 Ark. 94. As Ala. 9 ; Brister v. State, 26 Ala. 107 ; to English practice, see R. v, Burke, 10 Robertson v. State, 43 Ala. 825 ; Bain Cox, 519 ; R. v. Hughes, 4 Cox, 519. 31 481 § 698.] PLBADINS AND PRACTICE. [chap. XIII, nesses against him.^ But this practice does not preclude the prose- cution from calling, in cases of surprise, other witnesses on trial.* II. CONOIJKRENT TRIAL OF SEPARATE INDICTMENTS. § 697. As we have elsewhere seen, it is no objection to the joinder of several counts in an indictment, and their concurrent trial, that they contain distinct offences if such offences relate to the same general transaction. ^ For the same reason it has been held that two indictments against the same defendant, embracing different phases of a con- spiracy, can be tried together, against the defendant's objection.* But, unless the offences are such as could properly be joined in one indictment, they ought not to be thus concurrently tried." When cross prosecutions of assault and battery are simultaneously pending, the practice is for them to be tried together, as by this pro- cess the ends of justice are subserved.* When sep- arate in- dictments can be con currently tried. III. SEVERANCE OF DEFENDANTS ON TRIAL. § 698. As a general rule, joint defendants are entitled to a sever- ance on trial.'' Whether, as has been seen, there can fendants be severance in indictments for conspiracy and riot, has rartriaL^'^ been doubted, though the preponderance of authority is in favor of the right even in these cases.* ' U. S. V. Wood, 3 Wash. C. C. 440 ; Com. V. Knapp, 9 Pick. 496 ; Com. v. Edwards, 4 Gray, 1 ; Scott v. People, 63 111. 608 ; State u. Gillick, 10 Iowa, 98; State v. Stanley, 33 Iowa, 526; Hill V. People, 26 Mich. 496. As to English practice, see R. v. Vincent, 9 C. & P. 22 ; R. V. Bull, 9 C. & P. 22. 2 Supra, § 358. The privilege in each case is one which may he waived, either expressly or by going to trial without objection. Infra, § 733 ; K. v. Frost, 9 C. & P. 162 ; Lord v. State, 18 N. H. 173 ; State V. Norton, 45 Vt. 258 ; Fonts v. State, 8 Ohio St. 98 ; Bird v. State, 50 Ga. 585 ; Lisle V. State, 6 Mo. 426 ; State v. Jack- son, 12 La. An. 679 ; Taylor v. State, 11 Lea, 709. 482 That a material variance between copy and original may be ground for continuance, see Tidwell v. State, 70 Ala. 33. As to proceedings on lost indictment, see supra, § 278. That the service need not be affirmatively shown in error, see Shelton v. State, 73 Ala. 8. ' Supra, § 285. * Withers v. Com., 5 S. & R. 59 ; Brightly's Dig. Penn. Rep. 498. 6 State V. Devlin, 25 Mo. 175. 6 See R. V. Wanklyn, 8 C. & P. 290. ' Supra, §§ 310, 311, where the au- thorities are given. 8 In Casper v. State, 47 Wis. 535, we have the following on this point : — "Although the practice may work CHAP. XIII.j ABBAIOXMENT. [§ 699. IV. AKRAIGNMENT. § 699. The defendant being brought into court for trial, the first step is to call upon him by name to answer the matter jjgfgmjant charged on him in the indictment.' By the old law, he usually re- ii_ijii-iji_ quired to was required to stand up and hold up his hand, the hold up the object being to compel the full extension of his person, ^°'*" inconvenience, and even difficulty, sep- arate trials may be had upon indict- ment or information for conspiracy. R. a. Kinnersley, 1 Str. 193 ; R. v. Scott, 3 Burr, 1262 ; E. v. Cooke, 5 B. & C. 638 ; R. V. Kendriok, 6 Ad. & E. 49 ; R. V. Ahearne, 6 Cox C. C. 6 ; People v, Oloott, 2 Johns. 301 ; State v. Buchanan, 5 H. & J. 317, 500. The case of Com- monwealth I), Manson, 2 Ashm. 31, holds otherwise, but cites no authori- ties. Informations for conspiracy are therefore within §§ 4680, 4685, Rev. Stat. When the venue is changed for some only of the defendants in indict- ment or information for conspiracy, separate trials must be had. The plaintiff in error was therefore pro- perly--tried alone in the municipal court. When several are prosecuted together for crime, which one, or othey limited number only, cannot commit, like conspiracy or riot, and are taken and may be brought to trial, and on separate trials verdicts go against a n umber incapable in law of committing the crime, judgment against those found guilty should be suspended until the number necessary to the crime are convicted. Failing that, those against whom verdicts have been found should be discharged. When the verdicts are found against the number necessary to the crime, then judgment should go against them." ' See supra, §§ 408 et seq.; 1 Chitty C. L. 351 ; 4 Bl. Com. ch. xxv. " The arraignment of prisoners, against whom true bills for indictable offences have been found by the grand jury, consists of three parts : first, calling the pris- oner to the bar by name ; secondly, reading the indictment to him ; thirdly, asking him whether he be guilty or not of the offence charged. "It was formerly the practice to require the prisoner to hold up his hand, the more completely to identify bim as the person named in the indict- ment, but the ceremony, which was never essentially necessary, is now disused ; and the ancient form of ask- ing him how he will be tried is also obsolete. The prisoner is to be brought to the bar without irons, shackles, or other restraint, unless there be danger of escape ; anrf ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no terror or uneasi- ness other than what proceeds from a sense of his guilt or the misfortune of his present circumstances." See supra, § 540 a; 2 Hawk. c. 28, s. 1 ; Layer's case, 6 St. Tr. 230 ; 1 East P. C. 371. As to English practice, see further Archbold's PI. & Ev. 17th ed. 1871, p. 110. Supra, § 408. The arraignment may take place im- mediately on finding of bill. State v. Chenier, 32 La. An. 103; State v. Shields, 33 La. An. 410 ; supra, § 417. When a case in which the defendant is arraigned is removed to another court, there is to be no fresh arraign- ment. Supra, § 602 ; Davis v. State, 39 Md. 355. 483 § 701.] PLEADINa AND PRACTICE. [chap. XIII. and in this way to determine identity. One oi two cases, in fact, are recorded in which, on the prisoner thus rising and extending his hand, peculiarities were brought out (e. g., as in left-handedness) touching the question of identity. But in England the form is no longer obligatory,' though it is still maintained in some parts of the United States, with the qualification that if the defendant refuses to hold up his hand, but confesses that he is the person named, this is enough. § 700. Wherever the duty to arraign is imperative, failure in the performance of this duty is fatal, when the record shows the failure, in an appellate court,' though arraign- ment may be inferred from the averments that the de- fendant was in court and was duly called on to plead.' The arraignment need not be repeated after a mistrial.* § 701. Where there is evidence on record of the defendant's presence, the reading to him of the demand of guilty or may waive not guilty may in some jurisdictions be waived by plea,' or by equivalent action on the part of the defendant.' Failure to arraign may be fatal. right. 1 4 Black. Com. 323. 2 R. V. Fox, 10 Cox C. C. 502 ; Han- son V. State, 43 Ohio St. 376 ; Graeter V. State, 54 Ind. 159 ; Griggs v. People, 31 Mich. 471 ; Anderson v. State, 3 Finn. (Wis.) 367 ; State v. Thompson, 32 Minn. 144 ; State v. Vanhook, 88 Mo. 105 ; Smith v. State, 1 Tex. Ap. 408; People u. Gaines, 52 Cal. 480. In Missouri, see State v. Saunders, 53 Mo. 234. See, as differing from text, Turpin v. State, 80 Ind. 148 ; People V. Ousterhout, 34 Hun, 261 ; State v. Casaaday, 12 Kan. 550 ; People v. Ah Hop, 1 Idaho, N. S. 698. That an arraignment which was accidentally omitted at the proper time, may be made after the jury was sworn and the jury re-sworn, but before the re- ception of evidence, see Weaver v. State, 83 Ind. 289. But an order for a nunc pro tunc arraignment must be made in the defendant's presence. Baker v. State, 39 Ark. 180. » Fitzpatrick u. People, 98 111. 259. 484 That failure to show arraignment in a misdemeanor is not under U. S. stat., § 1025, ground to reverse, see U. S. v. MoUoy, 31 Fed. Rep. 19. ' State V. Stewart, 26 S. C. 125 ; Hayes o. State, 58 Ga. 35 ; Atkins u. State, 69 Ga. 595 ; State v.' Boyd, 38 La. An. 374 ; State v. Simms, 71 Mo. 538. Whether arraignment is necessary has become almost exclusively a sub- ject of statutory enactment. In Penn- sylvania, by the Act of January 8, 1867, arraignment is only required in cases triable exclusively in oyer and terminer. In such cases it is obliga- tory. Dougherty v. Com., 69 Penn. St. 286. It is not necessary that a prisoner should be arraigned and plead at a preceding regular term to the special term at which he is tried. State V. Ketchey, 70 N. C. 621. 5 See fully supra, § 541. 6 Pierson v. People, 79 N. Y. 424; People V. Osterhout, 41 N. Y. 261. CHAP. XIII.] BILL OF PARTICULARS. [§ 702. The plea of guilty should be given by the defendant person- ally.i V. BILL OP PARTICULARS. § 702. Wherever the indictment is so general as to give the defendant inadequate notice of the charge he is ex- •^y^gnju. pected to meet, the court, on his application, will require dictment i» the prosecution to furnish him with a bill of particulars uu of par- of the specific charge to be pressed, or the evidence ^ayiTe intended to be relied on.'' That indictments may be thus required, general, and yet in entire conformity with precedent, has been heretofore abundantly shown. It is allowable to indict a man as a common barrator, or as a common seller of intoxicating liquors, or as assaulting a person unknown, or as conspiring with persons un- known to cheat and defraud the prosecutor by " divers false tokens and pretences ;" and in none of these cases is the allegation of time material, so that the defendant is obliged to meet a charge of an offence comparatively undesignated, committed at a time which is not designated at all. Hence has arisen the practice of requiring, in such cases, bills of particulars ; and the adoption of such bills, instead of the exacting of increased particularity in indictments, is productive of several advantages. It prevents much cumbrous special pleading, and consequently failure of justice, as no demurrer lies to bills of particulars.* And it gives the defendant, in plain, unartificial language, notice of the charge he is to meet. ' People V. MoCrory, 41 Cal. 459. " It seems that the proper course Is Supra, §§ 408 et seq, for the defendant to apply to the prose- As to the Indiana practice in respect cutor, in the first instance, for parti- te reading the indictment to the defeu- cnlars of the ofiFenoe ; and, if they are dant, and the terms of the arraign- refused, to apply to the court or a ment, see Clare v. State, 68 Ind. 17. judge, upon an affidavit of that fact, ' Williams v. Com., 91 Penn. St. and that the accused is unable to un- 493 ; Goersen v. Com., 99 Penn. St. derstand the precise charge intended. 388. As to specification of place of R. v. Bootyman, 5 C. & P. 300 ; E. v. nuisance, see State v. Hill, 13 R. I. Hodgson, 3 C. & P. 422 ; R. v. Down- 314. shire, 4 A. & E. 699. The application ' See Com. u, Davis, 11 Pick. 432. may be made to the judge at the as- In People v. Davis, 52 Mich. 569, such sizes. R. v. Hodgson, supra, where a bill was granted on a prosecution for Vaughn, B., said he would, if ueces- adultery. sary, put off the trial in order that 485 § 705.] PLEADING AND PRACTICE. [CHAP. XIII. § 703. As has been already seen, bills of particulars may be ordered under the usual general count in conspiracy,* should be under indictments for being a common seller of liquor,' and under indictments for embezzlement,' and for being a common barrator or common scold.'' But it is proper, in order to justify the ordering by the court of such a bill, that the defendant should make affidavit that he is, from the generality of the indict- ment, unable to duly prepare himself for his defence. ■ § 704. Of course the same reasoning applies when the defendant Particulars ^^^^ ^P' ^^ ^^^ °^ coufession and avoidance, a defence may be which is Substantially a new case. In such instances ordered on i t << • t n ,■■, general (e. g., where the deience, to an indictment for- libel ^ ^*^" charging general official misconduct, is the truth of the charge), the defendant may be, on due cause shown, compelled to state the particulars of his defence.* § 705. It is said that the allowance of bills of particulars is within the discretion of the presiding iudge, and is not Notusually , . , - 6 v i. u ^-u e \.- ^ subject of subject of error." xet whenever a bill ot particulars is *'^™'^' a substitute for special averments in an indictment, error should be entertained. The same right of exception allowed to the defendant in the one case should be allowed, unless there be a statutory impediment, in the other. The appellate court should have the power of determining whether there is enough filed against the defendant to put him on his trial. particulars might be delivered. In • Supra, § 157 ; Whart. Crim. Law, barratry, however, it seems to be ne- 9th ed. § 1386. cessary to give particulars without any * State v. Bacon, 41 Vt. 526 ; Com. demand. 1 Curw. Hawk. 476, s. 13. v. Giles, 1 Gray, 466 ; Com. v. Wood, 4 " If particulars have been delivered, Gray, 11. the prosecutor will not be allowed to ' R. v. Bootyman, 5 C. & P. 301 ; R. go into other charges than those con- v. Hogdson, 3 C. & P. 422 ; State i'. tained therein. If particulars have Gushing, 11 R. I. 314; Whart. Crim. been ordered, but not delivered, it Law, 9th ed. § 1048. seems that the prosecutor cannot be * R. v. Urlyn, 2 Saund R. (Wil- preoluded from giving evidence on liams's ed.) 308. that account. R. v. Esdaile, 1 F. & F. ^ Com. v. Snelling, 15 Pick. 322. 213-227. The proper course is to ap- « Com v. Giles, 1 Gray, 466 ; Com. ply to put oflf the trial." Rose. Cr. v. Wood, 4 Gray, 11 ; Gardner v. Ev. p. 192. Gardner, 2 Gray, 434 ; Harrington v. 486 Harrington, 107 Mass. 329. CHAP. XIII.] VIEW OF PREMISES. [§ 707. VI. DEMURRER TO EVIDENCE. § 706. In several of the United States it has been held, as has been seen, that the defendant may demur to the evi- dence ; though when this is done, the prosecution is not to^™Mence compelled to ioin in the demurrer, but may, at its elec- brings up J^ •* ' "' ' whole case, tion, go to the jury.' In Massachusetts, the court, when there is no evidence to convict, will take the case from the jury ;^ and in New York, under similar circumstances, the court advises and virtually directs an acquittal.' Unless there be statutes pro- hibiting this course, this is a necessary prerogative of the judge trying the case.^ VII. VIEW OF PREMISES. § 707. The practice which obtains in civil suits, of permitting, when authorized by local statute, the jury to visit the scene of the res gestae, is adopted in criminal issues bedir™tea whenever such a visit appears to the court important for *« premises '^'^ _ _ ^ when nec- the elucidation of the evidence.'' The visit, however, essaryto should be jealously guarded, so as to exclude interfer- ence by or conversation with third parties,' and should be made under sworn officers.^ Such view may be granted after the 1 Supra, § 407. 2 Com. u. Fitchburg K. R., 10 Allen, 189. ' People V. Bennet, 49 N. Y. 137 ; People V. Harris, 1 Edm. Sel. Ca. 453. See fully infra, § 812. « Infra, § 812. 5 State V. Lewis, 14 Mo. Ap. 197 ; Batewell, J. See Massachusetts Gen. Stat. c. 172, § 9 ; and 5 Cush. 298 ; see Chute v. State, 19 Minn. 271. 6 People V. Green, 53 Cal. 60. ' See 36 Cent. Law Jour. 436. In what oases views can be granted, see Whart. Crim. Ev. § 312 ; R. v. Martin, L. R. 1 C. C. 378; R. v. McNamara, 14 Cox C. C. 229 ; State v. Knapp, 45 N. H. 148 ; Ruloff V. People, 18 N. Y. 179 ; Eastwood V. People, 3 Parker C. R. 25 ; Fleming v. State, U Ind. 234 — a case of arson. In Bostock V. State, 61 Ga. 635, it was held error for the trial court to ask the defendant's counsel whether he ob- jected to the jury viewing the premises, and then, on a negative answer, send- ing them to the view. In Chute v. State, 19 Minn. 271, the court below cliarged the jury as fol- lows : " You must weigh the evidence given in court, coupled with your own examination, and if you are satisfied therefrom, beyond a reasonable doubt, that the building is a nuisance, and dangerous to the public, you should so find." The Supreme Court said : "De- fendant's exception to this instruction was, we think, well taken. We think the court below misconceived the pro- per purpose of a view by a jury. The view is not allowed for the purpose of furnishing evidence upon which a ver- 487 § 708.] PLEADING AND PRACTICE. [chap. XIII. judge has summed up the case.* But where only a part of the jury visited the premises, and this, after the case was commi^tted to the jury for their final deliberation, this was held ground for new trial.' The visit, also, must be made under the supervision of officers ap- pointed by the court,' duly sworn,* and in the presence of the accused, who is entitled to have all evidence received by the jury taken in his presence,* though a refusal to attend by the defendant, he being duly requested and empowered to do so, may not vitiate the proceedings.^ But during the view no stranger is permitted to talk with the jury,'' nor can anything in the way of oral evidence be received.* VIII. chabge op court. § 708. Several branches of this subject are elsewhere distinc- tively considered. It has been shown that the admissi- bility of evidence is exclusively for the court ;' that it is for the court alone to determine when there shall be a severance of defendants on trial ;'" that the court is to judge of the validity of challenges ;" that it is the duty of the court, in case any material charge of the indictment is not supported in law, so to Queetions of law for the court. diet is to be found, but for the, purpose of enabling the jury better to under- stand and apply the evidence which is given in court. Com. v. Knapp, 9 Pick. 615." As to irregular views, see in- fra, § 836. 1 R. V. Martin, Law Rep. 1 C. C. 378. « Ruloff V. People, 18 N. N. Y. (4 E. P. Smith) 179 ; Eastwood v. People, 3 Hark. C. R. 25. 3 Patchin v. Brooklyn, 2 Wend. 377. See infra, § 836. < People V. Queen, 53 Cal. 60. 5 State V. Bertin, 24 La. An. 46 ; State V. Sanders, 68 Mo. 202 ; Ruther- ford v. Com., 78 Ky. 639 ; State v. Graham, 74 N. C. 646 ; Smith v. State, 42 Tex. 444 ; Benton v. State, 30 Ark. 328 ; Carroll ^. State, 5 Neb. 31 ; Peo- ple V. Bush, 68 Cal. 622 ; People o. Lowry, 70 Cal. 193; aff. People v. Bush, 68 Cal. 622 ; though see Shular 488 V. state, 105 Ind. 289 ; State u. Adams, 20 Kaus. 311. Counsel are not allowed to address the jury when on the view, Sasse v. State, 68 Wis. 530. In State v. Ah Lee, 8 Or. 214, it was held not error to direct a view without providing for the pres- ence of the defendant or his counsel. That defendant may waive his right, see State v. Congdon, 14 R. I. 506. 6 State a. Buzzell, 58 N. H. 257 ; Shular v. State, 105 Ind. 289; see State V. Buzzell, 59 N. H. 65. That in such cases a waiver is presumed, see State V. Congdon, 14 R. I. 506. ' People V. Green, 53 Cal. 60. * Hayward b. Enapp, 22 Minn. 5; Sasse V. State, 68 Wis. 530 ; People v. Green, 53 Cal. 60 ; State ». Lopez, 15 Nev. 407. 9 Whart. Crim. Ev. §§ 23 e< sej. 1" Supra, § 309. " Supra, §§ 583 ei seq. CHAP. XIII.] CHARGE OF COURT. [§ 709. tell the jury, directing an acquittal, and, in case of a conviction, to give a new trial ;* and, in fine, that all matters of law belong ex- clusively to the court, and that unless there are local statutory or constitutional provisions to the contrary, the jury is bound to take the law from the court.' § 709. But here comes up the question, in what way the views of the court as to the law are to be made known. At defendant common law, and by the practice, until a recent period, ^^|^^jj"S'^* of England and of the United States, no bill of excep- statement tions could be taken in criminal cases, and there could be no writ of error, except to so much of the case as was on record. No provisions existed for filing the charge of the court, or for requiring the court to charge on particular points, or for eliciting the opinion of the court either in the affirmative or neg- ative of a particular proposition. The only way in which the law expressed on a trial could be overhauled was by a motion for a new trial ; and on such a motion the parties had to depend, as to what had taken place, upon the recollection and notes of the judge trying the case. This is still the usage in England, as well as in several of the United States ; and this will account for the meagreness of the judicial literature of this branch of the law. This much, however, is clear. The law is to come from the court, and the court is bound to give the law. And it has been repeatedly declared that the defendant has a right to a full statement of the law from the judge ; and that a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for reversal.* Where, under statute, points are given to him by coun- 1 Infra, §§ 805, 812, 813. 699 ; Cox v. State, 32 Ga. 515 ; Farrig 2 See as to province of court, article v. State 35 Ga. 241 ; Aaron v. State, 39 in 8 South. Law Rev. (N. S.) 401. Ala. 684 ; Armstead v. State, 43 Ala. 8 Infra, § 796 ; State v. McDonnell, 340 ; Clements v. State, 50 Ala. 117 ; 32 Vt. 491; People v. Rego, 43 Hun, Woodbury v. State, 69 Ala. 12; State 127 ; Longnecker v. State, 22 Ind. 247 ; Daubert, 42 Mo. 242 ; State v. Mitchell, State V. Braiutree, 25 Iowa, 572 ; State 64 Mo. 191. V. Meshek, 51 Iowa, 308 ; State v. Glyn- In Pennsylvania, it is, not usual for don, 51 Iowa, 463 ; People v. Dunn, 1 the Commonwealth to give points to Idaho, 75; Lancaster v. State, 3 Cold, the court. Murray v. Com., 79 Penn. 339 ; Phipps v. State, 3 Cold. 344 ; St. 311. See, generally. State v. Carl- Strady v. State, 5 Cold. 300 ; Souey v. ton, 48 Vt. 636 ; Com. e. Pemberton, State, 13 Lea, 472 ; State v. Hendricks, 118 Mass. 36 ; Meyers v. Com., 83 Penn. 32 Kan. 559 ; Hinoh v. State, 25 Ga. St. 131 ; Roach v. People, 77 111. 25 ; 489 § 711.J PLEADING AND PRACTICE. [chap. xiir. sel to charge, he must, if he affirms those points, state them specifi- cally, and it is error to fail so to do.* And so to leave an inference oifact to the j«ry, as a rule of law, is error,' and so to leave to the jury a question as to which there is no evidence,* and so to give undue and unfair prominence to a particular side of the case.* § 710. Of the fidelity thus exacted in the discharge of this par- ticular duty repeated illustrations are given in a succeed- uoifca^e ^"§ chapter." As is there shown, any misdirection by for new the court, in point of law, on matters material to the issue, is a ground for a new trial ; nor is such misdirec- tion, unless expressly recalled,* or unlikely to prejudice, cured by subsequent contradictory instructions,' nor by the fact that the jury founded their verdict mainly on distinct grounds.* § 711. Unless there are conflicting statutory provi- ^"vi^his™^'^ sions,' the judge is entitled to give his opinion on the opinion on evidence, commenting as much thereon as he deems con- the evl- n • • in 1 1 dence. ducive to the interests of justice , " and he may also state Roman v. State, 41 Wis. 312 ; State ». Lautenschlager, 22 Minn. 514; Ed- wards o. state, 53 Ga. 428 ; Cicero v. State, 54 Ga. 156 ; Moody v. State, 54 Ga. 660 ; Habersham v. State, 56 Ga. 61 ; McBeth v. State, 50 Miss. 81 ; State V. Foster, 61 Mo. 549 ; Bethel v. Com., 80 Ky. 626 ; Clare v. People, 9 Col. 122; Hudson v. State, 40 Tex. 12; Pefferling o. State, 40 Tex. 487 ; Talia- ,ferro v. State, 40 Tex. 523; Cole v. State, 40 Tex. 147; Perrell v. State, 43 Tex. 523 ; Cady v. State, 4 Tex. Ap. 238 ; Coffee v. State, 5 Tex. Ap. 545. In Virginia it is not the practice for the trial judge to charge the law except ou the points requested. Dejarnette V. Com., 75 Va. 867. In State v. Mahly, 68 Mo. 315, it is held to be the duty of the court, in cases of cruel homicide, to charge that the offence is murder in the first de- gree. ' State V. Roe, 16 Vroom, 49. 2 Infra, § 798. a Infra, § 794 ; Smith v. State, 41 490 N. J. L. 370 ; State v. Carter, 76 N. C. 20 ; Goldsmith v. State, 63 Ga. 85. * Campbell v. People, 109 Ell. 565. 5 Infra, §§ 793 et seq. ; see People ti. Biggins, 65 Cal. 564. 5 State V. Morris, 47 Conn. 546 ; State V. Williams, 69 Mo. 110 ; Nelson V. State, 61 Miss. 212 ; Smurr v. State, 88 Ind. 504. ' Murray v. People, 79 Penn St. 311; Rice v. Com., 100 Penn. St. 28; State V. Hopper, 71 Mo. 425 ; State ». Hartzell, 58 Iowa, 520; McDougal ». State, 88 Ind. 24 ; People v. Valencia, 43 Cal. 553. « Infra, § 793. 9 Infra, § 798 ; see White v. State, 19 Tex. Ap. 343. i» Infra, § 798. Contra, in Illinois by statute, Weyrtch v. People, 89 111. 90 ; so in W. Virginia, State v. Thomp- son, 21 W. Va. 741 ; State v. Sutfin, 22 W. Va. 771 ; so in North Carolina, by statute, State v. Locke, 77 N. C. 480; State v. Daney, 78 N. C. 437; though see State i>. Boon, 80 N. C. 461; CHAP. XIII.] CHARGE OF COURT. [§ 711. the presumptions of law to which the evidence gives rise.^ He is not, however, required to give his opinion as to whether certain facts are proved,* and when there is a conflict of fact, he has no right to adjudicate on such conflict, and thus take it from the jury;' nor has he a right to throw an unfair discredit on a legitimate defence, {e.g., alibi, or good character) ;* nor unfairly to discrimi- nate between special witnesses ;* nor unfairly to present the strong and such comments, also, are forbidden by statute in Missouri, State v. Munsori, 76 Mo. 109 ; and in Indiana, Pancake v. State, 81 Ind. 93 ; Moore v. State, 85 Ind. 90 ; so as to California, People v. Ah. Sing, 59 Cal. 400. In U. S. V. Reynolds, 98 U. S. 145, exception was taken to the following clause of the charge of the trial judge : " I think it not improper, in the dis- charge of your duties in this case, that' you should consider what are to be the consequences to the innocent vic- tims of this delusion. As this contest goes on they multiply, and there are pure-minded women and there are in- nocent children — innocent in a sense even beyond the degree of the inno- cence of childhood itself. These are to be the sufferers ; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land." It was held by the Supreme Court, Waite, C. J., giving the opinion that this was no error. While every ap- peal of the court, so it was ruled, " to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of every reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862, 12 Stat, 501, saw fit to make bigamy a crime in the territories. This was done because of the evil consequences that were sup- posed to flow from plural marriages. All the court did was to call the at- tention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform." " Whether there be any evidence or not is a question for the judge ; whether it is sufScient evidence is a question for the jury." Griffin v. State, 76 Ala. 32, citing 1 Green. Ev. § 49 ; S. P., State V. Atkinson, 75 N. C. 519. 1 Infra, § 794. 2 Com. V. Broadheck, 124 Mass. 319 ; People t). Jones, 24 Mich. 216 ; People v. Messersmith, 61 Cal. 246. 3 Watson V. People, 64 Barb. 130. Infra, § 794-798 ; State u. Byers, 80 N. C. 426; Hughes v. State, 75 Ala. 31 ; Scott V. State, 64 Ind. 600 ; People V. Arnold, 40 Mich. 710. ' Whart. Crim. Ev. § 333 ; infra, § 794 ; U. S. I). Gunnell, 5 Mackey, 196 ; People V. Clements, 42 Hun, 353 ; Tur- ner V. Com., 86 Penn. St. 54 ; Albiu v. State, 63 Ind. 599 ; Davis v. State, 5 Baxt. 612 ; State v. Byers, 80 N. C. 426 ; Hoge v. People, 117 111. 35 ; Nelms V. State, 58 Miss. 362 ; State v. Lewis, 69 Mo. 92 ; Long ». State, 11 Tex. Ap. 381 ; Ayres v. State, 21 Tex. Ap. 368 j Bond V. State, 23 Tex. Ap. 180 ; People V. Malaspina, 57 Cal. 628. See, however, Reynolds v. U. S., 98 U. S. 145, as cited above. « Hoge V. People, 117 111. 35 ; People V. Lyons, 49 Miss. 78 ; Landrum «. State, 63 Miss. 107; Owens v. State, 63 Miss. 450; Boyd v. State, 16 Lea, 148 ; Smith u. State, 22 Tex. Ap. 196 ; Maines ». State, 23 Tex. Ap. 568. 491 § 712.] PLEADING AND PRACTICE. [chap. XIII. features of the prosecution ignoring those of the defence ;i nor to treat inferences of fact as if they were presumptions of law.* Whether he can absolutely direct an acquittal or conviction is else- where considered.' § 712. When statutory provisions exist requiring the judge at nisi prius to give his opinion affirming or negativing particular propositions, these provisions must be strictly followed, nor is it permissible for him to evade 'this duty by merely general statements of the law ;* nor by state- ments which, though theoretically accurate, may mislead.' He is not bound, it is true, to expatiate on abstract and irrelevant themes,' though these were correctly propounded to him by coun- sel ;'' nor is he forced to adopt the language in which counsel may couch instructions prayed for, but may recast the propositions, and submit them in his own terms ;^ nor is he, when an instruction asked for is partly correct and partly erroneous, bound either to affirm or Must, if required, give dis- tinct an- swers to law. 1 Goerson v. Com. 99 Penn. St. 388 ; see Jackson v. State, 69 Ala. 242. 2 Infra, § 794 ; People v. Carrillo, 70 Cal. 643. 3 Infra, § 812 ; supra, § 706. * State o. Christmas, 6 Jones N. C. 471 ; Terry v. State, 17 Ga. 204. See Cook u. Brown, 39 Me. 443 ; Foster v. People, 50 N. Y. 598 ; State v. Jones, 52 Iowa, 284; People v. Sanford, 43 Cal. 29 ; Dixon v. State, 13 Fla. 631, 636 ; Palmore v. State, 29 Ark. 248 ; see State v. Melton, 37 La. An. 82; Heath v. State, 7 Tex. Ap. 464 ; Myers V. State, 9 Tex. Ap. 157 ; Scott v. State, 10 Tex. Ap. 112 ; Irvine v. State, 20 Tex. Ap. 12 ; Riley v. State, 20 Tex. Ap. 100. « State V. Grear, 28 Minn. 426. ^ Jones V. People, 6 Col. 452. ' Infra, § 797 ; State v. Pike, 65 Me. Ill ; State v. McDonald, 65 Me. 465 ; State V. Wilkinson, 76 Me. 317 ; People V. Cunningham, 1 Denio, 524 ; People V. Jones, 24 Mich. 216 ; Lewis v. State, 4 Ham. 389 ; Tabler v. State, 34 Ohio St. 127; Honeyoutt v. State, 8 Baxt. 492 371 ; Parrish v. State, 14 Net. 60 ; Mc- Coy V. State, 15 Ga. 205 ; Bird ». State, 55 Ga. 317 ; King o. State, 71 Ala. 712 ; State V. Ware, 62 Mo. 597 ; State v. Glass, 5 Oregon, 73 ; People o. Walsh, 43 Cal. 447 ; Wilson v. State, 3 Heisk. 278 ; Harris v. State, 34 Ark. 469 ; and see Garlick v. State, 79 Ala. 265 ; Hum- bree v. State, 81 Ala. 67; State v. Riculfi, 35 La. An. 770 ; State v. Ham- ilton, Id. 1043. 8 State «. Williams, 76 Me. 480; Pistorius v. Com., 84 Penn. St. 158; Long V. State, 12 Ga. 293 ; Dougherty V. People, 1 Col. 514 ; Boles v. State, 9 S. & Mar. 284 ; Mask v. State, 36 Miss. 77 ; Wilson v. State, 2 Scam. 226 ; State V. Wilson, 8 Iowa, 407 ; Ulrich v. Peo- ple, 39 Mich. 245 ; Casper ii. State, 47 Wis. 535 ; People v. Marble, 38 Mieh. 117 ; Needham ... People, 98 111. 275 ; Devlin v. People, 104 111. 504 ; State v. Shaw, 4 Jones N. C. Law, 440 ; State ». Wissmark, 36 Mo. 592 ; State v. Sohla- gel, 19 Iowa, 169 ; People v. Cleveland, 49 Cal. 578 ; People v. Hope, 62 Cal. 291. CHAP.. XIII.] CHARGE OF COURT. [§ 714. repudiate it as a -whole ; but, as has been seen, he may restate, unless precluded by statute, the law in his own terms.' Nor is he bound to leave to the jury a point incidentally made on the trial, if his attention be not specifically called to it by a prayer for instruc- tions, and if he substantially covers the whole case in his charge.* §. 713. It is error for the judge, unless there be an entire absence of evidence to prove a particular grade of murder, to Error for exclude such grade from the consideration of the jury.' |,"gf„3*° But it is not error for him to express his opinion as to point from the grade of the offence reached by the case, provided there is no the question of grade properly arises ;* though the omission *^' ™'^®" or refusal of the court to charge the jury upon a grade of homicide not authorized by the pleadings and proof is not error.* But it is error to refuse to define the degrees when required, and the case invokes such definition.' § 714. It must, however, be kept in mind that all communications from judge to jury must be made in open court, and in q^^^„^ presence of the parties. If any statements, material to must be in :, . , 1 , ,1 . , 1 . -1 open court the issue, be made by the judge to the jury, in the and before absence Of the defendant and his counsel, and to the P^"'*'^^- defendant's prejudice,^ they will be ground for a new trial or re- versal.' And it is error for the judge to alter his charge after the " See State o. Benner, 51 Me. 267 ; Com. V. Costley, 118 Mass. 1 ; Keithler o. state, 10 S. & Mar. 192; State v. Stonum, 62 Mo. 596 ; Kennedy v. People, 40 111. 488 ; State v. Downer, 21 Wis. 275; State v. Wilson, 8 lovra, 407; Stanton v. State, 13 Ark. 318; Dixon V. State, 13 Fla. 636-; People v. Silvera, 59 Cal. 592. 2 Infra, § 794; Com. v. Costley, 118 Mass. 1 ; State v. O'Neal, 7 Ired. 251 ; Dave V. State, 22 Ala. 23 ; McKleroy v. State, 77 Ala. 95 ; Davis v. State, 14 Tex. Ap. 645. A statute requiring a charge to be in writing must be strictly followed. Smurr v. State, 88 Ind. 504. ' McNevins v. People, 61 Barb. 307 ; Burdiok v. People, 58 Barb. 51 ; Adams V. State, 29 Ohio St. 412 ; Harris v. State, 47 Miss. 318. See Lane w. Com., 59 Penn. St. 371. As to taking a case absolutely from jury, see infra, § 812. * Johnston v. Com., 85 Penn. St. 54 ; but see State v. Dixon, 75 N. C. 275. That such is his duty, unless forbidden by statute, see Mahly v. State, 68 Mo. 315. 6 Choice V. State, 31 Ga. 424 ; Wil- liams V. State, 3 Heisk. 376. 6 Ibid. ; Wynne v. State, 56 Ga. 113 ; State V. Burnside, 37TVIo. 343 ; State v. Wyatt, 50 Mo. 309. ' That this is a requisite, see Doyle V. U. S., 10 Fed. Rep. 269 ; 11 Biss. 106. 8 Infra, § 830. See Roberts v. People, 111 111. 340. 493 § 715.] PLEADING AND PKACTICE. [OHAP. XIII. jury has retired, unless in open court, in the presence of the parties, in explanation of mistake.^ Other points relating to this topic will he hereafter discussed.' § 715. When a statute requires a charge to he in writing when When Stat- Supra, 5§ 312-15; infra, § 874; » R. v. Woodfall, 5 Burr. 2661; Whart. Crim. Ev. § 136. Campbell v. R., 11 Q. B. 799 ; State v. ^ Supra, §§ 305, 312 ; Whart. on Soannel, 39 Me. 68 ; Com. v. Call, 21 Ev. § 131 ; Whart. Crim. Law, 9th ed. Pick. 509 ; Wilson v. State, 20 Ohio, §§ 82, 1388 ei se?. 26; Marshall v. Com., 5 Grat. 663; ' Supra, § 315. State v. Ragsdale, 10 Lea, 671 (cited * Com. 0. Bakeman, 131 Mass. 577. infra, § 785) ; Webber v. State, Itt 5 Supra, § 314 ; Mask v. State, 32 Mo. 5 ; Gipsou «. State, 38 Miss. 295 ; Miss. 406. As to defective verdict, see and oases cited to §§ 518, 752. Mere People V. Sepulveda, 59 Cal. 342 ; clerical errors will not make a verdict infra, § 756. insensible. Kellum v. State, 64 Miss. s Supra, § 313; Cruce v. State, 59' 226; People v. Boggs, 20 Cal. 432; Ga. 84 ; State v. Bradley, 30 La. An. Stewart u. State, 4 Tex. Ap. 527 ; Pt. I. 326. Williams v. State, 5 Tex. Ap. 226 ; ' Supra, § 313. Tayler v. State, 5 Tex. Ap. 569. 8 Supra, §§ 746, 752 ; Com. v. Walsh, lo Supra, § 751 ; State v. Balk, 76 N. 132 Mass. 8 ; Thedge v. State, 83 Ind. C. 10 ; State v. Blue, 84 N. C. 807 ; 126 ; State v. Whitaker, 89 N. C. 472 ; Clay v. State, 43 Ala. 350 ; supra. State V. Bray, 89 N. C. 480 ; State v. § 746. As to arresting judgment, see Newson, 13 W. Va. 859 ; Doran v. infra, § 762. State, 7 Tex. Ap. 385. 523 § 756.] PLEADING AND PRACTICE. [chap. XV. cation of the defendant.* But mere redundancy or surplusage does not vitiate^ provided the verdict be responsive ;' nor does mis- spelling, so long as the sense can be ascertained.^ But it has been held that a verdict of " murder in the fist degree," when the statute requires the degree to be specified, is a nullity." And so when on an indictment against two defendants the verdict found simply " the defendant" guilty.* A prisoner, after conviction, is not entitled to be discharged on habeas corpus on the ground that the verdict was defective. His relief must be by motion to set aside the verdict, or for arrest of judgment, or, afterwards, by writ of error.' 1 Supra, § 752; infra, §§ 754, 763; State V. Whitaker, 89 N. C. 473. Da- vid V. State, 40 Ala. 69. See West- brook V. State, 52 Miss. 777. As to statutory prescriptions, see Harwell v. State, 22 Tex. Ap. 251; People v. Cooh, 53 Cal. 607. As to venire de novo In such cases, see State v. Bray, 89 N. C. 480. A special verdict, finding the de- fendant guilty of the same facts as those charged in the indictment, but not finding him guilty in the county where the ofi'ence was laid, cannot be supported, and the defendant must again be put on his trial. Com. v. Call, 21 Pick. 509 ; supra, § 745. On the other hand, on an indictment for receiving goods, knowing them to be burglariously stolen, etc., a verdict of guilty of receiving the goods, knowing Ihem to have been stolen, but not burglariously stolen, was held suffi- cient to sustain a sentence. Dyer «. Com., 23 Pick. 402; supra, §§ 255, 746. It is no ground for arrest of judg- ment that the defendants were con- victed of difi'erent degrees of homicide (supra, § 755) ; but otherwise when the verdict is for an offence not being necessarily included in the indictment. State V. Scannel, 39 Me. 68. But 524 for a wrong verdict the remedy is to move to set aside or to move for a new trial. State v. Snow, 74 Me. 354; State V. Watts, 10 Ired. 369 ; State v. Ctirtis, 71 N. C. 56. Judgment will not be arrested under the Massachusetts act on an indict- ment for larceny of ' ' sundry bank bills, of the aggregate value of $367," merely because the verdict was " guilty of stealing sundry bank bills of the value of $317," and not guilty as to the residue. Com. i). Duffy, 11 Cush. 145. 2 Veatch v. State, 60 Ind. 291 ; Traube v. State, 56 Miss. 153. 3 State V. Disch, 34 La. An. 1134; State V. Murdock, 35 La. An. 729 ; Terr. o. Do., 1 Ariz. 507. * Supra, §§ 273 et seq.; State v. Smith, 35 La. An. 1414 ; Eoontz u. State, 41 Tex. 570 ; Haney v. State, 2 Tex. Ap. 504 ; Hoy v. State, 11 Tex. Ap. 32 ; Wilson v. State, 12 Tex. Ap. 481; Walker u. State, 13 Tex. Ap. 618. 5 Wooldridge v. State, 13 Tex. Ap. 443. 6 People V. Sepulveda, 59 Cal. 342. ' Infra, § 763 ; Waller v. State, 40 Ala. 325, 333 ; Dover u. State, 75 Ala. 40. As to waiver of formal defects, see State V. Fenlasou, 78 Me. 495. CHAP, XV.] VERDICT : RECOMMENDATION TO MERCY. [§ 757. XV. RECOMMENDATION TO MERCY. § 757. The recommendation for mercy, when adde'd to a verdict of guilty of an oifence whose punishment is at the dis- cretion of the court, is an appeal, in the first place, to oJJfmen^da- the court,* and afterwards to the pardoning authorities. tio° °ot^ But the recommendation is no part of the verdict, either in capital or non-capital offences.^ When, however, the court, as in capital cases, has no discretion as to the degree of punishment, the recommendation, as a mere collateral petition from the jury, is sent to the pardoning authorities direct.* ' Infra, § 942. 2 Stephens v. State, 51 Ga. 328. See State V. Vasquez, 16 Nev. 42. 3 In Com. V. Pomeroy, 117 Mass. 143, the jury returned with their ver- dict of guilty, this paper, signed by all the jurors: "The jury recommend that the sentence be commuted to im- prisonment for life on account of his youth." A general verdict of guilty was entered, and the defendant al- leged exceptions to other rulings at the trial, but not to this, which on argument to the full court were sub- sequently overruled (117 Mass. 143), and the defendant sentenced to death. Application was then made to the gov- ernor and council for a pardon. A certified copy of the record of the con- viction and sentence was transmitted to the governor, and the original return of the jury, given above, with another paper also, returned at the same time, giving the grounds of the verdict. The justices of the court were then inquired of by the governor and council whether ' ' the papers so transmitted were a part of the judicial proceedings in said case, or of the record thereof, and what is their legal relation thereto." To which they unanimously answered : "A memorandum of the ground of the verdict, or of a recommendation to mercy, presented by the jury to the judges, cannot affect the manner of re- turning, recording, or affirming the verdict, or the form of the sentence; and, in law, forms no part of the ju- dicial proceedings in the case, or of the record thereof, and has no legal relation to the judicial proceedings or record." " See Opinion of the Justices, 120 Mass. 600 (1876). In the Park Lane Murder case, Ann. Reg. 1872, p. 209, the defendant was convicted of murder, but ' strongly recommended to mercy on the ground that there was no premeditation in the act.' But Baron Channell said, ' it would be his duty to send the recommendation to mercy to the proper quarter, but at present all he had to do was to pass upon her the sentence of the law,' and she was sentenced to death in the usual form. In People v. Lee, 17 Cal. 76, the defendant was convicted of murder in the first degree, with a recommendation to mercy. The court directed the verdict to be entered without the recommendation, which, on appeal, was sustained, the court saying : ' The recommendation was ad- dressed solely to the court, and con- stituted no part of the verdict.' See, also. State v. O'Brien, 22 La. An. 27 ; State V. Bradley, 6 Ibid. 560. In State V. Potter, 15 Kans. 303, the verdict as returned was ' guilty of murder in the 525 § 758.] PLBAMNa AND PRACTICE. [CHAP. XV. Not viti- ated by being ren- dered on Sunday or holiday. § 758. The mere faC'fc of a verdict being found and rendered on Sunday will not vitiate it when it is re- ceived and recorded on the next day.' Holding court on a legal holiday is a matter of discretion in the trial court.* second degree,' and with it these words, ' and we recommend his pun- ishment to he the least amount allowed by law.' The court declined to receive the verdict in that form, and handed the jury another blank, which was duly signed and returned by them without those words. This was held no error." See note to Eason v. State, 17 Am. Law Reg. 313 ; S. C, 6 Baxt. 466 ; from which the above is con- densed. In Eason v. State, the Supreme Court of Tennessee ruled that the find- 526 ing by one jury in a murder case of "guilty, with mitigating circumstan- ces," where the court disregards the finding, and sentences the prisoner to the extreme penalty, does not bind a different jury in a, subsequent trial, which may, on the contrary, find a verdict of "guilty" without mitiga- tion. 1 Meece v. Com., 78 Ky. 586 ; Cham- blee V. State, 78 Ala. 466; State «. Ford, 37 La. An. 344. 2 State V. Sorenson, 32 Minn. 109. CHAP. XVI.] MOTION IN AKKEST OF JUDGMENT. [§ 759. CHAPTER XVI. MOTION IN ARREST OF JUDGMENT. At common law most demurrable excep- tions may be taken on motion in ar- rest, § 759. Informalities are cured by verdict, §760. Misnomer no ground, § 761. Under statute right is restricted, § 763. Insensible verdict will be arrested, §763. Pendency of prior indictment no ground for arrest, § 764. Otherwise as to statute of limitations, §765. But not irregularities of jury, § 766. Time and mode of motion is limited, §767. Sentencing defendant is equivalent to discharge of motion, § 768. § 759. At common law, and until 7th Geo. 4, c. 64, ss. 20, 21, and the corresponding statutes in this country,' any ob- Atcom- jection which would have been fatal in demurrer was ™o»i?^w, (with exceptions to be presently noticed) equally fatal murraWe on motion in arrest of judgment.* Judgment, however, can be can only be arrested for matter appearing on the record ;' motion"^ though the motion is not confined to the indictment arrest. alone, as it obtains if any part of the record is imperfect, repugnant, • See supra, §§ 90 ef seg. 2 4 Bl. Com. 324 ; Burn's J., Indict. xl. ; 1 Ch. C. L. 442, 663 ; State v. Putnam, 38 Me. 296 ; State v. Bangor, 38 Me. 592 ; Com. v. Morse, 2 Mass. 128, 130 ; Brown v. Com., 8 Mass. 59, 65 ; Com. v. Child, 13 Pick. 198 ; State V. Doyle, 11 R. I. 574 ; Francois v. State, 20 Ala. 83 ; Martin v. State, 28 Ala. 71 ; Tipper v. Com., 1 Mete. (Ky.) 6. A defective indictment is not cured by a plea of nolo contendere. Com. v. Northampton, 2 Mass. 116. Supra, § 418. Defective description of the of- fence is not one of the points in which an indictment ia cured by a verdict, but the same is equally fatal on a motion in arrest of judgment as upon demurrer, or a motion to quash. State V. Gove, 34 N. H. 510 ; Rice v. State, 3 Kans. 141. » 1 Ld. Raym. 281 ; 1 Salk. 77, 315 ; Com. Dig. Indict, v. ; State u. Carver, 49 Me. 588 ; State v. Thornton, 56 Vt. 35 ; Com. v. Donahue, 126 Mass. 51 ; Horsey v. State, 3 Har. & J. 2 ; Byers V. State, 73 Md. 207 ; Com. v. Linton, 2 Va. Cas. 476; Com. v. Watts, 4 Leigh, 672 ; Hall v. Com., 80 Va. 562; State V. Craig, 89 N. C. 475 ; State v. Allen, Charlt. 518 ; Sparks a. State, 59 Ala. 82; State v. Connell, 49 Mo. 282 ; Shepherd v. State, 64 Ind. 43 ; State V. Conway, 23 Minn. 291 ; State V. Frey, 35 La. An. 106 ; Walker v. State, 35 Ark. 386 ; Johnson v. State, 14 Tex. Ap. 306 ; Walker v. State, 14 Tex. Ap. 609 ; Williams u. State, 20 Tex. Ap. 357. 527 § 760.] PLEADING AND PRACTICE. [chap. XVI. or vicious.' Thus judgment will be arrested where no indictable offence is set forth ;* where the statute creating the offence has been intermediately repealed ;' where the case has been tried by more or less than twelve jurors ;* where no issue was averred to have been joined ;*• and where the verdict is insensible ;* though as the court possesses the power of amending its own records at any time during the term in which they are entered,' it seems that clerical errors, such as the false entering of a plea on an impossible day, may be corrected.* § 760. Errors as to form, not going to the description of the of- fence, which might have been taken advantage of at a previous stage, are not sufficient cause to arrest judg- ment.' Thus, while duplicity is fatal on motion to quash, or demurrer, the better opinion is, that it will not be ground for arrest ;'" and the same position is undoubtedly good when there has been a misjoinder of counts, but where the defend- ant has gone to trial without a motion to quash, or on application for election.*' So the verdict will cure the omission to connect necessary and dependent members of the same sentence by their appropriate copulatives,'^ and also merely formal or clerical errors.'^ So is it with essential averments, of which the verdict implies the Informali- ties are cured by verdict. 1 1 Ch. C. L. 662 ; 2 Stra. 901 ; 2 Taylor, 93 ; State v. Fort, 1 Car. Law Eep. 510 ; Whitehurst v. Davis, 2 Hay. 113. See State v. O'Connor, 11 Nev. 416. 2 Com. V. Hinds, 101 Mass. 209. 3 R. V. McKenzie, R. & R. 429 ; R. v. Denton, Dears. 8 ; 18 Q. B. 761. See U. S. V. Goodwin, 20 Fed. Rep. 237 ; Brennau v. People, 110 111. 55 ; Com. V. Kimball, 21 Pick. 373 ; Com. o. Mc- Donough, 13 Allen, 581. * Supra, § 733. See State v. Meyers, 68 Mo. 266. 5 State u. Fort, 1 Car. Law Rep. 510. 6 Com. V. Call, 21 Pick. 509. Supra, § 756. Infra, § 762. ' Supra, § 751. 8 Com. V. Cliaunoy, 2 Aslim. 91. 9 Supra, § 293 ; R. v. Strowlger, 17 528 a. B. D. 327 ; U. S. v. Gale, 109 U. S. 65 ; People v. Keely, 94 N. Y. 526 ; Coleman v. State, 111 Ind. 563 ; State V. Craige, 89 N. C. 475 ; Com. „. Mc- Mahpn, 133 Mass. 394 ; Com. v. Flan- nigan, 137 Mass. 560 ; State v. Walker, 87 N. C. 541 ; Greene v. State, 59 Ga. 859 ; West v. State, 6 Tex. Ap. 485. 1" Com. V. Tuck, 20 Pick. 356 ; State V. Johnson, 3 Hill S. C. 1. See supra, §255. » See supra, §§ 245, 299; Com. v. Gillespie, 7 S. & R. 476; State v. Watts, 82 N. C. 656 ; Guykowski v. People, 1 Scam. 476. But where two counts set forth the same oflFence judg- ment will be arrested. Supra, § 299. 12 Lutz V. Com., 29 Penn. St. 441 ; People V. Swenson, 49 Cal. 388. " Supra, §§ 90, 273 ; West v. State, 6 Tex. Ap. 485. OHAP. XVI.] MOTION IN ARREST OF JUDGMENT. [§ 762. truth, but which are imperfectly stated. " There is a general rule as to pleading at common law, and I think it is right to say that there is no distinction, where questions of this kind arise, between the pleadings in civil and criminal proceedings," said Blackburn, J., in 1873; "that where an averment which is necessary to support a particular part of the pleading has been imperfectly stated, and a verdict on an issue involving that averment is found, and it appears to the court after verdict that unless this averment were true the verdict could not be sustained, in such case the verdict cures the defective averment, which might have been bad on demurrer. The authorities upon this subject are all stated in 1 Williams' Saund. 260, n. I. (last ed.)."i § 761. It is clear that if misnomer of the defendant be not met by plea in abatement, it is too late for objection ^^5^°"^^ after trial.' § 762. The rigor of the common law in this, respect has been so greatly and so variously modified by statutes, that, so under tat far as the pleading is concerned, few formal errors remain "te right is which motions in arrest of judgment can reach.' Errors of substance, however, are not cured by verdict.* 1 Blackburn, J., Queen's Bench, ^ Under 7 & 8 Geo. 4, which enacts Jan. 1873, In R. v. Heymann, 28 Law that "where the offence charged has T. 163; S. C, 12 Cox C. C. 383; L. been created by any statute, the in- R. 8 Q. B. D. 102. See, also, R. v. diotment shall, after verdict, be held Bradlaugh (Ct. of Appeal), 38 L. T. sufficient if it describe the offence in (N. S.) 118 ; L. R. 3 Q,. B. D. 607 ; 14 the words of the statute," it was held Cox C. C. 68. Cited supra, § 177. that after verdict there could be no In Massachusetts it was once held objection to an indictment which that as a rule the verdict does not charged that defendant "unlawfully cure defects that would be fatal in de- did receive goods which had been un- murrer. Com. v. Child, 13 Pick. 200 lawfully and knowingly and fraudu- (see Com. v. Bean, 14 Gray, 54 ; State lently obtained by false pretences with V. Barrett, 42 N. H. 466) ; though this intent to defraud, well knowing that view has been modified by recent stat- the goods had been obtained by false utes. See Com. u. Tuck, 20 Pick. 356 ; pretences with intent to defraud, as in Com. u. Adams, 127 Mass. 15. this count before mentioned," but 2 Com. y. Beckley, 3 Met. 330. See omitting to set out what the particular supra, §§ 120 et seq.; Com. v. Chauncy, false pretences were. R. v. Goldsmith, 2 Ashm. 90. 12 Cox C. C. 694 ; L. R. 2 C. C. 760 ; ' Supra, § 400 ; Com. v. Moore, 99 Penn. St. 570 ; State a. Palmer, 32 La. An. 565. 34 529 k 764.] PLEADING AND PRACTICE. [chap. XVI. InBensible verdict will be arrested. § 763. Where the verdict itself is on its face insensible, the judgment may be arrested or set aside.* § 764. After a verdict of guilty on an indictment for murder, judgment will not be arrested because it appears on record that there was, at the time of the trial, another indictment against the defendant for the same offence, pending in the same court.^ Prior in- dictment no ground for arrest. E. V. Knight, 14 Cox C. C. 31 ; and see Com. «. Pettes, 126 Mass. 242 ; People V. Cox, 9 Cal. 32. Under § 1025, U. S. Rev. Stat., a technical defect in an indictment, not prejudicing the defendant, is no ground for arrest of judgment under plea of guilty. U. S. V. Chase, 27 Fed. Rep. 807. In. most jurisdictions statutes exist providing that technical irregularities In pleading can no longer be con- sidered ground for motions in arrest. State V. Snow, 74 Me. 354 ; Gray v. People, 21 Hun, 140; Lynch v. Com., 88 Penu. St. 189 ; Cowman v. State, 12 Md. 250; Maguire v. State, 47 Md. 485 ; Dawson E. V. Wilkes, 4 Burr. 2537 ; 2 » Jerv. Arohbold, 17th ed. (1871), p. Hawk. o. 50, s. 11 ; Hand's Cr. Prac. 187 ; Com. Dig. Pleader, 3 B. 7. 487, n. ' Supra, § 387. 2 Nash V. E., 9 Cox C. C. 444 ; 4 B. « Hunt v. People, 78 N. Y. 330. & S. 935. Snpra, § 256. « Graves v. State, 45 N. J. L. 379. 3 R. V. Cook, 1 R. & E. 176; Rohin- m Supra, § 353. son V. Com., 101 Mass. 27 ; Lemons v. " See Wiggins v. People, 93 U. S. State,' 4 W. Va. 755. The history of 465 ; Stokes v. People, 53 N. Y. 164. practice as to bills of exception is elabor- As to exceptions to charge of court, ately considered in Raymond on Bills see supra, §§ 793 et seq. of Except. State v. Clifford, 58 Wis. " Supra, § 772; .Joan v. Com., 136 113 ; 4 Cr. L. Mag. 704. Mass. 162. * Winsor v. R., L. R. 1 Q. B. 289 ; " Supra, § 601 ; Shebane v. State, 13 Ibid. 390 (Exch. Cham.). Tex. Ap. 633. 5 Per Holt, C. J., Ld. Raj;m. 469. 35 ' 545 § 779.] PLEADING AND PRACTICE. [chap. XVII. to severance on trial, to election,' to the order of procedure in ex- Error does amination of witnesses,^ to the speeches of counsel,* not usually to the management of the jury which eminently belongs to lie to mat- i i. . « , o " tersofdis- the discretion of the judge trying the case,* and which ere ion. -^^ many jurisdictions can only, except in extreme cases of injustice, be revised by the judge himself, or by a court of tyhich he is a member." The same rule applies at common law to the action of the court below in refusing a new trial,' though it is other- wise in some jurisdictions by statute.^ The law in this respect is specifically noticed in the chapters in which tliese particular topics are discussed.' And error does not lie for rudeness of manner to a 1 Supra, § 295. 2 Com. V. Blair, 126 Mass. 40 ; Arnold V. People, 75 N. Y. 613 ; Dubose v. State, 13 Tex. Ap. 418. » Supra, § 560. * State V. Want, 51 Iowa, 587. 5 See Tarbox v. State, 88 Ohio St. 581, where this was extended to the decision of the trial court on questions of immaterial variance. Infra, § 802. 6 Infra, §§ 813, 902 ; Lester v. State, 11 Conn. 897 ; People ». Francis, 52 Mich. 575 ; State v. Lowe, 63 Mo. 541 ; Donohue v. People, 56 N. Y. 208 ; King ». People, 5 Hun, 297 ; McManus v. Com., 91 Penn. St. 57; Bull's case, 14 Grat. 613 ; Read o. Com., 22 Grat. 924. ' Infra, § 902 ; Ridenour v. State, 38 Ohio St. 272. 8 Discretion is thus defined in an able opinion delivered in Ohio : "In the conduct of a trial, very many mat- ters must rest in the discretion of the court of original jurisdiction. If the matter complained of infringes upon no rule of law, and merely affects the mode and manner of arriving at a determination, and not the right or merits to be decided, it is generally considered a matter of practice within the discretion of the court, with which t would not be proper for a court in rror to interfere. Upon a motion for 546 a new trial, and upon a review of the action upon that motion of the court in which the case was tried, which we permit by bill of exceptions and on proceeding in error, the range of action in reference to such matters is undoubt- edly enlarged. But in such a case we suppose that it must appear that there has been an abuse of discretion, re- sulting in injustice. A difference of opinion as to the proper course of pro- ceeding would not be sufficient ; the appellate court must be able to say that the course pursued was not only improper, but that it operated unjustly and injuriously to the parties." Gan- dolfo V. State, 11 Ohio St. 114 ; cited and adopted in Powell on App. Jnr. 321. To the same effect, see People u. Cole, cited supra, § 566. See, for discretion as to order of ad- dVesses by counsel and examining wit- ness, supra, §§ 560 et seq. ; as to con- tinuances, §§ 584 et seq. ; as to charge of court, § 708 ; as to bail, § 76 ; as to joinder of defendants, §§ 305, 755 ; as to new trial, infra, § 902 ; as to chal- lenges, supra, § 693. Hence the commitment for perjury during trial of a witness for the defend- ant is not ground for a reversal on er- ror, however operative it might he in obtaining 'a new trial. Lindsay v. People, 63 N. Y. 145. CHAP. XVII.] WRIT OF ERROR: SENTENCE. [§ 780. defendant by a trial judge, unless it is capable of being put on record and results in injury to the defendant.' Nor does error lie for ad- mission of evidence to which no exception was taken at the admis- sion.^ § 779 a. As is shown fully in accompanying volume,* the doctrine that in error regularity is presumed injudicial procedure applies to the criminal as well as to the civil side of the OT^umedT law. Thus when the record shows empanelling and swearing it will be presumed in error that the swearing was in con- formity with law,* and the empanelling was regular." But this presumption does not apply to material and incurable defects.* § 779 J. For an error of fact, a writ of error coramnoMs may be maintained.' In this way it has been held in Indiana that a court can take cognizance of and reverse a o°facterrQr judgment entered on a plea of guilty extorted from the coram nobis defendant by duress and intimidation.' VII. ERROR IN SENTENCE. § 780. In England,' and in some portions of the United States,'" it has been held that at common law a court in error, when it 1 Arnold v. State, 75 N. Y. 603. 2 Gallalier v. State, 17 Fla. 370. And generally error does not lie for mistakes by which the party appel- lant was not injured. Infra, § 918 ; Swann v. State, 64 Md. 424 ; McHugh V. State, 42 Ohio St. 154. ' Whart. Crim. Ev. § 828, and cases there cited. People v. Osterhaut, 34 Hun, 261 ; Garlington v. State, 68 Ga. 837 ;" State v. English, 34 Kan. 629 ; Green v. State, 66 Ala. 40. * Potsdamer v. State, 17 Fla. 895. 6 Rash V. State, 61 Ala. 89. 6 Perdue v. Com., 96 Penn. St. 311. ' 7 Robins. Pr. 149 ; Stephen's PL 118 ; Tidd's Prao. 1136 ; Cooley, note to Blackst. tit. "Error;" Evans w. Rob- erts, 3 Salk. 147 ; O'Connell v. R., 11 CI. & F. 155 ; U. S. v. Plumer, 3 Cliff. 1 ; Taney, ex parte, 11 Mo. 661 ; Gray, ex parte, 74 Mo. 160 ; Adler v. State, 35 Ark. 517. 8 Saunders v. State, 81 Ind. 318 (su- pra, § 414), where an able opinion by Elliott, J., sustains the position in the text. See, also, note to the same in 4 Crim. Law Mag. 372, where the prac- tice is discussed in detail. 9 1 Ch. Cr. L. 755 ; Silversides v. R., 2 G. & D. 617 ; 3 a. B. 406 ; R. v. Ellis, 5 B. & C. 395 ; R. v. Bourne, 7 A. & E. 58; Holt v. R., 2 D. & L. 774 ; Holland v. R., 2 Jebb. & S. 358. i» Christian u. Com., 5 Met. 530 ; Ratzky v. People, 29 N. Y. 124 ; Mo- Donald V. State, 45 Md. 90 ; Howell v. State, 1 Oregon, 241. See contra, Kelly V. State, 3 Sm. & M. 518. In Lange, ex parte, 18 Wal. 163, the Su- preme Court of the United States as- sumed the jurisdiction of discharging in such oases on habeas corpus. But see infra, § 996 6. 547 § 780.] PLEADING AND PRACTICE. [chap, XVII. court re- versing sentence at common law mu6t diEcharge. reverses on account of error in tKe sentence, must discharge the Appellate defendant, for it cannot remit the case, or impose a new sentence itself. But, as will hereafter be more fully ex- plained,' this proposition has been by no means universally received ; and even at common law it has been argued, with strong reason, that where an appellate court is au- thorized to review, it is authorized to correct. In many States it is expressly provided by statute that when there is an error in the sentence requiring reversal, the appellate court is to render such judgment as the court below should have rendered,^ or to remand the record to the court below for an amended sentence.* The whole of a sentence may be reversed for an error in part,* or a sentence, if divisible, may be afiSrmed in part and reversed in part.* But where the case is one on which no conviction could, on any contin- gencies, be sustained, the appellate court will reverse absolutely, and order the defendant to be discharged.* Whether a sentence will be reversed because one count is bad has been already discussed.^ 1 Infra, § 927. 2 See Powell on Appellate Juris. 341 ; Graham v. People, 63 Barb. 468 ; Messner v. People, 45 N. Y. 1. As to English practice, see R. v. Browne, 7 A. & E. 58 ; Holloway v. R., 2 Den. 287 ; 17 Q. B. 317 ; R. n. Drury, 3 C. & K. 193 ; Archbold's C. P. 17th ed. 195. For statutes correcting common law in this respect see Jacquins v. Com., 9 Cush. 279 ; Ratzky v. People, supra ; Beale v. Com., 25 Penn. St. 11. As to sentence for imprisonment see infra, § 918. For a reversal on ground of ex- cessive sentence, see State v. Driver, 78 N. C. 423. In Pennsylvania, a defec- tive sentence may be remoulded, and the defendant sentenced de novo. Drew V. Com., 1 Whart. 279 ; Daniels v. Com., 7 Penn. St. 371. But the more recent practice is to remand to the court below. Beale v. Com., 25 Penn. St. 11. 3 Infra, § 928 ; Harris i>. People, 59 548 N. Y. 599 ; Dodge v. People, 4 Neb. 220 ; De Bardelaben v. State, 50 Ala. 179. See McCue v. Com., 78 Penn. St. 185. < Picket V. State, 22 Oh. St. 405. ' Christian v. Com. , 5 Met. 530 ; People ». Phillips, 42 N. Y. 200 ; Mont- gomery V. State, 7 Ohio St. 107. Infra, §§ 918, 927 ; supra, § 752. The record itself is not sent up to the Superior Court in proceedings in error, but only a, transcript ; and for the purposes of amendment, the record re- mains in the court below. Graham v. People, 63 Barb. 468. See Cancemi v. People, 18 N. Y. 128. As to making up the record, see Bo- len V. State, 26 Ohio St. 371 ; Bartlettw. State, 28 Ohio St. 669 ; Earll v. People, 73 111:329 ; Filiau v. State, 5 Neb. 351 ; State V. Coleman, 27 La. An. 691. "= Miller v. People, 90 111. 409. ' Supra, § 771. CHAP. XVII.J JOINDER IN ERROR. [§ 782. VIII. ASSIGNMENT OP ERRORS. § 781; " The writ having been duly returned, the next proceed- ing is the assignment of errors. On a charge of felony, , . ■ . X, •. X • i Error must the party suing out the writ must appear m person to be as- assign errors ;* and it is said^ that if the party be in ^'^ned. custody, in the prison of the county or city in which the trial has taken place, he must be brought up by habeas corpus for the purpose of this formality, which writ must be moved for on affidavit.' So, where a person convicted of felony brings error from the Queen's Bench into the Exchequer Chamber, the general rules for govern- ing the proceedings in error in civil cases under the Reg. Gen. Hil. T. 2 W. 4, and under the Common Law Procedure Act, do not apply ; but the prisoner must be brought to the Court of Exchequer Chamber, and must there pray oyer of the record, and assign errors by delivering them in writing to the officer of that court, and must be present during the argument and the delivery of the judgment." To enable errors not of record to be acted on by the appellate court, they must not only be excepted to at the time of occurrence, but the exception must be sealed and the error duly and specially as- signed.^ IX. JOINDER IN ERROR. § 782. According to the English practice, the attorney-general, on the delivery of the assignment of errors, may join in j, ^ ^^ error, ore tenus.^ If there be no joinder in error in joinder in some form by the prosecution, the plaintiff in error is entitled to judgment.* > 8 Rep. Crim. L. 173. 6 ij, r. „. Howes, 7 A. & E. 60, n. ; 2 Corner's Cr. Prao. 102. As to 3 N. & M. 462, " the crown not having where error may be returnable, see joined in error, the court granted a Hazen v. Com., 23 Penn. St. 355. peremptory rule (a previous rule hav- * See Holloway v. R., 2 Den. 287 ; 17 ing been made to the like effect) that Q. B. 317 ; Mansell v. R., 8 E. & B. 54 ; judgment should be entered for the de- Dears. & B. 375 ; 27 L. J. (M. C.) 4. fendants, unless the coroner and attor- * State V. Savage, 69 Me. 112 ; State ney of the King's Bench should join in V. Stoyell, 70 Me. 560; People v. Gui- error within four days after notice of dici, 100 N. Y. 503 ; Knouff v. People, 6 that rule, to be given to the prosecutor 111. Ap. 154 ; Potsdamer v. State, 17 and the solicitor for the treasury ; and Fla. 895 ; Hemanus v. State, 7 Tex. Ap. the coroner not having joined in error, 372. judgment was given for the defendants, ^ Jervis's Archbold, 17th ed. 192; and they were discharged." Arohbold's 19th ed. 211. C. P. 17th ed. 193. 549 § 783 a.] PLEADING AND PRACTICE. [OHAP. XVII. X. SUPERSEDEAS. § 783. At common law, a writ of error, though duly allowed by the appellate court, is not a supersedeas so as to discharge from custody ;' but in capital cases it operates to stay execution.* XI. REMOVAL TO FEDERAL COURTS.' § 783 a. By the Revised Statutes of the United States provision is made for the removal to the Circuit Court of the United States of criminal prosecutions in which a party indicted is denied by local law his " equal civil rights," or in which the party indicted is a federal officer, and the act charged is alleged to have been done in obedience to federal authority.^ The right, however, when based on the fourteenth amendment to the Constitution, cannot extend to individual infringements of the . sanctions of that amendment. A removal to the federal courts can only be claimed when the alleged impediments to justice arise from State statute or regulation, which the applicant must show.* Mere local prejudice against a person of color is not ground for removal.* It is otherwise when a State statute works the depriva- tion of rights.^ And the right to remove is ruled to exist in all cases in which the defendant is charged in a State court for a crime consisting in the performance of his duty as a federal officer.* 1 R. V. Wilkes, 4 Burr. 2527. The removal, when the ground is 2 Brightly's Troub. & Haly's Pr. 885. prejudicial State legislation, cannot, ' See Dillon on Removal of Causes it is said, take place until indictment from State to Federal Courts, 3d ed. found ; Georgia v. O'Grady, 3 Woods, 1884. 496 ; though, when the prosecution is * See Rev. Stat. U. S. § 641 ; 1 Cr. against a federal officer for his official Law Mag. 139. acts, the removal may be had when 5 Neal V. Delaware, 103 U. S. 370. warrant issues and arrest is made. " Wells, in re, 17 Alb. L. J. Ill ; Georgia v. Port, 4 Woods, 513 ; Georgia TexasK.Gaines, 2 Woods, 342; Virginia „. Bolton, 11 Fed. Rep. 217. Under V. Rives, 100 U. S. 313. Rev. Stat. § 639, a removal may be had ' Strauderw. West Virginia, 100 D. S. after a new trial in State court. Dart 303, reversing S. C, 11 W. Va. 745. „. MoKinney, 9 Blatch'. 359. Quashing 8 Tennessee v. Davis, 100 U. S. 257, a removed indictment restores State CliflFord and Field, JJ., dissenting; jurisdiction. Bush u. Kentucky, 107 State V. Post, 4 Woods, 513 ; see Mayor u. S. 110. As to amendments of statute, V. Cooper, 6 Wall. 247 ; Georgia v. see Baltimore R. R. v. Bates, 118 U. S. O'Grady, 3 Woods, 496 ; Com. v. Ash- 464; Act of Aug. 13, 1888, 25 Stat, at mun, 3 Grant, 416, 436; State v. Hos- Large, 434. kins, 77 N. C. 530. 550 CHAP. XVIII.J NEW TRIAL. CHAPTER XVIII. NEW TRIAL. I. In what New Tkiais Consist. A new trial Is a reexamination after verdict of facts and law not of record, § 784. II. In what Cases Coukts have Au- THOBITT TO OBANT. 1. After Acquittal. No new trial after acquittal, §785. Otherwise when verdict was fraudulent, § 786. So ia quasi civil cases, § 787. Motion for new trial only appli- cable to counts where there has been a conviction, § 788. Conviction of minor offence is acquittal of major, § 789. 3. After Conviction. Generally new trial can be grant- ed at discretion of court, § 790. III. FoK WHAT Reasons. 1. Misdirection of Court. Any material misruling ground for new trial, § 793. And so as to mistaken ruling as to presumption of facts, § 794. Omission to charge cumulatively is no error, § 795. Judge not required to charge as to undisputed law, when no points are tendered, § 796. Otherwise when jury fall into error from lack of instruction, § 796 a. Abstract dissertations by judge are not required, § 797. Judge may give opinion as to weight of evidence, § 798. Preadjudication by judge may be ground, § 798 a. Judge may give supplementary charge, but not in absence of defendant, § 799. Erroneous instruction on one. count vitiates when there is a general verdict, § 800. 2. JUistake as to Admission or Se- jection of Evidence. Such error ground for new trial, § 801. Usually court will not presume that illegal evidence had no effect, § 803. When erroneous ruling is re- scinded no ground for a new trial, § 803. Objection to avail must have been made at time, § 804. 3. Verdict against Law. 3weY bound to receive law from court, § 805. Earlier doctrine in this respect to the contrary, § 806. Early cases no longer authorita- tive, § 807. Jury are at common law not judges of law, § 810. Court bound to hear counsel as to law, § 811. Court may direct acquittal or conviction, § 812. 4. Verdict against Evidence. Verdict against evidence may be set aside, § 813. 5. Irregularity in Conduct of Jury. Mere inadvertent and innoxious separation not generally ground for new trial, § 814. In some courts this view is not- accepted, § 815. Separation before case is open Is always permissible, § 816. In misdemeanors jury may sep- arate during trial, § 817. And so as to felonies less than . capital, § 818. 551 PLEADING AND PRACTICE. [chap. XVIII, But not generally as to capital felonies, § 819. Court in such cases may adjourn from day to day, § 820. Conflict of opinion as to whether separation after committal of case is permissible, § 821. Courts holding such separation absolutely fatal, § 823. Courts holding such separation only prima facie ground for new trial, § 823. Courts holding such separation fatal only when there has been proof of tampering, § 824. The latter is the prevailing view as to misdemeanors, §825. Prevailing view is that such ir- regularities may be cured by consent, § 826. Unsworn or improper oflScer in charge is ground for new trial ; intrusion of officer during de- liberations, § 827. And so of improper reception of materials of proof, § 828. And so of irregular reception of books, § 839. And so of reception of reports of trial, § 829 a. And so of irregular communica- tions of court, § 830. And so of conversing with others as to case, § 831. And so of presence of party, §832. And so of material testimony submitted by jury or others, § 833. And so of visiting scene of offence, § 834. But not accidental or necessary visit of stranger, § 835. Mere casual exhibition of evi- dence not fatal, § 836. And so of the mere approach of strangers, and trivial conver- sation, § 837. But presumption is against com- munications, § 838. Inattention of juror not ordi- 552 narily ground, but otherwise as to Ignorance of language, §839. But otherwise as to disobedience to court, resulting in injury, §840. Intoxication ground for new trial, § 841. So of casting lots by jurors, when decisive, § 842. Otherwise as to mere collateral indecorum, § 843. Absolute preadjudication by juror ground for new trial when a surprise, § 844. Otherwise when party could have known of prejudice in time to challenge, § 845. Absolute incapacity of juror a ground, § 846. Juror inadmissible to impeach verdict, § 847. And so are affidavits attacking jury, § 848. 6. Misconduct of Prevailing Party, Such misconduct ground for new trial, § 849. And so of undue Influence on jury, § 850. And so of tampering with evi- dence, § 851. And so of tricks when operative, § 852. But not of remarks of opposite counsel unless objected to at time, § 853. 7. After-discovered Evidence. Motion must be special, § 855. Must be supported by affidavits, §856. May be contested, § 857. Must be usually moved before judgment, § 858. Evidence must be newly discov- ered, § 869. Acquittal of co-defendant as a witness is no ground, § 860. Bule as to acquittal of co-defen- dant of a divisible charge under which he was excluded as a witness, § 860 a. Evidence discovered before ver- CHAP. XVIII.] NEW TKIAL. diet should be given to jury, §861. If evidence could have been se- cured at trial, ground fails, §863. And so of withholding papers which due diligence could have secured, § 863. Otherwise in cases of surprise, §864. Party disabled who neglects to obtain evidence on trial, § 866. Evidence must be material and not cumulative, § 866. Surprise is an exteption, § 867. And so when evidence is of a distinct class', § 868. New trial not granted merely to discredit opposing witness, § 869. Subsequent indictment for per- jury no ground, § 870. Evidence should be such as to change result on merits, § 871. New defence must not be merely technical, § 872. • Acquittal of co-defendant no ground, § 873. Otherwise as to refusal to sever defendants, § 874. 8. Absence of Defendant on Trial, Such absence may be ground for new trial, § 875. 9. Mistake in Conduct of Cause. Mistalie may be ground if there was due diligence, § 876. Mistake of law no ground, §877. Nor is negligence of counsel, §878. Otherwise as to blunder or con- fusion of witness, § 879. But not mistake of jury as to punishment, § 880. 10. Surprise. Surprise, when genuine and pro- ductive of injustice, ground for new trial, § 881. So of undue haste in hurrying on trial, § 882. But absence of witness no ground when evidence is cumulative, §883? Ordinary surprise at evidence no ground, § 884. Nor is unexpected bias of witness, § 885. 11. Irregularity in Summoning of Jury. Ordinarily defects in jury pro- cess no ground, § 886, And so of irregularity in finding bill, § 887. Otherwise as to after-discovery of incompetency of juror, §888. And so of prejudice of jury, and popular excitement, § 889. IV. At what Time Motion must be Made. Motion must be prompt, § 890. When verdict is set aside new trial is at once ordered, § 891. V. To WHOM Motion applies. Any defendant may move, § 893. Defendant must be personally in court, § 893. New trial may be granted as to one of several, § 894. VI. When Conviction is fob only Part op Indictment. New trial goes only to convicted counts, § 895. Conviction of minor ofifence is acquittal of major, § 896. VII. By what Courts. Appellate court may revise evi- dence from notes, § 897. Conflict of opinion as to whether successor of judge can hear motion, § 898. VIII. In what Form. Bule to show cause first granted, § 899. Motion must state reasons, §900. IX. Costs. Costs may await second trial, §901. X. Error. Error does not usually lie to action of court, § 902. 553 § 785.] PLEADING AND PRACTICE. [chap. XVIII. I. -IN WHAT NEW TRIALS CONSIST. § 784. A NEW TRIAL is a reexamination by jury, according to the forms of the common law, of the facts and legal rights of the parties upon disputed facts, which it is in the discretion of the court to grant or refuse, but which is claimable as a right when evidence has been improp- erly received or rejected, or incorrect directions in law have been given.* No error, however, which is apparent on the record, and which can be noticed in arrest of judgment, will ordinarily be ground for a new trial.^ Thus, a new trial will not be granted because a letter was omitted in the prisoner's name, in the title on the back of the bill found by the grand jury.* A new trial 1b a reex- amination after ver- dict of facts and law not of record. II. IN WHAT CASES COURTS HAVE AUTHORITY TO GRANT NEW TRIALS. 1. After Acquittal. § 785. After an acquittal of the defendant, on an indictment for either felony or misdemeanor, for which imprison- triai after ment or other personal discipline can be imposed, there acqmtta . ^^^ -^^ general be no new trial, though the result be produced by error of law or misconception of fact.* 1 4 CUitty's Gen. Practice, 31 ; 1 Stark. Ev. 468 ; Bernasconi ». Fare- brother, 3 B. & Ad. 372 ; New Castle V. Broxtowe, 4 Bar. & Adol. 273 ; Rob- erts V. State, 3 Kelly, 310. 2 Minor v. Mead, 3 Conn. 289 ; Price V. State, 67 Ga. 723. » State V. Duestoe, 1 Bay. 377. * 4 Black. Com. 361 ; Back. Ab. Trial, L. 9 ; 2 Hawk. c. 47, s. 12; R. V. Duncan, 44 L. T. N. S. 521 ; R. V. Sutton, 2 N. & M. 57; 5 B. &.Ad. 52 ; R. V. Bortrand, L. R. 1 P. C. 520 ; overruling R. u. Scaife, L. R. 17 Q. B. 238 ; 18 a. B. 773 ; cited infra, § 790 ; U. S. V. Gibert, 2 Sumu. 20 ; Com. v. Cunningham, 13 Mass. 245 ; State v. Lee, 10 R. I. 494 ; State v. Kanouse, 1 Spencer, 115 ; Guffy «. Com., 6 Grant, 66 ; State v. Shields, 40 Md. 301 ; State V. McCory, 2 Blackf. 5 ; State v. 554 Reiley, 2 Brev. 126 ; State v. West, 71 N. C. 263 ; State «. Padgett, 82 N. C. 544 ; State v. Anderson, 3 S. & M. 751 ; State 1). Baker, 19 Mo. 683 ; State v. Norvelle, 2 Yerg. 24 ; Campbell v. State, 9 Yerg. 333 ; People v. Webb, 38 Cal. 467 ; People v. Bangenenaur, 40 Cal. 613; People v. Horn, 70 CaL 17; see supra, § 435. In a, prominent case in New York, where the defendants had been acquitted on an indictment for conspiracy, a motion for a new trial on behalf of the public prosecutor was entertained by the Supreme Court. " The right of a court to grant a new trial In case the defendant has been ■ acquitted," said Marcy, J., after re- fusing a new trial on the merits, " Is called in question by the defendant. That such right does not exist, where the ground of the application Is that CHAP. XVIII.] NEW TRIAL. [§ 787. § 786. In cases, however, where the verdict has been obtained by fraud of the defendant, such, for instance, as the collusive or forcible keeping back witnesses for the pros- ^^'S^yer! ecution, or the submitting the case by trick without ^'"^^^^ evidence, the verdict may be treated as a nullity.* § 787. Another exception is to be found in cases where the object of the proceeding is substantially to try a right, and the verdict would bind the right, as in cases of in- civiVcases! dictment for non-repair of a highway or a bridge. In such case a new trial may be had after verdict for the defendant, if evidence have been improperly received, or there have been misdirection, or a verdict contrary to the evidence.* But an indict- ment for obstructing a navigation has been regarded as not within this second exception, inasmuch as in such a case the defendant is liable on conviction to fine and imprisonment, and the verdict of acquittal does, not bind any right.* The test seems to be this : the finding is against evidence, is con- ceded ; but whether a new trial can be granted where the acquittal has resulted from the error of the judge in stating the law to the jury, seems to be involved in much doubt. It Is a very important question, and not nec- essary to be now settled ; the court have, therefore, deemed it discreet to forbear expressing an opinion on it till a case shall arise requiring them to do so." People V. Mather, 4 Wendell, 266. In a subsequent case, however, the point seems to have been decided substantially in accordance with the settled practice. People v, Comstock, 8 Wendell, 549. As ruling that no error of law by the judge will sustain a revision, see Hines v. State, 24 Ohio St. 134; Black .,. State, 36 Ga. 447. Compare supra, § 773. In State v. Eagsdale, 10 Xea, 671, a new trial was granted on motion of the State in a case where the jury imposed in their ver- dict a fine instead of imprisonment as the law required ; see supra, § 756 and cases there cited. ' Supra, § 451. Where the complaint was made to a justice by a person employed to do so by the defendant, and the warrant was served, and witnesses summoned by the defendant's direction, and an attorney retained and paid by him to appear on the part of the State, and the circumstances of the case were so represented to the justice that he im- X>osed a lighter fine than he otherwise would have done, the case was held open to another trial. State v. Little, 1 N. H. 257. See Com. v. Jackson, 2 Va. Cas. 501. Supra, § 451. " R. V. Inhabitants of West Rid- ing, 2 East, 362, n. ; R. v. Chorley, 12 Q,. B. 515 (in which case, however, pro- ceedings were subsequently stayed) ; R. V. Crickdale, 3 E. & B. 947, n. ; R. a. Russell, 3 E. & B. 942. But the present tendency is to refuse new trials even in this class of acquittals. R. v. Duncan, 7 Q. B. D. 198 ; R. o. South- ampton, 19 Q. B. D. 590; afif. R. v. Wandsworth, 1 B. & Aid. 63. ' R. V. Russell, supra. As to cases in the courts where new trials have been granted on ground of fraud or by acquittal, see supra, § 4S1. 555 § 789.] PLEADIN9 AND PRACTICE. [chap. XVIII. Motion for new trial only appli- cable to counts where there has been a con- viction. where the issue goes to civil rights, and where only a fine can he imposed, there can be a new trial after an acquittal. Where the punishment involves imprisonment, or other personal discipline, the acquittal is final, unless fraudulently obtained.' § 788. It has been held in some jurisdictions, that where a defendant is acquitted upon one count and convicted on another, a new trial goes to the whole case ;' but by the general practice, where a defendant has been acquitted on some counts and convicted upon others, and the counts are for distinct ofiences, a motion for a new trial made by him generally is only applicable to the counts upon which he was convicted.* It may well, indeed, be argued, that when the counts are simply several formal variations in statin" the same offence, then a new trial opens the whole case ;* though it is otherwise when the counts are for separate offences." But an acquittal on a particular count, unless in cases of fraud or mistake, must ordinarily be regarded as final. § 789. Where a defendant, being indicted for burglary and lar- ceny, is acquitted of burglary, but convicted of larceny, it has been held that the revision of the case pervades the whole indictment, and that on the second trial he is to be arraigned on the burglary as well as the larceny portion of the count." But the sounder conclusion is, that when the jury has the whole case before them, a conviction on the minor offence alone is virtually an acquittal 6f the major.' And for this reason a conviction of manslaughter, on an indictment for murder, is an acquittal of murder.* Conviction of minor offence is acquittal of major. » Jones V. State, 15 Ark. 261. This is expressly stated by Lord Coleridge in R. o. Duncan, 44 L. T. N. S. 522. 2 State v. Stanton, 1 Ired. 424; State V. Commissioners, 3 Hill S. C. 239 ; Leslie v. State, 18 Ohio St. 390 ; Jarvis v. State, 19 Ohio St. 585. See infra, § 895. 8 Infra, § 896 ; U. S. v. Davenport, Deady, 264 ; State v. Kittle, 2 Tyler, 471 ; Com. v. Stuart, 28 Grat. 950 ; 556 St^te «. Mailing, 11 Iowa, 239 ; Jarvis t. State, 19 Ohio St. 585; Campbell .,. State, 9 Yerger, 333 ; Esmon v. State, 1 Swan, 14; State v. Kettleman, 35 Mo. 105 ; State v. Fritz, 27 La. An. 360. * Leslie v. State, 18 Ohio St. 390. 5 See infra, § 895. 6 State V. Morris, 1 Blaokf. 37. ' Supra, § 465 ; infra, § 896. « Supra, § 465 ; infra, § 896, and cases there cited. CHAP. XVIII.] NEW TRIAL. [§ 791. 2. After Conviction^ § 790. In England, as well as in this country, a defendant may have a new trial at the discretion of the court, after a verdict of conviction of a misdemeanor.^ In cases of newTriaf felony or treason, the former understanding in England "^■^j^^ ^^ was that no new trial in any case could he granted discretion where the proceedings have been regular ;* but if the conviction appeared to the judge to be improper, he might respite the execution to enable the defendant to apply for a pardon.^ In England an inferior court cannot grant a new trial in a criminal case, on the merits, though it can do so where there has been some irregularity in the proceedings.' And where a court of quarter sessions had ordered a new trial after a verdict of guilty against two prisoners, on the ground that, after the jury had retired, one of them had separated from his fellows and had conversed with a stranger respecting his verdict, and that therefore the verdict was bad, on a writ of error brought, it was held that the new trial had been properly ordered.® § 791. In this country the uniform and unquestioned practice, down to a comparatively late period, has been to extend to criminal cases, so far as the revision of verdicts is country concerned, the same principles which have been estab- to'aif^^ ^^^ lished in civil actions; and though, except in cases of classes of o ' ^ crime. fraud, no instance exists where an acquittal has been disturbed, new trials in cases of conviction will be granted, as will be presently shown more fully, whenever it appears there was ' For Ohio statute, see Code of Crim- 281 ; 17 Q. B. 238 ; 18 Q. B. 773 ; 2 inal Procedure, § 192 ; Warren's Ohio D. P. C. 553. In R. v. Scaife, there Criminal Law, 1870, p. 135. were three defendants, two of whom ' 1 Ch. C. L. 653 ; U. S. v. Gibert, 2 were convicted and one acquitted. Sumn. 19 ; State v. Prescott, 7 N. H. There was a new trial as to all three 287 ; Com. v. Green, 17 Mass. 513 ; defendants. This case, however, is People V. Comstock, 8 Wend. 549 ; overruled by R. v. Bertrand, L. R. 1 P. People V. Vermilyea, 7 Cow. 369 ; State C. 620. V. Slack, 1 Bailey, 330. 5 2 Tidd's Prao. 905 ; 13 East, 418, ' 1 Ch. C. L. 653, referring to 6 n. 6 ; Burn's J., New Trial ; R. v. Term R. 525, 638; East, 416, n. 6; 4 Day, Sayer Rep. 203; R. v. Peters, B. & A. 275. 1 Burr. 568 ; Bac. Abr. Trial (L.) ; R. * As a departure from this rule may v. Mayor of Oxford, 3 Nev. & M. 2. be noticed R. v. Scaife, 2 Den. C. C. " R. v. Fowler, 4 B. & Aid. 273. 557 § 791.J PLEADINfl AND PRACTICE. [CHAP. XVIII misconduct of the jury, misdirection by the judge, or injustice in the procedure. In 1832, however, the supposed English rule was pronounced by the Supreme Court of New York in force as part of the common law of the land ;' and in 1833, in a case of great interest, it was declared by Judge Story,' that not only was there no case in this country where a new trial, in a capital case, had been granted on the merits, where the authority of the court on the subject-matter had been agitated, but that after a verdict of a jury regularly rendered on the facts in such case, it was out of the power of a common-law court to interpose, except by the re- commendation of pardon. The common-law doctrine, it was held, so far from being of imperfect application to this country, was in- vested with additional strength, not only by the federal Constitu- tion, but by the constitutions of most of the individual States. " Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb ;" and, " No fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law."^ But plausibly as the position was sustained by Judge Story, it was afterwards abandoned in the court in which it was uttered, and is now so uni- versally rejected that its extended discussion is no longer necessary. It is sufiBcient to say that neither in federal nor State courts are there now any doubts expressed as to thfe right of the proper court to grant a new trial in any case in which it considers the verdict to be unjust.* ' People !>. Comstook, 8 Wend. 549. are, however, in most of the States, 2 U. S. a. Gibert, 2 Sumn. 51. similar limitations ; and even where no 3 Whether these prohibitions bear such constitutional restriction exists, on the State courts has been doubted it is doubtful whether equal force is (People V. Goodwin, 18 Johnson, 187 ; not applied by the doctrines of the U. S. V. Gibert, 2 Sumner, 51), though common law. U. S. v. Gibert, 2 Sum- the inclination of practice seems to be ner, 41, 42 ; People v. Comstook, 8 to regard them as limited to the federal Wend. 549. See supra, § 490. tribunals (State v. Keyes, 8 Vermont, * See 7th edition of this work, where 57) ; and it is clear, that in the two the above conclusion is argued at leading oases in Massachusetts and length. To the same effect may be New York, where the subject was dis- cited the following cases : U. S. v. Wil- posed of, the result was placed on liams, 1 Cliff. 5 ; U. S. u. Fries, 3 Dall. common-law reasoning exclusively. 515 ; Whart. St. Tr. 598 ; U. S. v. Com. «. Green, 17 Mass. 515; People Harding, 1 Wall. Jr. 127; U. S. v. u. Comstock, 8 Wendell, 549. There Conner, 3 McLean, 386 ; Com. a. Hardy, 558 CHAP. XVIII.] NEW TRIAL. [§ 793. III. FOR WHAT REASONS NEW TRIALS WILL BE GRANTED. § 792. Assuming it to be law that in all cases where the applica- tion comes from the defendant, it is discretionary in the courts to grant new trials, the cases in which that discretion may be exercised will be considered under the following heads : — 1. Misdirection by the Court trying the Case. § 793. Any misdirection by the court trying the case, in point of law, on matters material to the issue, is a good ground ^ ^^^^ for a new trial ; ^ and such misdirection, even upon one "ai misrui- rn • 11 11- -11 1 ™S ground pomt, 18 sufficient, although the jury might have properly for new found their verdict upon another point, as to which there "^ " was no misdirection f while if the error was immaterial, irrele- vant,* or trivial,* and justice has been done, the court will not set aside the verdict, nor enter into a discussion of the question of law.* 2 Mass. 303 ; People v. Comstook, 8 Wend. 549 ; People v. Williams, 4 Hill N. Y. 10 ; People v. Bush, Ibid. 134 ; People u. Newman, 5 Hill (N. Y.), 295 ; People V. Bodine, 1 Denio, 281 ; People V. Morrison, 1 Parker C. R. 624 ; People V. Judges of Duchess County, 2 Barb. 282; Com. v. Brown, 3 Eawle, 207; Com. V. Clue, 3 Eawle, 500 ; Com. v. Flanigan, 7 W. & S. 415 ; Com. v. Jones, 1 Leigh. 598 ; Grayson v. Com., 6 Grat. 712 ; Ball's case, 8 Leigh. 726 ; M'Cune V. Com., 2 Robinson, 790 ; State v. Sparrow, 3 Murph. 487 ; State v. Lip- sey, 3 Dev. 485 ; State v. Miller, 1 Dev. & B. 500 ; State v. Benton, 2 Dev. & B. 196 ; State u. Douglass, 63 N. C. 500 ; State V. Fisher, 2 Nott & McC. 261 ; State V. Sims, 2 Bailey, 29 ; State v. Anderson, 2 Bailey, 565 ; State v. Hooper, 2 Bailey, 37 ; State v. Craw- ford, 2 Yerg. 66; Cassels «. State, 4 Yerg. 152; and see State v. Jim, 4 Humph. 289, and cases hereafter cited. As to English practice, see remarks of Chief Justice Tindal in Melin v. Taylor, 2 Hodges, 126, 127 ; and see, also, Levi v. Milne, 4 Bing. 198. 1 People V. Cogdell, 1 Hill (N. Y.), 95 ; People v. Thomas, 3 Hill (N. Y.), 169 ; People v. Townsend, Ibid. 479 ; People V. Bodine, 1 Denio, 282; Com. V. Parr, 5 Watts & S. 345 ; McDonald V. State, 63 Ind. 544 ; State v. Mesheb, 51 Iowa, 308 ; Maddox v. State, 12 Tex. Ap. 429. 2 State V. MoCluer, 5 Nev. 132 ; Peo- ple V. Bodine, 1 Denio, 280. See Harris V. State, 47 Miss. 318 ; Ballew v. State, 36 Tex. 98. In Parnell v. Com., 86 Penn. St. 260, it was said that in a capital case the Supreme Court will reverse when the charge is doubtful and liable to be mis- understood. 3 Hayes ^. IT. S., 32 Fed. Rep. 662 ; State V. Grady, 83 N. C. 643 ; State v. Lewis, 14 Mo. Ap. 197; Williams v. State, 24 Tex. Ap. 17. * People V. Dimiok, 107 N. Y. 13 ; Leigh V. People, 113 111. 372 ; State v. George, 62 Iowa, 682 ; Heard v. State, 15 Lea, 318 ; Hendricks v. State, 73 Ga. 577. 5 U. S. V. Smith, 3 Blatoh. 255 ; State V. Tudor, 5 Day, 329 ; Stewart v. State, 559 § 794.] PLEADING AND PRACTICE. [chap. XTIII. Material error in one instruction calculated to mislead, however, is not cured by subsequent contradictory instruction,* unless the prior erroneous instruction be expressly recalled," or no prejudice to the defendant resulted.* Error committed by the court in the allow- ance or refusal of challenges,* or the allowance or refusal of a motion, either for continuance," or for compelling the prosecutor to elect,' or of any other peremptory motion,'' oreven in making incidental remarks injurious to the defendant ; * is ground for a new trial. Other ques- tions as to the structure of the charge have been already discussed.' It should be here observed, that a mistaken exercise of discretion, which cannot be reached in error, may be reached by a motion for a new trial." § 794. The due degree of weight to be given to presumptions of And so as ^^^ which legitimately arise in the case, it is for the to error as court to determine," though if the court instruct a jury sumption that an inference of fact is a presumption of law, a new ° ^" ■ trial will be awarded.'" Thus where the judge charged 1 Ohio St. 66 ; Kennedy u. People, 40 111. 488; State v. Molntire, 58 Iowa, 572 ; State v. Downer, 21 Wis. 275 ; Lewis V. State, 33 Ga. 131 ; Tate v. State, 46 Ga. 148 ; State v. Underwood, 76 Mo. 630 ; State v. Johnson, 31 La. 368. See Upstone v. People, 109 111. 169. Supra, § 708. For a new trial granted in a case where the judge unduly pressed an agreement of jury, see State v. Bybee, 17 Kans. 462. A new trial will not he granted because the judge charged the grand jury in the presence of the traverse jury, on the general question of the law hearing on the particular issue. Johnson v. State, 59 Ga. 189. 1 Clem. a. State, 31 Ind. 480 ; Stowell V. State, 60 Iowa, 535 ; Howard w. State, 50 Ind. 190. Supra, § 708. 2 State V. Morris, 47 Conn. 546 ; State V. Williams, 69 Mo. 110. 3 State V. Hopper, 71 Mo. 423. « Supra, §§ 693-5, 777 ; People v. Mather, 4 Wend. 229 ; People v. Rath- bun, 21 Wend. 509 ; People v. Bodine, 560 1 Denio, 281 ; Com. o. Lesher, 17 S. & R. 155 ; Com. v. Heath, 1 Robinson, 135 ; Armstead v. Com., 11 Leigh, 657 j State V. Horn, 34 La. An. 100 ; Vaughan V. State, 21 Tex. 452 ; Casinoca v. State, 12 Tex. Ap. 554 ; Laubaoh v. State, 12 Tex. Ap. 583 ; though see Henry v. State, 4 Humph. 270. ^ People V. Vermilyea, 7 Cowen, 369 ; Vance v. Com., 2 Va. Cas. 162; Com. V. Gwatkin, 10 Leigh, 687 ; Bledsoe ». Com., 6 Rand. 674; State v. Files, 3 Brevard, 304. Supra, § 600. ^ People V. Costello, 1 Denio, 83. Supra, §§ 301 et seq. ' Com. 0. Church, 1 Barr, 105. 8 State V. Donavan, 61 Iowa, 369. s Supra, § 708. M See supra, § 779. ^ Attorney-General v. Good, MoClel. & Y. 286; 4 Ch. Gen. Practice, 42; People V. Genung, 11 Wend. 18 ; Wat- son V, People, 64 Barb. 130 ; Cross v. State, 55 Wis. 262; Whart. Crim. Ev. §§ 707 et seq. See infra, § 798. '2 Supra, § 709 ; Hendricks ». State, 26 Ind. 493 ; Moore v. State, 85 Ind, CHAP. XVIII.] NEW TKIAL. [§ 796. that the non-production, by the defendant, of evidence of good character should weigh against the defence, it was held error ;* and where there was evidence that a murder had been committed, and that the house in which the dead body was had been subsequently set on fire under such circumstances as to raise a suspicion that the same was done by the perpetrator of the murder to conceal that offence, and the evidence left it doubtful as to whether the prisoner was in the vicinity of the house when the fire was set, and the court charged the jury, that if the prisoner might have been at the scene of the fire, " the onus was cast upon her to get rid of the suspicion which thus attached to her," and that she was bound to show where she was at the time of the fire, it was held that the ruling was erro- neous, and ground for a new trial.^ The same conclusion is reached where a judge takes it upon himself to declare a witness to be un- trustworthy.* And it has been held error in a judge to say, without qualification, that an alibi is a defence which should be offered at the preliminary hearing,* or that an alibi is to be regarded with suspicion.* § 795. The omission by the judge, in summing up specifically, to leave to the jury a point made in the course of the trial (his q attention not being expressly called to it) is no ground to charge for a motion for a new tiial, if the whole of the case was tiveiy no substantially left to them.« *"°''- § 796. Where there is no dispute as to the law, the ■ r"q^^red°to iudge cannot be required, where no points are tendered charge aa r , , „ , , , toundie- under the statute, to charge generally on the law.' puted law. 90 ; state v. Bailey, 1 Wins. N. C. (No. 1) 137; State u. Whitney, 7 Oreg. 386 ; People v. Messersmith, 61 Cal. 246. On this point the reader is particularly referred to Whart. Crim Ev. §§ 707 et seq.; and see supra, §§ 712, 713. ' People 1^ Bodine, 1 Denio, 283 ; but see People v. White, 22 Wend. 167. As to burden of proof, see Whart. Crim. Ev. § 319. As to presumptions, Ibid. § 707. ' People u. Bodine, 1 Denio, 282. 'See Whart. Crim. Ev. §§ 707 et seq. ' Bishop V. State, 43 Tex. 390. * Sullivan v. People, 31 Mich. 1 ; Spencer v. State, 50 Ala. 124. 86 s Supra, § 711. 8 Supra, § 710 ; Robinson v. Gleadow, 2 Scott, 250; 2 Bing. N. C. 156. ' Thus, a new trial was refused when the complaint was that the judge, although requested, declined to charge the jury, there being no dispute as to the law of the case ; the trial closing so late on Saturday night that, had the jury been charged, they must either have been dismissed or kept over dur- ing Sunday ; and the verdict being fully supported by the evidence. People o. Gray, 5 Wend. 289. Supra, § 709. 561 798.] PLEADING AND PRACTICE. [chap. XVIII. § 796 a. Where, however, from the absence of proper instruc- Otherwise *^°°^' ^^^ ^^^ ^^^^ ^'^*° ^rvov, a new trial will be granted.' Thus, the court is bound, if required, to instruct the jury that unless they are satisfied beyond reasonable doubt, the defendant must be acquitted.^ And any other failure on the part of the court to state the law, which failure results in an erroneous verdict, will exact a new trial.' § 797. It is not the duty of a court, in conducting a trial, to de- termine abstract propositions submitted by counsel (e. g., whether certain testimony, which had been given, bore upon the issue, or only on the credit of witnesses) ;, it is enough if the court respond to all objections to testi- mony taken by either party, and give the proper instruc- tions to the jury .^ " Courts," said the Supreme Court of New York, " are under no obligation to listen to abstract propositions from counsel, and are not bound to explain them on the trial of causes."* If, however, incorrect abstract propositions are laid down, and the jury are misled by them, the verdict will be avoided.^ § 798. A judge has a right to express his opinion to the jury on Judge may the weight of evidence, and to comment thereon as much giveopin- ^^ jjg (jeems necessary for the course of justice ;' and an when jury fall into error from want of Instruc- tione. Yet ab- 'etract dis- sertations by judge are not re- quired. 1 Supra, § 709 ; State v. Jones, 87 N. C. 547 ; Thomas . State, 50 Ala. 154. " I can- not, for my part, see how the jury can hesitate a moment to convict the pris- oner on the third count," was held in Pennsylvania not to be, on the facts, too strong In instruction. Johnston v. Com., 85 Penn. St. 54. "A judge," says Strong, J. (Kilpatrick u. Com., 31 Penn. St. 198), "may rightfully ex- press his opinion respecting the evi- dence, yet not so as to withdraw it from the consideration and decision of the jury." Adopted 85 Penn. St. 65. As to adverse statute in California, see supra, § 711. So in Illinois and Vir- CHAP. XVIII.] NEW TRIAL. [§ 798. erroneous opinion on matter of fact, it is said, expressed weight of 6Vid6IlC6> by the judge in his charge, is no ground for new trial, unless the jury are thereby led to believe that such fact was with- drawn from their consideration.* But it is ground for a new trial that a judge expresses himself as to inferences of fact, so that the jury understand him to be stating principles of law.* And this is eminently the case when a question of fact is taken from the con- sideration of the jury,* or a detrimental fact is assumed without proof.* There are States, however, in which by statute the court is pro- hibited from expressing an opinion as to whether the facts prove a particular crime.' That in some jurisdictions there may be an absolute direction to acquit or convict will be hereafter seen.* ginia, supra, § 711. So in Indiana, Barker v. State, 48 Ind. 163 ; State „. Banks, 48 Ind. 197, and cases cited supra, § 711. So in Missouri, State V. Jones, 61 Mo. 232, and cases cited supra, § 711. > People V. Rathbun, 21 Wend. 509 ; Com. V. Gallagher, 4 Penu. Law Jour. 517 ; 2 Clark, 798 ; Griffin v. State, 76 Ala. 32; State v. Smith, 12 Eich. 430. Contra, Smith v. State, 43 Tex. 103 ; supra, §§ 709-711 ; see Layton v. State, 56 Miss. 791. ' Supra, § 794 ; State v. Williamson, 42 Conn. 261 ; State v. Lynott, 2 Ames (R. I.), 295 ; Woodin v. People, 1 Par- ker C. R. 164 ; Watson v. People, 64 Barb. 130; Nolan v. State, 19 Ohio, 131 ; Bill V. People, 14 111. 482 ; Cicero V. State, 54 Ga. 156 ; Lorett v. State, 60 Ga. 257 ; Holt v. State, 62 Ga. 314 ; Blaokwell v. State, 67 Ga. 76 ; Spencer V. State, 50 Ala. 124 ; McAdory v. State, 62 Ala. 154; State v. Ross, 29 Mo. 32 ; Brown v. State, 9 Neb. 157 ; People v. Casey, 53 Cal. 360 ; People v. Carrillo, 54 Cal. 63 ; People u. Wong, 54 Cal. 161 ; State v. Rigg, 10 Nev. 284; Skid- more V. State, 43 Tex. 93 ; Collins v. State, 5 Tex. Ap. 38 ; Warren v. State, 22 Tex. Ap. 383 ; Barron v. State, 23 Ibid. 462 ; and see fully, as to error in charging presumptions of fact as pre- sumptions of law, supra, § 794 ; Whart. Crim Ev. §§ 707 et seg. Supra, § 710. 3 Com. V. Davis, 11 Gray, 4; State V. Williamson, 42 Conn. 401 ; Roach v. State, 77 111. 25 ; State v. McKinsey, 80 N. C. 458 ; Wilbanks v. State, 10 Tex. Ap. 642. In Pannellu. Com., 86 Penn. St. 260, a sweeping condemnation of expert testimony was held error. * Chambers v. People, 105 111. 409 ; State V. Rothschild, 68 Mo. 52 ; State V. Ticket, 13 Nev. 502. 6 See Edgar o. State, 43 Ala. 312 ; State V. Dick, 2 Wins. N. C. 45 ; State 0. Danoy, 78 N. C. 437. In Massa- chusetts, see Com. v. Foran, 110 Mass. 179. The California Constitution of 1879 precludes all opinions on facts ; and so in Texas, Hill v. State, 11 Tex. Ap. 379. In Texas error of this class must be excepted to at the time. White V. State, 19 Tex. Ap. 343. 6 Infra, § 812. 663 § 799.] PLEADlNfl AND PRACTICE. [CHAP. XVIII. Any side remark by the judge calculated to unjustly prejudice the defendant, may be ground for new trial,* but ordinarily, such remarks must be excepted to before the jury retire.^ § 798 a. It has already been incidentally observed that preadju- dication by a judge is not ground for challenge, the only cation by remedies being motion for new trial or impeachment.' be Sc^nA Should the judge either preadjudicate, in the presence for new (jf ^q jury, the case in advance of the reception of the evidence,* or throw out during the trial unjust remarks prejudicial to the defendant, a new trial may be granted.* But this is not the case when the remarks complained of were part of a charge to the grand jury, in the presence of the traverse jury, discussing generally crimes of the character of that which was involved in the litigated issue.* § 799. Where the jury returned into court without having agreed, , , and the iudge instructed them a second time on the evi- Juoge may j a give sup- dence as to matters about which they had made no in- charge, but quiries, and had stated no difficulties or doubts as to the Bence'o'fde- ^^^' ^^'^^ "^^^ ^®^^ °°* ^ sufficient ground for a new trial,' fendant. though the case is different when the judge communicates his views of the law and facts in writing, without having the jury brought into open court for the purpose, and without procuring the attendance of the parties.* » Cartwright v. State, 12 Lee, 620; 416; see Phillips v. State, 6 Tex. Ap. People V. Hare, 57 Mich. 505. 44. 2 State V. Wilkinson, 76 Me. 317. ^ Johnson v. State, 59 Ga. 189. And ' Supra, § 605. See Foreman v. see comments in Tweed's case, supra. Hunter, 59 Iowa, 550. § 605. * See U. S. u. Fries, Whart. St. Tr. A new trial will not be granted 606 (cited, supra, § 560; infra, §§ 844, because the judge was the author of 847), in which case the pre- announce- an account of a former trial of the ment by Judge Chase of his views as to defendant, containing severe reflections the law of the case was one of the on him, it appearing that such fact grounds of impeachment. was not known in sufficient time to 5 As allowing great latitude in this have influenced the jury in their de- respect, see Reynolds «. U. S., 98 U. S. liberations. Vance v. Com., 2 Va. 146 ; People v. Arnold, 40 Mich. 716 ; Ca. 162. Albin V. State, 63 Ind. 599 ; Scott v. ' Com. v. Snelling, 15 Pick. 321. State, 64 Ind. 400 ; State v. Reed, 49 Inft-a, § 830. Iowa, 85 ; Hatch v. State, 8 Tex. Ap. s infra, § 830 ; supra, § 547. 5t)4 CHAP. XVIII.] NEW TRIAL. [§ 801. & 800. When there are two good counts in an indict- Erroneous y ... instruc- ment, and the court gives erroneous instructions to the tions on jury as to one of the counts, and there is a general ver- vitiate diet agaiftst the defendants, and judgment thereon, a J^gg"*^!® venire de novo will be awarded.* verdict. 2. Mistake in the Admission or Rejection of Evidence. i § 801. In any case where illegal testimony has been admitted, or legal testimony rejected, a new trial may be had,' if „ . objection w,as duly taken at the trial.' In civil cases the ground for practice is, that though there be exceptionable testimony, ° ^ "* • yet if there be sufficient legal evidence to support the verdict, and justice appears to have been done, the verdict will not be set aside,* and the same rnle applies where legal evidence has been excluded, but where, had it been admitted, it would have produced no varia- tion in the result.* In the former case, however, the court must see that the evidence did not weigh with the jury in forming their opinion, or that an opposite verdict, given upon the remainder of the evidence, would have been set aside as against evidence.* And Denman, C. J., once observed to the counsel who had put in such inadmissible evidence: "It is not enough for you to say that the ' State V. McCanless, 9 Ired. 375. That material error in a charge vitiates even where not proved to have produced erroneous result, see Mitchell v. State, 60 Ala. 26. 2 Com. V. Green, 17 Mass. 515 ; Com. V. Edgerly, 10 Allen, 184 ; People o. White, 14 Wend. Ill ; Carter w. People, 2 Hill (N. Y.), 317 ; People v. Restell, 3 Hill (N. Y.), 289 ; People v. Spooner, 1 Denio, 343 ; People v. McGee, 1 Denio, 21 ; Stokes v. People, 53 N. Y. 164 ; Com. ». Parr, 5 Watts & S. 345 ; LutreU v. State, 85 Tenn. 232 ; Peo- ple V. Dayley, 59 Cal. 600; People V. McNutt, 64 Cal. 116 ; Maines v. State, 23 Tex. Ap. 468 ; Montgomery v. State, Ibid. 650. When material illegal evidence has been admitted, this can only be cured by the judge distinctly withdrawing the matter from the jury. Marx v. People, 63 Barb. 618. Infra, § 803. 3 Ibid. ; Evans t. State, 33 Ga. 4 ; Haiman v. State, 39 Ga. 708 ; Adams V. People, 109 111. 444; State v. Blare, 69 Mo. 317 ; State v. Williams, 3 Heisk. 76 ; People v. Ah Who, 49 Cal. 32 ; Williams v. State, 4 Tex. Ap. 265 ; Gallaher v. State, 17 Fla. 370. Infra, §§ 804, 877. * Horford v. Wilson, 1 Taunt. 12; Doe V. Tyler, 6 Bingham, 561 ; Prince V. Shepherd, 9 Pick. 176 ; Stiles u. Tilford, 10 Wend. 338. 5 Edwards v. Evans, 3 East, 451 ; Fitch V. Chapman, 10 Conn. 8. 5 Rutzen v. Farr, 5 Nev. & Man. 617 ; S. P., People v. Greenwall, 108 N. Y. 296 ; State v. Stroble, 71 Iowa, 11 ; State «. McCahill, 72 Iowa, 111 ; Somerville v. State, 6 Tex. Ap. 433. 565 § 802.] PLEADING AND PRACTICE. [chap. XVIli. reception of this evidence could have made no difference ; you should have taken care not to put in bad evidence. The alleged unimport- ance of a piece of evidence improperly rejected or admitted is no ground for refusing to send a case down for a new trial."* § 802. In criminal cases, however, courts will rarely presume that the particular evidence which was wrongfully ad- mitted could, if material, have had no influence on the deliberations of the jury.* Where, however, the ex- ceptant does not make it appear that he was, or might have been, prejudiced by the admission of the evidence excepted to, a new trial will not usually be granted.^ Usually court will not pre- sume that illegal evi- dence had no effect. > Ibid. 618. ' In England, however, by the pres- ent practice, if there is any illegal evi- dence admitted, the conviction is bad, notwithstanding there was enough legal evidence admitted to sustain the conviction. R. v. Gibson, 18 Q. B. D. 542, by all the judges, in which it was said by Sutton, J., that the last para- graph in the report in R. v. Ball, R. & K. 132, was introduced by the reporter without authority. The illegal evi- dence in this case was not at the time of its admission objected to by defen- dant's counsel. 3 R. V. Teal, 11 East, 307 ; U. S. v. Jones, 32 Fed. Rep. 569 ; Com. v. Bos- worth, 22 Pick. 397 ; Com. v. Sumner, 124 Mass. 321 ; Stephens v. People, 4 Park. 0. R. 396 ; S. C, 19 N. Y. 549 ; People V. Gonzales, 35 N. Y. 49 ; Hunter v. state, 40 N. J. L. 495 ; Com. v. Eberle, 3 Serg. & R. 14 ; Com. v. Gallagher, 4 Penn. Law Jour. 516 ; 2 Clark, 297 ; Tarbox v. State, 38 Ohio St/ 581 ; Powers V. State, 87 Ind. 144 ; State v. Kinney, 26 W. Va. 141 ; State v. Yates, 21 W. Va. 761 ; State v. Spaulding, 34 Minn. 361 ; Bird v. State, 14 Ga. 43 ; Mathls V. State, 33 Ga. 24 ; Wise v. State, 2 Kans. 419 ; Clark v. People, 31 111. 479 ; Jackson v. Sharff, 1 Oreg. 246 ; State v. Watson, 30 Kans. 281 ; People v. Owens, 79 Mo. 619; Lynes «. State, 36 Miss. 566 617; Evans v. State, 44 Miss. 762; Ganard v. State. 50 Miss. 147 ; Boon v. State, 42 Tex. 237 ; Evans v. State, 13 Tex. Ap. 225 ; Terr. v. Gay, 2 Dak. 125 ; though see Com. v. McGowan, 2 Pars. 347, where it is said that after a court has rejected competent and material tes- timony offered by a defendant charged with an infamous critue, the court will not refuse relief on the assumption that the rejected evidence would not have availed the accused, if it had been received. Per King, P. J. To the same effect may be cited State v. Header, 54 Vt. 126 ; -DePhue v. State, 44 Ala. 32 ; Peek u. State, 2 Humph. 78 ; Stokes v. State, 4 Baxt. 47 ; State V. Turner, 6 Baxt. 201 ; U. S. v. De Quilfeldt, 11 Rep. 455 ; 2 Cr. Law Mag. 214, where this is said to be the rule in Tennessee. But see Links v. State, 13 Lea, 70. Where a witness, called for the de- fence, was so much intoxicated at the time as to be incapable of comprehend- ing the obligation of an oath, and the court refused to permit him to testify, but told the prisoner that he might re- call him afterwards, but he was not so recalled, it was held that this was not ground in law for granting a new trial, the granting or refusing a new trial in such case being in the discretion of the judge. State v. Underwood, 6 Ired. 96. CHAP. XVIII.] NEW TRIAL. [§ 804. § 803. The illegal reception of evidence is no ground for re- vision when the evidence was subsequently ruled out, ,„ , . „ , When erro- and the jury directed to disregard it.' So the converse neous is true, that a new trial will not be granted on account Jcindfdf no' of the exclusion of particular evidence, when the objec- ^g^^tj^ai""" tion to such evidence is withdrawn after its exclusion, and the defendant has had an opportunity to offer it." § 804. Except under extraordinary circumstances of surprise,* a verdict will not be set aside because improper evi- objection dence was admitted, if no objection to its admission was to avail, made on trial.* And where a party neglects, at the been made proper time, to state for what purpose particular evidence ** *™®" is offered, and it is rejected for irrelevancy, he cannot afterwards obtain a new trial by showing that it might have been applied to a point material to the issue." So when there is a special objection to the admission of testimony, which objection could be obviated if mentioned at the trial, a party cannot keep such objection back at the trial, and then, when the mistake becomes one which it will be too late to remedy, use it in error under a general exception to the admissibility of such evidence.* Nor can a party who waives Supra, § 666; Whart. Crim. Ev. § 384 a. See State v. Header, 54 Vt. 126, 651 , where it was held that it must appear in such oases that no injury was wrought to the defendant. A new trial was granted where proof of the violent temper of the prisoner, who was charged with homicide, was introduced by the government, where it had not been put in issue by him. State V. Merill, 2 Dev. 269. ' State V. Lawrence, 57 Me. 574 ; Com. V. Johnson, 137 Mass. 562 ; Mimms V. State, 16 Ohio St. 221. See Marx v. People, 63 Barb. 618. That it is the duty of the court so to direct, see State V. Brantley, 84 N. C. 766; Supra, §564. ' State V. McCurry, 63 N. C. 33. See Stephens v. People, 19 N. Y. 549 ; Peo- ple V. Henderson, 28 Cal. 468 ; Hilliard on New Trials (1873), 48. ' See supra, § 796. Infra, §§ 810, 881 ; Walker v. State, 39 Ark. 221. * Com. V. Sullivan, 13 Phila. 410; Evans v. State, 33 Ga. 4 ; Haiman v. Moses, 39 Ga. 708 ; State v. Williams, 3 Seisk. 376; People u. Collins, 48 Cal. 277 ; People v. Ah Ton, 53 Cal. 741 ; Robinson v. State, 33 Ark. 180 ; Daflin v. State, 11 Tex. Ap. 46. Infra, § 878. As to surprises, see § 884. That a defendant may agree that the testimony of a witness for the prosecu- tion may be read in his absence, see State V. Fooks, 65 Iowa, 452. See supra, §§ 70, 351, 759. 5 State V. Wadsworth, 30 Conn. 56 ; State V. Neville, 6 Jones (N. C), 423 ; Barksdale v. Toomer, 2 Bailey, 180. Supra, §§ 564 et seq. 8 Height V. People, 50 N. Y. 392; Bishop V. State, 9 Ga. 121. Supra, §§ 564 et seq. 567 § 806.] PLEADING AND PRACTICE. [CHAP. XVIII. objection to a deposition be admitted to subsequently object to its reception.' A court, on its own motion, may refuse to admit evidence plainly irrelevant, though agreed to on both sides.* 3. Verdict against law. § 805. Wherever and as often as the finding of a jury is in point of law against the charge of the court, a due regard to bound to public justice requires that the verdict should be set receive law aside. On this principle, it is true, the doctrine of au- from court. » . trejois acquit grafts an important exception, but this exception arises, not from the doctrine sometimes broached that the jury are the judges of law in criminal cases, but from the funda- mental policy of the common law, which forbids a man when once acquitted to be put on a second trial for the same offence. When a case is on trial, the great weight of authority now is that the jury are to receive as binding the law laid down by the court ; and after a conviction it is hardly doubted in any quarter that if the verdict be against instruction it will be set aside,' unless it should appear that the instruction in question was erroneous in law.* § 806. For some time after the adoption of the federal Constitu- Eariierdoc *'°°' ^ Contrary doctrine, it is true, was generally re- trineinthis ceived. In many of the States, the arbitrary temper of rCBDect to > ti i. the con- the colouial judges, holding ofiBce directly from the ^^^' crown, had made the independence of the jury in law as well as in fact of much political importance. Thus, John Adams, in his Diary for February 12, 1771,* in a passage which is probably either an extract from or memorandum of a speech before the colo- 1 People V. Murray, 62 Mich. 288; Marsh. 150 ; Carter «. State, 48 Ga. 43 ; Hancock v. State, 14 Tex. Ap. 392. Robinson ». State, 33 Ark. 180. As to 2 Durrett v. State, 62 Ala. 434. right of counsel to argue law to jnry, 8 U. S. V. Shive, 1 Bald. 512 ; U. S. see supra, § 578. That a momentary u. Battiste, 2 Sumner, 243 ; Com. i-. absence of the judge in an ante-room is Knapp, 10 Pick. 477 ; Com. v. Porter, not ground, see State v. Smith, 49 10 Met. 286 ; Carpenter v. People, 8 Conn. 376. As to English practice, Barb. 610 ; People v. Pine, 2 Barb, see R. v. Goas, London Law Times, 571 ; DnfiFy v. People, 26 N. Y. 589 ; Feb. 18, 1882. Guffy V. Com., 2 Grant, 66 ; Davenport * Loew v. State, 60 Wis. 559. !>. Com., 1 Leigh, 588; Hardy w. State, ^ John Adams's Life and Works, 7 Mo. 607 ; Montee v. Com., 3 J. J. 262. 568 CHAP. XVin.] NEW TRIAL. [§ 806. nial legislature, urges that in the then state of things public policy demanded that not only in criminal but in civil cases juries should be at liberty to take the law in their own hands. It was natural, therefore, that the early judges, both of the federal and state courts, should have continued for some time to assert a doctrine which, before the Revolution, they had found so necessary for protection against oppression and persecution. To this may be added that the federal Supreme Court in particular, for reasons elsewhere more fully given, was unwilling to assert any prerogative which might draw odium on itself, or expose the new Constitution to any addi- tional shock. ^ Hence it was that Judge Chase not only broadly denied that the courts had any power to pronounce on the unconstitu- tionality of statutes, but over and over again declared that the Su- preme Court was to be treated as possessed only of such powers as the legislature might from time to time impart to it. At the very time that this eminent but arbitrary judge was keeping the bar in an uproar by his assaults on counsel and witnesses, he was prompt in conceding to the jury as good a right to judge of the law as he had himself. Thus in Fries's case he said, " The jury are to decide on the present and in all criminal cases both the law and the facts, on their consideration of the whole case." " If, on consideration of the whole matter, law as well as fact, you are convinced that the prisoner is guilty, etc., you will find him guilty." No better illus- tration of Judge Chase's character can be found than in the fact that, in the very case where he thus recognized the power of the jury over the law, he succeeded, by stopping counsel when they under- took to dispute the law he laid down, in raising a turmoil which ended in his own impeachment.^ ' As to the tendency of the older erally hear the counsel at large on the judges to mix in politics, and its bad law, and they are permitted to address effects, see Wharton's State Trials, the jury on the law and on the fact, preliminary notes, 46-48. after which the counsel for the State ^ That Judge Chase was not peculiar concludes; the court tten states the in his views, appears from the testi- evidence to the jury, and their opinion mony taken during his impeachment, of the law, but leaves the decision of Thus, Mr. Edward Tilghman, a lawyer both law and fact to the jury." Chase's not only of great eminence, but of po- Trial, 143. See supra, § 678. To the litical sympathies which would have same effect, also, is Mr. Hay's evidence kept him from any ultra democratic as to the state of practice at the time tendencies, testified : " The court gen- in Virginia. Ibid. 175. 569 § 808.] PLEADING AND PRACTICE. [OHAP. XVIII. § 807. But it was not long before it was found necessary, if not Early ' entirely to abandon the rule, at least practically to ignore cases no it. If I'uries have any moral right to construe the law. longer . "' • i i i authorita- it becomes essential to know what is the construction "^' ' they adopt ; and the most strenuous advocates for the abstract doctrine soon confessed that the notions of juries, even on fundamental questions, vary so much that it was difficult to report, much more to systematize them. And yet, if it be settled that a jury's view of the law of a case is conclusive, it is vital to the com- munity to know what that view is. Take, for instance, the statutory cheats growing out of the laws abolishing imprisonment for debt. The tendency of legislation in late years has been to relieve a debtor from imprisonment, except in cases where a wilful false pre- tence is the consideration for the debt, or where there has been a subsequent fraudulent disposal of the acquired property. The ten- dency of judicial decision is to construe these exceptions strictly, and to hold that, to entitle a creditor to avail himself of them, he must show that he had not the opportunity of detecting the false pretence at the time, that it related to an alleged existing fact, or that the property secreted was actually and fraudulently detached from an honest and vigilant execution. These views are well known to the community ; they enter into every contract, and are binding upon the courts. But what would a jury say ? At one time a broken promise would be held indictable, and thus the old days of imprisonment for debt would be recalled. At another time not even frauds clearly within the statute would be held indictable, and hence imprisonment for fraud would cease in toto. Or take, as another illustration, malicious mischief at common law, about which even among the courts there is already sufficient diversity of opinion. Certainly from juries, no settled rule could be had as to what the offence is, and if there could be, no one could undertake to classify their decisions. Or again, when the question arises whether the uncorroborated evidence of an accomplice is enough to convict in a particular case, a question in which the judiciary of almost each State holds a distinct shade of opinion, where would be the chances of uniformity of adjudication, if juries, acting on the particular cir- cumstances at hand, are to be the arbiters ? § 808. But a practical illustration of such point is found in a case to which may be attributed the change of sentiment on this 570 CHAP. XVIII.] NEW TRIAL. [§ 808. question of the late Mr. Justice Baldwin, a judge who, it is well known, was not disposed on light grounds to surrender o^ny long- cherished opinions. On several occasions, in his early judicial history, he was unequivocal in his commitment of the whole law to the jury ; and in one instance, after counsel had directly appealed from the court to the jury on a legal point, he went so far as to say that, in so doing, they had but " acted in the strict line of their duty."' But when, some time afterwards„counsel, profiting by this encouragement, undertook to open to the jury, on an indictment for counterfeiting United States bank notes, the unconstitutionality of the bank's charter, this learned judge paused. He felt that how- ever legitimate a result of his own reasoning this course was, if per- mitted, it would defeat all prosecutions for the particular offence on trial. " Should you assume and exercise this power," he said, in language which applies with equal force to all questions of law whatever, " your opinion does not become a supreme law, no one is bound by it, other juries will decide for themselves, and you could not expect that courts would look to your verdict for the construc- tion of the Constitution, as to the acts of the legislative or judicial departments of the government ; nor that you have the power of declaring what the law is, what acts are criminal, what are innocent, as a rule of action for your fellow-citizens or for the court. If one jury exercises this power, we are without a constitution or laws. One jury has the same power as another; you cannot' bind those who may take your places ; what you declare constitutional to-day, another jury may declare unconstitutional to-morrow. We shall cease to have a government of law, when what is the law depends on the arbitrary and fluctuating opinions of judges and jurors, in- stead of the standard of the Constitution, expounded by the tribunal to which has been referred all cases arising under the Constitution, laws, and treaties of the United States."* 1 U. S. V. WiUon, 1 Bald. 99. amined in greater detail in an article 2 Supra, § 573; U. S. v. Shire, 1 in the Southern Law Review for August- Baldwin, 512. To same effect may be September, 1877, reprinted in 1 Crim. cited IT. S. v. Eiley, 5 Blatch. C. C. Law Mag. 51 et seg. An essay, on the 204 ; U. S. V. Greathoaae, 4 Sawyer, same topic, by Chief Justice Wade, of 467. Compare 2 Curtis's Life and Montana, will be found in 3 Crim. Law Works, 176. Mag. 484. The question in the text. I have ex- 571 § 810.] PLEADING AND PRACTICE. [CHAP. XVIII. § 809. But in practice, however speciously the doctrine may he asserted, it is, except so far as it may sometimes lead a jury to acquit in a case where the facts demand a conviction, practically repudiated, and since its only operation now is mischievous, it is time it should be rejected in theory as well as reality. For, independently of the reasons already mentioned, an attempt to carry it out in practice would involve a trial in endless absurdity. Thus, for instance, whatj3[uestions of law are of more vital interest to a prisoner on trial than those of the admissibility of dying decla- rations, or of confessions ? If the jury are to judge of the law, what grosser invasions . of their rights, and those of the prisoner could be, than to take from the jury the decision of questions thus distinctly within their province, and which, so far from being col- lateral to, as has been urged, are in most instances direct to, the matter of guilt? And yet there is no judge sitting with a jury on the trial of a criminal case, who does not take to himself alone the hearing of the preliminary evidence as to whether the declarations were uttered under a consciousness of approaching dissolution, or whether the confession was extorted by duress or solicitation. The line of authority here and in England is unbroken, that in such and in kindred cases the court alone is to determine.* But if such be the law, as a matter of principle the jury have no more moral right to convict or acquit a man against the charge of the court that such evidence was to be stricken out, if improvidently let in, than they would to convict or acquit him on the evidence if actually excluded. And this view is strengthened by the fact, that in England and this country the statutory or constitutional provisions giving juries the power of determining as to whether a written document is unlawful or not go no further than the particular instance of indictment for libel. § 810. The conclusion we must therefore accept is that the jury , are no more the iudges of law in criminal than in civil Jury are at . common cases, with the qualification that, owing to the peculiar judges of doctrine of autrefois acquit, a criminal acquittal cannot **^' be overhauled by the court.* In the federal courts such is now the established rule.' 1 See Whart. Crim. Ev. §§ 297, 523 » U. 8. o. Fenwiok, 4 Cranoh C. C. et seg. 675 ; Stettinlus v. V. S., 5 Cranoh C. 2 As to law of autrefois acquit, see C. 573 ; U. S. v. Battiste, 2 Sumner, supra, §§ 435 et seq. 243 ; U. 8. v. Morris, 1 Curt. C. C. 43. 572 CHAP. XVIII.] NEW TRIAL. [§■810. Independently of the federal courts, which have been already See, as to same case, 2 Curtis's Life and Works, 176 ; U. S. v. Riley, 5 Blatch. 204 ; U. S. V. Greathouse, 4 Sawyer, 457; 2 Abbott U. S. 364; U. S. v. Keller, 19 Fed. Rep. 633. To the same effect is the reply of the late Judge Thompson, while presiding in the United States Circuit Court, in the city of New York, on the trial of a criminal case, when requested by one of the counsel to charge the jury that they were judges both of the law and the fact. His answer was : "Isha'n't; they ain't." Equally emphatic was the direction of Mr. Justice Hunt, on the trial of Miss Anthony, in 1873. U. S. v. An- thony, 11 Blatch. 200. Infra, § 812. On this principle can be sustained the action of Judge Curtis, and that of Judge Grier and Judge Kane, in Phila- delphia, in prosecutions where they held that it was a good cause of chal- lenge that a juryman differed from the court in his view of the constitution- ality of the statute on which the pros- ecution rested. Certainly, if the jury were the judges of the law, this would have been as arbitrary an act as was that of James II., who polled the Court of King's Bench as to the dispensing power, and dismissed the judges who refused beforehand to pledge them- selves to hold the prerogative constitu- tional. On the assumption that the jury are judges of the law as well as the court, there is no more reason, a priori, that the court should set aside a juror, than that the jury should set aside the judge. See supra, § 666. "It is the duty of the court," said Chief Justice Shaw, of Massachusetts, in 1845, "to instruct the jury on all questions of law which appear to arise in the cause, and also upon all ques- tions pertinent to the issue, upon which either party may request the direction of the court upon matters of law. And it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions as far as they understand them, in applying the law to the facts to be found by them ; and it is not within the legitimate province of the jury to revise, reconsider, or decide, contrary to such opinion or direction of the court in matter of law. To this duty jurors are bound by a strong social and moral obligation, enforced by the sanction of an oath, to the same extent, and in the same manner, as they are conscientiously bound to de- cide on all questions of fact according to the evidence." See Com. v. Anthes, 5 Gray, 185. It seems, however, that the same court will not prevent coun- sel addressing the jury on the law. Com. V. Porter, 10 Met. (Mass.) 286. See Com. v. White, Ibid. 14. In Massachusetts the following stat- ute was subsequently passed : — In all trials for criminal offences, it shall be the duty of the jury to try, according to established forms and principles of law, all causes which shall be committed to them, and after hav- ing received the instructions of the court, to decide at their discretion, by a general verdict, both the fact and the law involved in the issue, or to find a special verdict at their election ; but it shall be the duty of the court to su- perintend the course of the trials, to decide upon the admission and rejec- tion of evidence, and upon all ques- tions of law raised during the trials, and upon all collateral and incidental proceedings, and also to charge the jury, and to allow bills of exception ; and the court may grant a new trial in cases of conviction. Supplement to Rev. Stat. 1855, c. 153. Under this act it was held that the 573 § 810.] PLEADING AND PRACTICE. [CHAP. XVIII. noticed, it may now be considered that the courts of Maine,' jury have no rightful power to deter- mine questions of law involved in the issue against the instructions of the court. Com. v. Anthes, 5 Gray, 185 — Dewey and Thomas, JJ., dissenting. See Com. v. Rock, 10 Gray, 4. It was also held that the legislature cannot, consistently with the Constitu- tion of the Commonwealth, confer on the jury, in criminal trials, the right- ful power to determine questions of law involved in the issue, against the instructions of the court, even hy a statute which also provides that the jury shall try the cases according to established forms and principles of law, and that the court shall super- intend the course of the trials, decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon collateral and incidental proceedings, and charge the jury, and allow bills of exception, and may grant a new trial in cases of conviction. By Shaw, C. J., Metcalf, Bigelow, and Merrick, JJ.; contra, Dewey and Thomas, JJ. Com. u. Anthes, 5 Gray, 185 ; S. P., Com. v. Rock, 10 Gray, 4.' It has also been ruled that a refusal of the presiding judge to allow the defendant's counsel in a criminal case to read to the jury the whole of the statute, upon one section of which the prosecution is founded, is no ground of exception, if he is allowed to read all those parts which he contends aflFect the construction of that section, and to comment to the jury upon the whole of the statute. Com. ». Austin, 7 Gray, 51. In Connecticut, a statute making juries judges of the law does not re- lieve them, it is said, from the duty of obeying the law as it actually is. State V. Buckley, 40 Conn. 246. And I State V. Wright, 53 Me. 336. In this case, Appleton, C. J., in the course of his opinion, said : — The question seems never to have been directly before the Supreme Court of the United States sitting in banc ; but several of the judges of that court, namely, Baldwin, Thompson, Story, and Curtis, as we have already seen, have emphatically denied the right of the jury to decide the law in any case, civil or criminal ; and we cannot doubt that such will be the de- cision of the full court if the question ever comes before them. " The following States unite in the doctrine that it is the duty of the jury to be governed by the law as it is laid down by the court : N. Hamp- shire, in Pierce v. State, 13 N. H. 536 ; Massachusetts, in Com. v. Por- ter, 10 Met. 263 ; Com. v, Anthes, 574 5 Gray, 185 ; Rhode Island, in Dorr's Trial, 121; New York, in People o. Pine, 2 Barb. 566 ; Carpenter ». Peo- ple, 8 Barb. 610 ; Stafford v. People, 1 Parker, 474; Duffy v. People, 26 N. Y. (Smith), 588 ; Pennsylvania, in Penn. v. Bell, Addison, 160 ; 2 Whart. Crim. Law, § 3106 ; Virginia, in Dav- enport V. Com., 1 Leigh, 588 ; Com. i>. Garth, 8 Leigh, 761 ; Howel v. Com., 5 Grat. 664 ; North Carolina, in State a. Peace, 1 Jones (Law), 251 ; Ohio, in Montgomery v. State, 11 Ohio, 424 ; Robbins ti. State, 8 Ohio St. R. (N. S.) 131 ; Kentucky, in Montee v. Com., 3 J. J. Marsh. 150; Com. v. Van Tuyl, 1 Mete. (Ky.) 1; Alabama, in Pierson v. State, 12 Ala. 153; Batre V. State, 18 Ala. 119 ; Missouri, in Hardy v. State, 7 Mo. 607; Missis- sippi, in Williams v. State, 32 Miss. (3 George), 389 ; Arkansas, in Pleas- CHAP. XVIII.] NEW TRIAL. [§ 810. New Hampshire,' Massachusetts,* Rhode Island,* New York,* Vir- in State v. Thomas, 47 Conn. 546, it was held that it was not error for the court to tell the jury that it was ab- surd for them to hold an act unconsti- tutional which had been sustained by the court. In New York, though before the re- cent Constitution the inclination was otherwise, the same view has been solemnly held in more than one case of recent date. Bennett v. People, 49 N. Y. 141 ; cited infra, § 812 ; People V. Pine, 2 Barb. 566 — Barculo, J. See Carpenter v. People, 8 Barb. 610 ; Duffy V. People, 26 N. Y. 588. Com- pare People V. Pinnegan, 1 Park. C. E. 147 ; 1 Park. C. R. 453 ; S. C, 26 How. Pr. 195 ; contra, People v. Thay- ers. Ibid. 595 ; People v. Videto, Ibid. 603. See, to the same effect, a valua- ble article in 5 Bost. Law Rep. N. S. 2 (May, 1852). In Pennsylvania, though till 1879 there was no reported decision on the express point from the Supreme Court in banc, it has not been usual to leave to the jury the law to decide. A very strong leaning to the contrary is shown by Gibson, C. J., in closing a charge in a capital case: "If the evidence on these points fail the prisoner, the con- clusion of his guilt will be irresistible, and it will be your duty to draw it." Com. V. Harman, 4 Barr, 269. The ant V. State ; 8 Eng. (13 Ark.) 360 ; Texas, in Nels v. State, 2 Texas, 280 ; Tennessee, in McGowan v. State, 9 Yerger, 184. "In Indiana the decisions are in- fluenced by local legislation, and are therefore unimportant. There are, however, two well-considered deci- sions in that State in which the right of the jury to determine the law is denied. 2 Black. 156 ; 2 Carter, 617 ; contra, 4 Black, 160, 247; 10 Ind. 503. State v. Holder, 5 Geo. 441, and some other cases in that State (Geor- gia), have been supposed by some to be in favor of the doctrine. But this is an error. In that State the subject is regulated by express statu- tory law, and their decisions have no bearing upon the question as a com- mon law right. "In Vermont, in State v. Croteau, 23 Vt. 14, a majority of the court held that, in criminal cases, the jury are judges of the law as well as the facts, but the doctrine was resisted in a very able dissenting opinion by Judge Ben- nett; and in a later case (State v. McDonnell, 32 Vt. 523), the presiding judge declared to the jury that to him such a doctrine was ' most absurd and nonsensical,' and the full court held the remark unexceptionable. "In Maine, in State v. Snow, 18 Me. 346, the court seems to have taken it for granted that the law was settled in favor of the right of the jury to de- termine the law in criminal cases, and gave the question apparently very lit^ tie consideration. Two cases only are cited. One of them (Croswell's case, 3 Johns. Cases, 337) establishes no such doctrine ; and the other (Com. v. Knapp, 10 Pick. 497) has been em- phatically overruled by the same court which made the decision." 1 Pierce v. State, 13 N. H. 536. ' 2 Com. V. Porter, 10 Met. 286 ; Com. V. White, Ibid. 14 ; Com. v. Ab- bott, 13 Met. 120 ; though now mod- ified by statute given in a prior Jiote to this section. 3 Dorr's Trials 121 ; 7 Bost. L. R. 347. * See cases given above. 575 §810.] PLEADING AND PRACTICE. [OHAP. XVIII. ginia,' North Carolina,^ Ohio,* Kentucky,* Michigan,* Alabama," same position was taken by Rogers, J., in Com. v. Sherry, reported in Appen- dix to Wharton on Homicide. Not varying much from this is the language of Sergeant, J., in a charge in a case of misdemeanor : ' ' The point, if you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions of the conrt. If you believe the evidence in the whole case, you must find the de- fendant guilty." Com. v. Vansickle, Brightly R. 73. Infra, § 812. In 1879, however, in Kane v. Com., 89 Penn. St. 622, Ch. Just. SUarswood, speaking for the court, declared it error for a judge to say to the jury, " The law is for the court, and you will be governed by it, or you will not, as you have sworn to do, try the case by the law and by the evidence." "The distinction,^' says Ch. Just. Sharswood, " between power and right, whatever may be its value in ethics, in law is very shadowy and unsub- stantial. He who has legal power to do anything has the legal right. No court should give a binding instruction to a jury, which they are powerless to enforce, by granting a new trial if it should be disregarded. They may present to them the obvious considera- tions which should induce them to re- ceive and follow their instructions, but beyond this they have no right to go. The argument in favor of their taking the law from the court is addressed, very properly, ad veremndiam. The court is appointed to instruct them, and their opinion is the best evidence of what the law is." For a discussion of this opinion, see South. Xaw Jour, for 1879, p. 352 et seq. ; 1 Crim. Law Mag. 47. But this is greatly modified in a subsequent case (Com. i^. Niohol- 576 son, 96 Penn. St. 503), where the Su- preme Court say: " The court below had an undoubted right to instruct the jury as to the law, and to warn them, as they did, against finding contrary to it. This is very differ- ent from telling them that they must find tlie defendant guilty, which is what is meant by a binding instruction in a crim- inal case." This may be considered as virtually recalling the points in which the opinion on Kane u. Com. differs from prior opinions in the same court. See Johnston v. Com., 85 Penn. St. 54 ; cited supra, § 798 ; 1 Crim. Law Mag. 242. In Virginia, not only is it held that the jury has no right to take the law except from the court, but it has been ruled expressly, that counsel will not be permitted to address an argument on the law except to the court. Dav- enport V. Com., 1 Leigh, 588 ; Com. v. Garth, 8 Leigh, 761; Howell v. Com., 5 Grat. 664. See, on these decisions, a learned article in 6 Am. Jurist, 237 ; and see fully supra, §§ 573 et seq. ' Howel a. Com., 6 Grat. 664; and cases cited supra. 2 State V. Peace, 1 Jones (Law), 251. 3 Montgomery v. State, 11 Ohio, 424; Robbins v. State, 8 Ohio St. 131; Adams v. State, 29 Ohio St. 412. * Montee v. Com., 3 J. J. Marsh. 150; Com. v. Van Tuyl, 1 Mete. (Ky.) i. . 5 People V. Mortimer, 48 Mich. 37. 6 Pierson v. State, 12 Ala. 153 ; Batre ». State, 18 Ala. 119, reviewing State V. Jones, 5 Ala. 666 ; Washington V. State, 63 Ala. 135 ; Sullivan v. State, 66 Ala. 48 ; Tidwell v. State, 70 Ala. 33; Amos u. State, 73 Ala. 498. CHAP. XVIII.] NEW TRIAL. [§ 810. Mississippi,* Missouri,' Arkansas,' California,* Nebraska," South Carolina,' and Texas," unite in the doctrine that the jury must take the law from the court ; while the right of the jury to determine the law seems in some sense to be held, under the stress of constitutional or legislative provi8ions,inVermont,' Tennessee,' Georgip,,'" Maryland," 1 Cothran v. State, 39 Miss. 541 ; Bangs V. State, 61 Miss. 363. 2 Hardy v. State, 7 Mo. 607. See State V. Jones, 64 Mo. 391. 3 Pleasant v. State, 2 Eng. (13 Ark.) 360. By tlie Constitution, however, the jury are judges of the law. See Patterson u. State, 2 Eng. 59. In Sweeney v. State, 35 Ark. 585, it was held that it was the duty of the court to declare the law and of the jury to apply it, and see Bobinson v. State, 33 Ark. 180. * People V. Stewart, 7 Cal. 140 ; Peo- ple V. Anderson, 44 Cal. 65. 6 Parrish v. State, 14 Neb. 60. ^ State V. Drawdy, 14 Richards, 87. ' Nels V. State, 2 Tex. 280 ; Pharr v. State, 7 Tex. Ap. 472. 8 State o. Croteau, 23 Vt. 14; but see State v. McDonnell, 32 Vt. 523. The adhesion of the Vermont courts to the doctrine is by no means hearty. Thus, in a case decided in 1884, we have the following : — " It does not follow that because the jury are judges of the law, counsel can read what they please to them. The rule that the jurors are judges of the law does not affect the course or order O'f procedure of the trial in the least ; it is the result of the power of the jury rather than of any inherent right, and the trial should be conducted in the usual course of proceedings," citing State V. McDonnell, 32 Vt. 491. "My own impression is that counsel are not at liberty to insist to the jury that the law is different from that given by the court ; as well might they argue to them the questions of the admission or 37 rejection of evidence and many other legal ones arising on the trial ; and this view is not at all inconsistent with the fact that, by the power of the jury to render a general verdict, they virtu- ally become judges of the law." Taft, J., giving opinion of court in State v. Hopkins, 56 Vt. 263. See, however, State V. Meyer, 58 Vt. 457. ' Nelson v. State, 2 Swan, 237. See, however, Harris a. State, 7 Lea, 538. In Hannah v. State, 11 Lea, 201, it was held that the court ought not to refuse* to permit counsel to argue the law to the jury. 1" Holder v. State, 5 Ga. 441 ; Ricks V. State, 16 Ga. 600 ; McGuffie v. State, 17 Ga. 497 ; McPherson v. State, 22 Ga. 478 ; MoDaniel v. State, 30 Ga. 853 ; Clarke v. State, 35 Ga. 75 ; Mc- Math V. State, 55 Ga. 303. See O'Neil V. State, 48 Ga. 66. But in Habersham t;. State, 56 Ga. 61, it was said that it was the duty of the jury to take the law from the court ; and so in Powell u. State, 65 Ga. 707, and Robinson v. State, 66 Ga. 517 ; Mahone v. State, 66 Ga. 539 ; Ridenhour v. State, 75 Ga. 382 ; Danforth v. State, Ibid. 614. " Franklin .,. State, 12 Md. 236 ; Forwood V. State, 49 Md. 531. This was in obedience to a constitu- tional provision that the jury are to be judges of the law. But at the same time it was held that, on the question of the constitutionality of laws, the jury were to take the law from the court. See Wheeler v. State, 42 Md. 563. And in Bell v. State, 57 Md. 108, it was held that the court " has the right to instruct the jury i^j a criminal 5T7 § 811.] PLEADING AND PRACTICE. [chap. XVIII. Louisiana,' Illinois,* and Indiana.' So far as concerns the question immediately in discussion, it is not disputed that if a jury, whatever may be its supposed elementary rights, finds against the court's charge, the verdict should be set aside, and a new trial granted, un- less it be mad^ to appear that the verdict would not have been sus- tained if in accordance with the charge of the court.* § 811. It has been ruled in Virginia, that upon a question of law addressed to the court at nisi prius, the judge is not bound to hear an argument from the prisoner's counsel, if his opinion is already formed." The same point was made in Fries' case by Judge Chase. But in the latter case the ruling of the court in this respect was the subject of an impeachment in which a conviction was barely escaped." The proper view is that on all questions of law, the court, before decision, is bound to hear counsel, with proper limits as to time. But after Ccmrt bound to hear coun- sel as to law- case as to tbe legal effect of the evi- dence," and having such right it has the right to prevent counsel from argu- ing against such an instruction. ' State V. JuTche, 17 La. An. 71 ; State V. Saliba, 16 La. An. 35 ; State v. Ford, 37 La. An. 444. Bat in sub- sequent cases this is qualified by de- claring that though the jury have the power, they have not the moral right to reject the law of the court. State v. Tally, 23 La. An. 677 ; State v. Ford, 37 La. An. 449. z Falk V. People, 42 111. 331. See, however, MuUinix v. People, 76 111. 211, in which the defendant asked the court below to charge the jury that they were "sole judges of the law." The court, however, told the jury that it was "their duty to accept and act upon the law, as laid down to you by the court, unless you can say, upon your oaths, that you are better jxidges of the law than the court." The Su- preme Court held that this was emi- nently proper. To the same effect, see Davidson v. People, 90 111. 221. ' This is required by the State con- stitution, y^arren v. State, 4 Blackf. 678 150 ; Williams State v. Ayre, 3 Foster (N. H.), Where burglars' tools, found on the 301 ; State v. Andrews, 29 Conn. 100 ; defendant, were, during a recess of the State u. Cucuel, 31 N. J. L. (2 Vroom) court, while the cause was on the trial, 249 ; Hall's case, 6 Leigh, 615 ; Nance exhibited, and their use explained iu V. State, 21 Tex. Ap. 457. the presence of one of the jurors, with 2 State o. Taylor, 20 Kans. 643. the knowledge of the defendant and Supra, § 825. his counsel, and no objection was made 3 State V. Cucuel, 31 N. J. L. 249, until after verdict, it was held that the 262; Barlow v. State, 2 Blaokf. 114; objection was to be regarded as waived. Rowe 1-. State, 11 Humph. 491 ; Eppes State a. Rand, 33 N. H. 216. V. State, 19 Ga. 102 ; Chase v. State, 46 * State v. Schnelle, 24 W. Va. 767 ; Miss. 683 ; State v. Fruge, 28 La. An. State v. Nance, 25 S. C. 168 ; State v. 657 ; Stanton v. State, 13 Ark. 319 ; Cook, 30 Kans. 82 ; People v. McCurdy, .State V. Brown, 7 Oreg. 186 ; March v. 68 Cal. 576. State, 44 Tex. 64. As to writ of error = Supra, § 821 ; State v. Miller, 24 in such cases, see State v. Wart, 51 W. Va. 802 ; State v. Smith, Ibid. 815 j Iowa, 587. State v. Flanagan, 26 Ibid. 117 ; State 600 CHAP. XVIII.] NEW TRIAL. [§ 840, five dollars casually to a juror, in payment of a debt, by and trivial a bystander, without any reference or connection with the tion. case under trial, is no ground for a new trial.* Nor is the mere fact that the jury were for a short time without attendants fatal.^ And that the jury were taken to divine service during the trial, and heard a sermon on the text " Thou shalt not kill," does not by itself vitiate the proceedings, there being nothing in the sermon calculated to bias the jury.* § 838. When, however, a communication, not on its face trivial, is shown to have been madfe to the jury, during their p ^ deliberations, from outside, it will be ground for dis- tion against turbing the verdict unless it be shown to have in no way munica- touched the merits of the case on trial.* Nor can a '°°°' stranger, even by the action of the court, be permitted to address the jury as to the merits of the pending trial, without throwing on the prosecution the burden of showing that the jury was not thereby influenced.* § 839. The fact that a juror was asleep or otherwise inattentive during the trial is not ground for a new trial, where it could have been a matter of exception at the time origifo-''°° and was passed over.* Ignorance of the English Ian- ranee of ju- ^ . '■<"■ niust be guage, when not known at the time of challenge, is excepted , . , • 1 7 to at time, ground lor new trial.' § 840. Cases may occur in which a juror, by his contumacious disregard of the directions of the court, may make a new trial «. Tilghman, 11 Ired. 513 ; State v. Baker, 63 N. C. 276 ; Rowe v. State, 11 Humph. 491 ; Doyal v. State, 70 Ga. 134 ; McCann v. State, 9 S. & M. 465 ; Ned V. State, 33 Miss. 364 ; Stanton v. State, 13 Ark. 317 ; Coker .;. State, 20 Ark. 51 ; Nance K. State, 21 Tex. Ap. 457. ' Martin v. People, 54 111. 225. ' Hoover v. State, 5 Baxter, 672. See Love v. State, 6 Baxt. 154. ' Alexander «. Com., 105 Penn. St. 1. * Ibid. ; Pope v. State, 36 Miss. 122 ; State V. Anderson, 4 Nev. 265 ; State V. Harris, 12 Nev. 414 ; Defrieud v. State, 22 Tex. Ap. 570. See Hartung V. People, 4 Park. C. R. 256, 319, as reversed in 22 N. Y. 95. 5 People V. Green, 53 Cal. 90. 6 U. S. V. Boyden, 1 Low. 266 ; Bax- ter V. People, 3 Gilm. 386 ; Cogswell u. State, 49 Ga. 103. That the burden of proving that there was no influence exercised is on the prosecution, see Nile V. State, 11 Lea, 694. ' Com. i). Jones, 12 Phila. 550. See, however, Bonneville v. State, 53 Wis. 680 ; Terr. v. Romaine, 2 New Mex. 114, As to removal of this objection by em- ployment of an interpreter, see supra, § 669. 601 § 841.] PLEADINCJ AND PRACTICE. [chap. XVIII. But other- wise as to disobedi- ence to court, re- sulting in Injury. §841. Intoxica- tion, when ground for new trial. necessary.' This has been ruled to be the case where a juror, in disobedience to the repeated directions of the court, took notes of the evidence, which notes he re- tained.* But the mere taking of notes by a juror, with- out objection, is ho ground for revision.' In New York any indulgence in spirituous liquors, during trial, by the old rule, avoided the verdict.* " We can- not," declared the Supreme Court, " allow jurors thus of their own accord to drink spirituous liquor while thus engaged in the course of a cause. We are satisfied that there has been no mischief, but the rule is absolute, and dqes not meddle with consequences, nor should exceptions be multiplied. We have set aside verdicts in error for this cause, where the parties consented that the jury should drink."* This, however, is no longer held in New York,* though in other States verdicts have been set aside because spirituous liquor was given to the jury during their deliberation.' On the other hand. Judge Story, in a capital case, held it would not avoid a verdict to show that some of the jurors drank ardent spirits during the trial, when the prisoner's counsel consented in open court to this indulgence to those whose • health might require it, unless it was also shown that the indulgence was grossly abused and operated injuriously to the defendant;' and this view is now generally accepted,' and with good reason, since there ' See supra, § 717. 2 Cheek u. State, 35 Ind. 492. See supra, § 956. 3 Cluck V. State, 40 Ind. 263. * Dennison v. Collins, 1 Cow. Ill ; Rose V. Smith, 4 Cow. 17. 5 Brant v. Fowler, 7 Cow. 562. « Wilson V. Abrahams, 1 Hill, 207. ' State V. BuUard, 16 N. H. 139; Davis V. State, 35 Ind. 496 ; State «. Baldy, 17 Iowa, 39 ; Ryan v. Harrow, 27 Iowa, 494 ; Jones v. State, 13 Tex. 166 ; People u. Gray, 61 Cal. 164, a case in which large quantities of beer and whiskey were sent to the jury without permission of court or know- ledge of defendant, but there was no proof of drunkenness. But see State V, McLaughlin, 44 Iowa, 82 ; William- 602 son V. Reddish, 45 Iowa, 550 ; State v. Bruce, 48 Iowa, 530, overruling State ». Baldy, supra. 8 U. S. V. Gibert, 2 Sumner, 21 ; S. P., State V. Greer, 22 W. Va. 803; Dolan V. State, 40 Ark. 454 ; and see Coleman v. Moody, 4 H. & M. 1 ; Stone w. State, 4 Humphreys, 37. " Cider" is at all events unexceptionable. Com. u. Roby, 12 Pick. 496. See notes in 21 Alb. L. J. 40. 9 Nichols V. Nichols, 138 Mass. 256 (citing text) ; State v. Cucuel, 31 N. J. L. (2 Vroom) 549 ; Com. v. Beale, re- ported Whart. Crlm. Law, 7th ed. § 3320 ; Thompson's case, 8Grat. 638 ; Creek v. State, 24 Ind. 151 ; Davis v. People, 19 111. 74 ; State v. Bruce, 48 Iowa, 530 ; Roman v. State, 41 Wis. CHAP. XVIII.] NEW TRIAL. [§ 842. are many men, fully capable to act as jurors, who, from old age or other reasons, are dependent for their health on a moderate use of tonics of this class.^ It is agreed, however, that incapacitating intoxication by any of the jury during their deliberations is ground for setting aside the verdict.^ And it has been held in Ohio, that the separation of a juror from his fellows, after the case has been finally submitted and before they have agreed upon a verdict, for the purpose of obtaining and drinking intoxicating liquors, when not explained or shown to be excusable, is such misconduct of the juror as will entitle the prisoner to a new trial.* § 8'42. "Where the jury have cast lots, or resorted to chance in any way whatever, to determine their verdict, a new trial pg^gy^g. will be ordered in all cases in which the jurors bound lots by iurors or themselves, before the lot, to abide by the result.* other irreg- Where, however, such a method of determining the SieSco^n- views of the particular jurors as to the degree is taken saltations, without any previous agreement by which the jurors bind themselves individually to adopt a mean result, but where each juror reserves to himself the right of dissenting, and where all, after consideration, agree to a compromise based on their individual estimates, the find- ing will rarely be disturbed.' And where one of the jury, through a mistaken sense of duty, thought he ought to assent to the views 312 ; Joyce v. State, 7 Baxt. 273 ; State V. Caulfield, 23 La. An. 148 ; Pope v. State, 36 Miss. 121 ; Russell u. State, 53 Miss. 368 ; Green v. State, 59 Miss. 501 ; State v. Upton, 20 Mo. 397 ; State V. West, 69 Mo. 401 ; Kee v. State, 28 Ark. 155 ; Tuttle v. State, 6 Tex. Ap. 556 ; State u. Jones, 7 Nev. 408, 414 ; Jones V. People, 6 Col. 452 ; though see in Texas, as to capital cases, Jones v. State, IB Tex. 168. A new tria!l, how- ever, will be granted if a juror is " treated" by the prosecutor. Infra, §§ 849 et seq. See supra, §730; 7 South. Law Eev. 526. ■ See State v. Livingston, 64 Iowa, 560 ; May v. People, 8 Col. 210. 2 Hogshead v. State, 6 Humph. 59. This is conceded in most of the cases cited ; and see Pelham v. Page, 1 Eng. (Ark.) 535. 3 Weis V. State, 22 Ohio St. 486. * Hale V. Cove, 1 Strange, 642 ; Parr V. Seames, Barnes, 438 ; Mellish v. Ar- nold, Bunb. 51 ; Thompson v. Com., 8 Grat. 637 ; State v. Barnstetter, 65 Mo. 149 ; Crabtree v. State, 3 Sneed (Tenn.), 302; Williams v. State, 15 Lea, 129; Leverett v. State, 1 Tex. L. J. 113; Hunter v. State, 8 Tex. Ap. 75 ; Wood V. State, 13 Tex. Ap. 135 ; Birchard v. Booth, 4 Wis. 67. See Monroe v. State, 5 Ga. 85 ; Billiard on New Trials (1873), 160; and compare supra, §§ 731-2; 14 Cent. L. J. 341. 5 Thompson v. Com., 8 Grat. 637; Dooley v. State, 28 Ind. 239 ; Glidewell V. State, 15 Lea, 133; Battersou v. State, 63 Ind. 231 ; Cochlin v. People, 93 111. 410 ; Leverett v. State, 1 Tex. L. J. 113 ; Warren v. State, 9 Tex. Ap. 619. 603 § 843.] PLEADING AND PRACTICE. [OHAP. XVIII. of a majority, and thereby concurred in a verdict of murder, such mistake was held no ground for a new trial.* The same conclusion was reached where the jury concurred in opinion as to the guilt of the prisoner, but differed as to the length of the time for which he should be sentenced to the penitentiary ; and they agreed that each one should state the time for which he would send him to the peni- tentiary, and that the aggregate of these periods, divided by twelve, should be the verdict, and after it was done they struck off the odd months, and all agreed to the verdict, understanding what it was.^ Nor will mistake by a juror as to the nature of the punishment, nor as to the action of the court, be ordinarily ground for revision ;' nor is it ground that the juror believed that the sentence would be com- muted, or the defendant promptly pardoned.* § 843. Mere collateral indecorum on the part of the jury will be no ground to set aside a verdict, unless it appeared as to mere that such levity interfered with their deliberations." And tode'cOTuia. i* ^^^ ^®®° ^^^^ "^ Colorado that the fact that a jury > Com. V. Drew, 4 Mass. 391. See Galviu V. State, 6 Cold. 283. 2 Thompson v. Com., 8 Grat. 638. » State V. McConkey, 49 Iowa, 499 ; State V. Shook, 68 Mo. 552. * State V. Wallman, 31 La. An. 176 ; Montgomery v. State, 13 Tex. Ap. 74. See State v. Turner, 6 Baxt. 201 ; State V. Rhea, 25 Kan. 576. Where, however, a j iiror was not sat- isfied of the guilt of the prisoner, but assented to a verdict of guilty under an impression (suggested by his fellow- jurors) that the governor would pardon the defendant if the jury by their ver- dict recommended it ; it was held, in Tennessee, that this was sufficient cause to set aside the verdict. Craw- ford V. State, 2 Yerger, 60. A juror's affidavit that he believed the prisoner was innocent, and that he assented to a verdict of guilty under the belief, induced by the assertions of his fellow-jurors, that there were fatal defects in the proceedings which would prevent the prisoner from being sent to the penitentiary, and that the governor 604 would pardon the defendant if recom- mended to mercy in the verdict, was held in tjie same State sufficient to set aside the verdict. Cochran v. State, 7 Humph. 544. In this case, the case of Crawford v. State, 2 Yerg. 60, was re- ferred to and approved. And so where the juror's affidavit was that he yielded against his judgment and conscience, because a great majority of the jury favored the verdict. Galvin u. State, 6 Cold. 283. But these cases cannot be sustained without making jury trials inoperative in all cases of serious dis- agreement between j urors. Infra, § 847. 5 Jack V. State, 20 Tex. Ap. 656 ; Com. V. Beale, Phila. 1854, quoted on this point in 8th edition of this book, citing Com. v. Flanigan, 7 W. & S. 421. See on other points S. C, supra, § 842. Cf. Taylor v. California Stage Co., 6 Cal. 228. See, however, Jim v. Statfe, 4 Humph. 289. As to irregular action of jury in experimenting with alleged instruments of crime, see Whart. Cr. Ev. § 314. CHAP. XVIII.] NEW TRIAL. [§ 844. were allowed to attend a " theatrical exhibition" by leave of court after being empanelled, they being under the charge of a sworn officer, is no ground for a new trial, they not communicating with any one out of their own body, nor being shown to have been in any way influenced by the diversion.' § 844. When it appears after trial that a juror had beforehand prejudged the case, but had improperly withheld this Absolute factbefore acceptance, or when asked as to opinion preadjudi- ^ _ ' ^ cation by on voir dire had given false answers, and such forma- Juror tion of opinion was unknown to the party at the time, new trial a new trial will be granted.^ And it was held a suffi- ^^p°ig^e. to be fraudulently inserted In the panel. State v. Bell, 81 N. C. 591 ; supra, § 495. As to challenges, see supra, §§ 611 et seg. Where a juror, during the progress of the cause, after the evidence was opened, expressed a decided opinion as to the guilt of the defendant in the hearing of bystand- ers, it was held that though in so doing he was guilty of gross miscon- duct, it was no cause to set aside the verdict. Com. u, Gallagher, 4 Penn. L. J. 512; 2 Clark, 297, per Bell, President J. See State v, Ayer, 3 Foster (N. H.), 301; Brakefield v. State, 1 Sneed, 215. If the prisoner has neglected to avail himself before the trial of any of the means provided by law for ascertaining the incompe- tency of a juror, on account of preju- dice, he will not be entitled to a new trial on the ground of such prejudice. State V. Daniels, 44 N. H. 383 ; Meyer V. State, 19 Ark. 156 ; State v. Ander- son, 4 Nev. 265. It is enough if the defendant's counsel knew of the inca- pacity. State V. Tuller, 34 Conn. 280 ; but see, for a less stringent rule, Willis V. People, 32 N. Y. 715 ; cf. Heath «. Com., 1 Robins. 735. As to discharg- ing jury upon discovery, during trial, of such prejudice or incompetency, see supra, §§ 509, 725. That such motion can be made in the 605 1 Jones V. People, 6 Cal. 452. 2 U. S. u. Fries, 1 Whart. St. Tr. 606 ; People v. Bodine, 1 Denio, 281 ; People V. Vermilyea, 7 Cow. 108 ; Heath v. Com., 1 Robbins.Va. 735 ; Com. V. Jones, 1 Leigh, 598 ; State v. Mc- Donald, 9 W. Va. 456 ; State v. Strau- der, 11 W. Va. 745 ; Parks o. State, 4 Ohio St. 234 ; Sellers v. Teople, 3 Scam. 412 ; Barlow v. State, 2 Blackf. 114; Romaine v. State, 7 Ind. 63; State V. Gillick, 7 Clarke (Iowa), 289 ; Presbury v. Com., 9 Dana, 263; Nor- fleet V. State, 4 Sneed, 340 ; State v. Hopkins, 1 Bay, 373 ; State v. Dun- can, 6 Ired. 98; State v. Patrick, 3 Jones L. 443 ; State v. Davis, 80 N. C. 412 ; State o. Lambert, 93 N. C. 619 ; Wade V. State, 12 Ga. 25 ; Ray v. State, 15 Ga. 223; Keener v. State, 18 Ga. 194; Burroughs v. State, 33 Ga. 403 ; Moncrieff v. State, 59 Ga. 470 ; Cody v. State, 3 How. Miss. 27 ; Cannon v. State, 27 Miss. 147 ; Lisle v. State, 6 Mo. 426 ; State v. Taylor, 64 Mo. 358 ; State i,. Gonce, 87 Mo. 627 ; State 0. Parks, 21 La. An. 251 ; Hen- rie V. State, 41 Tex. 573 ; Austin v. State, 42 Tex. 355 ; Long v. State, 10 Tex. Ap. 186 ; Billiard on New Trials (1873), 174, 175. And see for other cases infra, § 845 ; cf. Lamar v. State, 64 Miss. 687. This is eminently the case when the juror procured himself § 844.] PLEADING AND PRACTICE. [chap. XVIII.. cient reason for a new trial that one of the jurors, some time before the trial, declared " such a man as Fries (the defendant) ought to be hung, who brings on such a disturbance," of which fact, until after the trial, the defendant had no notice.* The same ruling under the same limitations took place where the fore- man had declared that the plaintiff should never have a verdict, whatever witnesses he produced f and where a juror had stated on the morning of trial that he had come from home for the purpose of hanging every counterfeiting rascal, and that he was determined to hang the prisoner at all events.^ A qualified opinion, however, dependent on a particular state of facts, will be no ground for new trial ;* and where a juror stated that if it was true the prisoner had made the attempt to commit the crime charged upon him, he would go to the penitentiary ; it was held sufficient ground was not laid." The defendant, also, by omitting to examine the juryman as to bias, ordinarily is precluded from taking subsequent exceptions.' And a new trial will not be granted because of vague opinions against the prisoner existing in the mind of a juror ;' nor because of prior loose talk by a juror showing prejudice in matters collateral ;' nor because of off-hand remarks made by the juror in order to avoid trial court even after the appellate court liad overruled exceptions of re- cord, see State v. Gilman, 70 Me. 329. 1 U. S. V. Fries, 1 Whart. St. Tr. 606. See State v. Williams, 14 W. Va. 851; Hoard v. State. 15 Lea, 318. Whether the juror was so prejudiced is a question of fact to be determined hy the court. Dumas v. State, 63 Ga. 600. That the juror can be examined as to such bias, see infra, § 847 ; Rader ■ V. State, 5 Lea, 610. 2 2 Salk. 645. s State V. Hopkins, 1 Bay, 373. See Ibid. 377. * State V. Benner, 64 Me. 267 ; State 0. Ayer, 8 Fost. (N. H.) 301 ; State v. Hayden, 51 Vt. 296 ; Com. v. Flana- gan, 7 Watts & S. 415, 421 ; Kennedy V. Com., 2Va. Cas. 510; Poore w. Com., 2 Va. Cas. 474 ; Brown v. Com., 2 Va. Cas. 516 ; Com. v. Hughes, 5 Rand. 655; Mitohum v. State, 11 Ga. 616; 606 Anderson v. State, 14 Ga. 709 ; Jim v. State, 15 Ga. 535 ; O'Shields v. State, 55 Ga. 656 ; Howerton v. State, 1 Meigs, 262 ; State v. Davis, 20 Mo. 391 ; State u. Ward, 14 La. An. 673. 5 Kennedy v. State, 2 Va. Cas. 510. Under the California statute, the ob- jection must be made before verdict. People V. Fair, 43 Cal. 137 ; People v. Mortimer, 46 Cal. 114; overruling People V. Plummer, 9 Cal. 298. 6 Ibid. ; Yanez v. State, 6 Tex. Ap. 429. See State v. Marks, 15 Nev. 33. Infra, § 845. ' Com. V. Flanagan, 7 Watts & S. 422; Poore v. Com., 2 Va. Cas. 474. See State v. Howard, 17 N. H. 171; State V. Fox, 1 Dutch. 566 ; Hughes v. People, 116 m. 330 ; Wright v. State, 18 Ga. 383 ; Rice^ v. State, 7 Ind. 332 ; People V. King, 2^7 Cal. 507. 8 State V. Hayden, 51 Vt. 296. CHAP. XVIII.] NEW TRIAL. [§ 846. service ;^ nor because of a general excitement against the defendant at the time of trial, in the community at large.* In such cases, however, a new trial will not be granted unless the reception of the juror was prejudicial to the defendant.* Any unfair bias on part of the judge, which is prejudicial to the defendant, is ground for revision.* Error of the court on the allowance or rejection of challenges belongs to a distinct branch of law previously discussed.* § 845. A new trial will not be granted on the ground that a iuror was liable to be challenged, if the party had an otherwise . ,. , • 1 • , „ -1 , • -vihea party opportunity of making his challenge, and knew, or might could have have known, in the exercise of due care, the facts be- ohjecMon forehand.* in time to challenge. § 846. Where it turns out after verdict that one of the jurors was absolutely incapable of acting as such, ^capacitv and that this fact was unknown to the defendant at the of juror time, and could not, with due diligence, have been new trial, known to him, this is a ground for a new trial. This quaMed. 1 Simms v. State, 8 Tex. Ap. 230. 2 Com. V. Flanagan, 7 Watts & S. 422 ; though if such excitement per- vade the jury-box, and work an unjust result, the verdict should be set aside. People ». Aoosta, 10 Cal. 195. « State w. Williams, 14 W. Va. 851 ; State V. Bancroft, 22 Kan. 170. * Supra, §§ 605, 798 a. 5 Supra, §§ 605 et seq. 6 R. V. Sutton, 8 B. & C. 417 ; 2 M. & E. 406 ; State v. Bowden, 71 Me. 89 ; Aohey v. State, 64 Ind. 56 ; State o. Underwood, 6 Ired. 96 ; Moon v. State, 68 Ga. 687 ; Durham ». State, 70 Ga. 264 ; McAllister v. State, 17 Ala. 434 ; George v. State, 89 Miss. 570 ; Brown v. State, 60 Miss. 447 ; Wood v. State, 62 Miss. 220 ; State v. Taylor, 64 Mo. 358 ; Harris v. State, 61 Miss. 304 ; State v. Wood, 74 Mo. 253 ; Ogden «. State, 13 Neb. 436 ; State v. Casat, 40 Ark. 511 ; Givens v. State, 6 Tex. 344 ; Baker v. Slate, 4 Tex. Ap. 243 ; Yanez v. State, 6 Tex. Ap. 429, and cases supra, §844. Where bystanders were called as jurors in a capital case, and, at the in- stance of the prisoner, sworn and ex- amined touching their indiffereucy, and then elected by the prisoner and sworn of the jury ; upon objections to the indifferency of these jurors, dis- covered after the trial, not inconsistent with what was disclosed by the jurors themselves on their examination touch- ing their indifferency, it was held that the court ought not to set aside a ver- dict of guilty, just in itself, though the objections be such, that if known and disclosed before the jurors were elected and sworn, there might have been good cause to challenge the jurors ; much less, if the objections be such as would not have been good cause of challenge. Com. V. Jones, 1 Leigh, 598 ; Presl^ury V. Com., 9 Dana, 203. Supra, § 844, note. See State v. Greer, 22 W. Va. 800 ; State u. Belcher, 18 S. C. 459. 607 § 846.] PLEADING AND PRACTICE. [chap, xvrii. has heen held in a case where it appeared that one of the jurors was not a freeholder, this being a statutory necessity ;' or was an infant ;* or was not the person actually summoned on the jury, though bearing the same name.* But disqualifications not abso- lute, which are ground for challenge, may not be ground for a new trial. ^ This is the case with alienage," when such alienage is not a statutory disqualification ;* with conviction years back of an infamous ofience ;' with non-residence ;* with irreligion ;' with relationship with the prosecutor ;'" with membership of the grand jury which found the bill ;*' with partial ignorance of the language." The defendant, in any view, to avail himself of such a defect must have been, without negligence, ignorant of it until after verdict; and if he neglects to use proper diligence in inquiry, or to question the juror at the proper time, disqualification cannot be set up as ground for new trial. '^ 1 Supra, §§ 344-45, 845 ; infra, § 886 ; State v. Babcook, 1 Conn. 401 ; Dowdy t-. Com., 9 Grat. 727. See Stanton v. Beadle, 4 T. R. 473. 2 Russell V. Barn, Barnes, 455 ; R. V. Tremaine, 7 D. & R. 684 ; 5 B. & C. 254. 3 McGill t. State, 34 Ohio St. 328. Compare R. v. Sullivan, 8 Ad. & E. 831 ; People v. Ransom, 7 Wend. 417. * State u. Fisher, 3 N. & Mo. 261 ; Ash V. State, 56 Ga. 583. 5 State V. Quarrel, 2 Bay, 150. See HoUingsworth v. Duane, 4 Dall. 353 ; though see Chase v. People, 40 111. 352 ; Brown v. La Crosse, 21 Wis. 51 ; Hill V. People,- 16 Mich. 351. See State V. Jackson, 27 Kan. 581 ; Hickey V. State, 12 Neb. 490. Supra, § 699 ; infra, § 886. The question depends on the applioatory statute. Whether a colored person can claim colored jurymen, see supra, § 783 a. s In this case, if there be a surprise, there can be a new trial. Lamphier v. State, 70 Ind. 317; Armendares v. State, 10 Tex. Ap. 44. See other oases, - supra, § 669. ' State V. Powers, 10 Oreg. 145. 608 8 Costly V. State, 19 Ga. 614. See People V. Mortier, 58 Cal. 262. 8 McClure v. State, 1 Yerg. 206. See R. V. Tremaine, supra. 1" Supra, § 660 ; McLellan v. Crofton, 6 Greenl. 307 ; Eggleton c. Smiley, 17 .Johns. 133 ; Edwards v. State, 53 Ga. 428 ; McDonald v. Beall, 55 Ga. 288 ; Cartwright v. State, 12 Lea, 620 ; Bar- ley V. State, 29 Ark. 17 ; Jones u. People, 2 Col. T. 351 ; Jones v. State, 14 Tex. Ap. 85. As to what consan- guinity is a disqualification, see State V. Congdon, 14 R. I. 458 ; State v. Wil- liams, 14 W. Va. 851 ; supra, § 660. " Supra, § 661 ; Barlow v. State, 2 Blackf. 114 ; Bennett v. State, 24 Wis. 24; Davis v. State, 54 Ala. 39; Mc- Gehee v. Shafer, 9 Tex. 20; State w. Madoil, 12 Fla. 151. >2 Bonneville v. State, 53 Wis. 680. Supra, § 669, and cases supra, § 839. 13 Supra, §§ 351, 733, 844; infra, §§ 886-89 ; R. v. Sutton, 8 B. & C. 417; Poindexter v. Com., 33 Grat. 766 ; Parks v. State, 4 Ohio St. 234 ; Becker v. State, 20 Ohio St. 228 ; Gil looley V. State, 58 Ind. 182 ; Patter- son V. State, 70 Ind. 341 ; State v. CHAP. XVIII.] NEW TRIAL. [§ 847. § 847. Though the former practice was different, it is now settled in England, that a juror is inadmissible to impeach the verdict of his fellows.* " It would open each juror," admfssfwe declared Mansfield, C. J., " to great temptation, and ^ impeach would unsettle every verdict in which there could be found upon the jury a man who could be induced to throw discredit on their common deliberations."* Nor are subsequent declarations of jurymen, after a general verdict, admissible to explain or qualify it,' though the affidavits of bystanders, as to what passed within their knowledge touching the delivery of the verdict, may be re- ceived.^ In this country the modern English rule has generally been, adopted,* though the affidavits of jurors will be entertained for the purpose of explaining, correcting, or enforcing their verdict.® Thus, where a doubt existed, in consequence of confusion in the Quarrel, 2 Bay, 150 ; McAllister v. State, 17 Ga. 434 ; Osgood v. State, 63 Ga. 791; Hiokey v. State, 12 Neb. 490. 1 See Whart. Crim. Ev. § 510. 2 Oweu V. Warburton, 1 N. R. 326 ; Hindle v. Birch, 1 Moore, 455 ; Aylett V. Jewel, 1 W. Black. 1299 ; Vaise v. Delaval, 1 Term Rep. 11 ; Straker u. Graham, 4 M.&W. 721. See Hilliard on New Trials (1873), 241. 8 Clark V. Stevenson, 2 W. Black. 803. * R. V. Wooller, 6 M. & S. 366. 5 Supra, § 379 ; Whart. Crim. Bv. § 510 ; State v. Pike, 65 Me. Ill ; State ». Ayer, 3 Fost. 301 ; Com. u. Drew, 4 Mass. 391 ; State v. Freeman, 5 Conn. 348 ; Dan v. Tucker, 4 Johns. 487 ; People V. Columbia, 1 Wend. 297; People V. Carnal, 1 Parker C. R. 256, 262, 676; S. C, 2 Park. C. R. 777; Clnggage v. Swan, 4 Binn. 150 ; Reed V. Com., 22 Grat. 924 ; State v. Godwin, 5 Ired. 401 ; Bellamy v. Pippin, 74 N. C. 46 ; State v. Smallwood, 78 N. C. 560 ; State v. Brittain, 89 N. C. 481 ; State V. Royal, 90 N. C. 755 ; State v. Doon, Charlton, 1 ; State v. Coupen- haver, 39 Mo. 320 ; State v. Branstetter, 39 65 Mo. 149 ; State v. Alexander, 66 Mo. 148 ; State v. Cooper, 85 Mo. 256 ; Bennett v. State, 3 Ind. 167 ; Stanley V. Sutherland, 54 Ind. 339 ; State u. Millecan, 15 La. An. 557 ; State v. Fruge, 28 La. An. 657 ; State v. Nel- son, 32 La. An. 842 ; State v. Price, 37 La. An. 215 ; Hudson v. State, 9 Yerg. 408; State v. Home, 9 Kans. 119; People V. Baker, 1 Cal. 403 ; People v. Doyall, 48 Cal. 85 ; Johnson u. State, 27 Tex. 758. As. to grand jurors, see supra, § 379. In Iowa, it is said that an afBdavit as to a fellow-juror drinking intox- icating liquors is only to be received when no other evidence is obtainable, and ought to be explicit. State v. Mc- Laughlin, 44 Iowa, 82. 6 Cogan V. Ebden, 1 Burr. 383 ; R. V. Woodfall, 5 Burr. 2667; State v. Ayer, 3 Foster, N. H. 301 ; State v. Howard, 17 N. H. 171 ; Danat;. Tucker, 4 Johns. 487 ; Jackson v. Dickenson, 15 Johns. 309 ; Cochran v. Street, 1 Wash. R. 79 ; Jones v. State, 89 Ind. ' 82 ; State v. Rush, 95 Mo. 199. In California such evidence is now admissible by statute, Donner v. Pal- mer, 23 Cal. 40. 609 § 847.] PLEADING AND PKACTICE. [CHAP. XVIII. court-room, as to what the exact verdict was, the affidavits of jurors and bystanders were received for the purpose of showing the facts of the case, though all reference was excluded as to the motives or intentions with which such verdict was agreed to, or the circum- stances attending the deliberations which led to it.' In Tennessee the English rule appears to be rejected altogether,^ though it is proper to observe that in that State, in one instance at least, a dis^ position has been shown to conform more closely to the general practice, it. having been held that affidavits by jurors that they founded their verdict upon particular parts of the testimony given in court, which particular testimony might abstractly be illegal, are not sufficient to authorize a new trial.* Nor is such testimony ad- missible to show that certain jurors were influenced by the belief that a pardon would be granted after conviction.* Yet, at the same time, there is danger of construing the rule in such a way as to work great wrong, by so shielding with secrecy the deliberations of the jury as to permit these deliberations to be irresponsibly conducted in such a way as to outrage public and private rights. The true view is this : Jurors cannot be received to qualify by parol testimony matters of record ; nor can they be permitted to state matters concerning their deliberations which may be proved aliunde, nor the processes of reasoning which led to their conclusion.' From necessity, however, when gross injustice has been wrought from misconduct or misapprehension in their de- liberations, they may be permitted to prove such misconduct or mis- apprehension. Thus, it has been held that they may prove that the case was decided by lot ;' or that the instructions of the court were utterly misunderstood ;' and a distinction has been taken to the effect that though a juror cannot be admitted to stultify his own > R. u. Woodfall, 5 Burr. 2667 ; R. to grand jurors, supra, § 379 ; Wiart. V. Simons, Sayer, 35. Crim. Ev. § 510. 'Crawford v. Btate, 2 Yerg. 60; ^ See cases supra, and at end of § 842. Cochran ii. State, 7 Humph. 544. Su- « gtate v. Shook, 58 Mo. 552 ; State pra, § 842. v. Wallman, 31 La. An. 146. 3 Hudson V. State, 9 Yerg. 408. In s Wright v. Illinois Tel. Co., 20 Nile V. State, 11 Lea, 694, the practice Iowa, 19. See People v. Hughes, 29 is spoken of as " dangerous," and to Cal. 257 ; State v. Home, 9 Kans. 718. be followed with " caution." And see, Supra, § 842. also, as still more restrictive, Cart- ' Packard v. 0. S., 1 Iowa, 225 ; R. Wright V. State, 12 Lea, 620. See, as v. Simons, Sayer, 35. 610 CHAP. XVIII.] NEW TRIAL. [§ 849. action, yet he may be permitted to prove gross misconduct in his fellows,* should such misconduct be first shown aliunde.^ Whether jurors may be received as witnesses to purge their conduct from the imputation of impropriety hasybeen doubted.* In exceptional cases, however, such testimony has been received ;* and it has been held that a juror may be examined to disprove the charge of preadjudication.* § 848. The court, also, will not permit aflBdavits to be read im- puting improper motives to the jury, or tending to im- peach their integrity.* And where a juror has denied, ^ffi^avits'^^ on oath, before the triers, having formed and expressed attacking an opinion in a criminal case, the affidavit of a single witness to the contrary has been held insufficient to disturb the verdict." 6. Misconduct hy the Prevailing Party. § 849. Any misconduct by the prevailing party, intended to affect the jury, and tending so to do will be cause for a new trial,' and even an acquittal obtained by fraud or con^uct^' embracery will be no bar to a subsequent indictment.? ground for . 1 T 1 1 ^^^ trial. Nor need such misconduct be traced directly to the party prevailing. Any perversion of justice by means dehors the trial, against which ordinary care could not guard, will justify the court in setting the verdict aside." A party, also, who undertakes thus to tamper with a jury is indictable for embracery." 1 Deacon v. Shreve, 2 Zab. N. J. 176 ; = Supra, § 844 ; Rader v. State, 5 and see Com. v. Meade, 12 Gray, 167 ; Lea, 610. and the remarks of Taney, C. J., in U. "Onions v. Naish, 7 Price, 203; S. V. Reid, 12 How. 361. As to Texas Hartwright v. Badham, 11 Price, 383 ; statute, see Hodges v. State, 6 Tex. Ap. Cooke v. Green, 11 Price, . 736 ; Graham 615. on New Trials, 126. " Kent V. State, 42 Ohio St. 426. ' Epps v. State, 19 Ga. 102. 3 French v. Smith, 4 Vt. 363 ; Ray u. s % Hale P. C. 308 ; State v. Hascall, State, 15 Ga. 223 ; MoGuffie v. State, 6 N. H. 352 ; Knight v. Inhabitants, 17 Ga. 497 ; Sawyer v. Hannibal etc., 13 Mass. 218 ; Jeffries v. Randall, R. R., 37 Mo. 240 ; Organ v. State, 26 14 Mass. 205 ; Wood v. State, 34 Ark. Miss. 78 ; People v. Backus, 5 Cal. 341. 275 ; People v. Hughes, 29 Cal. s See supra, §§ 451, 784 et seq. ; Hyl- 257. See Hilliard on New Trials liard v. Nichols, 2 Root, 176. See (1873), 247. Ohio Code Cr. Proc. § 192. * Taylor v. Greely, 3 Greenl. 204 ; w Willis v. People, 32 N. Y. 715. Fries's case, 1 Wh. St. Tr. 605 ; Mof- " Infra, § 966. fett V. Bowman, 6 Grat. 219. 611 § 852.] PLEADING AND PRACTICE. [CHAP. XVIII. § 850. Evidence that the prosecutor, by exhibiting papers at places where the jury boarded, had been attempting to of undue bias and influence them, will be suflScient to sustain a orfjury!^ motion for new trial ;* and so where it appeared that the prosecutor spent a night in a room with the jury dur- ing their deliberation^, the conviction being for manslaughter, and the prosecutor having acted officially as high sherifl" both when prosecuting the suit and attending the jury.* Wherever, in fine, undue influence is shown, a new trial will be granted.' § 851. Where papers, as has already been seen, not in evidence, are surreptitiously handed to the jury, the verdict will tampering be avoided ;* and the same result will take place where dence^^' it appears that a witness on one side has been spirited away by the opposite party," and where an attempt to bribe a witness is shown.* Such efibrts, however, must be traced to a party or his agents ; for the mere absenting of himself by a wit- ness will not be sufficient ground.' § 852. A new trial will be granted when it appears any unfair And so of *'"^°'^ ^^ artifice had been employ^ed, resulting in a ver- trick of op- diet in favor of the party using it.* Thus, a new trial was granted where the defendant, by the artifice of the prosecuting attorney, went to trial without countervailing testimony, under the belief that certain witnesses of the State were absent, when they are present, and concealed by the prosecution.' But a new trial will not be granted in a liquor case because the prose- cution brought into court a number of female members of a local tem- perance society who might be supposed to exert an influence on the jury.i* 1 State V. Hascall, 6 N. H. 352. Com- « Bostock v. State, 10 Tex. Ap. 705. pare Coster v. Merest, 3 Brod. & B. 272 ; ' Grovenor v. Fenwick, 7 Mod. 156. 7 Moore, 87 ; Spenoeley v. De Willot, 7 ' Anderson «.■ George, 1 Burr. 352 ; , East, 108. Graham on New Trials, 56 ; Bodington ' McElrath v. State, 2 Swan, 37^. See v. Harris, 1 Bing. 187 ; Niles v. Brack- supra, § 827. ett, 15 Mass. 378 ; Jackson v. Warford, 3 Ibid. See State v. Brittain, 89 N. 7 Wend. 62 ; March v. State, 44 Tex. C. 481 ; State v. Gould, 90 N. C. 659. 64 ; People v. Bennett, 52 Cal. 380. * Co. Lit. 227 ; Graves v. Short, Cro. « Curtis v. State, 6 Cold. (Tenn.) 9. Eliz. 616 ; Palmer, 325. Supra, §§ 831 See Shepherd v. State, 64 Ind. 43. et seg. " Nuzum v. State, 88 Ind. 599. 6 Bull. N. P. 328. 612 CHAP. XVIII.] NEW TRIAL. [§ 854. § 853. A new trial will not be granted simply because counsel, in their addresses, travelled beyond the evidence, or used But not for improper language, unless the court was called upon to op™og?^e °^ interpose, and, on a case requiring it, refused to do so.^ counsel T. . • 1 • 1 1 11 ,1 unless ob- But it IS otherwise where the court allows the prose- jectedto outing counsel to charge the defendant with other offences * ™®' beside that on trial, or to take any other unfair advantage of his position.^ 7. After-discovered Evidence. § 854. After-discovered evidence, in order to afford a proper ground for the granting of a new trial, must possess the following qualifications : — It must have been discovered since the former trial. It must be such as reasonable diligence on the part of the defen- dant could not have secured at the former trial. It must be material in its object, and not merely cumulative and corroborative, or collateral. It must be such as ought to produce, on another trial, an opposite result on the merits. It must go to the merits, and not rest on merely a technical de- fence.' ^ Supra, §§ 562, 577, and cases there cited ; Davis v. State, 33 Ga. 98. See Com. V. Hanlon, 3 Brewst. 461 ; State 0. Braswell, 82 N. C. 693 ; State v. Bar- hem, 82 Mo. 67 ; State v. Hicks, 92 Mo. 431; State u. West, 95 Mo. 141 ; Bohanan V. State, 18 Neb. 57 ; Coleman v. State, 111 Ind. 663; State v. Johnson, 72 Iowa, 393 ; 9 Crim. Law Mag. 742. ' Supra, § 561 ; State v. Smith, 75 N. C. 306 ; State v. Rogers, 94 N. C. 860 ; Sasse V. State, 68 Wis. 530 ; State v. Mahly, 68 Mo. 315 ; State v. Jackson, 95 Mo. 623 ; Thomas v. State, 61 Miss. 60 ; Martin v. State, 63 Miss. 505 ; Newton v. State, 21 Fla. 53. See, also, supra, §§ 669, 570, 577. See State v. Cluck, 40 Ind. 265 ; Long v. State, 56 Ind. 182 ; Shepherd v. State, 64 Ind. 43. 3 State 0. Carr, 1 Foster (N. H.), 166 ; Com. v. Murray, 2 Ashm. 41 ; Com. V. Williams, 2 Ashm. 69 ; Thomp- son V. Com., 8 Grat. 637 ; Read v. Com., 22 Grat. 924 ; Carter ,,. State, 46 Ga. 637 ; Childers v. State, 68 Ga. 837 ; State V. Burnside, 37 Mo. 343 ; State v. Wyatt, 50 Mo. 309. In Pennsylvania (Moore v. The Phila. Bank, 5 Serg. & Eawle, 41) it was said by the court that it is incumbent on the party who asks for a new trial, on the ground of newly- discovered testimony, to satisfy the court : 1st. That the evidence has come to his knowledge since the trial ; 2d. That it was not owing to the want of diligence that it did not come sooner ; and 3d. That it would probably pro- duce a different verdict if a new trial were granted. The same distinctions were afterwards adopted by Judge 613 § 859.] PLEADING AND PRACTICE. [CHAP. XVIII. § 855. There are, in addition, one or two preliminary points of Motion practice which must be conformed to before a motion on must be this ground will be entertained.- It is necessary that Bpecial. ,1-, ..,.-.,., . the party should mention in his amdavit the witnesses by name, and what he expects to prove by them ; and that either the witnesses themselves should state, on oath, the evidence they can give, or that the party should give his own belief in the statement to be made by the witnesses.' § 856. But the rule will not ordinarily be granted, if supported only by the aflfidavit of the party. The motion, if prac- supported ticable, must be accompanied by the affidavit of the davte." newly-discovered witnesses,^ taken on notice.^ And these affidavits must express the party's belief as well as his information.^ § 857. The adverse party may show, by affidavits, cofite^ted. ^^^^ ^^^ witnesses whose testimony is stated to be mate- rial are wholly unworthy of credit.* Must be ^ ^^^" -^ motioii for ^ ^ew trial will not ordinarily be usually heard after a judgment has been regularly perfected, fore judg- although it be on the ground of evidence newly discov- ™®°*' ered since the judgment." § 859. The evidence must have been discovered since the former trial.'^ In a Georgia case, for instance, where it ap- miift™e^ peared that the prisoner's attorney had made diligent newly dis- inquiries as to the prisoner's participation in the corpus covered. , . delicti, but had been misled, it was held that a new trial would be granted on evidence, newly discovered, being offered to the King. Com. v. Murray, 2 Ashm. 41. 1 ; Evans u. State, 6 Tex. Ap. 513 ; See Ohio Code Cr. Proo. § 192 ; People Tuttle v. State, 6 Tex. Ap. 556, and vj Stanford, 64 Cal. 27. cases in last note. 1 HoUingsworth v. Napier, 3 Caines, ' Shields v. State, 45 Conn. 266. 182 ; State v. Williams, 14 W. Va. » Taylor v. State, 11 Lea, 708. 851 ; Gavignan v. State, 55 Miss. 533 ; s Parker v. Hardy, 24 Pick. 246 ; Polser V. State, 6 Tex. Ap. 510. Infra, Williams v. Baldwin, 18 Johns. 489. § 900. 6 Infra, § 890. 2 State i: Kellerman, 14 Kans. 135 ; ' Hudgins v. State, 61 Ga. 182; Lee Farrow v. State, 48 Ga. 30 ; Runnels v. v. State, 69 Ga. 705 ; State v. Curtis, State, 28 Ark. 121 ; Robinson v. State, 77 Mo. 267 ; Williams v. State, 7 Tex. 33 Ark. 180 ; State v. Edwards, 34 La. Ap. 163 ; Heskew v. State, 14 Tex. Ap. An. 142; State i>. Sweeney, 37 La. An. 606. 614 CHAP. XVIII.] NEW TRIAL. [§ 860 a. effect that the prisoner did not make the assault charged.* But unless newly discovered, the existence of such testimony is not adequate ground.* There may, however, be cases, if duly sustained by affidavit, when supposed knowledge of the testimony at the time of the trial may be explained and avoided by proof that the defen- dant was at the time mentally incapable of taking cognizance of facts.' § 860. A new trial will not at common law be granted on the ground that a co-defendant, tried at the same time and acquitted, ^gpuj^tgij was a material witness for the convicted defendant, such co-defend- testimony not being newly discovered, and there having witness no been at the trial no application for a severance ; though the ^^°^'^ ■ acquitted defendant was then, for the first time, a competent witness.* Where, however, after an application for severance, in order to admit the wife of one party as a witness for the other, the former party was acquitted, but the latter convicted, and the wife of the former swore in an affidavit to a complete alibi as to the latter, it was held that as she herself was not on the record, but was ex- cluded merely by policy of law on the joint trial, and as she had been made competent by the verdict of a jury, a new trial would be granted.* But where co-defendants can be witnesses for each other on trial this ground cannot be laid. § 860 a. A cognate question arises under the peculiar provisions of the Pennsylvania statute which permits persons j^g^ jg ^^ charged with crimes not exclusively cognizable in the ^"j"^ °( Oyer and Terminer to testify in their own behalf. It of a part of has been held that when the defendant is charged with a vhich he ' Thomas v. State, 52 Ga. 509. State, 1 Tex. Ap. 206 ; Lyles v. State, 2 Vernon v. Hankey, 2 T. R. 113 ; 41 Tex. 172. Compare infra, § 873. Com. V. Murray, 2 Ashm. 41 ; Com. v. ^ Com. a. Manson, 2 Ashm. 31. See Williams, 2 Ashm. 69 ; Read v. Com., Com. v. Tolaud, 11 Phila. 433 ; Ander- 22 Grat. 924 ; Roach v. State, 34 Ga. son v. State, 8 Tex. Ap. 542. \ 78 ; Carter v. State, 46 Ga. 637 ; State Where an accessory was acquitted V. Lamothe, 37 La. An. 43 ; State v. after conviction of his principal, and Price, Id. 215. the accessory's evidence was material, ' Thompson v. State, 54 Ga. 577. a new trial was held properly granted * State V. Bean, 36 N. H. 122 ; People to let it in. Helm v. State, 20 Tex. V. Vermilyea, 7 Cow. 369 ; Sawyer u. Ap. 41. Merrill, 10 Pick. 16. But see Rich v. 615 § 863.] PLEADING AND PRACTICE. [CHAP. XVIII. was ex- divisible offence, part of which is so cognizable in the witness^ Oyer and Terminer, where the trial is, and after exclu- sion as a witness, is acquitted of the offence so cogni- zable in Oyer and Terminer, this does not by itself entitle him to a new trial for the minor offence of which he was convicted.' § 861. If new evidence be discovered before the verdict is ren- dered, it should be submitted to the jury ; and if this duty is neglected, unless there is clear proof of mistake, a new trial will not be granted.* The judge at the trial has discretion as to the admission of evidence out of the regular and usual course, and must exercise such discre- tion when necessary to promote justice.' § 862. The evidence must be such as could not have been secured at the former trial by a reasonable diligence on part of the defendant, which fact should appear on the affidavit.* Thus, where it appeared that the witness, on whose testimony was sought a new trial, after a conviction of murder, was with the prisoner until a late hour of the evening on which the murder was committed, was in court while\ the trial was progressing, and had gone to a relative of the prisoner and told him what she was able to testify to ; the motion was refused.* § 863. Nor will a new trial be granted because the district attorney withheld in his hands papers important to the defendant, Evidence discovered before ver- dict should be given at once to jnry. If evidence could have been se- cured at former trial ground fails. > Hunter v. Com., 79 Penn. St. 505 ; Com. V. Solby, 15 Weekly Notes, 392. 2 Supra, §§ 564 et seg. ; U. S. v. Gi- bert, 2 Sumner, 19 ; People v. Vermil- yea, 7 Cow. 369 ; Com. v. Haulon, 3 Brewster, 461 ; State v. Porter, 26 Mo. 201 ; Hlgden v. Higden, 2 A. K. Marsh. 42; Cavanah v. State, 66 Miss. 300. See Keenan v. People, 104 111. 385, a case of much interest. 3 See supra, § 566. ^ Com. u. Drew, 4 Mass. 399 ; Lester -u. State, 11 Conn. 415 ; People v. Ver- imilyea, 7 Cow. 869 ; Com. o. Williams, 2 Ashm. 69 ; Roberts v. State, 3 Kelly, .310 ; O'Dea v. State, 57 lud. 31 ; Ben- aiett V, Com., 8 Leigh, 745 ; Read u. 616 Com., 22 Grat. 723; State v. Harding, 2 Bay, 267 ; Wright v. State, 34 Ga. 110 ; McAfee v. State, 31 Ga. 411 ; Carter v. State, 46 Ga. 637 ; Williaips V. State, 67 Ga. 260 ; Hanvey v. State, 68 Ga. 612 ; Gilbert v. State, 7 Humph. 524; Friar o. State, 3 How. (Miss.) 422 ; Holeman v. State, 13 Ark. 105 ; Shaw V. State, 27 Tex. 750 ; Williams V. State, 4 Tex. Ap. 55 ; Hasselmeyer V. State, 6 Tex. Ap. 21 ; Collins v. State, 6 Tex. Ap. 72; Hutchinson v. State, 6 Tex. Ap. 468 ; White v. State, 10 Tex. Ap. 167. As to affidavit, see State v. Williams, 14 W. Va. 851. s Com. V. Williams, 2 Ashm. 69. CHAP. XVIII.] NEW, TRIAL. [§865. unless the latter used due diligence to obtain them. Thus, where the district attorney told the defendant that certain papers were m the hands of U., who, being applied withhold- to, answered they were in the possession of the district ^fs°wMch attorney, but the defendant did not explain the mistake ^^^ '^'^'" and apply to the district attorney again, a new trial was could have „ ; , secured, refused.' § 864. A new trial will sometimes be granted on the otherwise affidavit of a witness, that he was mistaken or surprised surprise, at his examination.^ § 865. A party who seeks for a new trial on the ground of newly-discovered evidence is chargeable with laches, if, previous to the trial, he knew that the witness, whose ^^{^l ^^^ testimony he seeks to introduce as newly discovered, neglects to •' . . •' ' obtain evi- must, probably, from his occupation and employment at dence on the time of the transaction, the subject of the contro- versy, be conversant with the facts in relation to the transaction,* and especially where, previous to the trial, the party knew, as the witness himself testifies to, what the witness could prove, although at the time of the trial, and while preparing therefor, the party had forgotten the facts.* It is not such newly-discovered evidence as will entitle him to a new trial, that the party applying for a new trial could not procure in tithe the witness whom he seeks to intro- duce. He should have applied to the court for a postponement ; and if without doing this he went to trial without the testimony, a new trial will not be granted for the purpose of letting in such evi- dence." Nor is the absence of a witness who had not been sub- poenaed a good cause for granting a new trial ;* though it is other- wise with the sudden illness of a witness in cases where the depo- sition of the witness cannot be taken, and the witness is material.' Nor will a new trial be granted on account of the. want of recollec- tion of a fact, which by due attention might have been remembered ; ' People V. Vermilyea, 7 Cowan, 369. ^ Jackson v. Malin, 15 Johns. 293 ; See infra, § 881. - Gordon v. Harvey, 4 Call, 450. See 2 Infra, § 879. State v. Frittener, 65 Mo. 422 ; State v. ' State V. Bell, 49 Iowa, 440; State Smith, 65 Mo. 314; S. P., Tobin v. V. Adams, 31 La. An. 717; Collins v. People, 101 111. 121. State, 6 Tex. Ap. 72. ^ Kelly v. Holdship, 1 Browne, Pa. ' People V. Superior Court of New 36 ; Lester v. Goode, 2 Murph. 37. York, 10 Wend. 285 ; Richie v. State, ' Infra, § 881. 58 Ind. 355. 617 § 868.] PLEADING AND PRACTICE. [chap. XVIII. Evidence must be material and not cumula- tive. " want of recollection being easy to be pretended and hard to be disproved."' § 866. The evidence ofiFered must be material in its object, and not merely cumulative and corroborative.' Cumulative evidence, in this sense, is such as goes to support the facts principally controverted on the former trial, and respecting which the party asking for a new trial, as well as the adverse party, produced testimony.' Where the defence was epileptic insanity, the alleged fact that the defend- ant, subsequent to the trial and conviction, had an epileptic fit, is cumulative in this sense, and hence no ground.* But it is otherwise if such new evidence consists of a strong mass of proof previously unknown to the party." § 867. But though a new trial is not usually granted for the dis- covery of new evidence to a point which was presented exception!" °^ *^® former trial, yet a case of surprise will form an exception to the rule.' § 868. Nor can it be objected to granting a motion for a new trial, on the ground of newly-discovered evidence, that such evi- CT^dence of dence is cumulative, if it is of a different kind or character a distinct fygj^ ^^j^g^^ adduced on the trial." This is peculiarly the case when strong independent proof of insanity is offered.' ' Bond V. Cutler, 7 Mass. 205 ; Duignan v. Wyatt, 3 Blackf. 385. 2 U. S. o. Glbert, 2 Sumn. 97 ; Wil- liams V. People, 45 Barb. 201 ; Com. v. Flanigan, 7 Watts & S. 415 ; Com. u. Williams, 2 Ashm. 69 ; Com. v. Kane, 12 Phila. 630; 89 Penn. St. 552; Adams v. People, 47 111. 376 ; Collins V. People, 103 111. 21 ; State v. Starness, 97 N. C. 423; State v. Johnson, 72 Iowa, 393; McAfee v. State, 31 Ga. 411; Hoye v. State, 39 Ga. 718; Holmes v. State, 54 Ga. 303; 0' Shields V. State, 55 Ga. 696 ; State v. Blenner- hassett. Walker, 7 ; Sahllnger v. Peo- ple, 102 111. 241 ; State v. Larrimore, 20 Mo. 425 ; State v. Stumho, 26 Mo. 306 ; State v. Evans, 65 Mo. 574 ; State V. Butler, 67 Mo. 69 ; State v. Wood- ward, 95 Mo. 866; State v. Fahey, 618 35 La. An. 9 ; State v. Claude, Id. 7 ; St. Louis V. State, 8 Neb. 406 ; State v. Rockett, 87 Mo. 666 ; People v. Mc- Donnell, 47 Cal. 134 ; Bixby v. State, 15 Ark. 395 ; White v. State, 17 Ark. 404; Murray v. State, 36 Tex. 642; Lewis V. State, 15 Tex. Ap. 648 ; Piela v. People, 6 Col. 343 ; People ». Long, 70 Cal. 8 ; Terr. v. Yarberry, 2 New Mex. 391 ; McAdam v. State, 24 Tex. Ap. 86. 8 State V. Kinney, 108 111. 519; Klein v. People, 113 111. 596 ; State v. Redemeier, 71 Mo. 173. * People V. Montgomery, 13 Abbott, Pr. Rep. N. S. 207. 5 Anderson v. State, 43 Conn. 514. 6 Infra, § 881. ' Long V. State, 54 Ga. 564 ; Guyott V. Butts, 4 Wend. 579. 8 Anderson v. State, 43 Conn. 514. CHAP. XVIII.] NEW TRIAL. [§ 870. § 869.' Where the object _is to discredit a witness on the opposite side, the general rule is that a new trial will not be granted.' Thus, where the defendant was convicted of notgranted forgery, chiefly on the evidence of B. R., and on a mo- ?®''^'^*f' tion for a new trial evidence was produced to show the opposing bias of B. R., it was held by the Supreme Court of Massachusetts that such evidence was no ground for the motion.* And a new trial was refused where, after a verdict of guilty upon an indictment for perjury, the defendant applied for a new trial on account of newly -discovered evidence, and furnished proof that a material witness for the prosecution had, subsequently to his ex- amination upon the stand, expressed strong feelings of hostility toward the prisoner ;^ and the same position has been taken in a case in which it was alleged that a prosecutrix in rape had made a statement inconsistent with her evidence on the trial.* But it is otherwise where a principal witness declares that his statement on trial was a mistake." § 870. An indictment for perjury against a witness on whose testimony the verdict was obtained, unless the case was „ , so gross as to make it probable that the verdict was ob- quent in- tained by perjury, or that the false testimony occasioned for perjury a surprise to the opposite party, will not be in itself suffi- '^° sroun . cient cause for new trial.* Where there has been a surprise, how- I Com. V. Drew, 4 Mass. 399 ; Com. V. Waite, 5 Mass. 261 ; Com. v. Green, 17 Mass. 515 ; Com. i^. Williams, 2 Ashm. 69 ; Thompson v. Com., 8 Grat. 637 ; State v. Williams, 14 W. Va. 851 ; Parliam u. State, 10 Lea, 498 ; Bland V. State, 2 Carter (Ind.), 608 ; Morel v. State, 89 Ind. 275 ; Friedburg v. Peo- ple, 102 111. 190 ; Tobin v. People, 101 111. 121 ; Levining v. State, 13 Ga. 513 ; Brown v. State, 55 Ga. 169 ; Beck v. State, 65 Ga. 766 ; Partee v. State, 67 Ga. 570 ; State v. Young, 34 La. An. 346; Ogdeu v. State, 13 Neb. 436; Wallace v. State, 28 Ark. 531 ; Camp- bell V. State, 38 Ark. 498 ; Redman v. State, 40 Ark. 445 ; State v. Lou Young, 34 La. An. 346 ; State v. Diskin, 35 La. An. 46 ; Herber v. State, 7 Tex. 69 ; Brown v. State, 6 Tex. Ap. 286 ; Hutch- inson V. State, 6 Tex. Ap. 468 ; Polser V. State, 6 Tex. Ap. 510 ; Atkins v. State, 11 Tex. Ap. 89 ; Grate v. State, 23 Tex. Ap. 458. 2 Com. V. Waite, 5 Mass. 261. See Hammond v. Wadhams, 5 Mass. 353. 3 State V. Carr, 1 Foster, 166 ; Com. V, Drew, 4 Mass. 391. * Shields v. State, 45 Conn. 266 ; see Leighton v. People, 10 Abb. (N. Y.) N. C. 261 ; Arwood v. State, 59 Ga. 391 ; Doyal V. State, 70 Ga. 134. 5 Mann a. State, 44 Tex. Ap. 642 ; see Fisher v. People, 103 111. 101 ; Fletcher v. People, 117 111. 184. 6 R. V. Heydon, 1 W. Black. 351 ; Benfleld v. Petrie, 3 Douglas, 24; Warwick v. Bruce, 4 M. & S. 140 ; 9 619 § 872.] PLEADING AND PRACTICE. [chap. XVIII. The evi- dence oflFered must be 8ucli as ought to produce, on an- other trial, an opposite result on the merits. ever, arising from the unexpected introduction of the alleged per- jured witness, a new trial has been granted.* § 871. " After the verdict," said Rogers, J., on a motion for a new trial, after a capital conviction, in Pennsylvania, " when the motion for a new trial is considered, the court must judge not only of the competency but of the effect of evidence. If, with the newly-discovered evi- dence before them, the jury ought not to come to the same conclusion, then a new trial may be granted ; other- wise we are bound to refuse the application."* And when the evidence produced is clearly immaterial, this limitation should be strictly enforced.* But a reasonable doubt as to the effect of the testimony should inure in favor of the defendant.* § 872. Another essential is that the after-discovered evidence should go to the merits, and not rest on a merely techni- cal defence. Thus, after a conviction on an indictment for selling spirituous liquors, etc., " without being duly licensed as an innholder or common victualler," a new trial will not be granted for the purpose of allowing the defendant to give in evidence a license, which he had omitted to produce, to sell fermented liquor, and thus raise a question as to the mere form of the indictment." And in larceny a new trial will not be granted on ground of evidence that the goods did not technically belong to the owner charged in the indictment.* New de- fence must not be merely technical. Price, 89 ; Resp. v. Newell, 2 Yeates, 479. That perjury should not be pro- secuted during pendency of civil pro- ceedings, see Whart. Crim. Law, 9th ed. § 1324. 1 Morrell v. Kimball, 1 Greenl. 322 ; Thurtell v. Beaumont, 1 Bing. 339. 2 Com. V. Flanigan, 7 W. & S. 423. The same point is affirmed in Hamlin V. State, 48 Conn. 92 ; Com. v. Mason, 2 Ashm. 31 ; Thompson v. Com., 8 Grat. 637 ; State v. Greenwobd, 1 Hayw. 141 ; Carr v. State, 14 Ga. 358 ; Roach V. State, 34 Ga. 78 ; Jones v. State, 48 Ga. 163 ; Young v. State, 56 Ga. 403 ; Meeks v. State, 57 Ga. 329 ; Rainey v. State, 53 Ind. 278 ; Hauck v. State, 1 Tex. Ap. 357. 620 8 State V. O'Grady, 31 La. An. 378 ; Jackson v. State, 18 Tex. Ap. 586 ; see Whitehurst's case, 79 Va. 556. Hence the confession of a wife that she herself had committed the offence without her husband's privity, after the conviction of the husband of forg- ery, was held not sufficient, when taken in connection with the evidence given on trial, to justify a new trial being granted. State v. J. W., 1 Tyler, 417. And so when the after-discov- ered witness was incompetent. Wil- liams V. State, 62 Ga. 260. * Lindley v. State, 11 Tex. Ap. 283. s Com. V. Churchill, 2 Met. 118. 6 Foster v. State, 52 Miss. 595. CHAP. XVIII.] NEW TRIAL. [§ 874. § 8T3. We have already seen that under the old practice, exclud- ing defendants as witnesses, new trials were not granted because a co-defendant, tried at the same time and ac- o/c"^^' quitted, was a material witness for the convicted defend- feDdant no ^ ground. ant.* Of course, under statutes rehabilitating parties as witnesses, where such co-defendants could have been called on trial, their acquittal is in no sense a reason for a new trial. § 874. Though the misjoinder of the defendants, where it appears on record, is subject of demurrer or arrest,^ and though jjgfug^j j^ when it is developed on evidence, it is properly to be sever de- reached by a motion for severance, it not unfrequently may be becomes the ground of a motion for a new trial, and S''°"" • when wrongfully allowed by the court is a legitimate reason for setting aside the verdict." 1 U. S. V. Gibert, 2 Sumn. 20 ; State v. Bean, 36 N. H. 122 ; People v. Vermil- yea, 7 Cowen, 367 ; Com. v. Manson, 2 Ashm. 32 ; Com. v, Channcey, 2 Ash. 90 ; Cavanah v. State, 56 Miss. 300 ; Braokenridge's Law Miscellanies, 220. But see contra, Rich v. State, 1 Tex. Ap. 206 ; Lyles v. State, 41 Tex. 172; Brown v. State, 6 Tex. Ap. 286 ; Voight v. State, 13 Tex. Ap. 21 ; Jackson v. State, 18 Tex. Ap. 586. Compare supra, §§ 305-6, 860. 2 See supra, § 307. ' People V. Vermilyea, 7 Cowen, 383. Supra, § 860. As has been already stated in an in- dictment against several, where the offence is such that it may have been committed by several, they are not of right entitled to be tried separately, but are to be tried in that manner only when the court, on sufficient cause, may think proper. Supra, §§ 295, 755 ; U. S. y. Wilson, 1 Bald. 78 ; U. S. v. Gibert, 2 Sumner, 20 ; State v. Soper, 16 Me. 293 ; People v. Howell, 4 Johns. R. 296 ; People v. Vermilyea, 7 Cowen, 108, 383 ; Com. v. Manson, 2 Ashm. 32 ; State V. Smith, 2 Iredell, 402 ; State v. Wise, 7 Richards. 412. See, per contra, U. S. V. Sharp, Peters C. C. 118 ; Camp- bell V. Com., 2 Va. Cas. 314. At the same time, where several defendants, en- tirely disconnected in the transactions through which they are sought to be convicted, are jointly indicted, it would be sound exercise of discretion to grant them separate trials. People v. Ver- milyea, 7 Cowen, 108. See supra, § 295. How far one may be a witness for the other, is elsewhere discussed. Whart. Crim. Ev. § 445. When one co-defendant, by the local law, is inadmissible as a witness for the others, if no evidence be given against him, he is entitled to his dis- charge as soon as the case of the pro- secutor is closed, and may then be examined on behalf of the other de- fendants. Where there is any evidence against him, he cannot be sworn, but the whole must be submitted together to the jury. Bui. N. P. 285 ;, Peake's Evid. 168; Phil. Evid. 36 ; 1 East, 312, 313 ; 6 T. R. 627 ; 1 Sid. 237 ; 1 Hale, 303 ; Com. ». Manson, 2 Ashm. 32. On the same principle, where one of the defendants, on an indictment for an assault, submits to a small fine and is discharged, he may be called on the 621 § 875,J PLEADING AND PRACTICE. [CHAP. XVIII. 8. Absence of Defendant at Trial. § 875. Where, through necessity or mistake, a defendant, in Suchab- ordinary prosecutions for crime, is absent during the sence a trial, there should be a new trial.^ Nor is the fact that ground. the counsel of the accused is present during the trial, and at the rendering of the verdict, without making objection to the prisoner's absence, a waiver of his right to be present. Some misdemeanors there indeed are, partaking of the nature of civil process, wjiere, as has been seen, appearance by attorney is per- missible,^ but in all trials in which corporal punishment may be assigned the defendant must personally be present ;* and this right is so inherent and inalienable, that a judgment will be reversed where it appears that the defendant was absent at the rendition of the verdict, though his presence was at the time waived by his counsel.* In crimes of high grade, the record must show the prisoner's presence at trial, verdict, and sentence, affirmatively/, or else the error will be fatal." But the presence may be inferred from the record, and need not be explicitly stated at each stage of the procedure.* Yet to this rule twp exceptions must be expressed. The first is, that it is not to be stretched so as to include occasional voluntary absence for a few moments from the court-room by the defendant, though it should happen that during such brief absence the verdict should happen to be brought in f though in all cases of high cHme part of others, with, whom he was ' Supra, §§ 541-551. jointly indicted. And where one de- ^ Supra, § 541. fendanthas actually pleaded misnomer, ' Supra, §§ 541 et seq.; 1 Chitty's he may be received as a witness, be- C. L. 413 ; 2 Hale, 210 ; Jacobs a, cause the indictment, as against him. Com., 5 Serg. & R. 315 ; Gladden v. is abated. Ibid. But if he suffers State, 12 Fla. 562 ; Leschi e. Terr., 1 judgment by default, he cannot after- Wash. Terr. 23 ; Shapoonmash «. Terr., wards become a witness against or in Ibid. 219. favor of his associates; 5 Esp. Rep. * Supra, §§ 541 a seq., 733. See 154 ; 2 Campb. 333, 334, n.; Bui. N. P. Prine v. Com., 18 Penn. St. 103. 285; Phil. Ev. 36; since no- sentence ^ Supra, §§ 541 et seq.; Dunn v. can be constitutionally imposed on aver- Com., 6 Barr, 387; Hamilton v. Com., diet so obtained. Supra, § 560. SeeR.u. 16 Penn. St. 121; State v. Smith, 31 Roberts, 2 Strange, 1208 ; .Jackson v. La. An. 406. Com., 19 Grat. 656 ; Rose v. State, 20 « Lawrence v. Com., 30 Grat.," 845. Ohio, 31 ; Andrews v. State, 2 Sneed ' Hill v. State, 17 Wis. 675. (Tenn.) 550, 622 CHAP. XVIII.] NEW TRIAL. [§ 877. it would be necessary in such case for the jury to be kept back from formally rendering their verdict until the defendant returns.* The second is, that when the defendant behaves so obstreperously that his temporary compulsory removal from the court-room is necessary, he cannot complain of the trial proceeding for a short time in his absence, he losing the privilege of objecting by his conduct.^ Waiver, so far as concerns this particular right, has been already discussed.* 9. Mistake in Conduct of Case. § 876. Where the cause has been prejudiced from some miscon- ception of the judge, or mistake of the party or his counsel, which could not have been cured by ordinary may be prudence and care, a new trial will be allowed.* Thus, ftere'was where the counsel were misled by a positive intimation due diu- from the court, and refrained from offering evidence,* and where the judge misapprehended a material fact, and misdirected the jury,' a new trial has been granted. But, if due diligence could have corrected the mistake, the rule will be refused. Thus, a new trial will not be granted because a juror was taken from the panel, on the erroneous supposition that there was good ground to chal- lenge him, when the defendant did not at the time object.^ § 877. Mistake by counsel of law will be no excuse, whether made generally in the conduct of a cause, or in the neg- jj- + ^ lect to object to testimony when offered which might law no have been excluded.* But, if objection is made to the ^"'^'^ ' introduction of testimony at the proper time, no objection to the judge's charge upon that evidence is afterwards necessary.' If an objection to evidence, which objection could have been obviated by further proof, be not made, it will not be received as the ground of a motion for a new trial.'* Where, however, evidence is not sufficient ' Supra, § 550. Ryl. 269 ; Dunliam v. Baxter, 4iMass. 2 See oases cited supra, §§ 543 et seg. ; 79. U. S. V. Davis, 6 Blatoh. C. C. 464; e Supra, §§ 794, 798. Fight t>. State, 7 Ohio, 180. ' Com. v. Stowell, 9 Met. 572. ' Supra, §§ 541, 733. s See oases cited supra, §§ 801 et seg.,- * See Ohms v. State, 49 Wis. 415 ; and infra, § 878. Heskew v. State, 14 Tex. Ap. 606. ' Supra, §§ 801 et seg.; People v. " Le Flemming v. Simpson, 1 M. & Holmes, 5 Wend. 192. w Supra, § 804. 623 § y79.] PLEADING AND PRACTICE. [CHAP. XVIII. in law to authorize a verdict, a new trial will be granted, even though no objection be made at the trial.* But as a rule there is no new trial because counsel ignorantly neglect to present proper points of law to the court.^ § 878. Mere ordinary negligence of counsel is no ground.' ,^ . Thus, as has been already seen, a new trial will not be Nor IS neg- , ,. . , . ligence of granted because the district attorney, by mistake, with- holds important papers, unless the defendant uses due diligence to sustain them.* But a new trial has been granted where the defendant, having otherwise a good case, which would have resulted in an acquittal, was advised by his counsel that certain evidence which was admitted was not admissible against him, and was so taken by surprise,* and where the counsel neglected to sum- mon the witnesses whose names were given him by his client.* § 879. Where, as sometimes occurs, witnesses are mistaken in their testimony from temporary incapacity, new trials ftommi^^ have been granted.' Relief, however, will only be expected afforded on clear proof of mistake by the witness, not blunder or . i i ■ confusion where the party was m error as to what the witness o wi ness. ^^^j^j prove ;' nor will the court hear evidence to show that a witness used expressions after trial contradicting his testimony in court.' At the same time, when a party has been surprised by mistakes in testimony at the trial which he had no reason to expect, and which, if he had had time, he could readily have corrected, justice requires that a verdict obtained in this way, if manifestly unfair, should be revised."" • Supra, § 813. v. State, 8 Tex. Ap. 173 ; supra, 2 Supra, §§ 708 et seq. § 598 a. 3 See on this topic an article in 16 ^ State ». Lewis, 9 Mo. Ap. 321. As West. Jur. 281 (May, 1882) ; Wray v. to treachery of counsel, see supra. People, 78 111. 212; Augustine v. § 598 a. State, 20 Tex. 450. That it is no ground 'Supra, § 864; Scofield v. State, that tte counsel assigned by the court 54 Ga. 635. See Richardson v. Fisher, was not acceptable to defendant, see 1 Bing. 145 ; De Giou v. Dover, 2 Ans. People V. Murry, 52 Mich. 288. 517. ' Supra, § 863. * Hewlett v. Cruchley, 5 Taunt. 277. 6 State v. Williams, 27 Vt. 824. See ^ R. v. Whitehouse, 18 Eng. L. & Eq. State V. Bonge, 61 Iowa, 658 ; State v. Rep. 105 ; 1 Dears. C. C. 1 ; Com. v. Gunter, 30 La. An. Pt. I. 536; Babb Randall, Thach.C.C.500;supra, §869. 1" See supra, § 864. 624 CHAP. XVIli.] NEW TRIAL, [§ 882. & 880. If the error is not attributable to misconduct But n«t ' mistake of of themselves, or to misdirection of court, it is no ground jury as to that the jury rendered their verdict under a mistake as ^n" ' to the degree of punishment the court could inflict.' 10. Surprise. § 881. Where a party or his counsel has been taken by surprise, ;n the course of a cause, by some accidental circum- stance, which could not have been foreseen, in which no uine and"' laches could be ascribed to either of them, a new trial Productive . . 01 injus- will be awarded, if the court think the verdict against tice, good the weight of evidence properly admissible.' Thus, a new trial will be granted where the plaintiiF is surprised by the testimony of his own witnesses, who appear to have been tampered with ;^ where a witness has been so much disconcerted as to be unable to testify at the trial ;* where a material witness, regularly subpoenaed and in attendance, absents himself shortly before the case is called ;* and where, in a case of seduction, the principal witness lays the seduction on a day which the defendant has no reason to anticipate, being at a time when he was absent from the place, and could easily prove an alihi.^ § 882. New trials will also be granted in cases where the trial was hurried on in such haste as to give the defendant „ , ° ^ So 01 un- no time to prepare for his defence, provided in the due haste motion for the new trial a substantial defence be dis- ingon closed.' But mere want of preparation, arising from th? *"* ' defendant having been in prison, is no ground for a new trial.* • People V. Lee, 17 Cal. 656. But " Ruggles v. Hall, 14 Johns. 112. see supra, §§ 842-8. s Sargent v. , 5 Cowen, 106. ' See State v. Williams, 27 Vt, 724 ; See supra, §§ 855 et seq., as to what State V. Simien, 36 La. An. 923 ; Hodde cases the defendant can be relieved in, V. State, 8 Tex. Ap. 382 ; HilUard on on the ground of after-discovered evi- New Trials (1873), 51 ; and cases dence of the incompetency or bias of cited § 879. witnesses. 3 Todd V. State, 25 Ind. 212. See ' See State v. Boyd, 37 La. An.- 781 ; supra, § 804 ; Peterson v. Barry, 4 Valle v. State, 9 Tex. Ap. 57. An in- Binn. 481. dictment was found November 21, for a * Ainsworth v. Sessions, 1 Root, 175. murder committed on the 11th of Octo- See supra, §§ 804, 879. ber previous. The defendant was put 8 Yanez v. State, 20 Tex. 656. 40 625 § 886.] PLEADING AND PRACTICE. [chap. XVIII. But ab- sence of witness no ground when testi- mony is eu mulative. § 883. Sudden sickness, and consequent absence of a material witness, is no ground for a new trial when the testimony to be established by such witness was proved by other parties.* § 884. The mere fact of a party being surprised by the introduction of unexpected evidence, however, is no ground for a new trial,* especially when the aflSdavit does not show that the " surprising" evidence was not true,* and that no effort was made on trial for continuance to meet the surprise.* jj . § 885. In general, as has been seen, the production expected of unexpected evidence impeaching the character of a witness. witness is no reason to set aside the verdict.* Ordinary surprise at evidence no ground. §886. Ordinarily defects in jury pro- cess no ground. 11. Irregularity in Summoning of Jury. Generally speaking, under the statutes, the mistake or informality of the officers charged with summoning, re- turning, and empanelling the jury, will be no ground for a new trial, unless there has been fraud or collusion, or material injury to the defendant.* Unless matter of upon trial immediately and convicted, and sentenced for murder in the second degree. The case did not appear to be an aggravated one. The defendant made affidavit that he had been sur- prised by the evidence, and had had no time for a proper defence. It was held, in Indiana, that under these and other circumstances of the case, a new trial should have been granted. Ro- sencranta v. State, 6 Ind. 407. Supra, § 600. 1 Supra, §§ 590, 600 ; Young u. Com., 4 Grat. 550. 2 Supra, § 804 ; R. ». Hollinberry, 6 D. & R. 345 ; 4 B. & C. 329 ; Willard V. Wetherbee, 4 N. H. 118 ; WhoUord 0. Com., 4 Grat. 553 ; State v. Schnelle, 24 W. Va. 802 ; State v. Smith, Ibid. 814. 3 People 0. Jocelyn, 29 Cal. 562. * Hanoey v. State, 68 Ga. 612 ; Webb 626 V. state, 9 Tex. Ap. 490 ; Childs v. State, 10 Tex. Ap. 183; Cunning- ham V. State, 20 Tex. Ap. 162. s Supra, §§ 802, 869 ; Com. ». Drew, 4 Mass. 391 ; Com. v. Green, 17 Mass. 515. 6 R. V. Hunt, 4 Barn. & Aid. 430 ; Amherst v. Hadley, I Pick. 38 ; People V, Ransom, 7 Wend. 417 ; Dewar o. Speuce, 2 Whart. 211 ; Com. v. Chaun- oey, 2 Ashm. 90 ; Com. v. Gallagher, 4 Penn. Law Jour. 511; 2 Clark, 86. See, as to grand jury, supra, §§ 344 el seq., 350. As to Pennsylvania, by the Act of 21st February, 1814, see Com. v. Chaunoey, 2 Ashmead, 90 ; Com. v. Gallagher, 4 Penn. Law. Jour. 511 ; 2 Clark, 86. It has been held, under this act, that standing mute is as much a waiver as pleading to the issue. Com. v. Dyot, 5 Whart. 67. In New York, under the CHAP. XVIII.] NEW TRIAL. [§ 887. record, such defects cannot be noticed in error' or in arrest of judg- ment.'' But it is a good ground for new trifil at common law that jurors have been improperly chosen, or chosen by an unauthorized officer, or that the officers in attendance had permitted irregula- rities.* Where one who had been challenged on the principal panel was afterwards sworn in under another name as a talesman ;* and where talesmen who were incompetent, or who had not been drawn according to the statute, were summoned and returned, and placed on the trial, new trials have been ordered.* If the party, however, is aware, or could by due diligence have been aware, of the objections to a juror or talesman, and neglects his chal- lenge, no new trial will be granted ;* as formal objection that the juror had not been drawn and returned according to law comes too late after the verdict.' Thus, where one of the jury had been' drawn more than twenty days before the time when the venire was made returnable, exception not having been made until after verdict, a new trial was refused.' And a new trial will not be granted be- cause the clerk, in calling over the jury, pursued the order in which they were empanelled, instead of that in which their names appeared in the venire.^ Nor is it ground for new trial that jurors and wit- nesses in a criminal case are sworn by an acting deputy clerk, who has not been appointed regularly or sworn in.'" § 887. After the verdict, irregularities in the summoning of Revised Statutes, it was held that a non-compliance of the clerk to put th6 names of all the persons returned as jurors in a hox, from which juries are to he drawn, is not fatal. People u. Ransom, 7 Wend. 417. 1 Cross V. State, 63 Ala. 40 ; State v. Degonia, 69 Mo. 485 ; HoUis v. State, 8 Tex. Ap. 620. That error lies in such case for Illegal summoning of jury, see R. V. O'Connell, 11 CI. & F. 155 ; Bach V. State, 38 Ohio St. 664. 2 Supra, § 766. ' As a signal illustration of this, see R. V. O'Connell, 11 CI. & F. 155 ; Pamph. R. Arm. & T. ; Lord Denman's Life, ii. 172. As to challenging and quashing in such cases, see supra, §608. * Parker w. Thornton, 2 Lord Ray- mond, 1410 ; though see R. u. Hunt, 4 B. & A. 430. See supra, § 846. 5 R. V. Tremaine, 7 D. & R. 684 ; 5 B. & C. 254 ; Kennedy v. Williams, 2 Nott & McC. 79. See Com. v. Gallagher, 4 Penn. L. J. 520. Supra, § 846. « Supra, § 845. Bee R. v. Sullivan, 1 P. & D. 96 ; 8 Ad. & L. 831 ; How- land V. Gifford, 1 Pick. 43; State v. Jackson, 27 Kans. 581. ' See supra, § 845. 8 State V. Hascall, 6 N. H. 352. 9 State V. Slack, 1 Bailey, 330. 1° Mobley v. State, 46 Miss. 501. 627 § 890.] PLEADING AND PRACTICE. [chap. XVIII. And so of irregulari- ties in find- ing on the record, cannot be noticed on a motion for a ing bill. . • 1 1 new trial.' the grand jury, or in the finding of the bill, not appear- § 888. The question of subsequent discovery of incompetency of a juror has been already discussed.* § 889. It is also settled, as we have already seen, that objec- tions to the competency of jurors, on the ground of preadjudication, must be taken before empanelling, or at the time when the party becomes first acquainted with the objection.^ Nor is popular excitement at the time of the trial in itself a ground for new trial," unless the jury be swept away by it into an unjust verdict.' Prejudice in jury. Popular excite- ment. IV. AT WHAT TIME MOTION FOR NEW TRIALS MUST BE MADE. § 890. An application for a new trial cannot, in general, be made after an application for arrest in the judgment ;* must be though there are cases in which, if it appear that mani- prompt. £ggj. injustice will ensue from a strict observance of the rule, the court will waive the formality, and admit the defendant to a rehearing ;' and now the Court of Queen's Bench, in its dis- cretion, hears motions in arrest of judgment before applications for a new trial. ^ In extreme cases, the court, especially if the punish- ment be capital, will hear the motion even after sentence imposed.' But the ordinary practice requires notice of the motion to be given 1 Supra, § 350. 2 Supra, §§ 846 et seg. Where the clerk, in drawing a juror, called a name which was answered by mistake hy a juror in attendance, who after- wards, bona fide, took his seat and served, it was held that the defendant not being injured by the mistake had no ground for new trial. Com. v. Par- sons, 139 Mass. 381. 3 Supra, § 844. * Com. V. Flanigan, 7. W. & S. 418 ; Brinkley v. State, 54 Ga. 71. Supra, §844. 628 5 People V. Acosta, 10 Cal. 195. " 1 Ch. C. L. 658 ; Resp. v. Lacaze, 2 Dall. 118. ' R. V. Gough, 2 Dougl. 791 ; Bao. Abr. Trial (L.), 1 ; Chitty C. L. 658 ; R. V. Holt, 5 T. R. 436 ; People v. Mo- Kay, 18 Johns. 212. 8 R. V. Rowlands, 2 Den. C. C. 386. See 6 T. R. 627 ; Bao. Abr. Trial (L.), 1. 9 See U. S. V. Malone, 20 Blatch. 137; Com. V. McElhaney, 111 Mass. 439. See, however, Willis v. State, 62 Ind. 391. CHAP. XVIII.] NEW TRIAL. [§ 894. within four days after verdict.' This, however, may be at discretion enlarged,^ unless otherwise prescribed by statute.* Whether the defendant's presence is essential to the arguing of the motion has been already considered.* § 891. Where a verdict has been set aside in a crimi- When ver- nal case as imperfect, a venire facias de novo may at aeWe new once be awarded, and a new trial had, either on the *"*^ *' ' ' once or- same indictment or another." dered. V. AS TO WHOM MOTION APPLIES. § 892. Any defendant, within the proper time, may ^"Jant^ apply for a new trial. ™ay move. § 893. The defendant, according to the old practice, must be personally in court at the application;® and where there are several defendants, all of them who have been con- must be victed must be actually present, unless a special ground ^coud?'^ be laid for dispensing with the general rule.' But such presence, even in felonies, is not always regarded as essential.* § 894. Where some of the defendants have been convicted and others acquitted, a new trial may be granted to the former, without impeaching the verdict so far as it relates to the latter.' It is otherwise, however, when the con- viction of the one is an essential condition of the con- viction of the other.'" New trial may be granted as to one of several. ' R. V. Newman, 1 EL & BL 268 ; Dears C. C. 85. In Com. v. Cannon, 10 Phila. 456, it was said that the motion must be made immediately after ver- dict. 2 Com. V. Gibson, 2 Va. Cas. 70. See Bark v. State, 72 Ind. 392 ; Smith V. State, 64 Ga. 439 ; Eoss v. State, 65 Ga. 127 ; Bullock v. State, 12 Tex. Ap. 42 ; Hart v. State, 21 Tex. Ap. 163. That a rule cannot be granted after expiration of the term, see State v, Alphin, 81 N. C. 566. ' Holmes, ex parte, 21 Neb. 324. * Supra, § 548. * Com. V. Gibson, 2 Va. Cas. 70. « Supra, § 548 ; 2 Burr. 930 ; 2 Stra. 844, 1227 ; 1 W. Black. 209. ' R. I,. Teal, 11 East, 307 ; 1 Sess. Cas. 428 ; Com. Dig. Indictment, N. ; 1 Chit. C. L. 669 ; R. v. Fielder, 2 D. & R. 46. 8 Supra, § 548. 3 R. ». Mawbey, 6 T. R. 638 ; Com. v. Roby, 12 Pick. 496 ; Kemp v. Com., 18 Grat. 969 ; Sebom v. State, 51 Ga. 164. •» Jackson v. State, 54 Ga. 439 ; Dut- cher V. State, 16 Neb. 30 (a case of riot). See supra, § 755. 629 § 896.] PLEADING AND PRACTICE. [CHAP. XVIII. VI. WHEN THE CONVICTION IS FOR ONLY PART OF THE INDICTMENT. 1. Aaquittal on One of Two Counts. § 895. When there has been an acquittal on one count and a conviction on another, and the counts are for distinct only on^ oflFences, a new trial can only be granted on the count on counts*^^ -which there has been a conviction ; and it is error, on a second trial, to put the defendant on trial on the former.' ItTias been, however, ruled that where an indictment is for but one offence, charged in various ways, and the defendant is convicted upon some counts and acquitted as to others, the granting of a new trial on his motion opens the whole merits f though this view can only be sustained in cases in which the verdict on the counts on which there was an acquittal was directed in consequence of formal defects. 2. Conviction of Minor Offence included in Major. § 896. Where two offences are included in one count, there has been a distiction taken which though specious is unsound, of minor is It bas been held that where one count includes burglary of'mafor ^°*^ larceny, after acquittal of the greater offence but conviction of the less, and when a new trial is obtained, the whole case is reopened, and the defendant exposed on the second trial to the double charge.' But the true view is, that a convic- tion of the minor offence operates as an acquittal of the major.* 1 Snpra, §§ 459, 788 ; U. S. v. Daven- * Supra, §§ 465, 789 ; Com. v. Herty, port, 1 Deady, 264 ; Stuart u. Com., 28 109 Mass. 348; People «.^ Knapp, 26 Grat. 950 ; Reynolds v. State, 64 Ind. Mich. 112 ; Bell u. State, 48 Ala. 684 ; 498 ; Logg v. People, 8 111. App. 99 ; Lewis v. State, 51 Ala. 1, and other State V. Mailing, 11 Iowa, 239 ; Camp- cases cited supra, § 465 ; State v. Mar- bell V. State, 9 Yerg. 333 ; Esmon v. tin, 30 W^is. 216. State, 1 Swan, 14 ; Morris «. State, 8 S. Under the Missouri constitution it & M. 762; State i>. Kettleman, 35 Mo. has heen held that after setting aside 105 ; State v. Fritz, 27 La. An. 360 ; a conviction of murder in the second State V. McNaught, 36 Kan. 624. But degree on an indictment for murder in see State v. Stanton, 1 Ired. 424 ; State the first degree, the defendant can be V. Commis., 3 Hill S. C. 239. Compare held for murder in the first degree, remarks supra, § 788. State v. Simms, 71 Mo. 538 ; State v. 2 Leslie v. State, 18 Ohio St. 390 ; Anderson, 89 Mo. 312 ; supra, § 465 ; Jarvis v. State, 19 Ohio St. 585. But and so as to burglary and larceny, see supra, § 788. State v. Bruffey, 75 Mo. 389. See 3 See supra, §§ 465, 742, 789. State v. Martin, 76 Mo. 337. 630 CHAP. XVIII.] NEW TRIAL. [§ 899. But to enable this defence to be interposed, it must be specially pleaded.' The law in reference to new trials after convictions for man- slaughter, or murder in the second degree, has already been stated.' VII. BY WHAT COURT NEW TRIAL MAY BE ORANTBD. 1. Appellate Odurts. § 897. At common law the court trying the case is the sole tri- bunal by which a new trial can be granted; and its ^ppeu^te refusal so to do, being matter of discretion, is no ground court may T r. 1 o 1 revise evi- for a writ of error.* In most of the States, however, dence from provision is made for obtaining revision by an appellate ^° ^' court.* When such a rehearing is had, the appellate court is not bound to reexamine the witness and hear the evidence verbatim, but, when there is no official stenographer, may hear the material facts proved, and the evidence adduced at the trial, from the trial court notes, aided by those of the counsel on both sides." 2. When Judge trying Case dies or leaves Office. § 898. In the Circuit Court of the United States sitting in Phil- adelphia, it has been held that where the judge trying a J- I J- I- f i • 1 I,- Conflict of case died pending a motion tor a new trial, his successor opinion on will decline hearing the case, and will grant a new trial.* *'^'^ ^°™'' But in Wisconsin it is said that a defendant can be sentenced by a judge succeeding in office the judge before whom the trial was had.^ VIII. IN WHAT FORM. § 899. Upon gronnd primd facie sufficient, the court, on applica- tion, will award a rule to show cause why a new trial should not be 1 Supra, §§ 465, 477 ; Jordan v. « U. S. v. Harding, 1 Wall. Jr. 127 ; State, 81 Ala. 20. see, also, State v. O'Kelly, 88 N. C. 600,; s Supra, §§ 466-8, 789. See Whart. State v. Randall, 88 N. C. 611. Supra, Crim. Law, 9th ed. § 541. § 515 ; infra, § 929. ' Supra, § 779 ; infra, § 902 ; Lester ' Pegalow «. State, 20 Wis. 61 ; see V. State, 11 Conn. 415. Moett v. People, 85 N. Y. 67 ; State v. * See infra, §§ 902, 927-8. Abram, 4 Ala. 272 ; State v. Shea, 95 5 Jones's case, 1 Leigh, 598. Infra, Mo. 85. Compare infra, § 929. 899. 631 § 902.] PLEADING AND PRACTICE. [CHAP. XVIII. granted.' On this, in England, the puisne judge of the court applies to the judge who tried the case, unless he be one'of the judges fh"ow*?ause °^ *^^ ^°^^^ hearing the motion, for a report of the to be first trial, and a statement of his opinion respecting its merits.* If he signify his- dissatisfaction, the remedy prayed for is usually allowed ; if he declare his concurrence with the verdict, it is commonly refused ; but if he merely report the evidence, with- out giving any decided and satisfactory opinion, the court will admit the question to be argued before them.^ If they find there is no ground for the application, they will discharge the rule ; but if solid ground be shown, they make it absolute.* § 900. The motion should state specifically the reasons relied on by the party making it." To simply say that the court Motion . . „ . , . .... inuBt state erred m reiusing to admit, or in admitting competent or reasons. incompetent evidence, is insufficient. The evidence in question must be specified, and the name of the witness, when the evidence is given, stated.* When the ground is after-discovered evidence, the motion must be supported by affidavits of the witnesses to be produced.' IX. COSTS. § 901. The practice as to the imposition of costs is the same in criminal cases as in civil.' And the court, even when Costs may . t • , , . . await sec- an indictment atter verdict is removed by certiorari to a on tria . higher court on ground of surprise, may direct that the costs shall await the result of the second trial." X. EREOR. § 902. We have seen that at common law refusing a new trial is not ground for error." When, however, by statute, error in such 1 Bui. N. P. 327 ; Tidd, 884 ; Hand, pie v. Ah Sam, 41 Cal. 645 ; State v. Prac. 12. As to Texas practice, see Kellerman, 14 Kans. 135 ; Runnels u. Ayers v. State, 12 Tex. Ap. 450 ; Bui- State, 28 Ark. 121. Supra, § 855. lock V. State, 12 Tex. Ap. 42. ' Supra, § 855. 2 Bui. N. P. 327 ; Tidd, 884. « R. v. Ford, 1 N. & M. 776 ; Hil- 3 R. T. H. 23 ; Barnes, 439 ; see liard on New Trials (1873), 65. Simpson v. Norton, 45 Me. 281. " R. v. Whitehouse, Dears. C. C. 1. ' 1 Chitty's C. L. 660. w Supra, § 779, where the cases are 5 Hilliard on New Trials (1873), 28. given ; and, also, supra, § 897. State iSupra, § 855. v. Mackay, 12 Or. 154. 6 Cheek v. State, 37 Ind. 533 ; Peo- 632 CHAP. XVIII.] NEW TRIAL. [§ 902. case lies, the refusal of the court below will not be re- Error does not usually versed unless it should affirmatively and plainly appear lie to ac- to the appellate court that the decision of the court court, below was wrong.' Granting a motion for a new trial will not be reversed in error in any but extreme cases.* • Grayson's case, BGrat. 723; Read V. Com., 22 Grat. 924; State v. Collins, 15 Lea, 434. Supra, §§ 779, 897. See U. S. V. Bioksler, 1 Mack. (U. S.) 341 ; U. S. V. Lewis, 2 New Mex. 459 ; Smith V. State, 67 Ga. 769 ; see Bachman v. People, 8 Col. 472; Petite v. People, Ibid. 225. In Pennsylvania, it is said that re- fusal of a new trial is not subject of error except in capital cases. McConkey V, Com., 101 Penn. St. 416. But see, qualifying this, McGinnis v. Com., 102 Penn. St. 66. ' People V. Conroy, 97 N. Y. 62. 633 PLEADING AND PRACTICE. [chap. XIX. CHAPTER XIX. SENTENCE. I. DefBITDANT to be asked IP HE HAS ANYTHING TO SAT. In felonies this is essential, §906. II. DiSTKIBUTION OF PnNISHMENT AS TO Counts. On general verdict, superfluous counts may be got rid of by nolle prosequi, § 907. And so even as to bad count, § 908. Conflict as to general sentence when some counts are bad, §909. A verdict and judgment as to one count disposes of the others, § 909 a. Successive punishments may be given on successive counts, §910. But not where counts are not for distinct offences, § 911. ni. Defendant's Pbesencb Essen- tial, § 912. IV. Amendment ok Stat. Court may amend during term, §913. V. Capital Punishment. On verdict of guilty on indict- ment for murder, court will sentence for second degree, §914. Defendant to be asked as to sentence, and may reply, § 915. As to form of sentence, prac- tice varies, § 916. Pregnancy is ground for res- pite, § 917. VI. CoBPORAL Punishment. Limits to be determined by statute. Discretion of court. 634 Sentence less than minimum. Eestitution, § 918. Fine and imprisonment are the usual common law penalties, §919. " Cruel and unusual" punish- ments unlawful, § 920. " Whipping" not cruel and unusual, § 921. VII. Fines. May be collected by execution, §922. VIII. FoBM OF Sentence. Must be deflnite, § 923. How far may be alternative, §924. Day of sentence is first day of imprisonment, § 925. Expiration without endurance is not execution, § 925 a. Prison need not at common law be specified, § 926. IX. Sentence BY Appellate CouET. Appellate court may sentence or may reverse for error, §937. In capital and other, cases re- cord remanded to court be- low for execution, § 928. X. Sentence b r succeedino Judoe. Such sentence may be regular, §929. XI. Successive Impbisonments. Prisoner may be brought up for second trial by haieas corpus, § 931. A second imprisonment begins at the former's termination, §932. An escaped prisoner may be sentenced for escape in like manner, § 933. CHAP. XIX.] SENTENCE. [§ 906. XII. When Sbvbeer Punishment is Assigned to Second Of- fence. Such statutes constitutional, §934. In such cases, prior conviction should be averred, § 935. Former conviction must be legal. Foreign conviction insufficient, § 936. Conviction to be proved by re- cord and identification, § 937. Prosecution may waive first conviction, § 937 a. Prior conviction not to be put In evidence until main issue is found against defendant, § 938. XIII. Disfkanchisembnt and Inca- pacitation. Conviction a prerequisite, § 939. Loss of office, 939 a. And so of capacity as witness, § 939 b. XIV. Joint Sentences. Joint defendants may each be punished to full amount, §940. XV. Bindings to keep the Peace. Defendant, after verdict, may be bound over to keep the peace, § 941. XVI. Considebations in Adjusting Sentence. Courts have usually large dis- cretion, § 942. Primary object is retribution ; but example and reform to be incidental, § 943, Evidence may be received in aggravation or mitigation of guilt, § 945. XVII. Ex Post Facto Penalties. How far unconstitutional, § 946. XVIII. Benefit of Clbkgt. Now obsolete, § 946 a. § 905. By the ordinary rules of court a defendant is allowed four days in which to move in arrest of judgment or for a new trial. To previous chapters the reader is referred for a discussion of these motions : it is proposed at present, on the supposition, either that they have been made and refused, or that a final judg- ment has been entered against the defendant on demurrer, to con- sider the law bearing on the subject of sentence. I. DEFENDANT TO BE ASKED IF HE HAS ANYTHING TO SAY, ETC. § 906. At common law, in all capital felonies, the practice has been for the clerk, before sentence is pronounced, to ask the defendant if he has anything to say why sentence this is es- should not be pronounced; and it is essential that it ®^°*'*^- should appear on record that this was done' In several States the 1 Supra, § 550 ; 1 Ch. C. L. 709 ; 2 Ld. Raym. 1409; R. v. Geary, 2 Salk. 630; R. v. Speke, 3 Salk. 358; Safl'ord v. People, 1 Park. C. R. 474 ; Graham v. People, 63 Barb. 468 ; Mess- ner o. People, 45 N. Y. 1 ; West v. State, 2 Zab. 212 ; Hamilton v. Com., 16 Penn. St. 121 ; Dougherty v. Com., 69 Penn. St. 286 ; McCue v. Com., 78 Peun. St. 185; Mullen v. State, 45 Ala. 43 ; Crocker u. State, 47 Ala. 53 ; James v. State, 45 Miss. 572. Infra, § 915. In New York, where the exempllfi- 636 § 907.] PLEADINfl AND PRACTICE. [CHAP. XIX. rule is that in all casea of felony the absence of such an averment will require the remittal by a court of error of the record to the trial court for a new sentence.* In other States the failure of the record in this respect has been held not to be ground for a reversal, though it is held that the form is one proper to be used.* In some States the practice is dispensed with as an unnecessary formality.' But this address is not to be viewed as an invitation to the defend- ant to bring forward additional motions in arrest of judgment, or for a new trial. These motions have, according to the usual prac- tice, been already made and disposed of. The object of the ad- dress is to give the defendant the opportunity to personally lay be- fore the court, statements which, by the strict rules of law, could not have been admitted when urged by his counsel in the due course of legal procedure ; but which, when thus informally offered from man to man, may be used to extenuate guilt and to mitigate pun- ishment. II. DISTRIBUTION OF PUNISHMENT AS TO COUNTS. § 907. The more exact course, as has been stated, is for the jury, when the indictment contains several counts, to find sepa- cation that comes to the court in error 421 ; Keeoh v. State, 15 Fla. 591 ; Kins- does not phow that the question was ler v. Terr., 1 Wy. 112. See supra, asked, a certiorari may be granted to § 780. the oyer and terminer to bring up the • Supra, § 550 ; Jeffries v. Com., 5 whole record. Graham v. People, 6 Allen, 145 ; Grady u. State, 11 Ga. Lansing, 149. 253 ; Sarah v. State, 28 Ga. 576 ; State In Edwards v. State, 47 Miss. 581, it v. Ball, 27 Mo. 324; Jones v. State, 51 was said that it was sufficient in error Miss. 718 ; State v. Taylor, 27 La. An. when the record averred that the court, 393; State v. Shields, 33 La. An. 991. "after hearing the defendant," pro- That the question is not necessary in ceeded to pass sentence. See State v. misdemeanors, see State v. Bradley, 30 Fritx, 27 La. An. 360 ; State v. Hugel, La. An. Pt. I. 326. That omission can 27 La. An. 375. That the defendant be cured by shortly afterwards calling must have been present in court dur- the defendant up, putting the question, ing sentence, see supra, § 550. and re-sentencing, see Reynolds ». 1 McCue V. Com., 78 Penn. St. 185 ; State, 68 Ala. 502. State V. Trezevant, 20 S. C. 363 ; State ' State v. Hoyt, 47 Conn. 318 ; State V. Jefcoat, 20 S. C. 383; Dodge v. u. Johnson, 67 N. C. 59 ; capital cases ; People, 4 Neb. 220 ; State v. Jennings, Bresler v. People, 117 lU. 422, a 24 Kan. 642; Perry «. State, 43 Ala. " minor felony." 21 ; but see Spigner u. State, 58 Ala. 636 CHAP. XIX.] SENTENCE. [^ 908. rately on each count.^ Should, however, the verdict be general, the prosecuting officer may enter a nolle prosequi on on general the counts which are superfluous, or the court may dis- ^g!^^^*^"" regard.them, treating their abandonment by the prose- counts can . «. . „ „ . » /^ , be got rid cuting officer as virtually a nolle prosequi.^ On the oShy nolle count that remains judgment may be entered.' proseqtn. § 908. Suppose, however, one of the counts on which there has been a general verdict is bad. Here we have a conflict of opinion. Does such bad count vitiate the verdict? ^"^if So it has been held.* But the prevalent and sounder there be a ..... Ill .1 ^^^ count. opinion IS that in such case the bad count can be got rid of by a nolle prosequi, or passed over by the sentencing court, if the record does not show that evidence, inadmissible under the good count, was admitted under the bad.* Logically, it is true, a single bad count vitiates the verdict, since it is impossible to exclude the hypothesis, on the bare record, that it was on that count that the verdict may have been based. But in cases of this class we are not limited to the bare record. The court trying the case knows to which counts the evidence was applicable, and to which the verdict was attached ; and a court of error may well presume that the court below, in sentencing on the good counts, sentenced on counts to which the verdict was properly to be assigned." And, as a general rule, the presumption of regularity may be invoked to sustain the conclusion that the verdict went to the good counts ; and this pre- sumption is eminently applicable to cases in which the counts vary only in matters of form, or in which they are for successive stages of the same ofiience.^ But it will be error in such cases to impose a sentence exceeding that which could have been given on the good counts ;' though in some jurisdictions this is not ground for reversal, when the appellate court may by statute reduce the sentence.' And 1 Supra, § 736. pie v. Gates, 13 Wend. 311 ; People v. 2 Supra, §§ 292, 738, 740, 771. Costello, 1 Denio, 83. To the effect that ' Ihid. See Young v. R., 3 T. R. 98 ; the presumption in error is that the State V. McDonald, 85 Mo. 539. evidence in the court below sustained * Supra, § 771. the verdict, see Slack v. People, 80 111. 5 Ibid. Compare supra, §§ 292, 737- 32 ; Brennan v. Shinkle, 89 111. 604 ; 48. Doll V. Anderson, 27 Cal. 248. 6 Supra, § 771. » Infra, § 927. ' As sustaining the view in the text, ° Infra,-§§ 927-8 ; Com. v. Kirby, 2 see Kane v. People, 8 Wend. 203 ; Peo- Cush. 577. 637 § 910.] PLEADING AND PRACTICE. [chap. XIX. it is not error when the sentence is less than could have heen legally imposed.' § 909. Another contingency arises when the jury find a verdict of guilty on each count, but on this verdict there is a general judgment and sentence in the court below. Should this judgment be reversed in error, if one of the ■ counts turns out, on examination in the court of error, to be defective ? The conflict of opinion on this point has been already noticed.' § 909 a. Where there are several counts, a judgment and sentence upon one of these counts, no action being taken as to the others, disposes of the whole indictment, and operates as an acquittal upon or discontinuance of the other counts.' The effect of a general verdict on repugnant counts, or in cases where one count is defective, has been already considered.* § 910. Next have we to consider whether, when there is a series g . of counts, all good, on which there have been separate imprison- verdicts, the court trying the case can impose a separate be given on Sentence on each count. That this can be done we have counTs!^^^ numerous authoritative rulings." Nor, when the offences Conilict as to general sentence when one count is bad. A verdict and judg- ment as to one count disposes of the others. 1 Infra, § 918. 2 Supra, § 771. Whether, when two distinct oflfences are joined, and the defendant is found guilty on each count, there can be a lumping sentence on the whole, has been doubted. In England the nega- tive has been held. R. v. Robinson, 1 Moody, 413. In Massachusetts it has been said that where there is a verdict of guilty on each of several inconsistent counts, this is a mistrial, and there can be no nolle prosequi. Com. v. Fitchburg R. R., 120 Mass. 372. But usually when a greater and a less offence are joined in two counts, and there is a general ver- dict, the court sentences for the greater. Supra, § 292. 3 See oases, supra, § 740. Where a general verdict of guilty has been rendered upon an indictment 638 containing several counts for distinct offences, and a sentence of imprison- ment has been awarded upon some of the counts, under which sentence he has been imprisoned, the defen- dant cannot, at a subsequent term, be brought up and sentenced over iipon another count in the same indictment. Com. u. Foster, 122 Mass. 317. As to this point, see infra, § 913 ; Com. v. Hasltins, 128 Mass. 60. * Supra, § 738 ; see Com. ». Haskins, 128 Mass. 60. As to Virginia practice, see Richards v. Com., 81 Va. 110. s 1 Ch. Cr. L. 718 ; Russ. on Cr. 4th Eng. ed. 1030; Archbold's C. P. 17th ed. 173 ; R. v. Wilkes, 4 Burr. 2527 ; 19 Howell St. Tr. 1133 ; R. v. Jones, 2 Camp. 121 ; Douglass v. R., 13 Q. B. 42 ; R. V. O'Connell, 11 CI. & F. 2il, Tindal, C. J. ; Lord Denman, C. J. ; Gregory v. R., 15 Q. B. 974; R. v. CHAP. XIX,] SENTENCE. [§ 910. are distinct, is there any reason why, on convictions on each count, such convictions should not, in all cases where the counts are for a chain of cognate oflfences, he treated as would he convic- tions on separate indictments. To require each distinct though cognate offence to be placed in a distinct indictment is to oppress the defendant, by loading him with unnecessary costs, and exposing him to the exhaustion of a series of trials, which the prosecution would encounter with unwaning strength, and with the benefit derived from a knowledge of its own case, and that of the defen- dant.' Vexatiously splitting civil actions into a multitude of inde- pendent suits has been held an indictable offence f and in suits for penalties, when the suits are unduly multiplied, rules for consoli- dation are granted as a matter of course.* In criminal cases, from ■ the peculiar degree of oppressiveness which would result from a splitting of prosecutions, the practice of uniting counts for cognate offences has always been encouraged, not merely because in this way the labor of the courts and the expenses of prosecution are greatly diminished, but because the interests of defendants are Castro, L. E. 9 Q. B. D. 350 ; S. C, L, E. 5 Q. B. D. 490 ; 14 Cox C. C. 436 ; 6 App. Ca. 229; 14 Cox C. C. 546; 44 L. T. N. S. 350 ; Peters, ex parte, 2 MoCrary, 403 ; Com. v. Gillespie, 7 S. & E. 476 ; Com. v. Sylvester, Brightly E. 331 ; Com. v. Birdsall, 69 Penn. St. 482 (though see Com. v. Hartman, 5 Barr, 60 ; Henwood «. Com., 52 Penn. St. 424) ; Kroer v. People, 78 111. 294 ; Fletcher v. People, 81 111. 116 ; State v. Summer, 22 Wis. 441 ; State v. Thomas, 14 Eichards. 163 ; Storrs v. State, 3 Mo. 9; State v. Chandler, 31 Kans. 201; Dodd V. State, 83 Ark. 517. In Massachusetts it has been deter- mined that when there has been such a conviction of distinct offences, the court may impose a lumping sentence, consisting of a term of imprisonment such as could have been imposed had there been convictions on separate in- dictments. Charlton v. Com., 5 Met. 532; Booth v. Com., 5 Met. 535. See Com. V. Hills, 10 Cush. 530, " It is not necessary," said Shaw, C. J. (5 Met. 533), " in such cases, to award sepa- rate sentences, where they (the offen- ces) are so far alike that the whole of the judgment is but the sum of the several sentences to which the convict is liable." See Com. v. Cain, 102 Mass. 487; Com. v. Carey, 103 Mass. 214; Am. Law Rev. October, 1875, p. 172. In Ohio it is said that on a general verdict of guilty on an indictment con- taining two counts for distinct misde- meanors, there may be a sentence on each count, Eldredge r. State,. 37 Ohio St. 191. In State v. Williams, 11 S. C. 288, it was held that where an offence was against two statutes it might be pun- ished under each. 1 Supra, § 294. 2 Com. V. McCuUoch, 15 Mass. 247. » See supra, §§ 285, 294 et seq. As to practice under Rev. Stat., § 1024, see Hibbs, ex parte, 26 Fed. Eep. 421. 639 § 911.] PLEADING AND PKACTICE. [CHAP. XIX. thereby subserved.' In New York, however, in 1875, it was ruled by the Court of Appeal, that even where there are separate verdicts of guilty on each of several cognate counts, the defendant can only be sentenced on a single count.* This, however, can only be sus- tained in jurisdictions in which by statute all imprisonments are to commence immediately on sentence.* § 911. What has just been said supposes that the counts describe separate offences of each of which the jury convicted.* where° Otherwise, there can be properly no sentence except for counts are ^.]jg punishment proper for a single count, for it would be tinct of- monstrous to say that the judge can impose on the de- fendant the aggregate penalties of two offences when the offences are virtually identical.* We may illustrate this by noticing the effect of a general verdict of guilty on an indictment containing • a count for an assault, and a count for assault and battery, sup- posing the offences to have been committed by the same act. The law imposes certain penalties for assault and battery, which penal- ties are designed to cover the assault as well as the battery. To sentence the defendant to the penalties for an assault, as averred in the first count, and then again for an assault and battery, as averred ' That rules to consolidate in such count, but the sentence is not to fix cases are granted in the federal courts the day and hour on which each suc- we have seen, supra, §§ 285 el seq. cessive imprisonment is to begin. The 2 People ex rel. Tweed v. Liscomb, sentence should specify the length of 60 N. Y. 559 ; a case, according to Lord time on each count, and provide that Selborne, Castro v. R., 44 L. T. &. N. S. the imprisonment on each count after 354; L. R. 6 App. Ca. 241, based on the first shall begin with the imprlson- an erroneous assumption. Lord Wat- ment on the count before it terminated, son, in discussing People v. Lipscomb Johnson v. People, 83 111. 431. See (44 L. T. 357 ; L. R. 6 App. Ca. 249), Peters, ex parte, 4 Dillon, 169. says that according to that case "you In Polinsky o. People, 73 N. Y. 65, can proceed against a defendant for it was held that where a defendant several offences in several indictments, was convicted on an indictment in but that if there be several offences in which he is charged with an offence one indictment, and a conviction on punishable by fine, and also with one each, there can be but one punishment punishable by imprisonment, there is inflicted." For other exceptions to no legal objection to a sentence of fine People V. Liscomb, see infra, § 996 6. and imprisonment. 3 Infra, §932. SeeU.S.w.O'Callahan, * See Hibbs, ex parte, 26 Fed. Rep. 6 McLean, 598, and cases cited above. 421. In Illinois it is said that on a con- *.See Buck v. State, 1 Ohio St. 61 ; viction on a series of counts, separate Nelson v. State, 52 Wis. 534. imprisonment may be imposed on each 640 CHAP. XIX.] SEKTENCB. [§ 913. in the second count, would expose him to a double punishment for the same offence. The only legitimate course, when the several counts are simply successive stages of one offence, is, in accordance with the view already given, to impose the sentence on the count containing the highest offence, dropping the rest.* This, to repeat once more a distinction important to keep in mind in cases of this class, is on the supposition that the sever.al counts are simply for separate stages or modifications of the same offence. III. defendant's presence essential. § 912. This point has been already discussed, and it has been shown that in all cases of corporal punishment the defendant's pres- ence at the sentence is requisite.* IV. amendment or stay. § 913. As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended amend'or^ at any time during such session, provided a punishment stay during already partly suffered be not increased.^ It has even • See oases cited supra, §§ 292, 737, 908-9 ; State v. Hood, 51 Me. 363 ; State V. Hooker, 17 Vt. 658 ; State v. Merwin, 34'Conn. 113 ; State v. TuUer, 34 Conn. 280 ; Conkey v. People, 1 Abb. N. Y. App. Dec. 418 ; Cook v. State, 4 Zabr. 843 ; Manley v. State, 7 Md. 149 ; State V. Speight, 69 N. C. 72 ; State i'. Scott, 15 S. C. 434 ; Estes v. State, 55 Ga. 131 ; State v. Dougherty, 70 Iowa, 439 ; Cawley v. State, 37 Ala. 152 ; State V. MoCue, 39 Mo. 112; State v. Core, 70 Mo. 491 ; Parker v. People, 97 111. 32. That this does not apply to distinct offences, see Charlton v. Com., 5 Met. (Mass.) 532 ; Booth v. Com., 5 Met. (Mass.) 535 ; Kite v. Com., 11 Met. (Mass.) 581. That a sentence may be amended within a month, see State V. Bemis, 51 Mich. 423. 2 Supra, § 550. 3 R. V. Fitzgerald, 1 Salk. 400 ; Bank B. Withers, 6 Wheat. 106 ; Casey, ex 41 parte, 18 Fed. Rep. 86 ; U. S. v. May, 2 McArth. 512. See Greenfield v. State, 7 Baxt. 18; Com. u. Weymouth, 2 Allen, 144 ; Hazlett, in re, 1 Crumrine (Pitts.), 169 ; Com. v. Brown, 12 Phila. 600 ; Price v. Com., 33 Grat. 819 ; State t. Warren, 92 N. C. 825 ; Lee i>. State, 32 Ohio St. 113 ; State v. Hess, 91 Ind. 424 ; Mason, in re, 8 Mich. 70 ; People v. Thompson, 4 Cal. 238. That a judgment of conviction may be entered at a term subsequent to that of verdict, see State u. Miller, 6 Baxt. 513. In Basse v. U. S., 9 Wall. 39, the court held that after a sentence to jail upon plea of guilty, and after the pris- oner was committed and was serving out his sentence, the court might for good cause, at the same term, set the sentence aside. See, also, Cheang-Kee V. U. S., 3 Wall. 320 ; People v. Duffy, 5 Barb. 205 ; Jobe v. State, 28 Ga. 235. 641 § 913.] PLEADING AND PRACTICE. [chap. XIX. been said that, during subsequent sessions, down to the period of the execution of the sentence, the court may further amend, or stay pro- ceedings, or respite.' This prerogative, however, may properly be denied in all cases in which the term of sentence has in part expired, or in which the sentence has been in part executed ;^ and the better opinion is that the mere entry of a rule to reconsider, at the term when the sentence was imposed, does not give the court the right, after execution of the sentence has substantially begun, to re- vise the sentence at future terms.' And when cumulative penalties are given by a statute, and one of these, a fine, is imposed and sat- isfied, the sentence cannot, after such satisfaction, be amended, even during the term of its imposition, by adding the other penalty.* Nor, as we have seen, after a sentence on one count, can the court, at a subsequent term, sentence on another.* Nor when a court sus- pends sentence, in a case of nuisance, on abatement and payment of costs, can it on a subsequent term impose sentence of imprison- ment.* But the court may temporarily suspend sentence in totoJ 1 4 Bl. Com. 394 ; 1 Ch. C. L. 617 ; Com. u. Dowdioan, 115 Mass. 136 ; Morrisette v. People, 20 How. Pr. 118 ; State V. Addy, 43 N. J. L. 113 ; State V. Cockerham, 2 Ired. 204 ; Allen v. State, Mart. & Y. 297 ; Folts v. State, 2 Sneed, 232. But see McCarthy v. State, 56 Miss. 295. That a court may suspend sentence, even in a capital case, was maintained, though against the protest of Governor De Witt Clinton, in Miller's case, 9 Cow. 730. But an indefinite suspension of sen- tence cannot be sustained, as it is an invasion of the prerogative of pardon. People V. Brown, 54 Mich. 16 ; see Peo- ple V. Kennedy, 58 Mich. 372. Nor can a sentence be suspended in part and executed in part. People v. Falker, 61 Mich. 110. 2 Brown v. Price, 37 Me. 56 ; Com. v. 642 Wyman, 2 Allen, 144 ; People v. Dnfiy, 5 Barb. 205 ; People v. Whitson, 74 111. 20; State v. Cannon, 11 Oregon, 312; see, however, Casey, ex parte, 18 Fed. Rep. 86; Com. v. Brown, 12 Phila. 600; Johnston v. Com., 85 Penn. St. 54. s Com. V. Malloy, 57 Penn. St. 291. * Lange, ex parte, 18 Wal. 163 ; see as to process in this case, infra, § 996 b. Scott V. Davis, 31 La. An. 249. « Com. V. Foster, 122 Mass. 317 ; cited supra, § 909 a; see U. S. v. Ma- lone, 9 Fed. Rep. 897 ; State v. Davis, 31 La. An. 249. 6 State V. Addy, 43 N. J. L. 113 ; Whitney v. State, 6 Lea, 247. ' Ibid. ; Com. v. Dowdican, 115 Mass. 133 ; Allen v. State, Mart. & Yerg. 294 ; though see People v. Morrisette, 20 How. Pr. 118. CHAP. XIX,] SENTENCE. [§ 916. V. CAPITAL PUNISHMENT. § 914. When the indictment is so drawn as to sustain a verdict of either murder in the first or murder in the second on verdict degree, and there is a general verdict of guilty, it has o^fn^Ji'^ been held error to sentence for murder in the first degree ; ment for murder and a court of error may reverse on this ground, and court win impose a sentence of murder in the second degree.^ In for second Wisconsin, under such circumstances, a new trial is degree, granted.* But in most jurisdictions, by statute, if not at common law, the verdict must specify the degree.' § 915. Before imposing sentence of death, it is eminently the duty of the court patiently and considerately to hear ugfgmjant whatever final remarks may be made by the prisoner in to be asked reference to his guilt. Nor is it possible, on such con- tenee and spicuous occasions, for a humane and conscientious judge ""^^ ^^^ ^' to avoid preceding the sentence by such observations as may tend to give a public moral force to this last and most terrible judgment of the law. Whether he shall say anything at this time, however, and what he shall say, is wholly at the discretion of the judge. The question put to the prisoner has been already specifically dis- cussed.* § 916. The form of sentence depends mainly on the local stat- utory law. By the English common law, as followed in several of our States, it is not the function of the court depends on to fix the time and place of execution in the original ^'^*"*e- sentence." This in some jurisdictions is done by the chief magis- trate of the State, in signing the warrant ; * in some by the court, 1 Johnson v. Com., 24 Penn. St. 386 ; * Supra, § 906. State V. MoCormick, 27 Iowa, 402. = E. v. Doyle, 4 Leach, 67 ; R. v. In New York such a verdict has Wyatt, R. & R. 230 ; Weed v. People, been held to be for the first degree. 31 N. Y. 465 ; Gray v. State, 55 Ala. Kennedy v. People, 39 N. Y. 245. See 81; People v. Murphy, 45 Cal. 137. fully Whart. Crlm. Law, 9th ed. § 543. See Waterman, ex parte, 33 Fed. Rep. 2 Hogan V. State, 30 Wis. 437. 29. A certified copy of the record of ' Whart. Grim. Law, 9th ed. § 543. a sentence is sufficient to authorize de- A person may be tried for the crime of tention of a prisoner without warrant, murder, notwithstanding he is at the Wilson, ex parte, 114 U. S. 417. time serving a sentence of life impris- ^ 2 Hale P. C. 399 ; R. v. King, 3 onment for another offence. People v. Burr. 1812 ; Howard, ex parte, 17 N. Majors, 65 Cal. 138. H. 545 ; Webster v. Com., 5 Cush. 386 ; 643 § 917.] PLEADING AND PRACTICE. [chap. XIX. on subsequent motion. And if the time designated for execution elapses without such execution, by stay of execution or otherwise, a new time for execution is to be assigned, the judgment still re- maining in force.* The mode of punishment is hereafter noticed.* § 917. In the frequency of capital punishments in the old Eng- ^ lish practice, it was not uncommon for female prisoners is ground to claim the benefit of the law that no woman should be o respi e. executed while she was quick with child. The practice, under such circumstances, is for the woman when called prior to sentence to say whether she has anything to allege why sentence of death should not be passed upon her, to plead orally her preg- nancy, upon which the sheriff is forthwith directed to empanel a jury of matrons. This jury being sworn to inquire as to whether the prisoner is " quick with child," they retire with the prisoner ; and the court is governed by their verdict to the same extent that it would be by the verdict of a jury empanelled to try any issue of fact. In the hearing before the jury, surgeons may be called to testify as experts.^ If the verdict be found in the defendant's Lowenberg v. People, 27 N. Y. 336; Cathoart v. Com., 37 Penn. St. 108. In Alabama the sentence specifies the day. Aaron v. State, 40 Ala. 308. See People V. Murphy, 45 Cal. 137. 1 R. V. Harris, 1 Ld. Ray. 482; Howard, ex parte, 17 N. H. 545 ; Low- enberg u. People, 27 N. Y. 336 ; State V. Oscar, 13 La. An. 297. Compare Bland v. State, 2 Ind. 608. In case of escape, the court may direct the sen- tence to be carried out when the defen- dant is caught. State v. Cardwell, 95 N. C. 643. Infra, § 928. That the defendant cannot waive the right to an interval fixed by statute between sen- tence and execution, see Koerner v. State, 96 Ind. 243. It is not error for the trial court to pronounce sentence of death upon a conviction of murder, before determin- ing a motion for a new trial filed prior to sentence. State v. Hoyt, 46 Conn. 330. 8 Infra, §§ 918 c< seq. 3 In K. V. Webster, London, 1879, 644 an application of this character was made to Denman, J., sitting at the Old Bailey. The law, as stated by the judge, was that the woman must be " quick with child." A jury was em- panelled from women in the gallery of the court-room. The judge, in sum- ming up, said: "This is a very un- usual inquiry, ladies of the jury, and it has never happened to me before. The law is that, if it be established to the satisfaction of the jury that the prisoner is quick with child, then the execution must be respited. If you feel that it would be desirable, before deciding that issue, that you should retire into the jury-room, you are war- ranted in doing so — and I should de- sire you to do it. At the same time, as women who are married, I feel sure that you will be of opinion that the judgment of a person who has for years practised as an accoucheur, who appears to be a fair-minded, clear-minded, and skilful man in medical matters, is en- titled to be taken — not that the pris- CHAP. XIX.] SENTENCE. [§ 918. favor, she is respited from session to session until the delivery of the child.' In New York this right is prescribed by statute.* But when no statute exists, it without question obtains at common law.' CORPORAL PUNISHMENT. § 918. The moulding of sentences of imprisonment is in the dis- cretion of the court, provided the statutory bounds be ^ not exceeded.^ Even a statute providing that sentence sentence to shall be pronounced within a certain time after judgment mined by is directory, though delay in this respect is not to ope- ^*'**"'^®' rate to the prejudice of the prisoner." The power of amendment of sentence reserved to the court has been already discussed.' The court cannot go beyond the limits, as to mode of punishment, imposed by the legislature.^ The place of imprisonment need not at common law be designated in the sentence.' Under the federal code, as at common law, the designation of a place of imprisonment is no part of the sentence.' The revision in error of sentences of imprisonment has also been already noticed.'" Judgment, it has been held, will not be reversed Sentence lees than minimum. Discretion allowed to courts. Re- stitution. oner is in a condition of pregnancy, but whether she is or is not quick with child." The jury occupied two or three min- utes in deliberation in the box. Mr. A Tory : Have you agreed upon your verdict f The Forewoman : Yes. Mr. Avory : Do you find that the prisoner is with child — quick child — or not ? The Forewoman : Not. Mr. Avory : You say she is not. The prisoner was then removed from the dock. 1 See 4 Black. Comm. 295 (though Blackstone maintains that a second pregnancy cannot be consecutively pleaded to the same sentence, to which Christian demurs) ; 1 Hale P. C. 369, 370 ; 1 Ch. C. L. 759. A form will be found in R. v. Wyoherly, 8 C. & P. 262. 2 2 R. S. 658, § 20. ' State V. Arden, 1 Bay, 487. In Holeman v. State, 13 Ark. 105, which was a case of larceny, the plea was overruled. • Supra, § 913 ; McCuUey u. State, 62 Ind. 428. 5 R. V. Wyatt, R. & R. 230 ; John v. State, 2 Ala. 290. See infra, § 923. 6 Supra, § 913. ' See Hodge v. R., 5 Crim. Law Mag. 391, and note thereto ; Earstendick v. U. S., 93 U. S. 396 ; Daniels v. Com., 7 Penn. St. 339 (which last two oases con- flict, though with the better reason in the latter case) ; Ryan, in re, 45 Mich. 173 ; State v. Norwood, 93 N. C. 578. 8 Infra, § 926; supra, § 916. ' Waterman, ex parte, 33 Fed. Rep. 29. Supra, § 916. i» Supra, §§ 750, 771, 906 ; infra, §927. 645 § 918.] PLEADING AND PRACTICE. [OHAP. XIX. for a sentence of imprisonment less than that permitted by law, if the statutory character of the punishment be not changed ;* and this has been sustained in a case where, in a statute allowing fine and ijnprisonment, only one of the two is imposed.* But it is hard to see, if there are reasons why the punishment which is nomi- nally less may be actually greater, as where under such punishment, the prisoner is discharged at an inclement season, or without bounties given at a particular time, why in such case he should not be permitted to take advantage of the error. ^ it is agreed that where a sentence is divisible, the defective part may be stricken out in review.^ But, although a cumulative penalty, affixed to a sentence, may, when illegal, be stricken off as surplusage by a. court of error, it is otherwise when such penalty is a qualification of the whole sentence. In such case there must be a reversal.* The punishments, e. g., fine and imprisonment, may be cumula- tively imposed when the statute permits ;' but where a statute pre- scribes alternative penalties, one only can be inflicted.^ The practice when the jury graduate the imprisonment in their verdict has been treated in a prior chapter.* 1 Infra, § 927 ; People v. Bauer, 37 Com., 39 Conn. 82 ; People v. Phillips, Hun, 407; Rawlins o. State, 2 Md. 42 N. Y. 200 ; Kane ». People, 8 Wend. 201 ; Dillon v. State, 30 Ohio St. 586 ; 205 ; Dodge v. State, 4 Zab. 455 ; Beck Behler v. State, 22 Ind. 345 ; MoQuoid v. Com., 25 Penn. St. 11 ; Weaver v, V. People, 3 Gilm. 76 ; Haney v. State, Com., 29 Penn. St. 445 ; MoQuoid v. 5 Wis. 529 ; Com. v. Shanks, 10 B. People, 3 Gilm. 76 ; Murphy v. Mo- Mon. 304 ; Wattingham v. State, 5 Millan, 59 Iowa, 515 ; Kennedy ». State, Sneed, 64 ; Ooton v. State, 5 Ala. 463 ; 62 Ind. 136 ; David v. State, 40 Ala. Campbell v. State, 16 Ala. 144 ; Barada 69 ; State v. Evans, 23 La. An. 525 ; V. State, 13 Mo. 94 ; State v. Evans, 23 Baldwin, ex parte, 60 Cal. 432. See La. An. 525. Supra, §§ 780, 907; State v. Brannan, 34 La. An. 942; though see Rice v. Com., 12 Met. State v. Ragsdale, 10 Lea, 671, cited (Mass.) 246; Taff v. State, 39 Conn, supra, § 785. 82 ; Brown v. State, 47 Ala. 53. ^ Bradley v. State, 69 Ala. 318 ; , 2 Dillon V. State, 38 Ohio St. 587; Kanouse u. Lexington, 12 111. App. Dodge !). State, 4 Zab. 455. But see U. 318. See State v. Brannan, 34 La. An. S. V. Viokery, 1 Hun & J. 421. 942. 3 See Bourne v. R., 7 Ad. & E. 58; « Polinsky v. People, 73 N. Y. 65. 7 Nev. & P. 248 ; Whitehead t. R., 7 ' Dodge v. State, 4 Zab. 455 ; Dillon a. B. 583 ; 1 Cox, 199. v. State, 38 Ohio St. 589 ; State v. * Supra, § 780, and oases there cited ; Kearney, 1 Hawks, 53. Infra, § 924. Chuston V. Com., 5 Meto. 530; Taffu. » Supra, § 752. 646 CHAP. XIX.] SENTENCE. [§ 920. It is within the discretion of the court, on application, to hear affidavits in aggravation or mitigation of sentence.* Restitution of goods cannot be awarded unless the indictment avers a taking.* § 919. By the common law, as now modified in American practice, fine and imprisonment, in cases not capital, are the usual punishments ;^ and when a statute creates an offence imprison- without assigning a penalty, fine and imprisonment are ™^''* ^^^^ the penalties to be imposed.* At one time it was main- law penal- tained by a Pennsylvania judge, zealous of common law traditions, that on common scolds ducking could be inflicted, but this view was rejected by the Supreme Court, and now no longer is countenanced.' " Whipping" will be presently considered. A sentence of forfeiture of the weapon used has been held in Texas to be unconstitutional.* § 920. The constitutional provision in this respect has been held not to apply to State courts.'' Its principle, however, i. Hunter, 33 Iowa, 361 ; State v. Smith, 1 N. & MoC. 13 ; State v. Berry, 21 Mo. 504 ; Stur- geon V. Gray, 96 Ind. 166; Calico v. 660 state, 3 Pike, 431. As to joinder of de- fendants, see supra, § 301. ' Flynn v. State, 8 Tex. Ap. 398 ; overruling Bennett v. State, 30 Tex. 523. * Supra, §§ 314-5. 5 O'Connell i'. R., 11 CI. & F. 155 ; Dunn V. R., 12 Q. B. 1031. See Estes v. State, 2 Humph. 496. Supra, § 80. 6 See Whart. Cr. Law, 9th ed. §§ 97, 1426, 14986. ' R. c. Holt, 7 C. & P. 518. Supra, §80. 8 That the court may take testimony on this point see Dick i;. State, 3 Ohio St. 89. On the question of character. CHAP, XIX.] SENTENCE. [§ 942. demeanors, was left without any limit as to the term of imprison- ment to be imposed, provided that a maximum, in some cases of seven years, in others of ten years, should not be exceeded. Even now we find frequently such limitations as these : imprison- ment from " two to fifteen years," or from " two to ten," or " one to seven years." In such cases the question of determining what penalty is to be assigned to a particular oifence rests mainly on the discretion of the court.' It becomes important, therefore, to con- sider on what principles this discretion is to be exercised. What object is the judge to have before him in adjusting punishment to as well as on that of the grade of the crime, affidavits may be received in mitigation or aggravation. Infra, §945. As to recommendation to mercy, see supra, § 757. Three theories have been propounded as to the discretion of the judge in criminal prosecutions. See Berner, §124. (1.) By the first his duties are to be prescribed in every respect by statute. Statute is to define the offence ; statute is arbitrarily to specify the punishment. It is obvious that this theory is both despotic and illogical. Cases, nomi- nally of the same offl'ence, as defined in the statute book, e. g., larceny, are so various that it would be gross injustice to apply to each the same uniform pen- alty. Hence there is no code which does not leave a margin, as to the term of punishment, within which the dis- cretion of the judge may range. Nor, so far as concerns the definition of an oflfence, is it possible for the theory here contested to be logically executed. A statute, for instance, makes " burg- lary" indictable. But what is burg- lary ? This has to be determined by the courts. Even if the definition is given by statute, the points of discrim- ination, in accordance with the well- known logical rule. Increase with the minuteness of the specification. (2.) By the second view the statute declares a particular offence to be pun- ishable, but leaves the punishment absolutely to the discretion of the judge. But this theory, in not impos- ing at least a maximum of punishment, leaves too much to the caprice of the judge. (3.) The oflfence is defined by stat- ute, and the discretion of the judge is allowed to work within a specified mar- gin of punishment. This is a system now almost universally prevalent in the United States. Whether a minimum as well as a maximum should be attached has been much discussed. Berner, § 124, argues that to leave the limits open is an ab- dication of duty by the legislature, and leads to despotic and wayward caprice on the part of the judge. Rossi (Traits, vol. ii. 405) says: "La loi perdrait une grande partie de son in- fluence preventive sur I'esprit des oitoyens. La jurisprudence des tribu- naux serait incertaine, variable ; elle ne tarderait pas S. off'rir des disparates choquantes. Le j uge aurait un moy en trop facile de o^der, sans trop aven- tur^ sa responsabilite morale, h, la pri^re, a I'intrigue, aux seductions de toute espfece." ' Supra, §§ 314-5. See cases in prior notes to this section. People v. War- den, 66 N. Y. 342. 661 § 943.] PLEADING AND PRACTICE, [CHAP. XIX. crime ? What public exigencies has he to satisfy ? In answering these inquiries we are met by several conflicting theories. § 943. It has been shown elsewhere/ that the primary object of Primary punishment is the execution of retributory justice ; and object re- that unless such iustice be shown in a sentence, it is cal- tributlon; , , . , , , ,. . „ but exam- culated neither to deter others trom crime nor to reform form'toire ^hc sentenced criminal. At the same time, as is there Incidental, noticed, example and reform, as well as retribution, are to be kept in view in adjusting a sentence. On these points the fol- lowing observations may be made : — 1. Example. An excessive punishment, so far from being an ex- ample, as sometimes judges conceive it to be, operates in the con- trary direction ; first, because the public mind revolts at the undue severity, and an angry contempt of justice is thereby engendered ; and, secondly, because excessive punishments are apt to be revoked by the executive, and there is the feeling about them, " This cannot last." Even supposing certain crimes are so prevalent, that at the first glance it would seem politic to signalize convictions by extreme and conspicuous penalties, it must be remembered, in addition to the considerations already given, that the public mind soon adapts itself to a harder grade of punishment, and that the immediate effect is to require increased punishment for all crimes, not simply an excep- tional punishment for the particular crime complained of. Aside from this, there is a sense of unfairness about punishment so in- flicted that defeats the very end it is claimed to promote. Men will not be prevented from committing crime by seeing punishment inflicted merely to work such prevention. If the person punished is guilty, and is punished because he is guilty, this acts as a deter- rent. But if he is innocent, and is punished, without his consent, in order to produce a docile and law-loving temper in himself and others, the effect is far from being reached. Such an outrage inflicted on him, so far from making him docile and law-loving, will be likely to breed in him a determination to resist, to elude, and, if possible, to trample upon, the sovereign from whom the outrage proceeds ; and the temper thus generated in him will be generated in those who are witnesses of the wrong done him. Such, in fact, has been the case where this system has been carried out. At no 1 Whart. Crlm. Law, 9th ed. §§ 1 et seg. Hawkins v. People, 106 111. 628. 662 CHAP. XIX.] SENTENCE. [§ 943. times have crimes been more rife, and schemes to defy or elude the law more rampant, than in those in which punishments for the sake of example were made most conspicuous and horrible. Nor is this all. To assign this power to the sovereign is to invest him with absolutism. If the object is merely to deter others by a fearful spectacle of torture or death, then innocent as well as guilty may be seized upon as the victims by whom the spectacle is to be ex- hibited ; and the pain inflicted will be measured, not by its relation to the alleged offence, but by the effect it is likely to produce on the public mind. When there is no logical relation between wrong and punishment, justice will be a matter of mere arbitrary, sensational dis- play. The object will be to inflict a conspicuous and horrible penalty arbitrarily, and thus to terrify into submission. But this can only be sustained by the ascription to the sovereign of absolute power. , 2. Reform. The object of reform is to arouse, by moral and religious' influences, the torpid moral sense of the convict, and to form in him habits of honesty, self-control, and obedience to the law ; and so far it is an important auxiliary in penal discipline. But reform shauld not be carried to such a degree as to diminish the necessary painfulness of punishment, since a punishment which does not inflict pain in some degree proportionate to the crime com- mitted, so far from reforming the criminal, will lead him to regard the wrong done by him as a light thing, so viewed by the public, and tend rather to encourage than to check him in a lawless career. And independent of this moral mischief, a home in which board, lodging, and education are given without expense, will, to the idle and destitute, be a refuge rather to be sought than shunned. To invest, also, the sovereign with the power of compulsory reforma- tion, irrespective of conviction of crime, requires the cession to him of despotic prerogatives. If susceptibility to reformation is the condition of penal discipline, there is no one on whom penal disci- pline may not be inflicted, as there is no one who may not be more or less reformed. Not only would this make the sovereign the master of the persons of all his subjects, but he would be relieved from fixed restrictions as to the nature of the punishment to be im- posed, since the only question in such cases would be, " What kind of punishment would work reformation in a person of this par- ticular type ?" And, once more, no obdurate and irreclaimable criminal could, on this view, be punished, for the reason that no 663 § 945.] PLEADING AND PRACTICE. [OHAP. XIX. such criminal could be reformed. Reformation, therefore, if it be adopted as the sole ground and object of punishment, would confer an entire immunity from restraint or punishment on the desperate and incorrigible criminal, while over all others it would establish the surveillance of despotism. 3. Retribution. This, so far as concerns public justice, is the primaTy object of punishment. When, however, an individual, as well as the body politic, is aggrieved, then it is proper, in cases of pecuniary loss, that there should be a pecuniary satisfaction ordered to the party injured. When the oifence is one which assails the honor of an individual (as in cases of libel), it is the prac- tice in some jurisdictions to require of the convict an apology, and withdrawal of the charge. And, incidentally, in the application of retribution, prevention and reformation should be subserved.* § 944. In adjusting sentence, therefore, under our American sys- tem, which allows so wide a discretion to the court, not" only the simplest but the wisest course for the court is to adapt the duration of imprisonment to the defendant's guilt, keeping at the same time in view, as forming part of the elements of this guilt, his character, of which susceptibility to reformatory influences is an ingredient.^ By so doing, if guilt be estimated according to its inveterateness and heinousness, and its sentence moulded accordingly, the objects of the preventive and reformatory systems will be best promoted. And if such a policy be firmly executed, the advantages of what has been called the exemplary theory will be best brought out. The criminal himself will receive the punishment which, in justice belongs to his crime. And the example of such punishment, based, not on any capricious or speculative schemes, but on the plain principle that crime is punished because it is crime, will act as a deterrent just in proportion as it is justly imposed and firmly executed. § 945. Although, when the punishment is to be assessed by the jury, it is improper, in order to keep the issue single, to may be re- receive evidence of other ofiences than that charged in to'defend- t^® indictment, or part of a system of which such oflence ant's char- jg part,' it is otherwise when, after a verdict of guilty, the court is called upon to sentence. In such case the 1 See, for a full discussion, Whart. ' See Whart. Crim. Law, 9th ed. Crim. Law, 9th ed. §§ 1 et seq., and see, §§ 12, 13. also, 15 Am. Law Rev. 127. ' See Whart. Crim. Ev. §§ 23 et seq. 664 CHAP. XIX.] SENTENCE. [§ 946. court may, of its own motion, take notice of a prior conviction of the defendant on its own records, or will hear proof of his character and antecedents, either to aggravate or extenuate his guilt.* The proof in the latter relation is taken usually by affidavits.* Such evi- dence, however, is only receivable in matters as to which the court has discretion.' XVII. EX POST FACTO PUNISHMENT. § 946. In other volumes is considered the question how far ex post facto legislation is constitutional in respect to crime,* and it is there shown that a statute imposing an increase constitu- of punishment does not apply to crimes committed before '°°* ' its passage. It is otherwise in respect to statutes lessening the penalty, which may be applied to prior offences." What are to be considered lesser penalties is elsewhere discussed.* 1 R. V. Templeman, 1 Salk. 55 ; R. v. Wilson, 4 T. R. 487 ; R. v. Morgan, 11 East, 457 ; R. v. Mahon, 4 A. & E. 475 ; R. V. Dignam, 7 A. & E. 593 ; R. v. Gregory, 1 C. & K. 228 ; Com. v. Mor- ton, 9 Pick. 206 ; People v. Cochran, 2 •Johns. 73 ; Dick v. State, 3 Ohio St. 89 ; Rohbins v. State, 20 Ala. 36 ; Sarah v. State, 18 Ark. 114 ; People v. Jefferson, 52 Cal. 453. The common law rule that such evi- dence cannot be received in cases of felony applies only to such felonies as are capital. See R. v. Ellis, 6 E. & C. 145. 2 Roscoe's Crim. Ev. § 222. 3 R. V. Ellis, 6 B. & C. 145 ; Burn's Just. 29th ed. § 933. In Ingraham v. State, 39 Ala. 247, and Skains v. State, 21 Ala. 218, it was held that the court would not hear proof of utterly distinct offences. The English practice is thus stated ii Roscoe's Crim. Ev. pp. 222-23 :— " Where the defendant has been con- victed of a misdemeanor in the Queen's Bench, the prosecutor, upon the motion for judgment, may produce affidavits to be read in aggravation of the offence, and the de$fence may also produce affi- davits to be read in mitigation. Affi- davits in aggrairation are not allowed in felonies, although the record has been removed into the Court of Queen's Bench by certiorari. R. u. Ellis, 6 B. & C. 145 ; 3 Burn's Justice, 29th ed. 933. Where a prisoner pleaded guilty at the Central Criminal Court to a misde- meanor, and affidavits were filed both in mitigation and aggravation, the judges refused to hear the speeches of counsel on either side, but formed their judgment of the case by reading the affidavits. R. v. Gregory, 1 C. & K. 228 ; but it is usual to hear counsel in mitigation. See also the same case as to removing from the files of the court affidavits In mitigation containing scan- dalous and irrelevant matter, such be- ing a contempt of court ; and also as to allowing the opposite party to deny by counter-affidavits the affidavits filed in mitigation." See supra, § 416. * Whart. Crim. Law, § 31 ; Whart. Com. Am. Law, § 473. 5 Com. V. Wyman, 12 Cush. 237 ; Veal V. State, 8 Tex. Ap. 474 ; Perez v. State, Ibid. 610. 6 Whart. Crim. Law, § 30. 665 § 946 a.] PLEADING AND PRACTICE. [CHAP. XIX. XVIII. BENEFIT OF CLERGY. § 946 a. By the old English common law, persons who were in clerk's orders, and afterwards all persons whatsoever, aMished. ^®^^ entitled to be relieved from capital punishment, un- less otherwise ordered by statute, on being burned in the hand. The object was to mitigate the ferocity of the then penal system by which to all felonies death was assigned. With the sub- sequent reduction and amelioration of punishments the reason ceased ; and benefit of clergy by act of Parliament ceased to exist in 1828. In this country, although in some States recognized as part of the common law,* it has been now universally abolished either by express enactment or by implication. 1 It was abolished in federal process 372. That benefit of clergy was reoog- in 1790. U. S. v. Ballard, 3 McLean, nized in Kentucky until abolished by 469. As to State courts, see State v. statute in 1847, see Shaler's Kentucky, Carroll, 2 Ired. 257 ; State v. Gray, 1 407. Murph. 147 ; State ». Sutcliffe, 4 Strobh. CHAP. XX.] CONTEMPT. [§ 947. CHAPTER XX. CONTEMPT. I. When the only Method or Suppression is by Summary Commitment. lu such eases attachment may issue, § 948. Attachments may issue to en- force process, § 949. And so as a penalty on disobe- dience, § 950. And so on physical Interference with parties, § 951. And so on publication of pro- ceedings ordered not to be published, § 953. And so as to misconduct of offi- cers of court, § 953. And so as to obstruction to trial, §954. And so as to disorder in presence of court, § 955, And so as to misconduct of or tampering with jurymen, § 956. II, When the Contempt can be SUPPRESSED OTHERWISE THAN BY Commitment. Criticisms on cases before court constitute contempt, § 957. And so as to other publications interfering with due course of justice, § 958. But summary commitment only to be used when necessary, §959. In cases of this class an ordi- nary prosecution is the better course, § 960. Danger of depositing such power In courts, § 961. III. By wbom such Commitments MAY BE ISSUED. Superior Courts have power to issue common-law commit- ments, § 963. Other courts are limited to con- tempt in their presence ; prac- tice as to commissioners and notaries, § 963. So as to legislatures, § 964. rv. Indictability of Contempts : Embracery. Interference with public justice indictable, § 965. So with embracery, or improper interference with jury, § 966. V, Practice. In cases in face of court rule may be made instantly returnable, §967. Otherwise as to contempts not in face of court, § 968. Hearing may be inquisitorial, § 969. VI. Punishment. Court may fine and imprison, §970. Commitment must be for fixed period, § 971. Fine goes to State, § 972. VII. Conviction no Bar to other Proceedings. Contempt not barred by other procedure, and the converse, § 973. VIII. Appeal, Error, and Pardon. When on record, proceedings may be revised in error, § 974. Pardon does not usually release, §975. § 947. Contempt is such disrespect or disobedience to a court or legislature as interferes with the due administration of law.* 1 See Field, Fed, Courts, 435. 667 § 950.] PLEADING AND PRACTICE. [CHAP. XX. So far as concerns our first inquiry, contempts may be divided as follows: — I. When the only method of suppression is by summary COMMITMENT. II. When there are other methods of suppression. I. WHEN the only METHOD OF SUPPRESSION IS BY SUMMARY commitment. In such ^ 948. In such cases there is no question that an attach- caee at- ^ tachment ment, on due cause shown, may issue, and the defend- may Issue. , i -ij. j ant be committed. § 949. If process be impeded, no case can be tried. Hence it Attach- ^^ ^ contempt, punishable by summary commitment, to ment interfere with process ;' to disobey rules or orders, obe- proper to i ■ , . . , enforce dience to which is essential to the progress of the case ;' process. ^^ abuse process ;' to rescue a prisoner under process ;* and to serve a writ (the oifender being the sheriff) improperly, or to refuse to serve it at all, or to make a false return.' § 950. The same remedy is applicable to disobedience to an in- And so as j'^^ction, because unless attachment and commitment in a penalty such case be granted, irreparable injury might ensue f beying to disobedience to an order of court for summary pay- process. EQent, which payment cannot be otherwise enforced;' and to disobedience to an order for specific conveyance.* ' Daniell's Chancery Prao. (1871) ^ Archbold's Q. B. Prao. ut supra, 387, note, 411-427, 936; Price v. 1710; State v. Tipton, 1 Black. 166; Hutchison, L. R. 9 Eq. 534; Buck i/. People w. Marsh, 2 Cow. 493 ; Summers, Buck, 60 111. 115 ; People «. Bradley, ex parte, 5 Ired. 149 ; Pitman v. Clarke, 60 111. 390 ; State v. Sparks, 27 Tex. 1 McMullen, 316. 627. 6 2 Wait's Prac. (1873) 108, 112; 2 Daniell's Ch. Prac. (1871) 937 ; Day's Common Law Prao. (1872) 327 ; Day's Com. Law Pr. (1872) 313 ; Daniell's Ch. Prac. (1871) 1533 ; Peo- Arohbold's Q. B. Practice (12th ed.), pie i>. Compton, 1 Duer, 512; Wood- 1711. I worth V. Rogers, 3 Wood. & M. 135 ; 3 Archbold's Q. B. Prac. ut supra. Potter J habeas corpus, of those whose criticisms may be deemed contemptuous by legislature if not by executive. § 961. It may well be asked why, if such an extreme remedy is nece^ary in case of the judiciary, is it not in case of the executive ? The executive, in cases of application alpMiting for pardon, exercises a semi-judicial function, in which, fn oourtr^"^ equally with the judge trying the case, it is important that he should be kept free from the influences of fear, favor, or aflection. The executive, when dealing with great questions of war, or almost equally great questions of currency expansion or con- traction, should be in an eminent degree superior to the clamor of ignorant or timid or fanatical declaimers, and to the false public sentiment generated by desperate speculators, and even to the true public sentiment generated by a real but baseless panic. Who, however, would consider it consistent with either law or liberty for the executive to summarily arrest and imprison, without the relief of bail, without the interposition of a responsible prosecutor, with- out examination of witnesses, without the right of subsequent re- vision by habeas corpus, those from whom such publications should issue ? Or, to take an alternative still more applicable, is such a prerogative safely to be claimed for the legislature ? The legisla- ture is coordinate in power and dignity with the judiciary. The legislature, either federal or State, has no doubt power to punish ' See infra, § 999. greatest anxiety on the part of the 2 In In re Clements (36 L. T. Rep. N. judge to see that there is no other mode S. 332), Sir George Jessel said ; " This which is not open to the objection of jurisdiction of committing for contempt, arbitrariness, and, to a certain extent, being practically arbitrary and unlim- unlimited power, which can be brought ited, should be most jealously and care- to bear upon the subject." fully watched, and exercised with the 677 § 961.J PLEADING AND PRACTICE. [chap. XX, summarily for contempts by which the exercise of its distinctive functions is physically impeded ; but can we rightfully claim for the legislature power to commit summarily persons criticising, no matter how unfairly or corruptly, measures over which it is still deliberating ? But if the exercise of such a power is not permitted to executive or legislature, why should it be conceded to the judici- ary ? Or, if so conceded to the judiciary, why should we withdraw from the prerogative those general considerations of policy already noticed,* which, while retaining for libels common law prosecutions, invoke, in the institution of such prosecutions, peculiar caution, tenderness, and reserve ? But however these questions may be de- termined, two points remain: first, the doctrine of constructive contempt is of recent introduction, not being part of the common law brought with them to this country by our colonists ;" and, sec- 1 Whart. Crim. Law, 9th ed. § 1611. 2 No English case for constructive contempt is reported prior to the American Revolution. The earliest case in which the question arose was that of the printer Almon, proceeded against in 1765, for contempt of court, in publishing an attack on the chief justice, imputing improper and cor- rupt conduct in his office, and in whose case Sir E. Wilmot, one of the judges, prepared an elaborate judg- ment vindicating the punishment of the printer by fine and imprisonment — a ju'dgment, however, never deliv- ered, the proceedings being abandoned, and the publication of the proposed Judgment, in Sir E. Wilmot's opinion, being, as is stated, without his sanc- tion. So far as concerns inferior courts, the jurisdiction, as will pre- sently be seen, is now expressly de- nied by the English Queen's Bench, and so far as concerns superior courts, it is justified by Cockburn, Ch. J., only on the fiction of the presence of the sovereign in such courts. " The power of committing for contempts committed in the face of the court is given to inferior courts, but they had 678 not power so to punish contempts com- mitted out of court. There is an obvious distinction between inferior courts created by statute and superior courts of law or equity. In these superior courts the power is inherent in their constitution, has been coeval with their original institution, and has been always exercised. The origin can be traced to the time when all the courts arose as divisions of the curia regis — the Supreme Court of the sover- eign, in which he personally, or by his immediate representative, sat to ad- minister justice. The power of the courts in this respect was an emana- tion from the royal authority, which, when exercised personally, or in the presence of the sovereign, made a con- tempt of the crown punishable sum- marily, and hence the power passed to the superior courts when they were created. It is a very different thing when we come to the inferior courts, which have never exercised this power, or have never been recognized as pos- sessing it, and we think in those courts it does not exist." R. o. Lefroy, L. R. 8 Q. B. 134, as stated in the London Times of February 1, 1873. A CHAP. XX.] CONTEMPT. [§ 962. ondly, it is a violent remedy, justifiable only in cases not reached by bindings over to keep the peace, or bindings over for trial.' Where, however, the case is one in which summary proceedings for contempt afford a suitable redress, the jurisdiction is not ousted by the fact that the offence might be prosecuted by indictment or information,* III. BY WHOM SUMMARY COMMITMENTS FOB CONTEMPT MAY BE ISSUED. & 962. That superior courts have the usual common Superior • 1 ■ 11 XT courts law power in this respect has been already seen. How- have power ever this power may be limited, in courts of this class common when acting judicially it unquestionably resides.^ It ^^11 ''°™" is otherwise as to courts when acting ministerially.* late writer in Notes and Queries gives an interesting sketch of the early his- tory of the offence : "In the collec- tion of laws of Henry I. it is called contemptus brevium, or contempt of the king's legal writs. At that time con- tempt of court was punished with a fine. A remarkable fact in connection with the subject is, that the method of the punishment has become more summary in the later times. In the reign of Henry XL, mere disrespect or disturbance was not visited with im- mediate severity, but the offender was formally indicted. A case has come down to us in which one of the king's judges was insulted, and this method was pursued. The present process of attachment or arrest was only em- ployed in cases where there had been disregard of the legal writs of the court. An early, although scarcely an authentic case of contempt of court, is afforded by the commitment of the Prince of Wales, by Chief Justice Gasooigne, in the reign of Henry IV. As a point of special interest at the present time it may be remarked that efforts to influence jurors were never deemed contempt, but were indictable as a common law offence, known as ' embracery of jurors.' " 1 As sustaining this view, but in marked conflict with other English cases, see R. v. Gilham, M. & M. 165, where it was held by Littledale and Gaselee, JJ., that it was not a con- tempt, which the judge could inter- fere to stop, to exhibit in an assize town an inflammatory publication re- specting a crime about to be tried in the assizes. ^ See 5 Crim. Law Mag. 166 ; supra, § 444 ; Arnold v. Com., 80 Ky. 300. ^ See People v. Phelps, 4 Thomp. & C. 467 ; as to Connecticut, see Middle- brook V. State, 43 Conn. 257. In Robinson, ex parte, 19 Wall. 505, it was held that the power is inherent in the courts of the United States ; but that the Act of Congress of March 2, 1831, entitled " An Act Declaratory of the Law concerning Contempts of " Court," limits the power of the Circuit * See Gorham v. Luckett, 6 B, Mon. 638 ; Clark v. People, Breese, 266 ; Smith, ex parte, 28 Ind. 47. 679 § 963.] PLEADINQ AND PRACTICE. [chap. XX. § 963. Inferior courts, justices, and commissioners are limited, in the issue of summary commitments, to contempts com- mitted in their presence, unless ampler powers be given them by the legislature.' Commissioners in the United States Circuit or Territorial courts have not, unless in cases where the statute gives that power to officers of this class, even the power to commit a non-answering witness for contempt. The process must be asked for from the circuit or territorial judge ;* though it has been held that commissioners may exercise the powers belonging to local justices of the peace.^ Nor has a notary public this power.* When necessary under a commission in chancery procedure, the course is to apply to the court from whom the commission issues." In New York, by the Penal Code of 1884, § 143, disorderly conduct in presence of courts not of record, as well as of record, Other courts lim- ited to con- temptsin their pres- ence. No power In com- missioners and no- taries. and District Courts of the United States to three classes of cases : 1st. Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administra- tion of justice ; 2d. Where there has been misbehavior of any officer of the courts in his official transactions ; and, 3d. Where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, de- cree, or command of the courts. It was further ruled that the 17th section of the Judiciary Act of 1789, in pre- scribing fine or imprisonment as the punishment which may be inflicted by the courts of the United States for con- tempts, operates as a limitation upon the manner in which their power in this respect may be exercised, and is a negation of all other modes of pun- ishment. The legislature while it can limit the exercise of this power, cannot ab- solutely deprive the courts of its ex- ercise. Wolley, in re, 11 Bush. 95 ; State V. Morrill, 16 Ark. 384 ; Milling- ton, in re, 24 Kans. 214. 680 • R. y. Lefroy, L. E. 8 Q. B. 134 ; Hollingsworth v. Duahe, Wall. C. C. 79 ; Clark v. May, 2 Gray, 410 ; Noyes V. Byxbee, 45 Conn. 382 ; Cartwright's case, 114 Mass. 230 ; Watson, in re, 3 Lans. 408 ; Kerrigan, in re, 4Vroom, (33 N. J. L.) 344 ; State e. Galloway, 5 Cold. 326 ; State v. Applegate, 2 Mo- Cord, 110 ; Bateheldor v. Moore, 42 Cal. 412. 2 Judson, in re, 3 Blatch. 148. At common law referees 'and: commis- sioners have not the power unless by statute. La Fontaine r. Underwriters, 83 N. C. 132; Stewart v. Allen, 45 Wis. 100. 3 U. S. V. Schumann, 2 Abb. C. C. 41. See Doll, ex parte, 27 Leg. Int. 20; S. C, 11 Int. Rev. Rec. 36 ; 7 Phila. Rep. 595 ; Shaffer's case, Sup. Ct. Utah, 1883 ; of. Gorman, ex parte, 4 Cranch, 572 ; U. S. i;. Rundlett, 2 Cur- tis C. C. 41 ; U. S. V. Horton, 2 Dill. 94. * Rapalje on Contempts, p. 10, Kreiger, ex parte, 7 Mo. Ap. 367 ; Burtt V. Pyle, 89 Ind. 398. But see contra, Abel's case, 12 Kans. 451. 5 2 Dan. Ch. Pr. 1178 et seq. CHAP. XX.J CONTEMPT. [§ 964. and in the presence of referees when acting under order of court, is made a criminal contempt. In Pennsylvania, a justice of the peace, at common law, has not power to commit even for direct contempt. His course, if there be such contempt, is to remit the case to the proper court, in order to obtain the action of such court.^ A similar view is maintained in New Jersey, where the power is denied to a recorder of a city who is invested with the powers of a justice of the peace ;^ and to a jus- tice of the peace sitting for the trial of minor civil issues.* In Eng- land, however, the right to commit for contempts in facie curiae is reserved to justices ;* and such is the practice in several of our own States." § 964. It has been held that it is within the power of the houses of congress and of the State legislatures to commit for ,„,.■?• 1 ■ ■ 1 So as to contempt, not only tor disorder during their sessions, but legisia- for a refusal to testify in any inquiry they may insti- "™^' tute.* That both these functions reside in each of the houses of the 1 Brooker v. Com., 12 S. & E. 175 ; Albright v. Lapp, 26, Penn. St.; 99 ; though by statute (Brightly, 273) the power is given to the justices' in Al- legheny. County. . 2 Kerrigan, in re, 4 Vroom (33 N. J. L.) 844. ^ Rhinehart v. Lance, 43 N. J. L. (14 Vroom) 317. * Paley on Convictions (1866), 329. That they have no such power at com- mon law, when sitting singly, is argued with much aouteness by Depue, J. , in Bhinehart v. Lance, 43 N. J. L. (14 Vroom) 317. 6 State V. Towle, 42 N. H. 540 ; Cooper, in re, 32 Vt. 253 ; Hill v. Cran- dall, 52 111. 70 ; Robb v. McDonald, 29 Iowa, 330. As to New York, the power is said to exist in justices at common law. Cowen's Treatise, § 1334. For this Mr. Cowen cites Mather v. Hood, 8 Johns. R. 44; and Richmond v. Day- ton, 10 Johns. R. 393 — cases, however, which only go to the justices' right to convict of forcible entry, and to bind over for good behavior in case of dis- order. The tight can now only be ex- ercised, in the cases specified by statute. People V. Webster, 3 Parker C. R. 503. The statute gives the power to justices in cases where witnesses re- fuse to answer questions, and when there is a prior oath as to the materi- ality of the question. Rutherford v. Holmes, 66 N. Y. 368 ; S. C, 5 Hun, 317. In Illinois neither police magistrates nor justices have this power. Newton V. Locklin, 77 111. 103 ; and so in Ala- bama, State V. McDuffie, 52 Ala. 4. 6 6 Robinson's Practice, 694 ; Ander- son V. Dunn, 6 Wheat. 204 ; Stewart v. Blaine, 1 MoArthur, 453; Falvey, in re, 7 Wis. 630; Nugent, ex parte, 4 Clark (Phila.) 107; 1 Am. L. J. 107. A curious question, as to the right of the legislature to punish for contempt, arose in Pennsylvania in 1758. Dr. William Smith, provost of the Univer- sity of Pennsylvania, gave great offence to the provincial assembly by taking 681 § 965.] PLEADINa AND PRACTICE. [chap. XX. British parliament cannot be questioned.* But it is now held by the Supreme Court of the United States that the House of Repre- sentatives of the United States has no power to commit for contempt witnesses refusing to answer questions in inquiries instituted by it not connected with the election of its members or with impeachment pro- cedure.^ The same reasoning applies to the legislatures of the par- ticular States. And it is clBar that in any view that the power of committal for contempt does not belong to inferior legislatures, such as town councils or town meetings.* The remedy for disturbance in such case is binding over to keep the peace, or indictment for dis- turbing a meeting. IV. indictabilitt of contempts: embracery. § 965. It has been already noticed that attempts to interfere with J , j. the production of evidence in a case are indictable at encewith common law.* It is also clear that all disorder in a ttce indict- court-room, and all attempts, forcible or fraudulent, to ^^^^' interfere with or prevent the due course of public justice, part in the publication of a petition to the assembly which that body deemed libellous. He was committed for con- tempt, and this commitment was re- newed by a succeeding assembly. The assembly, in the commitment, directed the sheriff to refuse to obey all writs of habeas corpus. An appeal was taken to England ; and the law officers of the crown gave it as their opinion that though the paper in question was a libel, it could not be treated as a con- tempt by a legislature elected after its publication. It was further held that the direction to the sheriff not to obey a writ of habeas corpus was unwar- rantable. The latter points were af- firmed by the privy council. See Life of Rev. William Smith, D.D., by H. W. Smith, Phila. 1879, chaps, xii., xiv. See on this topic, article in 21 Cent. L. J. 43. 1 1 Kent Com. 236 ; 1 Story on Const. § 847 ; Shaftsbury's case, 1 Mod. 144, 682 157 ; Burdett v. Abbott, 14 East, 1- 131 ; Crosby's case, 1 Wils. 188 ; Peo- ple V. Keeler, 99 N. Y. 463. 2 Kilbourne ' In cases m a rule on the offender, returnable instanter, to show cause face of why he should not be committed ; though sometimes the may be rule to show cause is dispensed with, and the offender ^antiy're- simply required to purge himself or stand committed. ° tumaWe. No evidence need in such case be taken,'' the matter being within the judicial notice of the court.* And in case of the offender ab- sconding, the court may sentence him at any time during the term when he is brought back.' 1 Supra, § 203 ; Whart. Crim. Law, 9th ed. § 1616 ; see R. v. Lefroy, cited supra, § 953, in which case Mellor, J., said, "that judges of inferior courts have protection by way of criminal in- formation, in cases of imputations upon their character or conduct calculated to affect the administration of justice. And it was not thought necessary to give them greater power." To same effect see remarks of Woodward, J., in Albright v. Lapp, 26 Penn. St. 99. 2 Thomp. & Mer. on Jur. § 364 ; su- .pra, §§ 72, 338, 381; Com. v. Kauff- man, 1 Phila. 534, 3 Supra, §§ 367, 729 ; Whart. Crim. Law, 9th ed. § 1858 ; 1 Hawk. b. i. c. 85 ; Whart. Preo. 1022 ; State v. Sales, 2 Nev. 268. * Supra, § 729. 5 Harwell v. State, 10 Lea, 544 ; Gandy v. State, 13 Neb. 445. ^ See 5 Crim Law Mag. 484. ' 4 Bl. Com. (Wend, ed.) 283 et seq. ; U. S. V. Wayne, Wall. C. C. 134; Smethurst, in re, 2 Sandf. 724; see Dnrant v. Wash. Co., 1 Woolw. 377 ; Com. V. Snowdon, 1 Brewst. 218. 8 People V. Kelly, 24 N. Y. 75. s See Middlebrook v. State, 43 Conn. 257. 683 § 969.] PLEADING AND PRACTICE. [chap. XX. Otherwise as to con- tempts not in face of court. § 968. For contempts not in facie curiae a rule to show cause is necessary ;' and afiBdavits must be produced^ to prove the inculpatory facts, in all cases in which the proceeding is not based on a return of record by the proper officer.' The defendant then, and not till then, is called upon to purge himself from the contempt.^ § 969. The process, in the hearing, on the question of purging, is inquisitorial, in so far that it calls upon the defendant may be In- to purge himself from the contempt. If disrespect is quisitona . ^ig^vowed Or apologized for, and reparation, in proper cases, made, then the punishment is mitigated, or made nominal, on payment of costs.' Evidence contradicting that of the party purging himself cannot at common law, be received, his answers being conclusive f though he may in such evidence expose himself to an indictment for perjury.'^ In equity process, however, the answers so made may be contested. • That notice is essential, see State v. Matthews, 37 N. H. 450 ; Langdon, ex parte, 25 Vt. 680 ; Sommersett v. Lellers, 2 Halst. 31. This question is elaborately discussed in 5 Crim. Law Mag. 472 et seq. 2 Judson, in re, 3 Blatoh. 148 ; Daves, in re, 81 N. C. 72 ; State v. Blackwell, 10 S. C. 35 ; see 5 Crim. Law Mag. 485. In some States au affidavit is an essential prerequisite. Batchelder u. Moore, 42 Cal. 412 ; Phillips v. Welch, 13 Nev. 158. 5 R. V. Elkina, 4 Burr. 2129 ; State V. Aokerson, 25 N. J. L. 209 ; Wright, ex parte, 65 Ind. 504, 508. * R. V. Onslow, 12 Cox C. C. 358 ; R. V. Skipworth, 12 Cox C. C. 371 ; R. o. Lefroy, L. R. 8 Q. B. 134 ; Judson, in re, 3 Blatoh. 148 ; Lee v. Chadwick, 11 Int. Rev. Rec. 133 ; Stanwoodu. Green, Ibid. 134 ; 3 Am. Law T. Rep. 133 ; Hollingsworth v. Duane, Wall. C. C. 141 ; Whittem v. State, 36 Ind. 196 ; McConnell v. State, 46 Ind. 298 ; Burke 684 V. state, 47 Ind. 528 ; Batchelder v. Moore, 42 Cal. 412 ; see Whart. Crim. Ev. § 350. That the party accused is entitled to be heard, see, farther, 5 Crim. Law Mag. 514 ; State v. Judges, 32 La. Au. 1256 ; £ilgore, ex parte, 3 Tex. Ap. 247. * See, as illustrating practice, R. o. Onslow, 12 Cox C. C. 358 ; Beebee, ex parte, 2 Wall. Jr. 127 ; U. S. v. Schol- field, 1 Cranch, 130 ; Davis v. Sherron, 1 Cranch, 287 ; People v. Few, 2 Johns. R. 290 ; McDermott v. State, 10 N. J. L. 63. 6 R. f. Vaughan, Dougl. 516 ; Pit- man, in re, 1 Curt C. C. 186 ; Buck v. Buck, 60 111. 105 ; Haskett v. State, 51 Ind. 176. Biggs, ex parte, 64 N. C. 202 ; though see contra, State v. Mat- thews, 37 N. H. 450 ; Henry u. Ellis, 49 Iowa, 205. As to the rule of evi- dence, see Bates's case, 55 N. H. 325 ; U. S. t!. Dodge, 2 Gall. 313. ' U. S, V. Dodge, tit sup. CHAP. XX.] CONTEMPT. [§ 972. VI. PUNISHMENT. § 970. Where, as in the case of a witness not attending through inadvertence, no contempt is intended, and the offence is . Court may purged, the court may sentence simply to payment ot fine and costs, and require recognizances for good behavior.' '™P"^°°- The court has power, however, as has been seen, to fine and im- prison, and to imprison until the fine be paid -^ and in case of attor- neys, to strike their names from the roll, or suspend them for a fixed period.' No bail, after commitment, it has been said, can be received ;^ but this must be qualified by the position that the court can order bail for good behavior as a substitute for commitment." § 971. A commitment for contempt, when imposed as a punish- ment, must be for a fixed period ; otherwise it is void. C(,mn,it. It is otherwise, however, when the commitment is to mentmust be for enforce a particular duty (e. g., to testify), in which Axed case the imprisonment may be directed to continue until ^^"° ' the duty be performed.' § 972. The fine goes to the State ; not to any party injured.^ But it seems that to the fine may be added to the plain- tiff's counsel fees and costs incurred in resistance of the fo"g^t^e!^ application.' 1 U. S. V. Caton, 1 Cranch, 150. As case, 26 Penn. St. 23 ; Com. v. Small, to practice in respect to perjury, see Ibid. 42. Brinkley v. Brinkley, 47 N. Y. 40 ; ' Mullee, in re, 7 Blatch. C. C. 23 ; Wells V. Com., 21 Grat. 500. Rhodes, in re, 65 N. C. 518 ; Morris o. 2 Crittenden, ex parte, 62 Cal. 534. Whitebead, 65 N. C. 637. » Stephens a. Hill, 10 M. & W. 28 ; " Doubleday v. Sherman, 8 Blatch. Smith V. Matham, 4 D. & R. 738. See C. C. 45. supra, § 953. Under the federal statutes the court * Kearney, ex parte, 7 Wheat. 38 ; imposing a fine for contempt will not hut this rests on the limited appellate remit it, this being solely a matter be- power of the U. S. Supreme Court. longing to the pardoning power, until ^ See U. S. V. Caton, m« supra; People the executive, on being appealed to, V. Bennett, 4 Paige, 282. See U. S. w. finally refuses to exercise jurisdiction Atchison, etc. R. R., 16 Fed. Rep. 853; over the matter. Mullee, in re, 7 Childrens v. Saaby, 1 Vernon, 207 ; Blatch. 23 ; 3 Op. Atty.-Gen. 622 ; 4 Magennis v. Parkhurst, 4 N. J. Eq. Ibid. 458 ; 5 Ibid. 579. See Kearney, 433. ex parte, 7 Wheat. 38. ^ Supra, §§ 70 et seq.; Williamson's 685 § 974.] PLEABIN6 AND PKACTICE. [chap. XX. VII. CONVICTION ON SAME FACTS NO BAR TO PROCEEDINGS FOR CONTEMPT, AND SO OF CONVERSE. §973. Contempt not barred by other procedure. Contempt is not barred by other procedure, based on injuries inflicted by the contemptuous act on third parties,* the reason being" that the personal injury and the con- tempt having different juridical relations., each with a distinct penalty, have distinct punishments.* VIII. APPEAL, ERROR, AND PARDON. § 974. From the high and extreme prerogative that commitment fdr contempt involves, it is right that when exercised by an inferior court it should be the subject of revision by a superior court, whenever the record can be removed or the issue in any way transferred, either in the way of appeal, or by writ of error. Such is the sound opinion ;' though where there is no statutory mode of revisal, and the record does not show the facts, the attempt thus to review must necessarily fail.^ Yet, where there is no process of appeal, the inferior court may be restrained from proceeding by injunction or prohibition.' When on record process maybe revised in error. 1 Supra, § 444. 2 See State v. Woodfin, 5 Ired. 199 ; State V. Williams, 2 Speers, 26 ; and see Mlddlebrook v. State, 43 Conn. 267, for case of modification of sentence. ' Langdon, ex parte, 25 Vt. 680 ; Clarke v. May, 2 Gray, 410 ; Yates, ex parte, 6 Johns. R. 337 ; Albany Bk. V. Sohermerhiorn, 9 Paige, 372 ; People V. Kelly, 24 N. Y. 74 ; Pitt v. Davison, 37 N. Y. 235 ; Hummell, in re, 9 Watts, 416 ; Com. v. Newton, 1 Grant, 453 ; Bait. & 0. E. R. v. Wheeling, 13 Grat. 40 ; Summers, ex parte, 5 Ired. 149 ; Cabot v. Yar- borough, 27 Ga. 476 ; Biokley v. Com., 2 J. J. Marsh. 572 ; Stuart v. People, 3 Scam. 395 ; Jilz, ex parte, 64 Mo. 205 ; Eowe, ex parte, 7 Cal. 175 ; Jordan v. State, 14 Texas, 436 ; 686 Gandy v. State, 13 Neb. 445. Compare Whittem v. State, 36 Tnd. 196, where this view is ably vindicated (though see Burke v. State, 47 Ind. 528); Stokely v. Com., 1 Va. Cas. 330; How- ard V. Durand, 36 Ga. 346, where It is said there is an appeal for abuse of discretion. In People v. O'Neill, 47 Cal. 109, it was held that the action of the court below was always reversible for want of jurisdiction. * See, for cases of this, Kearney, ex parte, 7 Wheat. 38 ; Cooper, in re, 32 Vt. 258 ; Maulsby, ex parte, 13 Md. 625 ; Gates v. McDaniel, 4 Stew. & P. 69 ; Adams, ex parte, 25 Miss. 883 ; State V. Thurmond, 37 Tex. 340. 6 R. V. Lefroy, L. E. 8 Q. B. 134, cited fully supra, § 963, note. CHAP. XX.] CONTEMPT. [§ 975. § 974 a. Commitments for contempt cannot ordinarily be reviewed by a coordinate court on habeas corpus:^ though it is When by held that a federal court may review on habeas corpus habeas such a commitment by a State court, when in violation of '""■^"'• a federal statute or constitutional sanction.^ \ 975. Pardon, it has been already noticed, has been held not to release from imprisonment for contempt, though the pardou better opinion is to the contrary.^ It should be added ^oesnot '■ •' usually that the right to pardon and remit has been claimed, in release, contempts committed in the federal courts, by the President of the United States.^ 1 People V. Jacobs, 66 N. Y. 8 ; Haines ^ Infra, §§ 981, 991. V. Haines, 35 Mich, 138 ; Shattuok v. ' Supra, § 530. State, 51 Miss. 50; State u. Beaton, 61 * See remarks of Blatohford, J., 7 Iowa, 563. But see more fully, infra, Blatch. 25 ; and see State v. Sauvinet, § 999. 24 La. An. 119. Supra, § 530. 687 § 978.] PLEADING AND PKACTICE. [chap. xxr. CHAPTER XXI. HABEAS CORPUS. Writ available at any stage of imprison- ment, § 978. Cannot be suspended by President or governor, § 979. State court cannot discharge from federal arrest, § 980. Federal courts may review State arrests, §981. Petition to be verified by affidavit, § 983. Maybe applied for by next friend, § 983. To be directed to custodian and to be served personally, § 984. Notice to be given to prosecution, § 985. Writ not granted when relator should be remanded, § 986. Relator, if in custody, must be produced immediately in court, § 987. Causes of detention must be returned, §988. Return must not be evasive, § 989. Writ to be enforced by attachment, § 990. Return may be controverted, § 991. Discharge from defects of process ; and so in cases of oppression, § 993. Writ may test extradition process, § 99-S. Writ may obtain redress from void sen- tence, § 994:. but cannot overhaul indictment or matters within province of trial court, § 995. cannot collaterally correct errors, § 996. nor interrupt hearings, § 996 a. Military judgments cannot be thus re- viewed, § 997. Nor summary police convictions, § 998. Nor committals for contempt, § 999. Court determines questions of fact, ■ § 1000. Probable cause enough, § 1001. Evidence not excluded on technical grounds, § 1003. Remitting evidence and record by cer- tiorari, § 1003. Affidavits may be received, § 1004. No discharge for technical defects or variance, § 1005. Discharge from pardon or limitation, § 1006. Discharge from want of probable cause : adjustment of bail, § 1007. Judgment must be discharge or re- mander, § 1008. During hearing custody is in court, § 1009. No writ of error at common law ; pro- ceedings in error, § 1010. How far discharge afiects subsequent arrest, § 1011. § 978. The writ of habeas corpus, while the first, is also the last process to which an arrested person can resort for the purpose of having his case tested by a court of justice ; and a brief summary of the law in this relation may not improperly close the present volume. The writ is one of the high prerogatives of the people as a sovereign, and its object is to enable any person within the territorial limits of the State, alien or subject, no matter what may be the disabilities or infamy under Writ avail- able at any stage of imprison- ment. CHAP. XXI.] HABEAS CORPUS. [§ 979, which he labors, to obtain at any period the judgment of a judicial tribunal as to the legality of an imprisonment in which he may be detained. The origin and history of the statute providing this writ, however, are beyond our present province ; and it is equally out of our range to discuss the cases in which the writ may be used to obtain adjudications on the lawfulness of custody other than that imposed by criminal process. To the writ as a mode of obtaining relief from an arrest under a criminal charge our attention must be confined.' § 979. It is not within the constitutional power of the President of the United States to suspend the operation of the „, ., ■^ _ ' _ _ Writ can- writ, or to authorize such suspension by a military officer, not be eus- The prerogative of suspending the writ belongs exclu- President'^ sively to Congress.* Nor is this function vested in the °rnf°^" 1 That the right is by common law see Besset, in re, 6 Q. B. 481. To the same effect is Lord Mansfield's speech in the House of Lords, June, 1758 ; Campbell's Chief Justices, ii. 453 ; and Taney, C. J., in Merryman's case, in- fra. Merryman's case is reviewed in 9 Am. Law Reg. 705. Compare 1 Pome- roy's Arohbold, 199 et seq.; 22 Am. Law Rev. 149. That the petitioner must be in custody, see Cole, ex parte, 14 Tex. Ap. 579. * Merryman, ex parte, Taney, 246 ; Benedict, in re. Hall, J., Pamph. N. Y. 1862; McCall v. McDowell, 1 Abb. U. S. 212 ; Mcauillon, ex parte, 1 West. L. Month. 440 ; 9 Pitts. L. J. 29 ; Grif- fin V. Wilcox, 21 Ind. 370; Kemp v. State, 16 Wis. 359, See Field, ex parte, 5 Blatch. 63 ; Dunn, in re, 25 How. Pr. 467. That the writ is not barred, though proceedings on it are stayed by the suspension, see Milligan, ex parte, 4 Wall. 2. The suspension in any view is not affected by an order of the war depart- ment. Field, ex parte, ut sup. On the topic in the text the follow- ing pamphlets may be consulted : — (1.) The Opinion of U. S. Atty.-Gen. 44 on the Suspension of the Writ of Ha- beas Corpus. Wash. 1861. (2.) Habeas Corpus and Martial Law. By Joel Parker. 1861. Judge Parker here argues that in times of war, "whether foreign or domestic, there may be justifiable refusals to obey the command of the writ, without any act of Congress, or any order or authoriza- tion of the President, or any State leg- islation for that purpose." This, how- ever, does not arise from the President's power to suspend the writ, which he cannot constitutionally do, but from the coordinate jurisdiction of the mili- tary authorities. (3.) The Privilege of the Writ of Habeas Corpus under the Constitution. By Horace Binney. Second edition. Philadelphia : C. Sherman & Son. 1862. In this pamphlet Mr. Binney holds that there is nothing in the con- stitutional clause " which either di- rectly or by any fair or reasonable implication gives or confines this au- thority (that of suspension of the writ) to Congress, or takes it from the exe- cutive" (p. 31) ; and an elaborate reply is attempted to Chief Justice Taney's opinion in Merryman's case. 689 § 979.] PLBADIN& AND PRACTICE. [chap. XXI, governor of a State, under a constitution giving the governor to suppress insurrections.^ power A " second part" to the same pamphlet was published by Mr. Binney in the same year, the object of this publica- tion being to " confront a doctrine of certain writers that the habeas corpus clause in the Constitution does not give power to anybody to suspend the privi- lege of the writ, but is only restrictive of the otherwise plenary power of Congress." This pamphlet is a reply to the answers which Mr. Binney's first pamphlet drew forth. (4.) The Law of War and Confisca- tion. By S. S. Nicholas. Louisville, 1862. (5.) Review of Binney on the Ha- beas Corpus. By J. C. Bullitt. Phil- adelphia, 1862. (6.) Remarks on Mr. Binney's Trea- tise. By George M. Wharton. Phila- delphia, 1862. (7.) Reply by Mr. Wharton to Mr. Binney's Criticisms. In these pam- phlets the position that the President has no right, on his own motion, to suspend the writ, is sustained with great force. It is not, at the same time, claimed that a return by a military officer in time of war, that the relator is in military custody, is not a sufficient discharge. (8.) Personal Liberty and Martial Law. Philadelphia, 1862. By Ed- ward IngersoU. (9.) Habeas Corpus. By D. A. Ma- honey, Prisoner of State, 1863. (10.) The Suspending Power and the Writ of Habeas Corpus. By James F. Johnson. Philadelphia, 1862. (11.) Martial Law : What is it, and who can declare it ? By Tatlow Jack- son. Philadelphia, 1862. (12.) Authorities cited Antagonistic to Mr. Binney's Conclusions. By Tat- low Jackson. Philadelphia, 1862. (13.) Judge Curtis on Executive Power ; reprinted 2 Curtis's Works, 309. Compare 1 Curtis's Life, 240, 349. (14.) Judge Leavitt's Decision in Vallandingham's case. Pamph. Phil- adelphia, 1863. (15.) Opinions of Foiyiders of Re- public on Habeas Corpus, etc. Wash- ington, 1864. (16.) Facts and Authorities on the Suspension of the Writ of Habeas Cor- pus, 1864. Anon. The following conclusions may now be ventured on the topics discussed in the^oregoing publications : — First. The President of the United States has no constitutional power to suspend the writ of habeas corpus. Second. On the return by a general military officer, in time of war, that he holds the relator either as a mili- tary subordinate, or as a spy, or as a deserter, or as a prisoner of war, an attachment should be refused. Infra, §996. Third. When a person, not in mili- tary service, or a prisoner of war, or charged with being a spy or deserter, is arrested by any authority whatso- ever, he should be discharged by a federal judge on habeas corpus, unless there is evidence produced against him at the hearing sufficient to justify an indictment to be found against him by a grand jury. See Milligan, ex parta, 4 Wall. 3. Fourth. If the return be that the relator is held under federal authority, 1 Moore, ex parte, 64 N. C. 802. see Martin, in re, 45 Barb. 142. 690 As to restoration of writ by proclamation. CHAP. XXI.] HABBiS CORPUS. [§ 980. § 980. The writ cannot, be used by a State court for the purpose of revising arrests under federal process.^ Hence, it is the duty of the revision by a writ of habeas corpus is vested exclusively in the federal courts. Infra, §§ 980, 990. According to Judge Curtis, " Mili- tary law is that system of laws enacted by the legislative power for the gov- ernment of the army and navy of the United States, and of the militia when called into the actual service of the United States. It has no control what- ever over any person or any property of any citizen. It could not even apply to the teamsters of an army save by force of express provisions of the laws of Congress making such persons amen- able thereto. The persons and pro- perty of private citizens of the United States are as absolutely exempted from the control of military law as they are exempted from the control of the law® of Great Britain. But there is also martial law. What is this 1 It is the will of a military commander operat- ing without any restraint, save his judgment, upon the lives, upon the property, upon the entire social and individual condition of all over whom this law extends In time of war, without any special legislation, not the commander-in-chief only, but every commander of an expedition or of a military post, is lawfully empow- ered by the Constitution and laws of the United States to do whatsoever is necessary to accomplish the lawful ob- jects of his command But when the military commander controls the persons or property of citizens who are beyond the sphere of his actual opera- tions in the field, when he makes laws to govern their conduct, he becomes a legislator He has no more law- ful authority to hold all the citizens of the entire country, outside of the sphere of his actual operations in the field. amenable to his military edicts, than he has to hold all the property of the country subject to his military requi- sitions." 2 Curtis's Life and Works, 327. Compare authorities cited in Law- rence's Wheaton, 516-520, as to dis- tinction between martial and military law, and the right to suspend the writ of habeas corpus. Between martial law and military law the distinction is this : Martial law is the law adopted by civ- ilized belligerents in matters connected with army discipline ; military law is the law a conqueror imposes in a subjugated province to determine matters of State. See Whart. Com. Am. Law, §§ 37, 38 ; Mason, ex parte, 105 U. S. 696. Infra, § 979. See, also, Waters v. Campbell, 5 Sawyer, 17. Mr. Sumner, in his speech of June 27, 1862, took the ground that the power of Congress in this relation was supreme. ' Ableman v. Booth, 21 How. 506 ; Tarble, in re, 13 Wal. 397 (Chase, C. J., diss.) ; Farrand, in re, 1 Abb. U. S. 140 ; Farrand v. Fowler, 2 Am. L. T.'(U. S. Ct.) 4; Ferguson, in re, 9 Johns. 239 ; State v. Zalich, 29 N. J. L. 409 ; State v. Plime, T. U. P. Charlt. 142 ; Spangler, in re, 11 Mich. 298 ; Tar- ble, in re, 25 Wis. 390 ; Hill, ex parte, 5 Nev. 154; Kelly, ex parte, 37 Ala. 474 ; see Church on Habeas Corpus, §§ 83 ff. 'for a discussion of Booth's case. That it is for the State court to deter- mine whether the federal arrest is legal has been ruled in State v. Dimick, 12 N. H. 194 ; Com. v. Downes, 24 Pick. 227 ; Sims, in re, 7 Cush. 285 ; Bar- rett, in re, 42 Barb. 479 ; Com. o. Pox, 7 Penn. St. 336 ; Dougherty v. Biddle, Bright. 4 ; Lockington, in re. Bright. 269 ; Collier, in re, 6 Ohio St. 55 ; Bush- nell, ex parte, 9 Ohio St. 78 ; Com. 691 § 980.] PLEADING AND PKACTICB. [chap. XXI. State court cannot dis- charge per- son under federal arrest. a federal marshal, in whose custody may be a person arrested under federal process, to refuse obedience to any writ command- ing him to bring the prisoner before a State court ; and he is authorized to call to his aid any force necessary for this purpose.* At the same time, in order to justify a refusal of an attachment on this ground, it must ap- pear on the return that the prisoner is held under an arrest duly authorized by the proper federal authority. But the mere fact that a party is arrested ostensibly under the Constitution and laws of the United States — e. g., as in cases of interstate fugitives — does not necessarily oust the jurisdiction of the State courts when the prisoner is found in such jurisdiction.^ t;. Wright, 3 Grant's Cas. 437; Com. V. Gane, 3 Grant's Cas. 447. In New York, the jurisdiction is maintained in People v. Gaul, 44 Barb. 106 ; Martin, in re, 45 Barb. 143 ; Webb, in re, 24 How. Pr. 247 ; Ben- nett, in re, 25 How. Pr. 149 ; but is denied in Hobson, in re, 40 Barb. 62 ; O'Connell, in re, 48 Barb. 259 ; People V. Fiske, 45 How. Pr. 294. Concurrent jurisdiction in State courts is asserted In McConologue, in re, 107 Mass. 172 ; McRoberts, ex parte, 16 Iowa, 600 ; Holman, ex parte, 28 Iowa, 89 ; Ohio, etc., R. R. v. Fitch, 20 Ind. 605. But In a note to McConologue, in re, which was decided prior to the report of Tarble's case, it is stated by the re- porter that the Massachusetts practice now conforms to the rule in Tarble's case, ousting the State courts of their jurisdiction. The same course was taken in New York in Macdonnell's case in 1873 (11 Blatch. 79). See re- marks of Davis, J., quoted in the 8th ed. of this work, § 980 ; People v. Fiske, 45 How. Pr. 294. For a discussion of this topic see Whart. Crim. Law, 9th ed. § 267. The relation of federal and State courts as coordinate powers is discussed 692 supra, §§ 441 et seq., and more fully in Whart. Crim. Law, 9th ed. §§ 264- 283, 287 et seq. In ex parte Virginia, 100 U. S. 339, where the relator, a State judge of Vir- ginia, was indicted for excluding col- ored citizens from a jury on account of race, color, and previous condition of servitude, his petition for a writ of habeas corpus was denied. The relator argued that his act was judicial under State laws, and not amenable to the federal jurisdiction or laws. The court held I that the act providing for the punishment of officers who exclude cit- izens from the jury on account of race or color is constitutioual ; that relator's act in selecting jurors was ministerial and not judicial ; and that although he derived his authority from the State, he was bound, in the discharge of his duties, to obey the federal Constitution and laws. Mr. Justice Strong delivered the prevailing opinion ; Mr. Justice Clifford and Mr. Justice Field, dissent- ing. 21 Alb. L. J. 182. ' Ableman v. Booth, 21 How. 506 ; Tarble, in re, 13 Wall. 397 ; Norris i>. Newton, 5 McLean, 92 ; Robinson, ex parte, 6 McLean, 355. s Robb V. Connelly, 111 U. S. 624; supra, § 37 a. CHAP. XXI.] HABEAS COEPUS. [§ 981. § 981. On the other hand, the writ may issue from a federal court to relieve a person under arrest by process from a State court or a State magistrate, when such arrest is in alleged violation of the Constitution or laws of the United States.* It has also been held that a federal judge may release on habeas corpus a person committed by a State court for Federal courts may review State ar- rests. I U. S !). Jailer of Fayette Co., 2 Abb. U. S. 265 ; Royall, ex parte, 117 U. S, 241, 254. See note in 23 Cent. L. J, 15 ; Bridges, ex parte, 2 Woods, 428 Sifford, ex parte, 5 Am. L. Keg. 659 Jenkins, ex parte, 2 Wall. Jr. 521 Farrand, in re, 1 Abb. U. S. 140 Ho Al^ Kow V. Numan, supra, § 920 Thompson, ex parte, 1 Flip. 507 MoCready, ex parte, 1 Hughes, 598 Hanson, ex parte, 28 Fed. Kep. 127 Brosnahan, matter of, 4 McCr. 1 Wong Yung Quy, in re, 6 Sawy. 237 Lee Tong, in re, 5 Crim. Law Mag. 67 Parrott's case, 6 Sawy. 376 ; Ah Lee, 6 Sawy. 410 ; the three last being oases of alleged imprisonment " without due process of law," in contravention of the 14th Amendment. In Spink's case, 19 Fed. Rep. 631, it was held that the writ could issue to relieve pilots from arrest. See Buell, in re, 3 Dill. 116 ; Kenyon, ex parte, 5 Dill. 355. Similar adjudications were made by federal judges releasing parties impris- oned under State laws for executing the federal fugitive slave law statute. Among these cases may be noticed Rob- inson, ex parte, 6 McL. 365, charge of Nelson, J., in 1 Blatoh. 365 ; Robinson, ex parte, 1 Bond, 39 ; Jenkins, ex parte, 2 Wal. Jr. 521, 539 ; SiflFord, ex parte, 5 Am. Law Reg. 0. S. 659 ; Peter, in re, 2 Paine, 348. See analysis of cases in Church on Habeas Corpus, §78. ' In In re Wong Yung Quy, 6 Sawy. 237, it was held that a federal court may, upon habeas corpus, inquire into the validity of a judgment of a State 693 court, where in the petition it is alleged that the judgment, by virtue of which the relator is held in custody, rests upon an act of the legislature passed in violatipn of the provisions of the fed- eral Constitution or of a treaty of the United States. See Quong Woo, in re, 7 Sawy. 521. In Clarke, ex parte, 100 U. S. 399, Beasley, J., said: "A justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great mo- ment and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did. It had merely the effect of making the application for a discharge one addressed to the court, instead of one addressed to a single justice." See Kaine'scase, 14 How. 103. "Of course, under our system, no justice will need- lessly refer a case to the court when he can decide it satisfactorily to himself, and will not do so in any case in which injury will be thereby incurred by the petitioner. No injury can be com- plained of in this case, since the peti- tioner was allowed to go at large on reasonable bail." The right is not aflFected by a prior habeas corpus issued from a State court. Leary's case, 6 Abbott (N. Y.), N. C. 43 ; 10 Ben. 197. § 982.] PLEADING AND PRACTICE. [CHAP. XXI. contempt in disobeying its orders, when such orders are in contra- vention of the federal Constitution and statutes.^ Whether a federal judge will discharge a party under arrest under State process, on ground of conflict of such process with the federal Constitution, is a matter of discretion which will not be exercised when there is an opportunity, after conviction, to take a writ of error to the State court, and then to the Supreme Court of the United States.* But for a matter relating solely to State jurisdiction, the federal courts have no power of review through this writ ;* and, as a general rule, writ of error and not habeas corpus is the proper process to determine the question how far a prosecution in a State court is in conflict with the federal Constitution.^ In any view,^the petitioner's guilt or innocence of charges, of which a State court has jurisdiction, can- not be considered on a habeas corpus issued by a federal judge." § 982!. The petition should state the facts on which the charge of illegal restraint rests ;' and, when the object is to attack a particular commitment, should give a copy of such com- mitment.' If the object be to discharge on bail, this object should be stated.' The facts of the petition are usually verified by affidavit ;' though this is not required Petition should state facts and be veri- fied by affidavit. 1 Electoral College, in re, 1 Hughes, 571 ; Turner, ex parte, 3 "Woods, 603 ; Spink, in re, 19 Fed. Eep. 631 ; and cases infra, § 999. As to habeas corpus in United States courts, see note by Judge Thompson, 18 Fed. Rep. 70 ; and see 2 Kan. L. J. 223 ; 20 Cent. L. J. 169. 2 Royall, ex parte, 117 U. S. 241, 254 ; Fonda, ex parte, 117 U. S. 616 ; Coy, in re, 127 U. S. 731. See Ex parte Hung Hung, 108 TJ. S. 552. As to writ of error in such cases, see supra, § 1010. 3 Dorr, ex parte, 3 How. 103 ; U. S. V. Rector, 5 McLean, 174 ; U. S. v. French, 1 Gall. 1 ; De Kraft v. Barney, 2 Black U. S. 704 ; U. S. v. Kinney, 3 Hughes, 9 ; Reynolds, ex parte, 3 Hughes, 559. * Infra, § 996 6; Royall, ex parte, 117 U. S. 241, 254 ; Fonda, ex parte, 117 U. S. 516 ; Coy, in re, 127 U. S. 731. See Siebold, ex parte, infra, § 995 ; In 694 re Wong Yung Quy, supra ; Virginia, ex parte, 100 U. S. 339 ; Clarke, ex parte, 100 U. S. 399 ; McKean, ex parte, 3 Hughes, 23. 5 Siebold, ex parte, 100 U. S. 374 ; Crouch, ex parte, 112 U. S. 178. 5 Nye, ex parte, 8 Kans. 99 ; Deny, ex parte, 10 Nev. 212 ; Allen, ex parte, 12 Nev. S7 ; though see, as adopting a less stringent rule. White v. State, 1 Sm, & M. 149. As to New York prac- tice, see People v. Cowles, 59 How. Pr. 287 ; and see, generally, Church on Habeas Corpus, chapters 8 and 9. ' Harrison, in re, 1 Cranch C. C. 159 ; Klepper, ex parte, 26 111. 532 ; Royster, ex parte, 6 Ark. 28 ; but see Champion, ex parte, 52 111. 311. 8 Street v. State, 43 Miss. 1. 9 1 Ch. C. L. 124 ; 3 Black. C. 132 ; People V. Bartnett, 13 Abb. N. Y. Pr. 8 ; State v. Philpot, Dudley S. C. 46 ; Gibson v. State^ 44 Ala. 17. CHAP. XXI.] HABEAS CORPUS. [§ 985. by the Act of 31 Charles II. In this country the practice varies with local statutes ; it being sufficient, when no specific facts are alleged, for a petition in writing, attested by witnesses, to be filed.' And in any view an affidavit by the relator is not required when it is shown that he is so coerced as to be unable to make one.* § 983. It is not necessary that the party imprisoned should sue for the writ in person. The application may be made ^ ^^ . by husband or wife, parent or child, or by any other ap- next propriate friend or agent.' A mere stranger, however, having no natural or legal claim to appear for the prisoner, will not be permitted to intervene.* And there may be cases in which coun- sel may be called upon by the court to make the affidavit.* § 984. The writ is to be personally served and due proof made of service, in order to iustify an attachment.' But personal „ , . , , . , Writ to be service may be waived by acceptance, either express or directed to ,. 17 custodian, imphed.' and to be When the prisoner is under sentence, the writ is to be served per- directed to the officer having him in custody.' And gene- rally the custodian is the person to whom the writ should be di- rected.' During the hearing the relator is in charge of the special officer deputed by the court.'" § 985. Due notice of the issue of the writ and of the hearing must be given, in criminal prosecutions, to the prosecu- j^g^^g ting officer of the State having jurisdiction of the oifence." must be In matters concerning military service, the notice must prosecu- be given to the proper military officer.'* '°"' 1 BoUman, ex parte, 4 Cranch C. C. 75. s Parker, in re, 5 M. & W. 32. 3 Daly, in re, 2 F.- & F. 258 ; R. v. Clarke, 1 Bnrr. 606 ; Gregory's case, 4 Burr. 1991 ; Ferrans, in re, 3 Ben. 442 ; People V. Mercian, 3 Hill (N. Y.), 399 (parent for child) ; Com. v. Downs, 24 Pick. 227 ; Com. v. Hammond, 10 Pick. 274; McConologue's case, 107 Mass. 154. See Thompson v. Oglesby, 42 Iowa, 598. * Child, ex parte, 15 C. B. 238 ; Poole, in re, 2 MoArthur, 683 ; Linda V. Hudson, 1 Cush. 385. 6 Newton, in re, 16 C. B. 97. 6 See infra, § 990. ' People V. Bradley, 60 111. 390. - 8 People V. HeflFerman, 38 How. N. Y. Pr. 402. ' Nichols V. Cornelius, 7 Ind. 611 ; Booth, in re, 3 Wis. 1. B Infra, § 1009. " R. V. Taylor, 7 D. & R. 622 ; Smith, ex parte, 3 McLean, 121 ; People v. Pel- ham, 14 Wend. 48 ; Lumm v. State, 3 Ind. 293. '2 Gale, ex parte, 3 D. & L. 114. 695 § 989.] PLEADING AND PRACTICE. [CHAP. XXI. § 986. When it is clear that there is no ground for the discharge, the writ will not be granted. " The ordinary course," granted says Shaw, C. J., " is for the court to grant a rule nid, lator ^^ '" ^^^ ^"^^^ i'lstance, to show cause why the writ should should he not issue. Of course, if sufficient cause is not shown, it will be withheld."' But in all cases in which by statute the issue of the writ is obligatory, the order for its issue must be made at once ; and it may also be made without a rule to show cause in all cases of urgency.^ And when the question comes up on a rule nisi, the case will be treated by the court as if coming up upon the writ.* § 987. It is the duty of the person to whom the writ is ad- Reiator dressed to produce the party imprisoned immediately produced ^^ court. The time, however, may be enlarged in immedi- cases of sickness or other incapacity.* In such case the ately in . ,, , , court. But sickness must be specially returned, and verified by the caus"^for affidavit of a medical attendant or nurse." delay. ^ ggg^ ^ jg jjot enough for the respondent to bring Cause of the body of the relator into court. The cause of the de- must be tention must be returned.^ If the detention be based on returned. ^ commitment, a copy of the commitment, if not filed with the petition, must be produced.' Whatever facts are necessary to justify the detention must be set forth in the return.* But it is enough if the facts are set forth with ordinary certainty.' § 989. If the body of the relator is not produced, on the ground If bodvbe ^^^ '^® ^^ '^°'' ^° ^^ respondent's custody, the return, in not pro- order to protect the respondent from an attachment, cuee must- must be explicit in its denial. If it deny that the re- sive!'^^^*' Is'tor was in the respondent's control, the denial must be ' Sims's case, 7 Cush. 285 ; citing ^ Kent, C. J., Stacy, in re, 10 Johns. Blake's case, 2 M. & S. 428; R. v. 328. Marsh, Bulstr. 27 ; Hothouse's case, 3 ' Bull, ex parte, 8 Jur. 827 ; 15 L. B. & Aid. 420. See, to the effect that J. Q. B. 235. a writ will not be granted if nugatory, * R. v. Clarke, 3 Burr. 1362. Kearney, ex parte, 7 Wheat. 38 ; Com. * See Bryant, ex parte, 2 Tyler, 269. «. Robinson, 1 S. & R. 353 ; William- = See Mowry, in re, 12 Wis. 52. son's case, 26 Penn. St. 9 ; Bethuram ' Randall v. Bridge, 2 Mass. 549. v. Black, 11 Bush. 628 ; Campbell, ex * Yates's case, 4 Johns. 317. parte, 20 Ala. 89 ; Gregg, in re, 15 Wis. « Eden's case, 2 M. & S. 226. 179 ; Deny, ex parte, 10 Nev. 212. Whether return must be sworn to, See Ex parte Lange, 18 Wall. 163. see Neill, in re, 8 Blatch. 156. CHAP. XXI.] HABEAS CORPUS. [§ 990. square and direct.' It has been held insuiBcient for the respon- dent to return, " I had not at the time of receiving this writ, etc., nor have I since had, the body, etc., detained, in my custody."* " The general form," said Grose, J., " is that the party has not the person in his possession, custody, or power."' And it was held by Chancellor Kent that a return, that the relator " is not in my custody," is evasive; it should be, is not in my "possession or power."* The return must show that at the time of the notice of the writ the relator was not in the power or custody of the respon- dent. ° A return, however, may be amended, after filing, at the discretion of the court.* And when ambiguous, it may be explained and supported by affidavits.' But when the return is explicit in denying custody or power of the relator, and is not impugned, the writ should be quashed.* And so when the return avers that the relator had been relieved from custody by giving bail.' § 990. In case the party addressed delays obedience to the writ within three days (to persons resident within twenty miles), according to the statute of Charles II., an attach- ^fOTced"^ ment will, on application, be granted to compel obedi- ^y attach- ence, without issuing an alias and a pluries writ,'" on affidavit of service being made.'' If the services of the attachment is resisted by superior force, the writ will be placed on the files of the court to be served when practicable.'* ' R. V. Winton, 5 T. R. 89. See United States v. Jenkins, 18 Johns, Church on Habeas Corpus, §§ 120 ff. 152 ; State v. Raborg, 2 South. 645 ; 2 R. V. Winton, 5 T. R. 89. Com. v. Reed, 69 Penn. St. 425 ; People 3 See Warman's case, IW. Bl. 1204; v. Bradley, 60 111. 390. U. S. u. Davis, 5 Cranch C. C. 622. " State u. Raborg, 2 South. 545. * Stacy, in re, 10 Johns. 328. Supra, § 984. ' R. o. Wagstaff, Viner's Abr. Hab. That attachment will not be issued, Cor. F. ; Kurd's Hab. Corp., book ii., in extradition process, by State judge c. iiii against federal marshal, see Maodon- ^ R. V. Batchelder, 1 P. & D. 516; nell, in re, Davis, J., reported in note Watson's case, 9 A. & E. 731. to same case, 11 Blatch. 79 ; cited more ' R. V. Roberts, 2 F. & F. 292. fully supra, § 980. 8 Com. V. Kirkbride, 1 Brewst. 541 ; 12 Merryman, ex parte, Taney, 246 ; Com. V. Killacky, 3 Brewst. 565. Winder, ex parte, 2 Cliff. 89. See ' Territory v. Cutler, McCahon, 152. Moore, ex parte, 64 N. C. 802 ; Kerr, 1" R. V. Winton, 5 T. R. 89 ; Bosen, ex parte, 64 N. C. 816. ex parte, 2 Ld. Ken. 289 ; Bank of the 697 § 991.] §991. PLEADINa AND PRACTICE. [CHAP. XXI. Return may be contro- verted. Whether a return can be controverted has been much questioned in England. In 1758 the opinions of the judges were given to the House of Lords on the question whether affidavits could be received to contradict such returns ; and though the weight of opinion was that this is not, as a rule, admissible, yet, by several of the judges it was conceded that in certain extreme cases, e. g., impressments, the court would permit the relator to show that the return was false.' Cases are reported in which this permission has been given ; * and Lord Denman has intimated that an affidavit that the return was false might be' the foundation of a motion to quash it.' But where the return is not traversed, it is to be treated as if demurred to by the relator.^ In this country, while the rule that a record cannot be impugned applies to all cases in which the record of a court of general juris- diction is produced as the ground of detention, the court, on hearing a writ of habeas corpus, when the object is to review the action of a subordinate or police magistrate, will go into the question of guilt or innocence ; will examine as to the grade of guilt when the ques- tion is as to bail ;' and will receive evidence as to identity.* 1 Hurd's Habeas Corpus, 264 et seq.; Wilmot's Opinions, 106; 2 How. St. Tr. 1378. ^ Goldswain's case, 2 W. Black. 1207. See Watson's case, 9 Ad. & E. 731 ; Gilstrap, ex parte, 14 Tex. 240. ° Watson's case, vt supra. So far as concerns the respondent, he will be beyond question permitted to modify and explain his return. Thus it has been held that a federal judge will receive affidavits for the purpose of explaining and enlarging a return made by a State officer who has arrested a federal officer for alleged abuse of power. Jenkins, ex parte, 2 Wall. Jr. 621. Whether the return may be assailed on other grounds depends on the pe- culiar exigency of the case. See Smith, ex parte, 3 McLean, 121. * Milburn, in re, 59 Wis. 25. See Church on Habeas Corpus, §§ 166 ff. = 2 Hawk. P. C. 0. 15, s. 79. In Pennsylvania the habeas corpus act per- mits the amendment of the return , " and also suggestions made against it, that thereby material facts may he ascer- tained." Under this clause the courts in that State are in the habit of receiv- ing evidence to determine the fact and the degree of guilt, so as either to dis- charge absolutely, or to discharge on suitable bail. Res. v. Gaoler, 2 Yeates, 258 ; Com. v. Ridgway, 2 Ashm. 247 ; Com. V. Carlisle, Bright. R. 36. For other oases in which the merits of the charge were gone into, see infra, §§ 1005-7 ; and see State u. Scott, 30 N. H. 274 ; Powers, in re, 25 Vt. 261 ; Com. o. Harrison, 11 Mass. 63 ; People V. Cassels, 5 Hill N. Y. 164; People v. 6 U. S. 0. Jung Ah Lung, 124 U. S. 621. 698 CHAP. XXI.] HABEAS COKPUS. [§. 992. The conflict, in other respects, even on the English rule, may be obviated, by applying to returns the familiar distinction that while a record cannot be assailed by parol except in cases where fraud or want of jurisdiction is set up, it may be explained by parol when obscure or incomplete.' Hence, when such a record is produced, it is admissible to show that, the court had no jurisdiction of the subject-matter, or that the proceedings were fraudulent.' When the case does not rest on the return, then the court may go into the merits.' The distinction between our practice and that of England is this : with us, as has been seen, a commitment by a subordinate police magistrate may be opened and the case considered de novo by a court of general jurisdiction when hearing the writ ; while in Eng- land it cannot.* § 992. Arrest, when examined in court on a writ of habeas corpus, may be considered in two relations. The first arises when, the court sits merely for the purpose of examining ]^.o^de^^ the validity of the arrest,'and not in exercise of the pow- f«=ts of (••■ PI T •!• < process, ers of a justice of the peace. In such cases, if the arrest be on void process, the relator should be discharged.' Thus parties against whom no criminal charge is made out, or whom the court on habeas corpus has no jurisdiction to arrest de novo, have been released from custody under warrants having no seal ;° and from warrants when the relator is privileged from arrest.' But a court, on the hearing of a writ of habeas corpus, will not, ordinarily, con- sider the constitutionality of the law authorizing the arrest. Such Martin, 1 Park. C. R. 187 ; People v. 187 ; People v. Tompkins, Ibid. 224. Tompkins, 1 Park. C. R. 224 ; though See State w. Scott, 10 Post. 274. see People a. MoLeod, 1 Hill, 377 ; 3 ' Newton, ex parte, 13 Q. B. 716. Hill, 658 ; People v. Richardson, 4 ^ Conner i). Com., 3 Binn. 38 ; Com. Park. C. R. 656 ; State v. Best, 9 c;. Murray, 2 Va. Cas. 504 ; State v. Blackf. 11 ; Mahone v. State, 30 Potter, 1 Dudley, 295. As to what Ala. 49. For other cases, see infra, constitutes illegality of arrest, see su- § 1005. ■ pra, §§ 5 et seq. As to privilege from The burden, howoTer, of disproving arrest, see supra, § 60. the allegations of the return is on the ^ gee Bennett, ex parte, 2 Cranch, relator. Infra; § 1007; Heyward, in 612; State v. Drake, 36 Me. 366; re, 1 Sandf. 701, and oases cited 1 Lough v. Millard, 2 R. I. 436 ; Taokett Pomeroy's Archbold, 204. v. State, 3 Yerg. 392. See, however, ' See Whart. on Ev. &§ 980 et sag. Smith, ex parte, 5 Cow. 273. = Ibid. Supra, § 981 ; infra, § 994. ' Dakins, ex parte, 16 C. B. 77. See ' People V. Martin, 1 Park. C. R. Eggiugton, ex parte, 2 E. & B. 707. 699 § 993.] PLEADING AND PRACTICE. [chap. XXI. questions, when dependent upon a contested interpretation, are to be reserved for the trial.' The second relation in which writs of habeas corpus addressed to arresting officers are to be considered is that which arises when the court sits for the purpose not merely of examining the validity of the arrest, but of also determining whether the relator is primd facie guilty of an indictable offence. If the latter turn out on the hearing to be the case, then the relator must be held to answer on the charge of committing such offence, no matter how outrageously oppressive or illegal may have been the process by which he was arrested.* The party arresting may have been guilty of such vio- lence or fraud in the arrest as to require that he also should be held to trial for his misconduct. But this does not affect the relator's responsibility. If a probable case of guilt transpire against him at the hearing, he must be held to trial, even though he were actu- ally kidnapped into court, and though the offence proved is not specifically that charged.* A writ of habeas corpus may issue from a superior court to give immediate hearing to a case should there be any undue delay in the action of an inferior court.* We have already seen that the writ may be issued to test the legality of arrests on extradition process, whether such process come from a sister State or from a foreign State." When the process is from a sister State, under the provision in the federal Constitution, and is regular, a discharge will not be granted, supposing the identity of the party and the genuineness of the record be established.* Not only will the court, on hearing the writ, decline to go into the So in case of oppreB- sion. §993. Writ may test extra- dition process. > Harris, in re, 47 Mo. 164. z See supra, §§ 27, 49, 220; infra, § 996. 3 Supra, § 27 ; infra, § 996 ; R. v. Goodall, Say. 129 ; R. v. Marks, 3 East, 157; O'Malia v. Wentworth, 65 Me. 129 ; State v. Buzine, 4 Harring. 575 ; Granioe, ex parte, 51 Gal. 375 ; Jones V. Timberlake, 6 Rand. 678 ; State v. Killett, 2 Bailey, 289 ; Brady v. Davis, 9 Ga. 73. For other cases see supra, §§ 27 et seq.; infra, § 1005. * Supra, § 70. 700 6 See Woodhall's case, 20 Q. B. D. 833 ; Church on Habeas Corpus, §§ 459ff. 6 Supra, §§ 35, 37 a; Smith, ex parte, 3 McLean, 121 ; McKean, ex parte, 3 Hughes, 263 ; People v. Brady, 56 N. Y. 182; Bristow, in re, 51 How. Pr. 422 ; Watson, in re, 2Cal. 59 ; White, ex parte, 49 Cal. 434 ; Hibler V. State, 43 Tex. 197 ; see Doo Woon, in re, 18 Fed. Rep. 898. In Robinson v. Flanders, 29 Ind. 10, it was held that the question of iden- tity was for the demanding State. CHAP. XXr,] HABEAS COEPCS. [§ 993. merits, but the questions of formal law, connected with the struct- ure of the indictment, will not be considered, this being matter for the courts of the demanding State.' The recitals in the warrant of the governor of the asylum State will be treated as true f though notice will be taken of material defects in the warrant.' Nor will an arrest by State officials of officers employed in extradition pro- cess under the federal Constitution be permitted ; and if such arrest be made, the party arrested will be discharged by a fed- eral court.* Nor does the writ lie to admit to bail a person under arrest to be carried into another county or State for trial.' But when there is an arrest to await a requisition, and after due time the warrant does not arrive, the prisoner will be discharged.' The writ, also, may be granted to test the validity of process of extradition when the demandant is a foreign sovereign ;^ though in such cases the Supreme Court of the United States will not renew technical decisions of commissioners as to admissibility of evidence.' That a State court may also intervene in such cases by issuing the writ was at one time claimed ;' but now the tendency of authority is that in all matters of foreign extradition which relate to federal statutes or treaties, the jurisdiction of the federal courts is exclusive." 1 Supra, §§ 35 et seq.; Davis's case, §§ 38, 57 ; see Ker, in re, 18 Fed. Rep. 122 Mass. 324 ; Clark, in re, 9 Wend. ' 167 ; 10 Rep. 580, where it was held 212 ; Voorhees, in re, 32 N. J. L. 141 ; that a writ' of habeas corpus would not State V. Buzine, 4 Barring. 572 ; Man- issue in a federal court to release a Chester, in re, 5 Cal. 237. prisoner who was kidnapped in a ' Supra, § 35 ; People v. Pinkerton, foreign country and committed by a 77 N. Y. 245 ; see Leary, in re, 10 Ben. State court having jurisdiction of the 197. crime charged against him. See 4 ' Lelaud, in re, 7 Abb. N. Y. Pr. Crim. Law Mag. 913 ; see supra, § 27. (N. S.) 64 ; Rutter, in re, Ibid. 67. « Benson v. McMahon, 127 U. S. 457. Supra, §§ 35 et seg. ' Com. v. Hawes, 13 Bush, 697. * Bull, in re, 4 Dill. 323 ; Jenkins, » Supra, § 981 ; see People v. Curtis, ex parte, 2 Wall. Jr. 521 ; Titus's case, 60 N. Y. 321 ; People v. Fisk, 45 How. 8 Ben. 412 ; U. S. v. McClay, 23 Int. Pr. 296 ; reported supra, § 980 ; La- Rev. Rec. 80 ; and cases cited supra, grave, in re, 45 How. Pr. 301 ; Com. a. § 37 a. Deacon, 10 S. & R. 125. In Adrian v. La- « Gorsline, in re, 10 Abb. N. Y. Pr. grave, 59 N. Y. 110, it was held that a 282. Supra, § 35 a. State court will not intervene to relieve ^Porter v. Goodhue, 2 Johns. Ch. a party who claims that the extradition 198 (a State requisition). See other process by which he is brought into the oases supra, §§ 34, 34 a. State was fraudulently obtained, and ' Atty.-Gen. v. Kwok-a-Sing, L. R. does not cover the act for which he is ar- 5 P. C. 179 ; and cases cited supra, rested after his arrival in the country. 701 § 994.] PLEADINQ AND PRACTICE. [chap. XXI. The writ lies for re- dress under a void sen- tence. § 994. The writ may be made to operate in behalf of a person sentenced by a court without jurisdiction to impose the particular sentence,^ or detained under a sentence based on information in a federal court for an infamous crime,^ or detained under a sentence which on its face has ex- pired or is inoperative.* In other words, when a sentence is so on its face defective that with it the whole proceeding falls, the prisoner may be released on habeas corpus ; though, as will presently be seen, for matters within the province of the trial court, the remedy must be by writ of error or motion for a new trial.^ Nor can As to void sentences, see article by Judge Thompson, in 4 Crim. Law Mag. 799. The inconvenience, if not the uncon- stitutionality, of the issue of such writs by State judges, in extradition oases, is pointed out by Mr. Buchanan, in let- ters, when Secretary of State, to Mr. Butler, Dist. Atty. in N. Y., March 23, 1847; Mss. Dom. Let. Dep. of State; and to Mr. Durant, Dist. Atty. in New Orleans, May 20, 1847. Ibid. Mr. Gush- ing, in 1853, when Attorney-General, denied the right of a State court to take up the case by habeas corpus while it was under examination by a commissioner of the United States. 1 Robinson v. Spearman, 3 B. & C. 493 ; Callicot, ex parte, 8 Blatch. 89 ; Lange, ex parte, 18 Wall. 163. See People V. Bowe, 58 How. (N. Y.) Pr. 174. In Lange, ex parte, 18 Wall. 163, it was held that where a prisoner shows that he is held under a judg- ment of a federal coxirt, made without authority of law, the Supreme Court of the United States will, by writ of liabeas corpus and certiorari, look into the record so far as to ascertain that fact, and if it is found to be so, will discharge the prisoner. See this case discussed supra, §§ 492, 913. To the same effect see Page, ex parte, 49 Mo. 291 ; Murray, ex parte, 43 Cal. 456 ; Bowen, ex parte, 46 Cal. 112; Rob- 702 erts, ex parte, 9 Nev. 43. Compare supra, § 981. And see Virginia, ex parte, 100 U. S. 339. 2 Wilson, ex parte, 114 U. S. 417. 3 Wong Qui, in re, 6 Sawy. 237 ; State V. Glenn, 54 Md. 572 ; Shaw, ex parte, 7 Ohio St. 81 ; Howard v. People, 3 Mich. 207; Pope, ex parte, 49 Mo. 491 ; Snyder, ex parte, 64 Mo. 58 ; Millington, in re, 24 Kan. 214 ; Rob- erts, ex parte, 9 Nev. 43 ; Underwood, in re, 30 Mich. 502 ; Perry v. State, 41 Tex. 488 ; Gibson, ex parte, 31 Cal. 619. In People w.Liscomb, 60 N.Y. 559 (Tweed's case), hereafter discussed, it was held that the clause in the N. Y. Rev. Stat. 568, § 42, prohibiting the re- view, under a writ of habeas corpus, of the " legality and justice of any process, judgment, decree, or execution," does not preclude the court issuing the writ from inquiring whether the court en- tering the judgment had the power to give such judgment. See, however, criticism, infra, § 996 b; supra, §§ 579, 900, 932. And see Kirby v. State, 62 Ala. 51 ; Phillips, ex parte, 57 Miss. 357 ; Kelly, ex parte, 65 Cal. 154. As to cases of release ' under cumulative sentences, see supra, § 933. As to discharge from operation of limitation or pardon, see infra, § 1006. * U. S. V. Reed, 100 U. S. 13 ; 26 Int. Rev. Reo. 11 ; Wentworth v. Alexander, CHAP. XXI.] HABEAS CORPUS. [§ 995. the averments of a court of record be in this way collaterally im- peached, however open they might be to criticism as a writ of error.' § 995. It has been already noticed that the rule, that the record of a court of general iurisdiction cannot be collaterally „ ,,r !<• ~..,. . writ ean- impeached unless on ground oi want oi jurisdiction or not over- fraud applies to the records of such courts when brought nfent'or '^ up collaterally on a writ of habeas corpus. This rule ™ft,"fn^ holds in all cases in which the writ is applied for by a province of party against whom an indictment has been found by a court having jurisdiction. In such case, the question being whether there is probable cause for the prosecution, the indictment (unless impeachable for fraud, or non-identity, or want of jurisdiction) is conclusive proof of such probable cause .^ A fortiori the aver- ments of a sentence of conviction cannot be disputed on a writ of habeas corpus, unless under the limitations above given, of fra,ud, non-identity, or want of jurisdiction.* But in any one of these cases the writ may be granted.* 66 Ind. 30 ; Petty, in re, 22 Kan. 477. See infra, § 996. "If the fine or imprisonment be either less (Shav?, ex parte, 7 Ohio St. ^1) or greater (Van Hagan, ex parte, 25 Ohio St. 426) than that prescribed" in the statute, the sentence was not void but erroneous, and therefore ha- beas corpus is not, but error to reverse the proceeding or sentence is the remedy." Okey, C. J., Dillen v. State, 38 Ohio St. 586. See supra, § 918. That when the sentence or commit- ment is void, as resting on an unconsti- tutional law, the writ lies, see Ah Jou, in re, 20 Fed. Rep. 181 ; Rollins, ex parte, 80 Va. 314 ; Brown v. DuflFus, 66 Iowa, 193 ; Mato, ex parte, 19 Tex. Ap. 112. (But see Boenninghausen, ex parte, 21 Mo. Ap. 267; 91 Mo. 801.) And so when it is imposed by a court without jurisdiction. Pisk, ex parte, 113 U. S. 713; Snow, in re, 120 U. S. 274; People V. Warden, 100 N. Y. 20. And so where the sentence or commitment is on its face void. Barker, in re, 56 Vt. 14 ; Brainerd, in re, 56 Vt. 495 ; McLaughlin, in re, 58 Vt. 136 ; Garvey, ex parte, 7 Col. 384, and cases cited above. And so where the sentence was on an indictment, which was amended after finding it was in conflict with the 5th Amendment of the Consti- tution of the United States. Bain, ex parte, 121 U. S. 1. See supra, § 90. 1 See infra, § 996. 2 R. V. Bowen, 9 C. & P. 509 ; Mc- Leod's case, 25 Wend. 483 ; Semler, in re, 41 Wis. 517 ; Whitaker, in re, 43 Ala. 323. ' Lees, ex parte, E., B. & E. 828 ; Brenan, in re, 10 Q. B. 492 ; R. ,/. * That this is the case where the in- ferior court has no jurisdiction, see Yarborough, ex parte, 110 V. S. 651. That the Supreme Court of the Un,ited States can in this way determine the power of an inferior court to try and sentence a prisoner, but cannot review the rulings of such court when having jurisdiction, see Carll, ex parte, 106 U. S. 521. 703 § 996.] PLEADING AND PRACTICE. [chap. XXI. § 996. What has just been said rests on the general proposition that where a court of record^ has jurisdiction, its action, though Mount, L. R. 6 P. C. 283 ; Parks, ex parte, 93 U. S. 18 ; Siebold, ex parte, 100 U. S. 371 ; Reed, ex parte, 100 U. S. 13 ; YarborougU, ex parte, 110 U. S. 651 ; Bogart, in re, 2 Sawy. 369 ; Riley's case, 2 Pick. 172 ; Com. v. Whitney, 10 Pick. 434 ; Fleming v. Clark, 12 Allen, 191 ; People v. MoLeod, 1 Hill N. Y. 377; People v. MoCormack, 4 Park. C. R. 9 ; People v. Neilson, 16 Hun, 214 ; Wright, in re, 29 Hun, 357 ; 65 How. Pr. 119 ; Dickinson u. Byron, 9 S. & R. 71 ; Com. v. Lecky, 1 Watts, 66 ; Van Hagan, ex parte, 25 Ohio St. 426 ; Coffeen, in re, 38 Mich. 311 ; State V. Orton, 67 Iowa, 554 ; Ball, ex parte, 2 Grat. 588 ; Buddington, in re, 74 N. C. 607 ; Ray, ex parte, 45 Ala. 15 ; Sam, ex parte, 51 Ala. 34 ; True- man, in re, 44 Mo. 181 ; Ezell, ex parte, 40 Tex. 451 ; Murray, ex parte, 43 Cal. 455 ; Le Bur, ex parte, 49 Cal. 160. Illegality of selection of grand jury cannot be tested on habeas corpus after conviction and sentence. State v. Fen- derson, 28 La. An. 82. Nor can irregu- larities in the trial be so examined. State V. Sheriff, 24 Minn. 87 ; Ruthven, ex parte, 17 Mo. 541 ; Max, ex parte, 44 Cal. 579 ; Granice, ex parte, 51 Gal. 375. See other illustrations, 4 Crim. Law Mag. 803. On the other hand, it has been ruled that where a petition for a writ of habeas corpus avers that the petitioners, being colored persons, have been tried for a capital offence before a State court, by a jury entirely composed of white persons, in contravention of U. S. Rev. Stat. § 641, the Circuit Court of the United States will grant the writ commanding the sheriff of the county to produce the bodies of the petitioners before the court, with a statement of the cause of their detention. Ex parte 704 Reynolds, 3 Hughes, 559. See cases supra, § 981. And so where the offence is against the federal courts, the State courts having no jurisdiction. Bridges, ex parte, 2 Woods, 428. In Siebold, ex parte, 100 U. 8. 371 ; supra, § 981, it was held that the ap- pellate jurisdiction of the Supreme Court of the United States, exercisable by habeas corpus, extends to a case of imprisonment upon conviction and sen- tence in an inferior court of the United States, under and by virtue of an un- constitutional act of Congress, whether this court has jurisdiction to review the judgment by writ of error or not ; and that the jurisdiction of this court by habeas corpus, when not restrained by some special law, extends generally to imprisonment by inferior tribunals of the United States which have no ju- risdiction of the cause, or whose pro- ceedings are otherwise void and not merely erroneous ; and such a case occurs when the proceedings are had under an unconstitutional act. It was further held that when the court below has jurisdiction of the cause, and the matter charged is indictable under a constitutional law, any errors com- mitted by the inferior court can only be reviewed by writ of error. See far- ther, infra, § 996 6. In Yarborough, ex parte, 110 U. S. 651, the right of the Supreme Court of the United States in this way to revise the action of a circuit court in case of want of jurisdiction was affirmed ; but it was held that technical errors of law could not be in this way corrected. And see People v. Kelly, 39 Hun, 536. 1 That the presumption of regularity does not apply to courts not of record, see Whart. on Ev. § 1308 ; Whart. Crim. Ev. § 830. CHAP. XXI.] HABEAS CORPUS. [§ 996. open to revision by appeal or writ of error, cannot be collaterally impeached, unless on proof of fraud.' No matter how gross, therefore, may be the mistakes of law or fact by a ^t'coiut- court of record having iurisdiction in a criminal case, its eraiiy cor- . , , . ..... rect errors. action cannot be reviewed, subject to the limitations above stated, by a writ of habeas corpus.' Even an excessive sentence, by a competent court, if not actually inoperative, cannot in this way ■ be rectified. The remedy is writ of error to a court with appellate powers.* Nor will the writ be used to control the discretion com- mitted to oflBcers of a prison to modify or ameliorate confinement.* Even though the cause of detention be an order of court without judgment, this, if the order be by a court having jurisdiction, will not be reviewed even by a superior court by means of habeas corpus. 1 SeeWhart. onEv.§§ 982-91. 2 R. u. Carlisle, 4 C. & P. 415 ; Barnes's case, 2 Roll. 157 ; R. v. El- well, 2 Stra. 794; Coy, in re, 127 U. S. 457 ; O'Malla v. Wentworth, 65 Me. 129 ; Kellogg, ex parte, 6 Vt. 509 ; People v. Cavanagh, 2 Park. C. R. 650; People v. Nevins, 1 Hill, 154 ; Com. v. Leokey,' 1 Watts, 66 ; Com. V. Keeper of Prison, 26 Penn. St. 279 ; Emanuel v. State, 36 Miss. 627 ; Kaufifman, ex parte, 73 Mo. 588 ; Eaton, in re, 27 Mich. 1 ; Faust v. Judge, etc., 30 Micli. 266 ; Burger, in re, 30 Mich. 203; Crandell, in re, 34 Wis. 177; Semler, in re, 41 Wis. 517 ; Eldred v. Ford, 46 Wis. 530 ; State v. Hennepin Sheriff, 24 Minn. 87 ;. Petty, in re, 22 Kan. 477 ;»Jolinson, ex parte, 15 Neb. 512 ; Winston, ex parte, 9 Nev. 71 ; Fisher, ex parte, 6 Nev. 309 ; Twohig, ex parte, 13 Nev. 302 ; Bergman, ex parte, 18 Nev. 32 ; Farnham, ex parte, 3 Col. 545 ; Hartman, ex parte, 44 Cal. 32 ; Oliver, ex parte, 3 Tex. Ap. 345 ; McGrill, ex parte, 6 Tex. Ap. 498; Boland, in re, 11 Tex. Ap. 159. That the writ will not lie to over- haul matters within the province of trial court, see U. S. v. Reed, 100 U. S. 13 ; Crouch, ex parte, 112 U. S. 178 ; Ker, 45 ex parte, 18 Fed. Rep. 167 ; Byron, in re, Ibid. 722 ; Bigelow, ex parte, 113 U. S. 328 ; Harding, ex parte, 120 U. S. 782 ; People v. Kelly, 97 N. Y. 212 ; People V. Walters, 15 Abb. N. Cas. 461 ; Smith „. Hess, 91 Ind. 424 ; Willis v. Bayles, 105 Ind. 363 ; McGuire v. Wallan, 109 Ind. 284 ; Thompson, ex parte, 93 111. 89 ; State u. Ortou, 67 Iowa, 554 ; Hamilton's case, 51 Mich. 174 ; State v. Hayden, 36 Minn. 283 Houser v. State, 33 Wis. 678 ; Milburn, ex parte, 59 Wis. 24 ; State v. Sloan 65 Wis. 647, 651 ; Simmons, ex parte, 62 Ala. 416 ; State, ex parte, 76 Ala 482 ; Cameron, ex parte, 81 Ala. 87 State V. Sheriff, 37 La. An. 617 ; Ed- wards, ex parte, 35 Kan. 99 ; Fuller, ex parte, 19 Tex. Ap. 241 ; Moan, ex parte, 65 Cal. 216. That matters of executive discretion cannot be thus re- viewed, see Oilson, ex parte, 34 Kan. 641. ' Pember's case, 1 Whart. 439 ; Shaw, ex parte, 7 Ohio St. 81 ; Lark v. State, 55 Ga. 435. See, however, where the sentence is inoperative, supra, § 994. * Com. V. HoUoway, 42 Penn. St. 446. See Pember's case, 1 Whart, 439. 705 § 996 J.] PLEADING AND PRACTICE. [CHAP. XXI. Thus, where, on an indictment containing several counts, the jury acquitted on some counts but said nothing as to others, it was held in Pennsylvania, by the Supreme Court, that an order of detention by the trial court could not be overhauled by a habeas corpus issued by the Supreme Court ; but that if an error should occur in the subsequent trial and conviction of the defendant on the counts thus left open, the remedy would be a writ of error. ^ Nor, under the Pennsylvania statute, will the Supreme Court, by writ of habeas cor- pus, grant relief, during the term of a court of quarter sessions, to a person bound over to that term.^ Nor can the validity of the com- missions of de facto fudges or other officers, having colorable titles, be thus tried. ^ Thus, Chief Justice Chase refused to review, on Jiateas corpus, the sentences of courts of the Confederate States during the late civil war.^ Nor will the title or procedure of a committing-magistrate be thus examined collaterally, if a probable case of guilt be made out on the merits, and the question be as to such guilt.* But, as we have seen, where the sentence is one plainly beyond the jurisdiction of the court imposing it, a writ of habeas corpus may be issued by a court having general supervisory juris- diction (e. g., in England the Queen's Bench), to relieve the pri- soner. And this holds where a sentence has expired, or is other- wise inoperative.* Nor will § 996 a. Unless the case be one of oppression, the hearing be hearing on a criminal charge before a committing-magis- rupted. trate will not be interrupted by a writ of habeas corpus.'' § 996 b. A distinction is to be noted between errors which can be corrected by appeal or writ of error and errors which can- 1 Com. V. Norton, 8 S. & R. 71. Russell v. Whiting, 1 Wins. N. C. 463 ; 2 Com. V. Sheriff, 7 W. & S. 108. Call, ex parte, 2 Tex. Ap. 560 ; Strahl, 3 Ah Lee, in re, 6 Sawy. 410. See ex parte, 16 Iowa, 369. Com. t>. Fowler, 10 Mass. 290 ;Sheehan's 6 Supra, § 992; Wakker, in re, 3 case, 122 Mass. 445 ; Strang, ex parte, Barb. 162 ; Thompson, ex parte, 93 111. . 21 Ohio St. 610 ; Boyle, in re, 9 Wis. 89 ; Raye, ex parte, 63 Cal. 491 ; Garst, 284 ; State v. Bartlett, 35 Wis. 287. See ex parte, 10 Neb. 78. 4 Crim.LawMag. 808. And seeWhart. « Supra, § 994. A conviction based Crim. Law, 9th ed. § 652. on invalid waiver of jury trial may be * Griffin's case, Chase's Dec. 364 ; 25 thus inquired into. Staff, in re, 63 Tex. Sup. See McCrary on Elections, Wise. 285. Supra, § 733. § 221 ; People v. Terry, 108 N. Y. 1 ; ' Peoples, in re, 49 Mich. 626. 706 CHAP. XXI.] HABEAS CORPUS. [^ 996 h. not be so corrected. Under the old English practice, where there was no writ of error in criminal cases, the courts were led, in cases of imprisonment claimed to be pracUceIn manifestly and grossly erroneous, to hear the question "^^^?^j/°^ ^ of the validity of such imprisonments on writs of habeas is no writ corpus. A similar condition exists in our federal courts, in those cases (e. g., prosecutions in circuit or district courts) in which the only mode of obtaining revision is that which depends on the rare contingency of a certified difference of opinion between the judges trying the case. Under such circumstances it was but natural that the writ of habeas corpus should be applied for in cases in which a prisoner was held in custody under process which was believed to be in conflict with the Federal Constitution or statutes. The disposition of the Supreme Court of the United States was, for a time, to recognize this distinction so far as to hold that it could revise by habeas corpus an " illegal or void" judgment of an inferior Federal court ; but more recently the position seems to be taken that where such inferior court has jurisdiction habeas corpus is not the remedy.' And in any view, where the object is to review the ' In Siebold, ex parte, 100 IT. S. 371, cited supra, §§ 981, 995, the following is from the opinion of the court given hy Bradley, J. : — "The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of Jurisdiction in such court over the person or the cause, or some other matter rendering its pro- ceedings void, This distinction between an erroneous judgment and one that is illegal or void is well illustrated by the two cases of Ex parte Lange, 18 Wall. 163, and Ex parte Parks, 93 U. S. 18. In the former case we held that the judg- ment was void, and released the pris- oner accordingly ; in the latter we held that the judgment, whether erroneous or not, was not void because the court had jurisdiction of the cause ; and we refused to interfere." The difficulty here is in the words " illegal or void." If a writ of habeas corpus can issue to correct illegal jnigments, then the writ of habeas corpus becomes a writ of error. But the distinction taken in the itali- cised passage between an " erroneous" judgment and one that is "illegal or void' ' would show that " error' ' and " il- legality ' ' are not regarded as converti- ble. As conflicting with Lauge's case, see Hagen, ex parte, 25 Ohio St. 426. In Lange, ex parte, above cited (see, also, supra, §§ 780, 913, 988), the dis- charge was put on the ground of er- roneous action of the court below (a district federal court) in amending a sentence after the defendant had been in prison under it for five days. It was held that after a sentence has been in part executed it cannot be amended, and that the amending sen- tence in such ease is a nullity, and the 707 §996 6.] PLEADING AND PRACTICE. [chap. XXI. decision of a State court, the writ of habeas corpus will be refused when there can be a writ of error.' defendant is to be released. But to this it may be objected that, if the Supreme Court of theUni ted States can make such error ground of release on habeas corpus, the function of releasing prisoners on ground of error of sentence would be vested in every judge to whom the right of issuing a writ of habeas corpus belongs. See dissenting opinion of Clifford, J., in Lange's case. In Siebold, ex parte, 100 U. S. 370, and Clark, ex parte, 100 U. S. 399, it was held that the court on habeas corpus could discharge a, prisoner convicted under an unconstitutional law ; and the same view has been taken in Mc- Carthy V. Hinmau, 35 Conn. 538 ; Nitin- gale, ex parte, 12 Fla. 272 ; Schwartz, ex parte, 9 Tex. Ap. 381, following other Texas cases. See contra, Harris, in re, 47 Mo. 64 ; Fisher, ex parte, 6 Neb. 309. But, in addition to the ob- jections above stated, it may be here urged that it is essential to the stability of our system that a, statute should only be pronounced unconstitutional when directly assailed either in the trial court, or by appeal or writ of error from that court. The ruling in People v. Liscomb, 60 N. Y. 559, has been already criticised in other relations. It may be noticed here that even were that ruling sus- tainable on other grounds it is open to the serious objection of leaving the sen- tences of courts having jurisdiction, entered after deliberate consideration and full trial, at the mercy of scratch hearings by single judges with habeas corpus jurisdiction. Page, ex parte, 49 Mo. 291, follows People v. Liscomb, though in Page, ex parte, there would have been redress by writ of error or appeal. See 19 Cent. L. J. 102. In Yarbrough, ex parte (1884), 110 U. S. 651, there is a marked withdrawal from the position taken in Lange's case, and it is said by Miller, J., giving what appears to be the unanimous opinion of the court, that "this latter principle" (ie., that of the right to re- view by the writ Of habeas corpus void judgments by subordinate courts) "does not authorize the court to con- vert the writ of habeas corpus into a writ of error, by which the errors of law committed by the court that passed the sentence can be reviewed here ; for if that court had jurisdiction of the party and the offence for which he was tried, and has not exceeded its powers in the sentence which it pronounced, this court can inquire no further. ' ' This principle disposes of the argu- ment made before us on the insufficiency of the indictments under which the prisoners in this case were tried. ' ' Whether the indictment sets forth in comprehensive terms the offence which the statute describes and for- bids, and for which it prescribes a punishment, is in every case a ques- tion of law which must necessarily be decided by the court in which the case originates, and is therefore clearly within its jurisdiction. " Its decision on the conformity of the indictment to the provisions of the statute may be eri-oneous, but if it is so it is an error of the law made by the court acting within its jurisdiction, which could be corrected on a writ of error, if such writ were allowed, but which cannot be looked into on a writ of habeas corpus limited to an inquiry into the existence of jurisdiction on the part of that court. " This principle is decided Ex parte, 708 Supra, ^ 81. CHAP XXI.] HABEAS CORPUS. [§ 997. § 997. The action of a court-martial having jurisdiction will not be reviewed as such on a writ of habeas corpus ;' nor j^jju^ will the proceedings of a court-martial, even when about judgments to sit on a charge of desertion from a voidable enlistment, thus re- be overhauled by this writ f nor will that of a military ^'^''^^'^• commission when imposed on a prisoner thereto amenable by law f Tobias Watkins, 3 Pet. (U. S.) 203, and Ex parte Park?, 93 U. S. 21." The objections to the Supreme Court of the United States hearing on habeas corpus non-jurisdiotional errors are as follows : (1.) If this revision can be assumed by the court in banc (as it has been in the more conspicuous oases above noticed), it can, at common law, be assumed by a single judge ; and in this way a single judge, it may be in an inferior court, might review and overturn the action of the full bench of the highest court in the land. (2.) The writ does not bring up the whole record, from which the entire history and limitations of the case may be dis- covered. All that the return neces- sarily presents is the warrant or com- mitment by which the prisoner is held. (3.) The hearing is summary, and un- restrained by those logical limitations which attend bills of exception — limita- tions which, artificial as they may sometimes seem, are yet the products of a wise experience, and are best cal- culated in the long run to bring out the merits of a litigated issue. See, as maintaining this view. Judge Thomp- son's article, above cited, 4 Crim. Law Mag. 806. Shaw, ex parte, 7 Ohio St. 87. For the reasons given above, Kear- ney, ex parte, 55 Cal. 212, may be questioned. In that case it was held that the court hearing a writ of habeas corpus could release a prisoner convicted by a court of competent jurisdiction on the ground that the offence was not in- dictable. . If this be good law, every judge who has jurisdiction to issue writs of habeas corpus becotnes a court of error, by which not only all criminal convictions may be reviewed, but the question of what offences are indictable is arbitrarily determined. That the ruling, however, of a court of com- petent jurisdiction that an offence tried before it is a crime cannot be contested on a writ of habeas corpus is settled by a great preponderance of authority. — Parks, ex parte, 93 U. S. 18 ; Callicott, in re, 8 Blatoh. 88 ; Eaton, in re, 27 Mich. 1 ; Bird, ex parte, 19 Cal. 130 ; Wilson, ex parte, 9 Nev. 71. It was at one time supposed that after a discharge by a district or circuit fedd'- ral judge on habeas corpus there could be no review by the Supreme Court of the United States. See note toBrosna- han, in re, 18 Fed. Rep. 82. But now such an appeal can by statute be taken. U. S. V. Jung Ah Lung, 124 U. S. 621 ; Roberts v. Reilly, 116 U. S. 80. 1 Reed, ex parte, 100 U. S. 13, 23 ; Keyes v. U. S. 104 U. S., 336 ; Mason, ex parte, 105 U. S. 606 ; White, in re, 17 Fed. Rep. 723 ; Com. ■,-. Cornman, 4 S. & R. 93 ; Com. v. Gamble, 11 S. & R. 93 ; People v. FuUerton, 10 Hun, 17 N. Y. Sup. Ct. 63. See Coulter, in re, 2 Sawy. 43 ; Opinions of Judge Advo- cates, 201. 2 MoConlogue's case, 107 Mass. 154, 170 ; Wall's case, Lowell, J., 8 Fed. Rep. 85 ; State v. Seaton, 61 Iowa, 999 ; White, in re, ut sup. 3 See Vallandigham, ex parte, 1 Wall. 243 ; Vallandigham' s trial, 258 ; 5 West L. Month. 37. 709 § 999.] PLEADING AND PKAOTIOE. [chap. xxr. nor that of a naval court-martial.' But if a military court or court-martial be without jurisdiction, or with jurisdiction which has ceased, the petitioner will be released.'' The question of the relief of persons illegally enlisted is considered in another volume.* § 998. Summary convictions duly ordered by a justice of the peace will in like manner be respected. If he has stat- utory power so to convict, a court of errors will not re- view his decision, unless fraud or oppression be alleged.^ § 99'9. A committal for contempt, by a court having authority, cannot ordinarily be vacated by a writ of habeas corpus issued from another court. ^ This rule has been applied to commitments by federal courts for contempt when the writ was prayed for from a State court ; and this independently of the question whether the federal court had jurisdiction of the principal case.* But where an inferior court transcends the stat- utory limits in a committal for contempt (e. g., when the statute limits to thirty days, and the commitment is for an indefinite period), or in other cases of transcending jurisdiction, there may be a re- viewal by habeas corpus / and so where the commitment is on its Nor sum- mary po- lice con- victioBS. Nor com - mittals for contempti. • ' Bogart, in re, 2 Sawy. 396. 2 Barrett K. Hopkins, 2 MoCrary, 129. s Whart. Cr. L. §§ 267, 268. * Chancellor Kent, in refusing a writ in a case of summary conviction by a police magistrate, said : " It is not for me to examine into the legality or reg- ularity of the conviction any further than to see that the magistrate had competent jurisdiction to convict and 5 Supra, § 974a; Clark, ex parte, 2 Q. B. 619 ; Andrews, ex parte, 4 C. B. 226 ; Cobbett, in re, 7 Q. B. 187 ; Carus Wilson, in re, 7 Q. B. 984 ; Crawford, in re, 13 Q. B. 613 ; Kearney, ex parte, 7 Wheat. 345 ; State v. Towle, 42 N. H. 540; Kearney's case, 13 Abb. N. Y. Pr. 459 ; People v. Cassels, 5 Hill N. Y. 164 ; Rob. v. McDonald, 29 Iowa, 330 ; Perry, in re, 30 Wis. 268 ; Cohn, ex imprison in the given case parte, 55 Cal. 193 ; Cottrell, ex parte, 59 I am only to exercise the power given me by the Habeas Corpus Act, and without that I should rather be in- clined to think this court had no com- mon law jurisdiction over the subject- matter. The conviction and imprison- ment in this case are prima fade, good and valid in law, and that is sufficient upon this collateral inquiry. They must be held valid, until quashed or reversed in the regular course of appeal, by the appropriate tribunal." Matter of Goodhue, 1 City Hall Reo. 153. As to arrests for vagrancy, see supra, § 80. 710 Cal. 420 ; Phillips v. Welch, 12 Nev. 158. Nor will the writ lie to discharge a person from imprisonment for non-pay- ment of fine for refusing to testify. Smith, ex parte, 117 111. 63. ^ Williamson's case, 26 Penn. St. 9. See Williamson i'. Lewis, 39 Penn. St. 9 ; 4 Crim. Law Mag. 802. ' Dakins, ex parte, 16 Q. B. 77; Fisk, ex parte, 113 U. S. 713 ; Ayers, in re, 123 U. S. 443 ; Shank's case, 15 Abb. N. Y. Pr. N. S. 38; Holman w. Mayor, 34 Tex. 668 ; State v. Sauvinet, 24 La. An. 119. CHAP. XXI.] HABEAS CORPUS. [§ 1000. face defective.* And a federal court may review a State commit- ment for contempt when clashing with a federal duty.^ § 1000. The ordinary mode of instituting a prosecution, as we have seen, is an oath by the party injured, or by a com- petent third party in any way cognizant of the facts, ^ermines' before a magistrate or justice of the peace having juris- question of diction. The party charged is then arrested and brought before the magistrate, by whom, after the case is heard, the defen- dant, if the evidence in the magistrate's opinion shows probable cause, is held to answer to the court having local jurisdiction to try the offence.^ The defendant is then in custody ; i. e., either in the custody of the officers of the law conducting him to prison, or of the keeper of the prison, or of his own bail. A writ of habeas corpus may then be sued out by the defendant addressed to the person by whom he is detained, and he is then brought by this per- son before the court issuing the writ. Supposing the object be, as is assumed in the present section, to determine whether there is sufficient proof to hold the defendant for trial, the court issuing the writ then proceeds to hear the evidence adduced by the prosecution. The case, for this purpose, begins de novo. The prosecution is not limited to the evidence produced before the committing magistrate. New documentary proof may be adduced ; new witnesses may be called ; new specifications of guilt introduced. The question before the court, on such writ, is not whether the magistrate acted with technical exactness, but whether the evidence, as presented to the court, shows that the defendant should be required to answer before a court and jury to a charge of a criminal offence. If this be the case, the defendant will be remanded to custody to answer such charge. It has been sometimes suggested that if there be a conflict of testi- mony, the court, on hearing the writ, should call a jury to its aid ; and such has been the practice under some statutes.* But the usual • • Electoral College, in re, 1 Hughes, ^ Supra, § 981. 571, cited supra, § 981 ; People v. Con- ^ See supra, §§ 6 et seq. As to prac- ner, 15 Abb. N. Y. Pr. N. S. 430; tice, see Church on Habeas Corpus, Dudley v. McCord, 65 Iowa, 671 ; Dill, §§ 177 flF. ex parte, 32 Kan. 668. See supra, § 981. * See Graham v. Graham, 1 S. & R. In Grady v. Superior Court, 64 Cal. 331 ; but contra, Baker o. Gordon, 23 154, it was held that after discharge by Ind. 20. a second court, the court committing could not re-imprison. 711 § 1002.] PLEADING AND PRACTICE. [CHAP. XXI. course is for tke court to act on the facts presented in the same way as would a committing magistrate hearing the case de novo. If the facts on the hearing exhibit a primd facte case of guilt of any offence of which the court has cognizance, the defendant should be remanded, but otherwise not.' And it is proper that the court should call for all the facts requisite for a due understanding of the issue. ^ The question of the prisoner's identity with that of the party named in the writ is always open.^ § 1001. When, as has been just said, the question is whether the defendant should be bound over to trial, it is enough that cause probable cause should be made out against him. That enough. ^j^j^ ^^ ^^^ ^.^gj. -^^ hearings before committing magistrates,* and in investigations before grand juries," we have already seen ; and it would be anomalous to require a higher degree of proof on hearing on habeas corpus. The object of the writ, in fact, in.most cases falling within the category now before us, is to determine whether the case is one which should go before a grand jury ; and the test, therefore, to be applied is whether the grand jury, on the evidence before the court, ought to find the bill. If there is probable cause in the evidence before the court, that the defendant has committed an indictable offence, then he should be remanded to answer such offence.* § 1002. When the question of probable cause is thus brought „ , ^ before the court, it is not bound to apply to evidence the Court not ' . _ . . bound to strict exclusionary rules applied in trials before juries, technical The proceedings are provisional ; the prosecution at grounds. i^g^g^ jg compelled to present its case on very brief no- tice ; probability is the test ; it is enough if there is probable proof, though still stronger proof may be attainable, if the latter is not 1 Infra, § 1001 ; supra, §§ 71, 361 ; supra, § 55 ; tJ. S. «. Johns, 4 Ball. E. V. Garden, L. R. 5 Q. B. D. 1 ; 1 413 ; Benson v. McMahon, 127 U. S. Grim. Law Mag. 197. 451 ; Com. v. Carlisle, Bright. R. 36 ; 2 Ibid. Supra, § 565. Com. v. Megary, 8 Phil. 607. See, 3 Leary, in re, 10 Ben. 197 ; U. S. v. however, Balcom, in re, 12 Neb. 316. Jung Ah Lung, 124 U. S. 621. But that a federal court will not re- * Supra, § 71. view the decision of a commissioner on 5 Supra, § 361. See Church on Ha- questions of fact, see Byron, in re, 18 beas Corpus, §§ 179 ff. Fed. Rep. 722. Cf. Gerdemann v. Com., 6 Marshall, C. J., in Burr's case, 11 Phila. 374. 712 CHAP. XXI.] HABEAS CORPUS. [§ 1004. fraudulently withheld ; and, in addition, the analogy of chancery practice, in which all testimony is offered to the court for inspection, irrespective of technical objection may be invoked.' § 1003. A justice of the peace or other committing magistrate is required in England to take the depositions of wit- nesses examined before him in criminal prosecutions, and evl^gnc"^ to forward these depositions to the court to whom the ^J ««»"**- case is returned. In New York, and other States, the same practice is prescribed. The writ of habeas corpus does not by itself require the return of such depositions, and consequently in order to obtain them, the court issuing the writ of habeas corpus issues at the same time a writ of certiorari to the magistrate, so as to obtain possession of all his proceedings. In England the prac- , tice of the court on habeas corpus is to read these proceedings as part of the case.* In most jurisdictions in the United States the case is heard de novo on the testimony produced by the prosecution. In several jurisdictions the writ of certiorari is used as auxiliary to the writ of habeas corpus when the object is to obtain possession of the entire record.^ § 1004. In the English courts the practice has been to receive affidavits as part of the case both of relator and respond- ent.* In this country affidavits have also been received," may be though not when secondary to other proof that might ^^'^^^^ • without great inconvenience be obtained.* 1 Benson v. McMahon, 127 U. S. 457 ; Heywood, in re, 1 Sandf. 701 ; State V. Lyon, Coxe N. J. 403. TJiat the waiver of the preliminary examination does not preclude the defendant from showing want of probable cause, see Cowell V. Patterson, 49 Iowa, 514. 2 Bac. Abr. Certiorari, A. ; Kurd's Habeas Corpus, b. ii. o. vi. s. 5 ; Van Boven's case, 9 Q,. B. 676. 3 Supra, §§ 770, 981 ; Snell, in re, 31 Minn. 110. * Hurd's Habeas Corpus, 307 ; R. v. Delaval, 8 Burr. 1434 ; 1 W. Black. 412. 5 Bollman, ex parte, 4 Craueh C. C. 75 ; Burr's Trial, i. 97 ; People v. Che- garay, 18 Wend. 637 ; State o. Lyon, Coxe N. J. 403. 5 Ibid. In Burr's case, Marshall, C. J., said : " That a magistrate may com- mit upon affidavits has been decided in the Supreme Court of the United States, though not without hesitation. The presence of the witnesses to be ex- amined by the committing justice, con- fronted with the accused, is certainly to be desired ; and ought to be obtained, unless considerable inconvenience and difficulty exist in procuring his atten- dance. An ex parte affidavit, shaped, perhaps, by the party pressing the prosecution, will always be viewed with some suspicion, and acted on with some caution ; but the court thought it would be going too far to reject it altogether." 713 § 1007.] PLEADINd AND PRAOTICB. [chap. XXI. For merely formal de- fects or variance, court will not dis- charge. Discharge from par- don, or statute of limita- tions. § 1005. For merely formal defects, or misstatements of offence, a revisory court will not discharge on habeas corpus.^ It will permit, as we have seen, the return to be amended ; or it will, in the exercise of the powers belonging to justices of the peace, hold the relator over on the charge which the evidence develops.* § 1006. The writ may be employed to effect the discharge of a person under sentence to whom a pardon has been ad- dressed, if he is still restrained ot his liberty ;' or is re- lieved from imprisonment by operation of statutes of limitation.* In such case, however, it must appear that the State authorities were in default in not previously in- stituting the prosecution, or bringing the case to trial." Nor does the writ apply to a person out on bail.* § 1007. Courts with oyer and terminer and quarter sessions juris- diction have ordinarily the power of issuing writs of habeas from w^t corpus for the purpose of examining commitments by police of probable magistrates ; and if it appear that the commitment is with- cause ; ad- "= ' /^ justment of out probable cause of discharging absolutely.' Such revi- sory courts, also, can readjust and reduce bail, or discharge on bail in cases in which discretion in this respect is not given to police magistrates. The local laws in this respect, as existing in different sections of the United States, it is not within our limits to detail. The practice as to bail has been already noticed. To justify a discharge in such cases the prosecution must be shown to be without probable cause.' As a general proposition, the writ 1 People V. Baker, 89 N. Y. 460. 2 Supra, §§ 991-2 ; BoUman, ex parte, 4 Cranch C. C. 75 ; Bennett, ex parte, 2 Cranch C. C. 612; U. S. v. Johns, 4 Ball. 413 ; Bank U. S. v. Jen- kins, 18 Johns. 305 ; People v. Nevina, 1 Hill, 154 ; Taylor, ex parte, 5 Cow. 12 ; Com. v. Crans, 4 Penn. L. J. 459 ; 2 Clark, 172; Com. v. Hickey, 2 Pars. 317 ; S. C, 1 Clark, 436 ; State <.-. Bu- zine, 4 Earring. 575 ; Ring, in re, 28 Cal. 247 ; Ricard, ex parte, 11 Nev. 287. 3 See Callioot, in re, 8 Blatoh. 89 ; Greathouse's case, 2 Abb. D. S. 382 ; 714 People V. Cavanaugh, 2 Park. C. R. 650 ; Edymoin, in re, 8 How. N. Y. Pr. 478 ; Knapp v. Thomas, 39 Ohio St. 377. * State V. Maurignos, T. U. P. Charl- ton, 24. See supra, § 449. 6 Clark V. Com., 29 Penn. St. 129 ; Logan V. State, 2 Brev. 415 ; Byrd ». State, 2 Miss. 163 ; Stanley, ex parte, 4 Nev. 113 ; see snpra, §§ 328, 583. " Logan V. State, 1 Treadw. S. C. Const. 493. ' See Eagan, ex parte, 18 Fla. 194 ; State V. Ensign, 13 Neb. 250. 8 Troia, in re, 64 Cal. 152. CHAP. XXI.] HABEAS CORPUS. [§ 1008. lies to determine the grade of bail, in all cases in which the court applied to has supervisory jurisdiction of the offence.^ But there will be no discharge on bail when the evidence would sustain a capital conviction.* Whether after an indictment found a writ will be granted to de- termine the amount of bail has been much discussed. It has been argued on the one side that the indictment is conclusive as to the amount of bail.* On the other hand, it is well replied that indict- ments are not conclusive as to grade of offences, since the indict- ment is usually for the major offence, when the major includes a minor, while the guilt may be only that of the minor offence. If the offence is bailable, it is further argued, it is for the court to fix the bail at its discretion.^ The tests to be applied in the determina- tion of the amount of bail have been already discussed.* § 1008. The judgment must be either discharge or remander. A conditional judgment that an examining magistrate must either • Supra, § 81 ; Barrouet, in re, 1 E. & B. 1 ; Dears. C. C. 51 ; R. v. Bartlemy, Dears. C. C. 60 ; U. 8. v. Hamilton, 3 Dall. 17 ; State v. McNab, 20 N. H. 160 ; Jones V. Kelly, 17 Mass. 116 ; Whiting V. Putnam, 17 Mass. 175 ; People v. Cole, 6 Park. C. K. 695 ; State v. Rocka- fellow, 1 Halst. 332 ; Com. v. Ridge- way, 2 Ashm. 247 ; Champion, ex parte, 52 Ala. 311 ; Finch v. State, 15 Fla. 633 ; Snowdou v. State, 8 Mo. 483. In Bridewell, ex parte, 56 Miss. 39 ; aff. Wray, ex parte, 30 Miss. 681, it was held that under a constitutional provi- sion that " excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital oflfences where the proof is evident or the pre- sumption great, ' ' there is no prohibition against admitting to bail a defendant charged with a capital crime ; but he may be so admitted to bail within the sound discretion of the trial judge. Where, in such case, it was further held, a well-founded doubt of guilt is en- tertained, the proof is not evident, nor the presumption great, and bail should be granted. In such oases the burden is on the relator to show that he is il- legally deprived of his liberty, and all available evidence should be produced, even if the hearing should be ad- journed. Compare Street's case, 43 Miss. 1. That the burden is on the re- lator, see further Duncan, ex parte, 54 Cal. 75, cited infra ; Miller v. State, 43 Tex. 579 ; Walker, ex parte, 3 Tex. Ap. 668 ; and compare points stated supra, §§ 76-81. 2 Com. V. Keeper of Prison, 2 Ashm. 227 ; Troia, in re, 64 Cal. 152. 8 Marshall, C. J., 1 Burr's Trial, 310 ; U. S. V. Reese, 3 Wash. C. C. 224 ; Peo- ple V. Dixon, 4 Park. C. R. 651 ; People V. Tinder, 19 Cal. 539. * State V. McNab, 20 N. H. 160 ; Peo- ple V. Hyler, 2 Park. C. R. 570 ; Lynde V. People, 38 111. 497; Bryant, ex parte, 34 Ala. 270 ; Street v. State, 43 Miss. 1 ; Drury v. State, 25 Tex. 45. See supra, §§ 76-81. 5 Supra, §§ 76 e« seq. See Ex parte Duncan, 54 Cal. 75. 715 § 1010.] PLBftBING AND PRACTICE. [chap. XXI. Judgment must be either dis- charge or remander. During hearing custody is in court of writ. commit the prisoner at once, or fully discharge him, can- not be sustained.' § 1009. The effect of the writ being to place the cus- tody of the relator in the court issuing the writ, it is the duty of that court to see to his safe keeping. This is done by either remanding the relator to the keeper of the prison, if he were there confined, or placing him under the control of the sheriff or marshal of the court.^ § 1010. In England the action of the court on a writ of Tidbeag ^ ., . corpus cannot be revised on error f and the same rule error not has been repeatedly sustained in this country.* But in permissible , . ,.,,.. i i , , at common cases where irremediable injury may be done by the celdingTin action of the court below, such action partaking of the error. nature of a final judgment, there is authority to hold that epror lies.* And in most States appellate process is in such cases provided by statute f in others, the case may be taken up to an appellate court by certiorari!' That some process of revision should be provided is essential. Otherwise a single judge, by writs ' People V. Donahue, 21 N. Y. Sup. Ct. 133. 2 R. V. Bethel, 5 Mod. 22 ; Kaine, in re, 14 How. 132. As to the question of general custody, see supra, § 984. 3 8 Co. R. 1216,- R. V. Dean, 8 Mod. 27 ; 2 Bro. P. C. 554 ; Wilson's case, 7 Ad. & El. 984. * Wyeth V. Richardson, 10 Gray, 240; Yates v. People, 6 Johns". 429 (though see contra, Yates v. People, 6 Johns. 337) ; Russell v. Com., 4 Pen. & W. 82 ; Clark v. Com., 29 Peun. St. 129 ; Com. v. Kryder, 1 Pennp. 143 ; Bell V. State, 4 Gill, 304 ; Hammond v. People, 32 111. 446; Thompson, ex parte, 93 111. 89 ; Curley, in re, 34 Iowa, 184 ; Wade v. Judge, 5 Ala. 18 ; Howe V. State, 9 Miss. 690; Jilz, ex parte, 64 Mo. 205 ; Mitchell, ex parte, 1 La. An. 313 ; Coopwood, ex parte, 44 Tex. 467 ; Ring, in re, 28 Cal. 347. See Fonts v. Pierce, 64 Iowa, 71. 5 Holmes v. Jennison, 14 Pet. 540 ; Wells, ex parte, 18 How. 307 ; Robiu- 716 son, ex parte, 6 McLean, 360 ; Lafonta, ex parte, 2 Robert. La. 495. See Knowl- ton V. Baker, 72 Me. 200. In Thompson, ex parte, 96 111. 158, where it was held that a writ of error does not lie in Illinois to review a judg- ment on a writ of habeas corpus. ^ See Maoready ». Wilcox, 33 Conn. 321 ; Roth v. House of Refuge, 31 Md. 329 ; State u, Kirkpatrick, 54 Iowa, 373 ; Cleveland, ex parte, 36 Ala. 306 ; Rothschild, ex parte, 2 Tex. Ap. 666. As to practice in error see People v. Hessing, 28 111. 410. The rule in re- spect to the federal courts has been elsewhere discussed. Supra, § 57. As to the Michigan practice see Corrie v. Corrie, 42 Mich. 609. ' Hurd, Hab. Cor. 326 ; McLeod's ease, 1 Hill, 377 ; Com. v. Biddle, 6 Penn. La. J. 287 ; 4 Clark, 35. Ex parte, La Fonta, 2 Rob. La. 495 ; Crow, in re, 60 Wis. 349, where the cases are examined in detail. CHAP. XXI.J HABEAS CORPUS. [§ 1011. of habeas corpus, could not only discharge every prisoner in the State, but prevent the service of any judicial procjess requiring attachment of the person. Under our peculiar federal system, the judgments of State courts on habeas corpus, can, when conflicting with the federal constitution, be the subject of a writ of error to the Supreme Court of the 'United States.' By the Act of March 3, 1885, an appeal was given from a final decision in habeas corpus of a circuit court to the Supreme Court of the United States ; but this decision must be by the court and not by the judge sitting as a judge.^ That a refusal by a district judge to issue a writ is ground for an appeal to the Supreme Court of the United States.^ And a rightful discharge by a circuit judge will be sustained on appeal.* § 1011. When a court of competent jurisdiction has refused to discharge on habeas corpus, a court with concurrent juris- -gow far diction may decline to issue a writ on the same case, (Jieeharge affects unless there be an allegation of new facts.' It has also subsequent been held that if, after a discharge by one judge, the ^"^^*' relator should be rearrested, he should be discharged when brought before another judge with coordinate powers.* But a discharge on a writ of habeas corpus (when the question is whether there is probable cause to hold over for trial) is no bar, in law, to subse- quent proceedings for the same offence.^ As a matter of courtesy or convenience, a judge may say, " This case has been heard already by a coordinate judge, who has remanded or discharged the relator, 1 Tarble's case, 13 Wal. 397. See Miller v. State, 43 Tex. 579. As to comments in § 996 b. Georgia practice, see Perry v. McLen- 2 Carter v. Fitzgerald, 121 U. S. 87 ; don, 62 Ga. 598. U. S. Jung Ah Lung, 124 U. S. 621. « Ibid. See Da Costa, in re, 1 Parker Supra, § 9966. C. R. 129 ; People v. Brady, 57 N. Y. a See Snow, in re, 120 U. S. 274. 182 ; Com. v. McBride, 2 Brewst. 545. Supra, § 994. 'People v. Brady, 56 N. Y. 182; * Wildenhus's case, 120 U. S. 6. As to Walker v. Martin, 43 111. 508 ; Mitchell, rulings prior to act of 1885, see Tom ex parte, 1 La. An. 413. See Eldridge Tong, ex parte, 108 U. S. 556 ; Hung v. Fancher, 3 Thomp. & C. 189 ; People Hung, ex parte. Id. 552 ; Brosnahan, in v. Fancher, 1 Hun, 27. Contra, under re, 18 Fed. Rep. 62, and note ; S. C, 4 Missouri statute, Jilz, ex parte, 64 Mo. MoCrary, 1. 205, where it was held that autrefois 5 Lawrence, ex parte, 5 Binn. 304 ; acquit could be pleaded in such cases. Com. V. Wetherold, 2 Clark, 476. See 717 § 1011.] PLEADING AND PRACTICE. [CHAP. XXI. and I will not go over the same ground.'" But should a grand jury find a bill in such case, or an information, if an information be proper, be presented, the discharge would be no bar. To constitute such a bar there must be a formal acquittal or conviction of a court having jurisdiction.* A more diificult question, however, arises in cases where the dis- charge is for error in sentence, and when the court imposing the sentence re-arrests. It has been maintained by a majority of the Supreme Court of Wisconsin that such second arrest is irregular and invalid.* But great practical difficulties are in the way of the maintenance of this rule. After a conviction had been sustained by the Supreme Court of a State, the defendant could be discharged on habeas corpus by a single judge without, on such a theory, the opportunity of revision or re-arrest ; and the same confusion would arise in case one judge should undertake to discharge persons com- mitted by another judge for contempt.* The only way of escaping such difficulties is by giving a writ of error in habeas corpus to the Supreme Court of the State, just as in cases of habeas corpus, con- flicting with the federal constitution, there is a writ of error to the Supreme Court of the United States. 1 See Alexander, ex parte, 14 Fed. ^ Crow, in re, 60 Wis. 349. Rep. 680 ; Kittrell, ex parte, 20 Ark. ' See Gundy v. Fresno, 64 Cal. 155. 499. Supra, § 996 ; and argument in note to 2 Supra, §§ 436 et seq. supra, § 996 6. 718 TABLE OF CASES. A. SECTION Aaeon v. State, 39 Ala. 75 447, 709 V. State, 40 Ala. 308 916 Abbey, State v. 29 Vt. 60 238, 241 Abbott, Com. v. 13 Met. 120 666, 810 State V. 11 Foster, 434, 238, 239 State V. 20 Vt. 537 237 Abel's case, 12 Kan. 451 963 Abernetby v. State, 78 Ala. 411 275 State V. Busb. 438 283 Ableman v. Booth, 21 How. 506 980 Abrahams, State v. 6 Iowa, 117 296 Abram v. State, 4 Ala. 272 497, 605 V. State, 25 Miss. 589 95 Absence, State u. 4 Port. 397 231 Achey v. State, 64 Ind. 56 845 Ackersou, State v. 25 N. J. L. 209 967 Acosta, People v. 10 Cal. 195 844, 889 Adams v. Barrett, 5 Ga. 404 260 Com. V. 7 Met. 50 180 Com. V. 1 Gray, 481 124, 125 Com. V. 4 Gray, 27 125 Com. V. 6 Gray, 369 418 Com. 7,. 7 Gray, 43 266, 291 Com. V. 127 Mass. 15 737, 742, 760 ex parte, 25 Miss. 883 974 in re, 7 Law Rep. 386 31 V. Moore, 2 Selw. N. P. 934 13 V. People, 1 Comst. 173 ; 1 Den. 190 422 i>. People, 47 111. 376 815,819, 831, 866 V. People, 109 111. 444 591, 801 People V. 17 Wend. 475 125 State V. 14 Ala. 486 442 State V. 2 Battle's Dig. 729 142 V. State, 52 Ga. 565 292 V. State, 65 Ga. 516 328 State V. 20 Iowa, 486 692 State V. 20 Kans. 311 602, 707, 834 State V. 31 La. An. 717 251, 865 State V. 78 Me. 486 158 State V. 6 N. H. 533 238 t». State, 3 Ohio St. 412 810 SECTION Adams v. State, 29 Ohio St. 415 812 State V. 11 Oregon, 169 677 V. State, 10 Tex. Ap. 677 813 V. Woods, 2 Cr. 336 316 Adoock's case, 8 Grat. 662 328 Addington, State v. 2 Bailey, 516 533 Addison, State v. 2 S. C. 356 366 Addy, State v. 43 N. J. L. 113 913 Adler v. State, 35 Ark. 517 779 h Adriance v. Lagrave, 59 N. Y. 110 27, 38, 993 Adwards, People v. 5 Mich. 22 464 Agnew w. Commis., 12S. &R. 94 383 Ah Cha, ex parte, 40 Cal. 426 752 Ah Chew, State v. 16 Nev. 50 238 Ah Chung, People v. 54 Cal. 398 665 Ah Fong, People v. 12. Cal. 345 715 Ah Hop, People v. 1 Idaho, N. S. 698 700 Ah Jow, in re, 20 Fed. Rep. 181 994 Ah Kow V. Nunan, 5 Sawy. 552 920 Ah Lee, in re, 6 Sawy. 410 981, 996 Ah Lee, State v. 8 Or, 214 707 Ah Loy, People v. 10 Cal. 301 813 Ah Sam, People v. 41 Cal. 645 900 Ah Sing, People v. 59 Cal. 400 711 Ah Ton, People v. 53 Cal. 741 804 Ah Wee, People v. 48 Cal. 236 560 Ah Woo, People v. 28 Cal. 205 162, 181' Ah Ye, People v. 31 Cal. 451 751 Ahearne, R. v. 6 Cox C. C. 6 698 Ahl, Com. V. 43 Penn. St. 53 528, 532 Aholtz V. People, 121 111. 563 813 Ahibol V. Beniditto, 2 Taunt. 401 119 Aichinson, People v. 7 How. Prac. Rep. 241 612 Alckless, R.'w. 1 Leach, 294 533 Ailstock, Com. v. 3 Grat. 650 132, 273 Ainsworth v. Sessions, 1 Root, 175 881 State V. 11 Vt. 91 471,475 Albany Bk. u. Schermerhorn, 9 Paige, 372 974 Albin f. State, 63 Ind. 699 711, 798a State V. 50 Mo. 419 385 Albright v. Lapp, 26 Penn. St. 99 963, 965 719 TABLE OF CASES. 8E0TI0S Alden v. State, 18 Fla. 187 369 Aleck, People v. 61 Cal. 137 408 Alexander v. Com., 105 Penn. St. 423 517 ex parte, 1 Low. 530 37 6 ex parte, 14 Fed. Eep. 680 1011 State V. 66 Mo. 148 830, 847 State u. 76 N. C. 231 522, 523 V. State, 21 Tex. Ap. 406 470, 473 Alford, State v. 31 Conn. 40 566 V. State, 8 Tex. Ap. 545 6, 13 Alfred v. State, 37 Miss. 296 640 V. State, 2 Swan, 581 642 Alibez, People v. 49 Cal. 452 468 Allegne, R. v. Arch. C. P. 160 772 Allen V. Colby, 47 N. H. 544 26 V. Com., 2 Bibb, 210 279 V. Com. 2 Leigh, 727 457, 752 ex parte, 12 Nev. 87 982 People V. 5 Denio, 76 220 V. People, 82 111. 610 220 R. t). 1 B. & S. 850 383, 443 E. I). 1 C. & K. 495 210 E. V. 17 L. T. N. S. 222 7 R. I). R. & R. 513 935 State V. 1 Ala. 442 421 V. State, 68 Ala. 98 244 V. State, 71 Ala. 5 716 State V. 74 Ala. 557 169 State V. 46 Conn. 531 501, 672 State V. 2 Humph. 258 33 V. State 12 Lea, 424 220 V. State, Mart. & Y. 294 913 V. State, 61 Miss. 627 350 State u. 83 N. C, 650 358 o State «. R. M. Charlton (Ga.), 518 183, 213, 372, 759 V. ptate, 77 111. 484 358 o. State, 54 Ind. 461 733 V. State, 13 Tex. Ap. 28 90 State V. 8 W. Va. 680 279 V. State, 5 Wis. 329 93, 134 V. State, 46 Wis. 383 777 V. Taylor, 26 Vt. 599 108 Allison V. Com., 99 Penn. St. 17 634 V. Farmers' Bank, 6 Rand. 233 453 V. State, 14 Tex. Ap. 402 578, 590 State V. 3 Yerg. 428 305 Almeida, U. S. v. Wh. Prec. 1061-2 151, 221 Almon, State v. 64 N. C. 364, 495 520, 726 Alphin V. State, 81 N. C. 566 890 Alphonse v. State, 34 La. An. 9 664 720 SECTION Alsopp's case, 11 Blatoh. 129 46 Alston V. State, 41 Tex. 39 754 Alvlso, People v. 55 Cal. 230 733 Ambler, State v. 56 Vt. 35 672 Ambrose v. State, 6 Ind. 351 440 Ames, Rollins v. 2 N. H. 350 627 State V. 1 Mo. 372 155 State V. 10 Mo. 743 146 Amherst v. Hadley, 1 Pick. 38 886 Amidon, State v. 58 Vt. 524 90 Ammons, ex parte, 34 Ohio St. 518 34o State V. 3 Murph. 123 203 Amos V. State, 73 Ala. 498 810, 811, 812 Amsbry v. Hinds, 48 N. Y. 57 320 Amy, U. S. v. 14 Md. 152, note 442 Amy Warwick, The, 2 Spr. 143 ; S. C, 2 Black, 635 939 Anderson v. Dnnn, 6 Wheat. 204 964 V. George, 1 Burr. 352 852 People V. 44 Cal. 65 578, 810 People V. 53 Mich. 60 591 R. w. 2 M. & R. 469 194, 464 V. State, 65 Ala. 553 752 V. State, 34 Ark. 257 716 State V. 2 Bailey, 565 813, 819, 824 ' V. State, 43 Conn. 514 866-8 V. State, 20 Fla. 381 137 V. Stale, 14 Ga. 709 646, 844 V. State, 63 Ga. 675 661 State V. 5 Barring. 493 635 V. State, 28 Ind. 22 588 State V. 104 Ind. 467 810 State V. 40 Iowa, 207 953 State V. 80 La. An. 557 87, 88, 957-9 State V. 26 Minn. 66 189 State V. 89 Mo. 300 465, 896 State V. 4 Nev. 265 838, 844 V. State, 5 Pike, 445 279, 354 V. State, 3 Finn. 367 700 State 0. 3 Rich. 172 102, 117, 254 State V. 26 S. C. 599 693 State D. 3 S. & M. 751 785 V. State, 8 Tex. Ap. 542 860 U. S. V. 17 Blatch. 338 U. S. V. 8 Reporter, 677 139 Andrews, Com. ». 2 Mass. 409 518 Com. V. 3 Mass. 126 252 Com. V. 97 Mass. 543 548, 774 Com. V. 132 Mass. 263 297, 464, 738 ex parte, 4 C. B. 226 999 TABLE OP OASES. BECTION Andrews v. People, 117 111. 195 293, 358 R. K. 2 D. & L. 10 77 State V. 29 Conn. 100 833, 836 State D. 27 Mo. 267 472, 482 State V. 76 Mo. 101 453 V. State, 2 Sneed, 550 546, 549 874 U. S. V. 2 Paine, 451 '220, 282 Androscoggin c;. Richard, 41 Me. 234 24 Angel V. Com. , 2 Va Cas. 231 162, 251 Angell, State v. 7 Ired. 27 104 Anglea v. Com., 10 Grat. 698 528 Anon., 6 C. & P. 408 118 1 Cr. & Dix C. C. 152 191 31 Me. 592 383, 548, 774 a 3 Salk. 68 82 Ansohicks v. State, 6 Tex. Ap. 524 833 V. State, 45 Tex. 148 602 Anthes, Com. u. 5 Gray, 185 ' 810 Anthony, Com. v. 2 Mete. (Ky.) 399 773 V. State, 29 Ala. 27 221 State V. 1 McCord, 285 279 U. S. V. 11 Blatch. 200 810, 812 Antle, State v. 6 Tex. Ap. 202 87 Antonio, People v. 27 Cal. 404 745 Antz, U. S. V. 4 Woods, 174 ; 16 Feb. Rep. 119 344 Apgar, People v. 35 Cal. 389 465 Appar V. Woolston, 43 N. J. L. (14 Vroom, 65) 383 Applegate, State v. 2 McCord, 110 963 Arbintrode v. State, 67 Ind. 267 413 Arces, People v. 32 Cal. 49 669 Arden, State v. 1 Bay, 487 312, 917 Argnelle's case, Wh. Con. of L. 941 38 Arlen v. State, 18 N. H. 563 771 Armendares v. State 10 Tex. Ap. 44 846 Armington, State v. 25 Minn. 29 672 Armistead v. State, 43 Ala. 340 709, 796 a' Armstead v. Com., 11 Leigh, 657 631, 636,\793 Armstrong's case, 13 Wall. 154 522, 525, 528 Foundry, 6 Wall. 766 528 Armstrong, Com. v. 7 Gray, 49 472 V. People, 70 N. Y. 38 293 U. S. V. 5 Phil. R. 273 162, 228, 251 46 SECTIOW Armstrong v. V. S. 13 Wall. 154 522, 525, 528 Arnold v. Com., 80 Ky. 300 961 People V. 40 Mich. 710 711, 798 o People V. 46 Mich. 268 484 V. People, 75 N. Y. 663 577, 779 Res. 0. 3 Yeates, 417 161 V. State, 61 Ga. 144 754 V. State, 9 Tex. Ap. 435 653 State V. 50 Vt. 731 90 V. Steeves, 10 Wend. 514 7 Arrington, State v. 3 Murph. 571 518 Arscott, R. K. 6 C. & P. 408 187 Arthur v. Craig, 48 Iowa, 264 533 Statew. 2 Dev. 217 612 Arwo, U. S. V. 19 Wall. 486 139 Arwood V. State, 59 Ga. 391 869 Asbury, State v. 26 Tex. 82 321 Ash V. State, 81 Ala. 76 238-9 Ashman, Com. II. 3 Grant, 436 783 a Ashnauer, People v. 47 Cal. 98 354 Ashton, Com. v. 125 Mass. 384 156, 183, 188, 189, 251 Atchison R. R. v. Franklin, 23 Kan. 74 517 U. S. V. 16 Fed. Rep. 853 970 State V. 3 Lea, 729 254 Athens Armory, U. S. v. 35 Ga. 315 522 U. S. V. 35 Ga. 344 528 Atkins, Com. v. 136 Mass. 160 251 V. State, 16 Ark. 568 522, 664, 828 V. State, 69 Ga. 595 700 V. State, 11 Tex. Ap. 89 589, 869 State V. 42 Vt. 252 181 a Atkinson ^. R. 3 Bro. P. C. 517 925 V. R. C. & M. 325 196 R. V. 2 Ld. Ray. 1248; 11 Mod. 78 940 R. o. 2 Mood. C. C. 215 186 R. V. 1 Salk. 382 301 State V. 9 Humph. 677 451 State V. 75 N. C. 519 711 State V. 93 N. C. 519 813 . Com., 61 Penn. St. 352 12, 13 V. People, 88 111. 327 328, 540 V. Perry, 23 Ark. 32 560 State V. 9 Ala. 10 427 State V. 4 Conn. 446 191 State I'. 3 Humph. 70 513 State V. 92 Mo. 542 27, 542, 556, 641 Broome v. R. R., 12 Q. B. 838 93, 124 TABLE OF OASES. SECTION Brooster v. State, 15 Ind. 190 111 Brosnahan, matter of, 18 Fed. Rep. 62 ; 4 MoCr. 1 1010 Brotherton, People v. 43 Cal. 530 650 ... People, 75 N. Y. 159 368, 369 R. V. 2 Str. 702 386 Brougher, State v. 3 Blaokf. 307 230 Broughton, R. v. 1 Tretn. P. C. Ill . 285 State V. 7 Ired. 96 378 Brounbridge v. People, 38 Mich. 751 924 Brown's case, 3 Greenl. 177 280 112 Mass. 409 30, 36 Brown v. Brown, 4 Ind. 627 964 Com. i>. 14 Gray, 419 253 Com. ./. 2 Leigh, 769 636 V. Com., 8 Mass. 69 161, 759 Com. V. 103 Mass. 422 536 Com. „. 121 Mass. 69 285 Com. o. 141 Mass. 78 220 V. Com., 76 Peun. St. 319 338, 344, 350, 417 V. Com., 78 Penn. St. 122 90, 92 Com. V. 12 Phila. 600 913 Com. V. 3 Rawle, 207 518, 791 V. Com., 4 Rawle, 259 932 V. Com., 2 Va. Cas. 516 202a, 844 u. Crasliaw, 2 Bulstr. 154 663 V. Duffus, 66 Iowa, 193 994 ex parte, 28 Fed. Rep. 653 28, 29,31 . La Crosse, 21 Wis. 51 846 People V. 48 Cal. 253 653 People V. 54 Cal. 243 595 People V. 59 Cal. 345 695 V. People, 34 Mich. 37 87 People V. 54 Mich. 15 415, 913 R. V. 8 Cox C. C. 69 167 R. w. 4 C. & P. 688, n. 569 R. V. 17 L. T. M. C. 145 414 R. V. M. & M. 163 137 V. Rice, 57 Me. 66 913 „. State, 47 Ala. 47 918, 927 V. State, 63 Ala. 97 750 V. State, 74 Ala. 478 343 State V. 16 Conn. 54 451, 457, 485 State V. 61 Conn. 1 701 State V. 1 Dev. N. C. Law, 137 208 V. State, 6 Eng. 607 447, 771 V. State, 28 Ga. 209 312 V. State, 44 Ga. 300 209 V. State, 55 Ga. 169 869 V. State, 65 Ga. 332 588., 601 State V. 5 Barring. 505 8 V. State, 7 Humph. 155 371 BEOTION Brown, State v. 8 Humph. 89 255, 354 u. State, 70 Ind. 576 643, 693 V. State, 103 Ind. 133 561 V. State, 105 Ind. 385 737 State V. 68 Iowa, 298 294 State V. 22 Kan. 222 827 State V. 35 La. An. 340 668 V, State, 2 Lea, 158 81 V. State, 67 Miss. 424 640 V. State, 60 Miss. 447 845 State V. 60 Mo. 141 260 V. State, 64 Mo. 368 834 V. State, 75 Mo. 317 733 State V. 3 Murph. 224 125 State V. 81 N. C. 516 371 V. State, 9 Neb. 157 798 State V. 7 Oreg. 186 836 State I!. 2 Speers, 129 164 State V. 24 S. C. 224 120 V. State, 5 Tex. Ap. 126, 646 774 o V. State, 6 Tex. Ap. 286 869, 873 V. State, 38 Tex. 482 697 State V. 31 Vt. 603 369 State V. 49 Vt. 437 314, 472 State V. 1 Williams (Vt.), 619 177 V. Swan, 1 Mass. 202 854 U. S. V. 2 Low. 267 317 V. U. S. McCahon, 229 525, 528 'v. Wadsworth, 15 Vt. 170 439 Brownbridge v. People, 38 Mich. 751 924 Browning v. Abrams, 51 How. Pr. 172 37 u. State, 33 Miss. 481 695, 815, 831 Brownlow, R. v. 11 A. & E. 119 132 State V. 7 Humph. 63 167, 170 Bruce, State v. 87 Ind. 450 813 V. State, 48 Iowa, 530 841 State V. 24 Me. 71 383 State V. 77 Mo. 193 355 Brncker v. State, 16 Wis. 333 827 Bruflfe-y, State v. 76 Mo. 389 ; 11 Mo. Ap. 79 465, 896 Brumley v. State, 11 Tex. Ap. 114 273 Brunding, ex parte, 47 Mo. 255 933 Brunson v. Martin, 17 Ark. 270 453 Bruzzo, People v. 24 Cal. 41 447, 536 Bryan v. Bates, 15 111. 87 8 ex parte, 76 Mo. 253 932 R. V. 2 Str. 1101 239 V. State, 26 Ala. 66 407 729 TABLE OF CASES. BECTION Bryan, State v. 40 Iowa, 379 647 State V. 19 La. An. 435 318 State V. 89 N. C. 631 577, 767 Bryant, ex parte, 34 Ala. 270 75, 76 in re, 2 Tyler, 269 987 V. State, 36 Ala. 270 104, 111 State V. 41 Ark. 359 742 State V. 2 Car. Law R. e'17 213 State V. 14 Mo. 340 111, 112 State V. 92 Mo. 273 641 State V. 65 N. C. 327 513 State V. 89 N. C. 531 577 State V. 58 N. H. 79 223, 239 State V. 10 Yerg. 527 350 Bryson, State v. 90 N. C. 747 121 Bube V. State, 76 Ala. 73 325 Buchanan v. State, 24 Ga. 282 694 State V. 5 Har. & J. 317, 500 305, 698, 773, 774 State V. 1 Ired. 59 393, 394 Buck V. Buck, 60 III. 105 969 V. Com., 107 Penn. St. 486 418 People V. 60 111. 115 949 State V. 59 Iowa, 382 255, 283, 414, 415 V. State, 1 Ohio St. 61 292 Buckalew, State v. 62 Ala. 334 321 Buckland v. Com., 8 Leigh, 732 167, 180 Buckley, Com. v. 145 Mass. 181 116 in re, 69 Cal. 1 957 People V. 49 Cal. 241 673 V. State, 2 Greene, 162 220 V. State, 60 Iowa, 471 802, 813 Buckman, State v. 8 N. H. 203 284 Buckner v. Beck, Dudley (S. C.) 168 453,599 a V. State, 56 Ind. 208 298 Buddington, in re, 74 N. C. 607 995 Buell, in re, 3 Dill. 116 28, 35, 37 6, 981, 993 Buffington, Resp. v. 1 Dall. 61 386 Buford, Com. «. 20 Alb. L. J. 361 605 Bugbee, Com. u. 4 Gray, 206 132 Buhler v. State, 64 Ga. 504 480, 481 Buhs, State v. 18 Mo. 319 548 Bull, ex parte, 8 Jur. 827 986 in re, 4 Dill. 323 ; Cent. L. J. 1877 35, 37, 993 R. «. 9 C. & P. 22 696 Bullard, State v. 16 N. H. 139 841 BuUiner v. People, 95 III. 394 358, 556, 733 Bullock 1). State, 10 Ga. 47 771 State V. 63 N. C. 571 520, 820 V. State, 12 Tex. Ap. 42 890 Bulson V. People, 31 111. 409 451 Bandy, State v. 64 Me. 507 118 Burden v. People, 26 Mich. 162 649 730 SECTION Burdett v. Abbott, 14 East, 1 964 R. V. Dears, 431 566 V. State, 9 Tex. 43 441, 451 Burdick v. Hunt, 43 Ind. 384 378 V. People, 58 Barb. 51 713 Burdine v. Grand, 37 Ala. (N. S..) 478 667 Burger, in re, 30 Mich. 203 996 Burgess v. Com., 2 Va. Cas. 483 95, 369 People V. 35 Cal. 115 130 State V. 75 Mo. 541 164 U. S. V. 3 McCr. 278 89 Burgiss, B. u. 7 C. & P. 488 61 Burgson, State v. 53 Iowa, 318 163 a Burk V. Com., 5 J. J. Marsh. 676 750, 751 <;. State, 2 Har. & J. 426 261,291 V. State, 81 Ind. 128 480 State V. 89 Mo. 635 247 Burke, Com. v. 15 Gray, 408 222, 273 I ex parte, 58 Miss. 50 76 People V. 34 Cal. 661 220 B. V. 10 Cox. 519 696 V. State, 74 Ala. 399 246, 262 u. State, 66 Ga. 157 830 V. State, 47 Ind. 528 968, 975 V. State, 72 Ind. 392 890 State V. 38 Me. 574 383, 386, 448, 771 V. State, 5 Tex. Ap. 74 158 Burkett, R. v. Andr. 230 385 Burkhart, in re, 33 Fed. Rep. 25 602 Burks V. State, 24 Tex. Ap. 326 460, 488 Burlingham, State v. 15 Me. 104 350, 396 Burlington, Com. v. 136 Mass. 435 220 Burnham v. Hatfield, 5 Blackf. 21 378, 379 w. Morrissey, 14 Gray, 226 • 964 Burns v. Erben, 40 N. Y. 463 13 V. People, 1 Park. C. R. 182 465, 476 State V. 18 Fla. 185 773 State V. 33 Mo. 483 819 State V. 85 Mo. 47 668 State V. 20 N. H. 550 161 V. State, 12 Tex. Ap. 269 692 Burnside, State v. 37 Mo. 343 641, 713, 813, 854 Burr's case, Pamph. 658, 1000, 1004 Burrell, State v. 86 Ind. 313 1 V. State, 18 Tex. 713 664, 693 Burres v. Com., 27 Grat. 934 460 Burriss, State v. 38 Ark. 221 602 Burroughs v. State, 33 Ga. 403 844 U. S. 0. 3 McLean, 405 173, 771 TABLE OF CASES. Burrows v. Unwin, 3 C- & P. 310 829 Burt V. Panjaud, 99 U. S. 180 654, 693 V. Pyle, 89 Ind. 398 963 People V. 51 Mich. 200 6, 9 State I). 64 N. C. 619 211 State u. 25 Vt. 373 152, 247, 281, 284 Burtine v. State, 18 Ga. 534 815 Burton, Com. v. 4 Leigh, 645 342 R. V. 2 F. & P. 788 575 V. State, 75 Ind. 447 558 Barwell, State v. 34 Kans. 312 585 Busey v. State, 77 Ala. 66 293 Bush, Com. V. 2 Duval, 264 522, 527, 528 V. Kentucky, 107 U. S. 110 783 a People V. 68 Cal. 623 622, 707, 823 People w.4Hill(N.Y.), 133 159, 791 E. V. 1 Leach, 79 ; 2 W. Bl. 790 183 R. V. R. & R. 372 113 V. State, 21 Fla. 761 772 Bushnell, ex parte, 9 Ohio St. 78 980 Buster, State v. 90 Mo. 574 220 Butcher, R. u. 2 M. & R. 229 570 Butler, Com. v. 1 Allen, 4 426 V. Com., 81 Va. 59 70, 339 ex parte, 18 Alb. L. J. 369 35 People V. 8 Cal. 435 341 People V. 3 Cow. 347 936 V. State, 22 Ala. 43 260 State V. 1 Idaho, N. S. 271 354 V. State, 3 MoCord, 383 222 State V. 67 Mo. 59 866 U. S. V. 1 Hugh. 457 613 V. U. S., 4 Hughes, 514 89 Butman's case, 8 Greenl. 113 283 Butolph V. Blust, 5 Lansing, 84 8 Butter, in re, 7 Abb. Fr. (N. S.) 67 29 Butterfield, R. v. 2 M. & R. 522 92 Butterick, Com. „. 100 Mass. 12 133, 187, 189, 193 Butterwiok, R. w. 2 M. & R. 196 - 187 Butterworth, R. v. R. & R. 520 312, 383 Button, R. «. 11 Q. B. 929 464, 465 Butts, Com. V. 124 Mass. 449 189, 218 Bazine, State v. 4 Harring. 572 29, 35, 992, 993 Buzzard, Com. v.. 5 Grat. 694 90 V. State, 20 Ark. 106 279, 420, 421 Buzzel, Com. v. 16 Pick. 153 629, 636, 658, 665 State V. 58 N. H. 257 ; 59 N. H. 61, 65 458, 477, 483, 707 Buzzo, U. S. V. 18 Wall. 125 89, 164, 746 SEOTIOIf Bybee, State v. 17 Kans. 462 793 Byers, State v. 73 Md. 209 376, 759 State V. 80 N. C. 426 711 Byrnes, People v. 33 Hun, 98 36 Bykerdike, R. v. 1 M. & Rob. 179 253 Byrd v. State, 1 How. (Miss.) 247 95, 163, 356, 555, 1006 State V. 31 La. An. 409 447, 465 Byron, in re, 18 Fed. Rep. 722 996, 1001 Cabot V. Yarborough, 27 Ga. 476 974 Cabrera, ex parte, 1 Wash. C. C. 232 59 Cadle, State v. 19 Ark. 613 279, 282 Cady V. Com., 10 Grat. 776 124 State V. 47 Conn. 44 220 a. State, 4 Tex. Ap. 238 709 Caesar, People v. 1 Parker, C. R. 345 936 Caffey, State v. 2 Murphey, 320 173 Cage, ex parte, 45 Cal. 248 620, People V. 48 Cal. 324 498, 513, 520 CahUl, Com. v. 12 Allen, 540 182, 189, 207, 212, 217 ex parte, 52 Cal. 463 446 V. People, 106 111. 621 8, 20 Cain, Com. v. 14 Bush. 525 773 ■ Com. o. 102 Mass. 487 290, ?83, 910 Com. V. 20 W. Va. 679 565 V. State, 18 Tex. 387 260 Caine, State v. I Hawks, 352 338, 339, 359, 363, 388 Calder's case, 6 Op. Att.-Gen. 91 50 Caldwell v. Com., 7 Dana, 229 940 Com. V. 14 Mass. 330 282 R. !>. 17 Q. B. 503 774 a V. State, 3 Baxter (Tenn.), 429 91 V. State, 14 Tex. Ap. 171 127 U.S. i>. 8Blatch. 131 49 Caleb V. State, 39 Miss. 721 823 Calhoun, State v. 1 Dev. & B. 374 369 Calico V. State, 4 Pike, 430 314, 940 Calicot, in re. See Callicot, in re. Calkins v. Calkins, 3 Barb. 305 320 Call, Com. V. 21 Pick. 509 756, 759 ex parte, 2 Tex. Ap. 566 966 Callahan v. State, 55 Iowa, 334 750 Callender, U. S. v. Pamph. 19 658 Callicot, in re, 8 Blatch. 89 531, 994, 996 6, 1006 Calrin, State v. R. M. Charlton, 151 220 731 TABLE OF CASES. SECTION Calvin, State v. 2 Zabr. 207 183, 191 Cameron, ex parte, 81 Ala. 87 996 State 17. 2 Chand. (Wis.) 172 617, 679 V. State, 8 Eng. 712 112, 246, 261, 464, 465 V. State, 9 Tex. Ap. 332 237 State V. 40 Vt. 555 252, 570 Camp V. State, 25 Ga. 689 762 V. State, 3 Kelly, 417 220 State V. 23 Vt. 551 824 Campbell, v. Com. 2 Va. Gas. 314 777 ex parte, 20 Ala. 89 986 People V. 59 Cal. 243 88 V. People, 109 111. 565 291, 438, 442, 473, 477, 709, 737 People V. 4 Park. C. R. 386 90 E. ^. 1 C. & K. 82 111, 113 K. (.. 3 C. & P. 418 466 V. R. 11 Q. B. 799 248, 457, 756 V. State, 38 Ark. 498 869 V. State, 22 Tex. Ap. 262 476 V. State, 8 Tex. Ap. 84 354 State w. 9 Yerg. 333 785, 788, 895- Canada v. Com., 9 Dana, 304 550 V. Com., 22 Grat. 899 260, 464 Canoemi v. People, 18 N. Y. 128 733, 780 Candy v. State, 8 Neb. 482 293 Canlff, People v. 2 Park. C. R. (N. Y.) 586 614 Cannon, Com. v. 10 Phila. 456 890 in re, 47 Mich. 481 37, 49 V. State, 57 Miss. 147 844 State V. 90 N. C. 711 350 State V. 11 Oregon, 312 913 Canter v. People, 38 How. N. Y. Pr. 91 471, 502 Cantrill v. People, 3 Gilm. 356 152 Capehart v. Stewart, 80 N. C. 101 693 Cappo V. State, 4 Iowa, 502 269 Carberry v. State, 11 Oh. St. 410 196 Card V. People, 3 Neb. 357 505 State V. 34 N. H. 510 164, 263 Carden, R. v. h. R. 5 Q. B. D. 1 1000 Cardova v. State, 6 Tex. Ap. 445 588 Cardwell, State v. 95 N. C. 643 916 Carey, Com. v. 12 Gush. 246 5, 8, 9, 17 Com. V. 103 Mass. 214 292, 771, 910 Cargau v. People, 39 Mich. 540 649 Carillo, People v. 54 Cal. 63 798 People V. 70 Cal. 643 711 Garland, State v. 90 N. G. 668 495 Carlisle, Com. v. Bright. R. 36 991, 1000, 1001 732 Carlisle, R. ti. 4 C. & P. 415 996 V. State, 32 Ind. 55 144 V. U. S. 16 Wall. 147 521, 525 Garll, ex parte, 106 U. S. 521 995 U. S. V. 105 U. S. 611 164, 222 Carlton v. Com., 5 Met. 532 283, 285, 290 292 People V. 57 Cal. 559 88,' 935 Carman, State v. 63 Iowa, 130 733 Garmichael, People v. 5 Mich. 10 464 Carnal, People v. 6 N. Y. 463 320 V. People, 1 Parker C. R. 256, 262, 273 676, 830, 847 Carney, Com. v. 4 Grat. 546 279 R. V. 1 Mood. G. G. 351 196 Carothers, State v. 1 Greenl. 464 602 Carpenter v. People, 8 Barb. 610 805 V. People, 64 N. Y. 483 344 V. State, 23 Ala. 84 247, 465 State V. 74 N. C. 230 317 State V. 20 Vt. 9 164 Carper v. State, 27 Oh. St. 572 413 Carr, State v. 1 Post. 166 854, 869 State V. 14 Ga. 358 871 State V. 43 Kan. 100 14 State V. 5 N. H. 367 167 State V. 6 Oregon, 133 251 Carradice, R. u. R. & R. 205 464 Carrick, State v. 16 Nev. 120 659 Carrier, People v. 46 Mich. 442 683 Carro, State v. 26 La. An. 377 189 Carroll, ex parte, 36 Ala. 300 75 State V. 2 Ired. 257 946 a V. State, 5 Neb. 31 707 Carson, Com. v. 1 Wheel. C. C. 488 598 R. V. R. & R. 303 314, 470 State V. 50 Ala. 134 639 State V. 69 Ala. 235 238 State V. 27 Ark. 470 939 a Gar-Soy, People v. 57 Cal. 102 665 Garstapen, State v. 2 Hayw. 238 817 Carte, R. w. 1 G. & K. 741 194 Garter, Com. v. 108 Mass. 17 81 Com. V. 11 Pick. 277 583 V. Fitzgerald, 121 U. S. 87 1010 V. People, 2 Hill N. Y. 317 801 People V. 46 Mioh. 442 617 V. State, 2 Garter, 617 283 State V. Conf. N. C. R. 210 169, 273 V. State, 46 Ga. 637 854, 859, 862 V. State, 48 Ga. 43 805 State V. 76 N. G. 20 707 V. U. S. 3 Granoh C. C. 423 955 Cartright, State v. 20 W. Va. 32 835 TABLE OP CASES. SECTION Cartwright's case, 114 Mass. 231 963 Cartwright, State v. 12 Lea, 620 642, 798, 824, 846 State V. 10 Oreg. 193 651 Caruthers, U. S. v. 15 Fed. Rep. 309 269 Carver, State i-. 49 Me. 688 350, 759 State V. 2 R. I. 286 ■ 251 Gary v. State, 76 Ala. 78 13 Casat V. State, 40 Ark. 511 845 Casborus, People u. 13 Johns. R. 351 435, 457 Casey, ex parte, 18 Fed. Rep. 86 913 People V. 53 Cal. 360 798 V. People, 72 N. Y. 393 158, 212 a, 251, 252, 253, 254, 777 People V. 96 N. Y. 116 632, 693 State ti. 1 Bush. 209 451 Cash V. State, 10 Humph. Ill 290 Cashiel, U. S. «.. 1 Hugh. 552 439, 442 Casinooa v. State, 12 Tex. Ap. 554 793 Cason, State v. 20 La. An. 48 189 Caspary, State v. 11 Rich. 356 273 Casper v. State, 47 Wis 635 698, 712 Cassady, State v. 12 Kans. 650 700 State V. 52 N. H. 600 238 Cassel, State v. 2 Harr. & Gill, 407 183, 283 Cassels, People v. 6 Hill N. Y. 168 999 V. State, 4 Yerg. 152 791, 813 Cassety, State v. 1 Rich. 91 256, 472, 476 Cassiano, People v. 30 Hun, 388 ; 1 N. Y. Cr. 505 830 Cassidy, R. v. 1 F. & F. 79 565 Castles, Com. t;. 9 Gray, 123 184 Castro V. De Uriartre, 16 Fed. Rep. 93 50, 51 R. V. L. R. a. B. 350; 5 Q. B. D. 490 ; L. R. 6 App. Ca. 229 ; 44 L. T. N. S. 354; 14 Cox C. C. 436, 546 281,910 Catlow, in re, 16 Att'y-Gen. 642 56 Caton, U. S. v. 1 Cranch C. C. 150 970 Caudle v. Seymour, 1 G. & D. 454 5 Caudwell, R. v. 17 Q. B. 503 548 Caulfield, State v. 23 La. An. 148 651, 841 Caranah v. State, 56 Miss. 300 571, 860, 87.3 Cavanaugh, People v. 2 Park. C. R. 650 996, 1006 Cave V. Mountain, 1 M. & G. 257 70 Caveness, State v. 78 N. C. 484 560 Caw V. People, 3 Neb. 357 819 Cawley v. State, 37 Ala. 152 291, 292, 911 Cawood, Com. v. 2 Va. Cas. 527 371 SECTION Central R. R. v. Mitchell, 63 Ga. 173 660 Cert. Intox. Liquors, Com. v. 6 Al- len, 696-9 ; 13 Allen, 26 561 Chadbourn v. Franklin, 6 Gray, 312 566 Chadwiok, R. v. 11 Q. B. 205 773 Chaffin, State v. 2 Swan, 493 465, 467 Chambers v. People, 106 111. 409 798 V. People, 4 Scam. 351 220 R. V. L. R. 1 C. C. 341 200 Chamblee v. State, 78 Ala. 466 758 Champean, State v. 52 Vt. 313 344 Champion, ex parte, 52 111. 311 982, 1007 Champneys, R. t). 2 M. & Rob. 26 460, 468, 471 Chancellor, State v. 1 Strobh. 347 635 Chandler, State v. 2 Hawks, 439 369 State V. 31 Kans. 201 79, 285, 910 State V. 24 Mo. 371 169 Chapman, Com. v. 11 Cush. 422 396 Com. V. 5 Whart. 427 220, 2.36, 280 V. People, 39 Mich. 549 145 State V. 53 Vt. 313 447 Chappel V. State, 8 Yerg. 167 ^ 371 Chappell, People v. 27 Mich. 486 464 V. State, 52 Ala. 369 771 Chappie, R. v. R. & R. 77 237 Chard, R. v. R. & R. 488 237 Charles, U. S. v. 2 Cranch C. C. 76 378, 878 Charleston, in re, 34 Fed. Rep. 631 53 Charlesworth, R. u. 1 B. & S. 460 ; 9 Cox C. C. 44 ; 31 L. T. (M. C.) 25 ; 2 F. & P. 326 420, 436, 490, 722 Charlton's case, 2 My. & Cr. 316 958 Charlton v. Com. 6 Met. 632 285, 911 State V. 11 W. Va. 332 161 Chase, Com. o. 125 Mass. 154, 221 u. People, 40 111. 352 846 V. State, 46 Miss. 683 344, 432, 836 State V. 82 Mo. 595 725 V. State, 50 Wis. 510 95 U. S. V. 27 Fed. Rep. 807, 809 762 Chase's Trial, Pamph. 806 Chauncey, Com. v. 2 Ashm. 90 274, 360, 751, 759, 76i; 873, 886 Cheadel v. State, 110 Ind~. 310 957 Cheang-Kee v. V. S. 3 Wall. 320 913 Check V. State, 35 Ind. 492 840 Checketts, R. u. 6 M. & S. 88 106, 424 Cheek v. State, 38 Ala. 227 112 State 11. 25 Ark. 206 507 V. State, 37 Ind. 533 900 State V. 63 Mo. 364 480 733 TABLE OF CASKS. BEOTIOM Cheere, R. w. 7 D. & R. 461 152 Chegary, People v. 18 Wend. 637 1004 Cheltenham, etc. R. R. Co., in re. Law Rep. 8 Eq. 580 958 Cheney, Com. u. 6 Mass. 347 87 Com. V. 114 Mass. 281 306 a Chenier, State v. 32 La. An. 103 699 Chepman, R. v. 12 Cox C. C. 4 8 Cherry, Com. v. 2 Va. Cas. 20 98, 106, 350 V. State, 6 Fla. 679 369 State V. 3 Murphey, 7 132 Chesley, Com. v. 107 Mass. 223 457, 477 Chevalier, State v. 36 La. An. 81 601 Chiavaro, Com. v. 129 Mass. 489 413 Child, Com. v. 10 Pick. 252 798 Com. V. 13 Pick. 198 759, 760 ex parte, 15 C. B. 238 983 Childers v. State, 68 Ga. 837 854 Childrens v. Saxby, 1 Vern. 207 969 Childs V. State, 10 Tex. Ap. 183 884 Chiles V. Com., 2 Va. Cas. 260 281 V. Drake, 2 Meto. (Ky.) 147 463 V. State, 45 Ark. 165 645 Chisholm v. State, 45 Ala. 66 218 Chivarrio v. State, 15 Tex. Ap. 335 139 Choen, State v. 85 Ind. 209 354, 577 Choice V. State, 31 Ga. 424 713 Chorley, R. v. 12 Q. B. 515 787 Christian v. Com., 6 Met. 530 780, 918 Stateu. 30La. An. Ft. I. 367 - 90, 383 Christianburg, State v. Busbee, 46 319 Christie, People v. 2 Park. C. R. 579 654, 683 R. v.lF.k F. 75 573 Christmas v. State, 53 Ga. 81 446 State V. 6 Jones N. 0. 471 712 Chumley, State v. 67 Mo. 41 212 a, 220, 465, 742 Church, Com. v. 1 Barr, 107 232, 387, 388 793 V. People, 10 111. App. 222 ' 318 Churchhill, Com. v. 2 Met. 119 161, 872 Chute V. State, 19 Minn. 271 145, 707 Chyo, State v. 92 Mo. 395 27 Cicero v. State, 54 Ga. 156 712, 798 City Com'rs v. King, 4 McCord, 487 102 Claflin, U. S. v. 13 Blatch. 178 158 U. S. V. 25 Int. Rev. Reo. 465 453 Clair, Com. v. 7 Allen, 525 456, 457, 460 Clanton v. State, 13 Tex. Ap. 139 664 Clapper, State v. 69 Iowa, 279 366 Clare v. People, 9 Col. 122 709 V. State, 68 Ind. 17 370, 701 734 SECTION Clarissa, State v. 11 Ala. 67 346, 346, 360 Clark's case, 6 Grat. 675 169, 221 Clark, Com. v. 2 Browne, 325 346 V. Com. 29 Penn. St. 129 1006, 1010 Com. V. 2 Va. Cas. 401 424 ex parte, 2 Q. B; 619 999 ex parte, 2 Ben. 240 37 b ex parte, 100 U. S. 399 966 6 V. Field, 12 Vt. 486 380 in re, 9 Wend. 212 30, 34, 35, 36, 37, 9^3 V. May, 2 Gray, 410 963, 974 V. Newsam, 1 Ex. 131 186, 199 V. People, 1 Breese, 266 962 People V. 67 Cal. 99 456-7 V. People, 31 111. 479 802 K. People, 1 Parker C. R. 360 548 People V. 3 Selden, 388 773 R. V. 1 Brod. & B. 473 456 R. V. R. & R. 368 111 R. V. R. & R. 181 ; 2 Leach, 1039 202, 214 State V. 32 Ark. 231 446, 467, 470 V. State, 8 Baxt. 691 827 V. State, 1 Carter, 253 95 V. State, 12 Ga. 350 247, 318, 323, 466 V. State, 68 Ga. 784 792 V. State, 4 Humph. 254 649 State V. 69 Iowa, 196 518 V. State, 34 Ind. 436 123 State V. 32 La. An. 568 548 State V. 37 La. An. 128 601 State V. 31 Minn. 207 203 1.. State, 23 Miss. 261 383, 396, 447 V. State, 8 Ohio St. 630 185 State V. 42 Vt. 629 628 V. Stevenson, 2 W. Black. 803 847 V. Terr. 1 Wash. T. 82 672 Clarke, ex parte, 54 Cal. 412 446 ex parte, 100 U. S. 399 981 in re, 3 Burr. 1362 987 R. V. 1 Bulst. 204 130 R. 0. 1 Burr. 606 983 Clary v. State, 33 Ark. 561 90 Claude, State v. 35 La. An. 71 866 Clawson v. U. S., 114 U. S. 477 661 a Clay V. People, 86 111. 147 168 V. State, 43 Ala. 350 746, 756 Clayton, State v. 11 Rich. 581 313 Clearly v. Deliesseline, 1 McCord, 35 88 Cleaver, Resp. v. 4 Yeates, 69 386 Clem V. State, 31 Ind. 480 793 ./.State, 42 Ind. 420 420,465,468, 477, 478, 810 TABLE OP CASES. SECTION Clement, R. u. 4 B. & Aid. 218 952 Clements, in re, 36 L. T. Rep. N. S. 332 960 People V. 42 Hun, 353 711 V. State, 50 Ala. 117 709 V. State, 21 Tex. Ap. 258 119 Clemons v. State, 4 Lea, 23 251 Clendon, R. v. 2 Ld. Raym. 1572 ; 2 Stra. 870 286 Clenny, State v. 1 Head, 270 451, 485 Clere v. Com., 3 Grat. 615 771 Clerk, R. v. Salk. 377 260 Cleveland, ex parte, 36 Ala. 306 1010 People V. 49 Cal. 578 587, 712 Clews, People v. 57 How. (N.Y.) Pr. 245 388 Clifford, ex parte, 29 Ind. 106 925 a State V. 58 Wis. 113 ; 4 Cr. L. Mag. 704 778 State V. 58 Wis. 477 517, 818 Clifton, State v. 78 Mo. 430 350 Clinton v. State, 6 Baxt. 507 452 Cloe's case, 8 Grat. 606 623, 635, 664 Clough, State v. 49 Me. 573 367 Cluck V. State, 40 Ind. 263 560, 643, 840, 853 Clue, Com. v. 3 Rawle, 207 791 Com. V. 3 Eawle, 498 491, 493, 507, 608, 618, 791 Cluggage V. Swan, 4 Binn. 150 847 Cluverius v. Com., 81 Va. 787 551, 636 Clyburn, State v. 16 S. C. 375 566 Clynoard's case, Cro. Eliz. 654 341 Cobb, Com. v. 14 Gray, 57 315 State V. 1 Dev. & B. 115 224 V. State, 27 Ga. 648 560 State V. 17 Me. 198 70 Cobbett, in re, 7 Q. B. 187 999 Cobia, People v. 61 Cal. 548 650 V. State, 16 Ala. 781 447, 457 Coble v. Coble, 79 N. C. 689 561 Coch, People v. 53 Cal. 607 756 Cochlin V. People, 93 111. 410 842 Cochran, People v. 2 Johns. Ca. 73 945 V. State, 30 Ala. 542 294 V. State, 7 Humph. 544 815, ■ 842, 847 V. Street, 1 Wash. R. 79 847 Cochrane v. State, 6 Md. 400 457, 507 V. State, 9 Md. 400 90 V. State, 30 Ohio St. 61 776 Cocke, State v. 38 Vt. 437 220 Cookerham, State v. 2 Ired. 204 913 Cockman, State v. 2 Wins. (N. C.) 95 637 Codd V. Cabe, 13 Cox, 202 7 SECTION Cody V. State, 3 How. (Miss.) 27 844 Coe, Com. v. 115 Mass. 481 182, 184 Coffee, V. State, 60 Iowa, 748 813 State V. 68 Mo. 120 740 V. State, 6 Tex. Ap. 545 709 V. D. S., 116 U. S. 436 463 Coffeen, in re, 38 Mich. 311 998 Coffey, State v. N. C. Term. R. 272 167, 203 Coffman, People v. 24 Cal. 230 672 Cofren, State v. 48 Me. 366 125 Cogan V. Ebden, 1 Burr. 383 847 R. V. 1 Leaoh, 448 460, 488 Cogdell, People v. 1 Hill N. Y. 95 793 Coggin, U. S. V. 10 Rep. 687 321 Cogswell V. State, 49 Ga. 103 839 Cohen v. People, 5 Park. C. R. 330 110 V. State, 7 Col. 274 220 Cohn, ex parte, 55 Cal. 193 , 999 Cohron v. State, 20 Ga. 752 816, 823 Coit V. Starkweather, 8 Conn. 289 108 Coker v. State, 20 Ark. 51 819, 836 Colbert, State v. 29 La. An. 715 666 State V. 75 N. C. 368 386 Colby, Com. v. 128 Mass. 91 243 Cole, ex parte, 14 Tex. Ap. 579 978 V. People, 84 111. 216 220, 752 People V. 43 N. Y. 508 566 People V. 6 Park. C. R. 695, 701 78, 107 V. State, 5 Eng. 318 560 State V. 48 Mo. 70 451 V. State, 11 Tex. Ajf. 67 159 State V. 19 Vi'is. 129 388 U. S. V. 5 McLean, 513 306 Coleman v. State, 71 Ala. 312 326, 452 V. State, 17 Fla. 206 823 y. State, 111 Ind. 663 760, 863 State V. 27 La. An. 691 781 v. State, 69 Miss. 484 665, 683, 821 State V. 5 Port. 32 291 State V. 8 S. C. 237 273, 364, 602, 679 State V. 20 S. C. 441 637, 674 V. State, 97 U. S. 509, 530 436, 439 Colgate, State u. 31 Kan. 616 469 a Colley, R. v. M. & M. 329 569 Collier, in re, 6 Ohio St. 56 980 Colling, R. V. 2 Cox, 184 383 Collins, Com. k. 3 S. & R. 220 165 People V. 48 Cal. 277 804 V. People, 39 HI. 233 95, 217 V. People, 103 111. 21 693, 866 People u. 7 Johns. 549 108 735 TABLE OF CASES. SECTION Collins, state v. 3 Dev. 117 369 V. State, 33 La. An. 162 246, 549 State V. 15 Lea, 434 902 State V. 1 MoC. 355 306 a State V. 48 Me. 217 ■ 155 State V. 81 Mo. 652 560, 821 State V. 86 Mo. 245 821 State V. 70 N. C. 241 560 V. State, 43 Tex. 577; 6 Tex. Ap. 72 109, 865 V. State, 5 Tex. Ap. 37 134 V. State, 6 Tex. Ap. 647 753 V. State, 8 Tex. Ap. 38 798 V. State, 20 Tex. Ap. 197 215, 570 V. State, 20 Tex. Ap. 400 571 U. S. V. 2 Curtis C. C. 194 921 Collyer, State v. 17 Nev. 275 350 U. S. V. Whart. Horn. App. 309 Colson, Com. v. 11 Gray, 1 95, 224 People V. 49 Cal. 679 694 V. State, 7 Black. 590 190, 238 Colt V. Eves, 12 Conn. 243 490 Colter, State v. 6 R. I. 195 244 Columbia, People v. 1 Wend. 297 847 Colvin, State v. 11 Humph. 599 451 Colwells, State v. 3 R. I. 284 162 Combe v. Pitt, 3 Burr. 1423 130 Combs V. State, 75 Ind. 215 577 Comfort, State v. 22 Minn. 271 220 State V. 5 Mo. 357 220 Commander v. State, 60 Ala. 1 716 Commission, State v. 3 Hill (S. C.) 241 465, 788, 895 Compton, People v. 1 Duer, 512 950 R. a. 7 C. & P. 139 235 State V. 13 W. ,Va. 852 389 V. Wilder, 3 Ohio L. ,7. 642 ; 40 Ohio St. 130 27, 33, 34,49 Comstook, People v. 8 Wend. 549 790, 791 V. State, 14 Neb. 205 591 State V. 27 Vt. 553 90 Conant, U. S. v. Cent. L. J. 1879, 129 90 Conatson v. State, 12 Lea, 436 642, 653 Concord R. R., State .,. 59 N. H. 85 269 Confiscation cases, 20 Wall. 92 528 Congdon, State v. 14 R. I. 458 707, 846, 889 Congleton, People v. 44 Cal. 92 602 State V. 44 Cal. 12 163 a Conkle, State «. 16 W. Va. 736 411, 549 736 SECTION Conlee v. State, 14 Tex. Ap. 222 184, 203 Conley v. People, 1 Abbott Deo, N. Y. App. 418 911 State «. 39 Me. 78 91, 92, 95, 146, 309 Conlin o. State, 27 Vt. 318 733 Conn V. State, 11 Tex. Ap. 390 577 Connell, State v. 49 Mo. 282 813 Conner !>. Com., 3 Binn. 38 992 V. Com., 13 Bush. 715 239, 465 State V. 30 Ohio St. 405 251 U. S. V. 3-MoLean, 573 791 Connors, Com. c^. 116 Mass. 35 472 State V. 20 W. Va. 1 774 a Connolly v. State, 60 Ala. 89 733 State V. 7 Mo. Ap. 40 830 State V. 3 Rich. 337 771 Connor, People v. 15 Abb. Pr. 430 999 State V. 5 Blaokf. 325 93 State V. 5 Cold. 311 447 State V. 6 Cold. 315 420 Conover v. State, 86 Ind. 99 414 Conrad, State v. 21 Mo. 271 387 Terr. v. 1 Dak. 363 928 Conroy, People v. 97 N. Y. 62 90, 902 Constable, R. v. 7 D. & R. 663 550 Conway, State v. 23 Minn. 291 759 Cook's case, 13 How. St. Tr. 312 682 Cook V. Brown, 39 Me. 443 712 Com. i;. 6 S. & R. 677 312, 490, 491, 493, 667 V. Middlesex, 2 Dutch. 326 ; 3 Dutch. 637 528 People V. 14 Barb. 259 101, 108 People w. 10 Mich. 164 90 People V. 2 Park. C. R. 12 281 R. v.lR.k R. 176 255, 777 R. V. 13 St. Tr. 334 661 V. State, 60 Ala. 39 549 V. State, 20 Fla. 802 139 V. State, 11 Ga. 43 120, 125, 220 State V. 30 Kans. 82 358, 836 State V. Phillips Rep. 535 526 V. State, 4 Zabr. 843 292, 911 U. S. u. 17 Wall. 168 238, 239, 317, 318,481 Cooke V. Green, 11 Price, 736 848 People V. 6 Park. C. R. 31 119 R. i;. 5 B. & C. 538 ; 7 D. & R. 673 305, 312, 698 R. v.SC.k P. 582 187, 375, 379 R. V. 2 East P. C. 616 237 Cooley, Com. v. 6 Gray (Mass.), 350 7 Com. V. 10 Pick. 37 280 Coolidge, U. S. v. 1 Gall. 488 919 U. S. ■;. 2 Gall. 364 ; 1 Wheat. 415 369, 481, 500, 516, 724, 820, 919, 954 TABLE OP CASES. SECTION Coombs, State v. 32 Me. 527 472 Coon, People v. 45 Cal. 672 212 Cooper, Com. v. 15 Mass. 187 249 in re, 32 Vt. 258 974 R. w. 5 C. & P. 535 469 a V. State, 21 Ark. 228 733 State V. 5 Day, 250 193 State V. 1 Green (N. J.), 361 466, 471 V. State, 47 Ind. 61 . 481 V. State, 79 Ind. 206 297 State «. 96 Ind. 331 887 State V. 31 Kans. 505 247 V. State, 64 Md. 40 426 V. State, 59 Miss. 257, 410 370, 664 State V. 85 Mo. 256 847 State V. 16 Ohio St. 328 638 Cope I,-. Com., 28 Penn. St. 297 528 Copeland, State v. 65 Mo. 497 504 State V. 2 Swan, 626 419 Copenhaven v. State, 14 Ga. 22 646 V. State, 15 Ga. 284 471 Copp, State V. 34 Kans. 522 341 State V. 15 N. H. 212 158 Coppersmith, U. S. v. 2 Flip. 546 614 Copping V. State, 7 Tex. Ap. 59 251 Corbett, People v. 28 Cal. 330 541 V. State, 24 Ga. 391 82 State V. 12 R. I. 238 181 a Core, State v. 70 Mo. 491 292,641, 911 Corn, People v. 45 Cal. 672 206 Cornelius v. State, 7 Eng. (Ark.) 782 93, 815 Cornell, State v. 49 Mo. 282 353 Cornetta, People v. 92 N. Y. 85 632 Corning, People v. 2 Comstock, 1 405, 507, 773 Cornman, Com. d. 4 S. & R. 93 997 Cornwell v. State, Mart. & Yerg. 147 92 Corrie v. Corrie, 42 Mich. 509 1010 U. S. V. 1 Brunf. 686 384 Corrigan, State v. 24 Conn. 286 161, 194 Corson, State v. 12 Mo. 404 337, 345 Corwin, State v. 4 Mo. 609 230 Costello, Com. v. 120 Mass. 358 196, 285 Coin. V. 121 Mass. 371 548 Com. V. 128 Mass. 88 749" People V. 1 Denio, 83 285, 293, 793 Coster V. Merest, 3 B. & B. 272 849 Costley, Com. v. 118 Mass. 1 712 Com. V. 12 Pick. 496 750, 751 Costly V. State, 19 Ga. 614 694, 846 Cothran v. State, 39 Miss. 541 810 Cotta, People v. 49 Cal. 166 566, 602 47 SECTION Cotton, State v. 4 Fost. 143 131, 145, 414 V. State, 31 Miss. 504 640 State V. 4 Tex. 260 586 Cottrell, ex parte, 59 Cal. 420 '■ 999 Coughlin, State v. 19 Kans. 537 79 Coulson, R. V. 1 Den. C. C. 592 ; 1 Eng. L. & E. 550 ; 1 Temp. & M. C. C. 332 ; 4 Cox C. C. 227 174, 182 Cotinliaye, ex parte, L. R. 8 Q. B. 410 47, 53 Coupenhaver v. State, 39 Mo. 320 847 Courtney, State v. 6 Mo. 649 358 Courvoisier, R. w. 9 C. & P. 362 560-3 Covey V. State, 4 Port. 186 292, 302 Covington, State v. 4 Ala. 603 305 State V. 94 N. C. 913 169 Cowan, State v. 1 Head, 280 362, 374 State V. 29 Mo. 330 440 Coward v. State, 6 Tex. Ap. 59 588 Cowell V. Patterson, 49 Iowa, 514 1002 State V. 4 Ired. 231 245, 466 Cowle, R. V. 2 Burr. 834 602 Cowles, People v. 59 How. Pr. 287 983 Cowman, State v. 12 Md. 250 762 Cox i: Coleridge, 1 B. & C. 3T 73 ex parte, 12 Tex. Ap. 605 602 People V. 9 Cal. 32 760 V. People, 80 N. Y. 500 156, 350, 608, 609, 632 R. V. 1 C. & K. 487 ; 1 Den. C. C. 502 210 R. V. R. & R. 362 253 i;. State, 76 Ala. 66 302 V. State, 32 Ga. 515 709 V. State, 64 Ga. 374 601, 609 State V. 6 Ired. 440 369, 371 V. State, 7 Tex. Ap. 1 823 V. State, 8 Tex. Ap. 254 273, 279 Coxon, R. V. 7.C. & P. 651 61 Coy,inre, 127U. S. 731 770a, 981, 996 State V. 2 Aiken, 181 247, 261, 465 Coyles V. Hurtin, 10 Johns. 85 10, 11 Crabtree v. State, 1 Lea, 267 797 V. State, 3 Sneed, 302 842 Craddock, R. v. 2 Den. C. C. 31 256, 291, 503 Craft V. State, 3 Kans. 450 813 State V. 1 Walk. 409 240 Craig, People v. 59 Cal. 370 150, 400 Craige, State v. 89 N. C. 475 759, 760, 813 Craighead, State v. 32 Mo. 561 90 Crain v. State, 2 Yerg. 390 282 Cranbourn's case, 4 St. Tr. 701 ; Salk. 633 ; East P. C. 116 257 Crank, State v. 2 Bailey, 66 664 Crans, Com. v. 3 Penn. L. J. 442 ; 2 Clark, 172 338, 367, 381, 1005 737 TABLE 01 CASES. SECTIOW Craton, State v. 6 Ired. 164 540, 549, 612, 613 U. S. V. 1 Cranch, 150 954 Craven's case, 2 East P. C. 601 ; R. & R. 14 183, 189 Crawford v. State, 2 Carter, 132 283 V. State, 12 Ga. 142 830 State V. 11 Kans. 32 652 State u. 13 La. An. 300 196 V. State, 15 Tex. Ap. 501 577 V. State, 2 Yerg. 60 842, 847 Craycroft, People v. 2 Cal. 243 232 Creek v. State, 24 Ind. 151 815, 823, 841 Creight, State v. 1 Brev. 169 93 Creighton, State u. 1 N. & McC. 256 369, 374 Crenshaw, State v. 22 Mo. 457 237 Crews V. People, 120 111. 317 591 Criblis V. State, 9 Fla. 409 292 Criohton v. People, 6 Park. C. R. 365 120,158 a Crickdale, R. w. 3 E. & B. 947 n 787 Crimmins, State v. 31 Kan. 376 293 Crippen v. State, 8 Mich. 117 665 Crittenden, ex parte, 62 Cal. 534 970 U. S. u. Hemp. 61 125, 282, 367, 385 Crocker v. State, 47 Ala. 53 906 State V. 1 Houst. 122 8 V. State, Meigs, 127 378 State V. 3 Barring. 554 244 Crocket v. State, 52 Wis. 211 824, 827 Croft V. People, 15 Hun, 484 457 Crofts, R. t). 9 C. & P. 219 481 Crogan, State v. 8 Iowa, 523 145 Crone, R. v. Jebb, 47 191 Crookes. R. v. 3 Burr. 1841 386 Crookham v. State, 5 W. Va. 510 371, 494 Cropper v. U. S., Morris, 259 752 Crosby's case, 12 Mod. 66 77 Crosby v. Long, 12 East. 409 453 R. V. 1 Ld. Raym. 39 527 State V. 4 La. An. 434 822 U. S. V. 1 Hughes, 448 221 Crosier v. Cundy, 9 D. & R. 224 25 Cross, Com. v. 1 Ashm. 281 588 ex parte, 2 H. & N. 354 27 V. Guthery, 2 Root, 90 453 R. V. 1 Ld. Raym. 711 ; 3 Salk. 193. 201, 464 V. State, 63 Ala. 40 886 r. State, 68 Ala. 476 577 State V. 27 Mo. 332 540, 546, 549 V. State, 55 Wis. 262 159, 260, 794 U. S. V. 1 MoArtH. 149 89 Crossfield's case, 8 St. Tr. 773 366 738 BEGTION Croswell, People v. 3 Johns. Cas. 338 161 Croteau, State v. 23 Vt. 14 294, 810 Crotty, Com. v. 10 Allen, 403 6 Crouch, ex parte, 112 U. S. 178 981, 996 Crow, in re, 60 Wis. 349 1010 Crowell V. Merrick, 19 Me. 392 453 Crowley v. Com., 11 Met. 575 291 Crowther, R. ;;. 5 C. & P. 316 194 Croxdale v. State, 1 Head, 139 176 Crozier, People v. 1 Parker C. R. 403 810 State V. 12 Nev. 300 813 Cruce V. State, 59 Ga. 83 519, 573, 614, 755 Cruikshank v. Comyns, 24 111. 602 119 U. S. w. 92 U. S. 542 151, 920 Cruise, State v. 16 Mo. 391 813 Crummey, State i;. 17 Minn. 72 261 Crump, Com. v. 1 Va. cases, 172 .Wl Crumpton v. State, 43 Ala. 31 392, 395, 406 Cruse, R. «. 8 C. & P. 541 306 a Crutch, State n. 1 Houst. 204 507 Cubreth, ex parte, 49 Cal. 436 28, 29 Cucuel, State v. 2 Vroom, 249 (31 N. J. L.) 815, 816, 822, 836, 837, 841 Cullen, R. v.5C.k P. 116 ; 1 Mood. C. C. 300 193, 196 Culler, State v. 82 Mo. 323 641 Gulp V. State, 1 Port. 33 188 Culton, Com. v. 11 Gray, 1 93 Cummings, Com. -. 3 Cush. 212 773 Com. u. 6 Gray, 487 146 V. Gann, 52 Penn. St. 484 661 Cunningham, Com. v. 13 Mass. 245, 441, 456, 471, 485 People u. 1 Denio, 624 712, 796 o V. State, 20 Tex. Ap. 162 881 Curd V. Com., 14 B. Mon. 386 314 Curley v. Com., 84 Penn. St. 151 634 in re, 34 Iowa, 184 1010 Curling, People v. 1 Johns. 320 253, 771 Curran's case, 7 Grat. 619 309 Curran, R. v. Ry. & M. 132 8 Curry, R. v. 2 Mood. C. C. 218 ; C. & M. 652 187, 193 Curtis, Com. v. 11 Pick. 134 440, 465, 477, 485 ex parte, 3 Minn. 274 602, ^ 953 V. People, 1 Breese, 199 260 TABLE OP CASES. SECTION Curtis, People v. 50 N. Y. 321 37, 37 c, 793 V. State, 6 Cold. (Term.) 9 852 State V. 5 Humph. 601 508, 724 State V. 29 Kans. 384 440 State V. 30 La. An. Pt. II. 814 263 State V. 77 Mo. 267 859 State V. 71 N. C. 56 746, 756 V. State, 22 Tex. Ap. 227 476 U. S. V. 4 Mason, 232 696 Curvan, R. v. 1 Moody C. C. 132 5 Gushing, State v. 11 R. I. 314 703 Custer, Slate v. 65 N. C. 339 746 Cutbush, R. V. L. R. 2 Q. B. 379 932 Cutler, Com. v. 9 Allen, 486 472 V. State, 42 Ind. 244 591 Terr. v. MoCahon, 152 989 D. Dabney's case, 1 Rob. (Va.) 696 536 Da Costa, in re, 1 Park. C. R. 129 1011 Dacre's case, Kelying, 59 733 Daoy V. State, 17 Ga. 439 485, 590 Dadson, R. v. T. & M. 385 9 Baffin V. State, 11 Tex. Ap. 46 804 Dailey, Com. w. 12 Cush. 80 733 People V. 59 Cal. 600 801 V. State, 28 Ind. 285 570 Daily v. State, 10 Ind. 536 218, 810 Dakins, ex parte, 16 Q,. B. 77 982, 999 Dale, R. v. 15 Jurist, 657 ; 5 E. L. &E. 360; 18Alb. L. J. 127 102 R. V. 17 Q. B. 64 102 State V. 8 Oreg. 229 608 Daley, in re, 2 F. & F. 258 983 Com. V. 4 Gray, 209 481, 483 State V. 41 Vt. 564 159 Dallas, State v. 35 La. An. 899 818, 827 Dallinger, Com. v. 118 Mass. 439 188 Dalrymple, People v. 65 Mich. 519 384 438 771 Dalton, ex parte, 49 Cal. 463 ' ' 932 State V. 2 Murph. 379 153 Daly, State v. 14 R. I. 510 424 Dam, Com. v. 107 Mass. 210 566 Damewood v. State, 1 How. (Miss.) 262 183, 188 Damon, People v. 13 Wendell, 351 509, 517, 664, 672 State V. 2 Tyler, 389 464, 468 Dan V. Tucker, 4 Johns. 487 847 Dana's case, 7 Ben. 1 ' 37 6, 41 SECTION Dana, Com. v. 2 Met. 329 26 V. State, 2 Ohio St. 91 168, 170 Dancy, State v. 78 N. C. 437 711, 798 Dane, People v. 59 Mich. 550 561 V. Smith, 13 Wis. 585 559 Danforth, State v. 3 Conn. 112 919 V. State, 75 Ga. 614 370, 429 a, 810 Daniel's case, 1 Bright. XJ. S. Dig. 294 37 Daniel, Com. v. 6 Penn. L. J. 417 35 Daniels v. Com., 7 Penn. St. 371 780, 918, 927 Com. V. 2 Va. Cas. 402 153 State V. 32 Mo. 558 470 State V. 66 Mo. 193 602 State V. 44 N. H. 383 277, 844 Daun, R. a. 1 Mood. C. C. 424 463 Danovan v. Jones, 36 N. H. 246 8 Dantz V. State, 87 Ind. 398 771 Dark, State v. 8 Blackf. 526 457 Darling, Com. v. 129 Mass. 112 291 Darnell v. State, 24 Tex. Ap. 6 429 a Da Rocha, State V. 20La. An. 356 608 Darr, People v. 61 Cal. 538 355, 608, 716 Darrah, State v. 1 Roust. 112 260 Dart V. McKinney, 9 Blatch. 359 783 a Dasoom, Com. v. Ill Mass. 404 451 Daubert, State v. 42 Mo. 243 291, 293, 709 Daubner, U. S. v. 17 Fed. Rep. 793 813 Daugherty, State v. 30 Tex. 360 90, 273 Dauner v. State, 54 Ala. 127 221 Dave V. State, 22 Ala. 23 712 Davenport v. People, 1 Leigh, 588 805 State V. 32 La. An. 558 548, 549 State V. 33 La. An. 231 830 U. S. V. 1 Deady, 264 788, 895 Daves, in re, 81 N. C. 72 968 David V. State, 40 Ala. 69 ; 54 Ala. 39 756, 841, 918 State V. 70 Mo. 460 220 State V. 14 S. C. 428 ' 548 V. State, 19 Tex. Ap. 201 602 Davidson, State v. 2 Cold. 184 371, 372 State V. 36 Tex. 325 134 State w. 12 Vt. 300 369,771 Davies v. R., 10 B. & C. 89 131 Davis's case, 122 Mass. 324 30, 35, 36, 993 Davis V. Capper, 10 B. & C. 28 70 V. Clements, 2 N. H. 390 6 Com. u. 11 Gray, 4 277, 278 739 TABLE OF CASES. SECTION Davis, Com. v. 121 Mass. 352 239 Com. V. 11 Pick. 432 155, 157, 702 V. Linn, 24 Iowa, 508 659 People V. 45 Barb. 494 771 V. People, 19 111. 74 692, 841 People V. 52 Mich. 569 702 People V. 56 N. Y. 95 139, 386 R. V. 10 B. & C. 89 130 R. ... 1 C. & P. 306 253 R. B. 1 C. & P. 470 93 R. u. 7 C. & P. 319 277 R. ... 7 C. & P. 785 561 R. V. 2 Den. C. C. 231 119 R. V. Gow's R. N. P. 219 408 R. V. 1 Leach, 493 235 R. V. 6 T. R. 177 6 V. Russell, 5 Bing. 364 ; 2 Moo. & P. 590 9, 14 V. Sherron, 1 Cranoh, 287 969 I'. State, 54 Ala. 89 846 V. State, 5 Baxt. 612 711 State V. 6 Baxt. 605 121 V. State, 4 Blaokf. 345 451 e. State, 13 Bush, 318 220 V. State, 3 Cold. (Tenn.) 77 244 V. State, 20 Ga. 674 415, 417 V. State, 33 Ga. 98 677, 813, 853 V. State, 67 Ga. 66 289, 291 V. State, 58 Ga. 173 471 V. State, 35 Ind. 496 841 V. State, 69 Ind. 130 88 V. State, 88 Ind. 168 813 V. State, 100 Ind. 154 246 State V. 41 Iowa, 311 379 State V. 1 Ired. 125 273 State V. 2 Ired. 153 341 State u. 31 La. An. 249 913,924 V. State, 39 Md. 355 92, 231,465, 602, 700, 777 State V. 29 Mo. 391 641, 844 State V. 66 Mo. 684 733 State V. 73 Mo. 129 244 State V. 69 N. C. 313 176 State V. 80 N. C. 384 273, 495, 518, 844 ■ II. State, 15 Ohio, 72 815, 824, 827 V. State, 19 Ohio St. 270 92 State V. 12 R. I. 492 350 State V. 1 South. 311 441 V. State, 85 Tenn. 522 689, 590 State v. 26 Tex. 201 163 a V. State, 42 Tex. 494 478 o. State, 4 Tex. Ap. 456 235 V. State, 14 Tex. Ap. 645 712 ' V. State, 15 Tex. Ap. 594 921 State V. 100 U. S. 257 783 a 740 SECTION Davis, state v. 52 Vt. 376 716 V. State, 38 Wis. 487 517 tJ. S. V. 6 Blatch. 464 543, 875 U. S. a. 2 Sumn. 482 ; 5 Cranch, 622 38, 989 (Jefferson) U. S, u. Chase ' Dec. 124 76, 455 a Davison «. People, 90 111. 221 690, 810 R. w. 2 F. & P. 250 513 R. V. 1 Leaoh, 241 191 V. State, 12 Tex. Ap. 214 190 Daw V. Eley, L. Rep. 7 Eq. 49 958 Dawes, State v. 75 Me. 51 206 Dawson, R. v. 2 Den. C. C. 75 ; 6 Cox C. C. 220 ; 1 Eng. L. & E. 589 192, 194 R. v. 3 Starkie R. 62 246, 465 State V. 65 Ind. 445 740, 762 U. S. V. 15 How. 467 141 Day V. Savage, Hob. 87 605 State r. 58 Iowa, 678 27, 422 State V. 74 Me. 220 120 V. State, 14 Tex. Ap. 26 228 Dayton, State v. 3 Zab. 49 92, 94, 95, 275, 283, 363, 386 Deacon, Com. v. 8 S. & R. 47 8, 13, 15 Com. V. 10 S. & R. 125 29, 993 am v. State, 5 Ohio St. 283 733 Dillon V. State, 38 Ohio St. 586 918, 994 Dilworth, Com. u. 12 Grat. 689 636, 654, 672 Dimes v. Canal, 3 H. L. 759 605 Dimick, People v. 107 N. Y. 13 794, 796 State V. 12 N. H. 194 980 Dlngtaan v. State, 48 Wis. 485 588 Dinkey v. Com., 17 Penu. St. 126 245, 466 V. State, 34 La. An. 919 664 Disch, State v. 34 La. An. 1134 751, 756 Diskin, State v. 34 La. An. 919 672, 673 State f. 35 La. An. 46 285, 651, 869 Dixon, People u. 4 Park. C. R. 651 75, 76, 81, 1007 V. State, 29 Ark. 165 344 V. State, 13 I'la. 631, 636 541, 712 State V. 75 N. C. 275 713, 812 Do, Terr. «. 1 Ariz. 507 139, 756 Doane «. State, 26 Ind. 495 115 Dobbin, Com. v. 2 Pars. 380 297, 470 Dobbins a. State, 14 Ohio St. 493 505, 520, 725, 815 Dobson y. Oswalt, 20 Ark. 619 560 Dockham, Com. v. Thach. Cr. C. 238 425 Dodd, State u. 33 Ark. 517 244, 910 0. State, 10 Tex. Ap. 370 252, 470 V. State, 4 Zab. 455 918 Dodge, People v. 28 Cal. 445 595 741 TABLE OF CASES. SECTION Dodge I'. People, 4 Neb. 220 780, 906 ■State t). 78 Me. 439 235 U. S. V. 2 Gall. 313 969 Dodson, State v. 16 S. C. 4.')3 577, 601 Doe, People v, 1 Mann. (Mich.) 451 688 State V. 50 Iowa, 541 90 Doherty, Com. v. 10 Cush. 52 132, 159 Com. V. 137 Mass. 245 80 Dohme, State v. 68 Ga. 339 737 Doig, in re, 4 Fed. Rep. 193 37 b Dolau's case, 101 Mass. 101 925 a Dolan, Com. v. 121 Mass. 374 251 V. People, 64 N. Y. 485 344, 350, 427, 608 V. State, 81 Ala. 11 797 State V. 40 Ark. 454 645, 841 V. State, 69 Me. 573 936, 937 V. State, 51 Mich. 610 452, 672 Dolhy, R. «. 2 B. & C. 104 686 Dole, State v. 3 Blackf. 294 221 Doll, „. Anderson, 27 Cal. 248 908 ex parte, 27 Leg. Int. 20 ; S. C, 11 Int. Rev. Rec. 36 963 Dolling, State v. 37 Wis. 396 823 Dominick v. Bowdoin, 44 Ga. 357 532 V. State, 40 Ala. 680 471, 479 Donaghey, ex parte, 2 Pitts. Rep. 166 35 Donahoe v. State, 12 Tex. Ap. 297 566 Donahue, Com.'t;. 126 Mass. 51 759 People V. 21 N. Y. Sup. Ct. 133 1008 People D. 84 N. Y. 438 35 Donaldson i). Com., 95 Penn. St. 21 565 ex parte, 44 Mo. 149 383, 447 Donnelly v. State, 78 Ala. 453 119 . V. State, 2 Dutch. 463 290, 297, 548, 601 Donner v. Palmer, 23 Cal. 40 847 Donovan, Com. v. 13 Allen, 571 119 Com. V. 99 Mass. 425 601 V. Jones, 36 N. H. 246 8 State V. 1 Houst. 43 210 State V. 61 Iowa, 369 793 Donston v. State, 6 Humph. 275 833 Dooley, Com. v. 6 Gray, 360 746 V. state, 28 Ind. 239 842 Terr. v. 4 Mont. 295 742 Doo Woon, In re, 1 West Coast Rep. 333 ; 18 Fed. Rep. 898 34, 993 Doolittle, in re, 23 Fed. Rep. 550 951 state V. 58 N. H. 92 680 Doon, State v. R. M. Charlton, 1 379, 846 Doran, Com. v. 14 Gray, 37 274 V. State, 7 Tex. Ap. 385 756 742 SECTION Dorr's case, Pamph. 7 Best. L. R. 347 658, 810 Dorr, ex parte, 3 How. 103 981 Dorus V, State, 108 Mass. 488 749 Dorwart, Com. v. 7 Luz. Bar, 121 367 Doss V. Com., 1 Grat. 557 407, 573 Dos Sauto's case, 2 Brock. 493 38 Doty,^ State v. 32 N. J. L. (3 Vroom) 403 956 Doubleday v. Sherman, 8 Blatoh. 45 972 Dougherty v. Biddle, Bright. 4 980 V. Com., 69 Penn. St. 286 540, 545, 549, 650, 700, 706, 906 V. People, 1 Col. 514 712 State V. 70 Iowa, 439 913 State V. 55 Mo. 69 815 Douglas, R. V. 1 Camp. 212 237 Douglass, People v. 4 Cow. 26 814, 815, 819, 823 R. V. 13 Q. B. 42 910 State V. 63 N. C. 500 791 V. State, 8 Tex. Ap. 520 350 u. State, 3 Wis. 820 409, 541 U. S. V. 2 Blatch. 207 612 Dove, ,Com. v. 2 Va. Cas. 29 358 V. State, 3 Heisk. 348 566 Dover v. State, 75 Ala. 40 756 Dovey, R. v. 2 Den. C. C. 86 ; 2 Eng. L. &E. 532;4Cox C. C. 428 302, 312, 315 Dow's case, 18 Penn. St. 37 ; S. C, 1 Phil. 234 27, 29, 37 Dowdioan, Com. v. 115 Mass. 133 447, 913 Dowdney v. Palmer, 4 M. & W. 664 566 Dowdy V. Com., 9 Grat. 727 291, 293, 846 Dowell, State ». 3 Gill & J. 310 208 Dowers, State v. 45 N. H. .543 155 Dowing V. Porter, 8 Gray, 539 26 V. State, 4 Mo. 572 184 Dowling, Com. v. 114 Mass. 259 751 People V. 84 N. Y. 478 740 V. State, 5 Sm. & M. 664 341 Downer, State v. 21 Wis. 275 712, 793 Downes, Com. v. 24 Pick. 227 980, 983 Downing, R. v. 1 Den. C, C. 52 300 Downshire, R. w. 4 A. & E. 699 703 Dowse, R. i;. 4 F. & F. 492 573 Doyal V. State, 70 Ga. 134 384, 662, 692, 827, 837, 869 Doyall, People v. 48 Cal. 85 847 Doyle, Com. v. 110 Mass. 103 120, 134 R. V. 4 Leach, 67 916 V. State, 17 Ohio, 222 350 TABLE OF CASES. Doyle, State v. 11 R. I. 574 759 V. D. S. 10 Fed. Rep. 269 ; 11 Biss. 100 714, 749, 750, 830 Dozier, State v. 33 La. An. 1362 608 Drake v. Lowell, 13 Met. 292 453, 599 o R. V. Salk. 666 173 V. State, 51 Ala. 30 619, 672 V. State, 60 Ala. 42 467 State V. 36 Me. 366 6 State V. 64 N. C. 589 121 State V. 5 Tex. Ap. 649 672 State V. 1 Vroom, 422 161 Draper, People v. 28 Hun, 1 829 Drawdy, State v. 14 Rich. 87 810 Drennan v. People, 10 Mich. 169 7 Dresch v. State, 14 Tex. Ap. 175 716 Dresser, State v. 54 Me. 569 405, 406, 425 Drew, Com. v. 3 Cush. 279 304, 390, 431, 452, 517 Com. V. 4 Mass. 391 5, 842, 847, 862, 869, 884 V. Com. 1 Whart. 279 780, 927 Driskill v. State, 7 Ind. 338 '664 Driver, State u, 78 N. C. 423 780, 920 Droneberger v. State, 112 Ind. 105 145 Drum, Com. v. 19 Pick. 479 249, 261 Drury, R. v. 3 Cox C. C. 544 ; 3 C. & K. 193 457, 780 State V. 13 R. I. 540 98, 423, 426 Duane, U. S. v. Wall. C. C. 102 958 Dubois V. State, 50 Ala. 139 176, 189 State V. 24 La. An. 309 597 Dubose V. State, 13 Tex. Ap. 418 435 a, 752, 779 Ducey, Com. v. 126 Mass. 269 26 Duchess of Kingston, R. o. 2 How. St. Tr. 544 451 Duokett, ex parte, 15 S. C. 210 924 Dudley v. McCord, 65 Iowa, 671 999 Duestoe, State v. 1 Bay, 377 273, 784 Duff, People v. 1 N. Y. Cr. 425 ; 65 N. Y. Pr. 365 344, 350 Duffield, Terr. v. 1 Ariz. 59 243, 715 Duffiu V. People, 107 111. 113 113, 158, 181 Duflfy, Com. v. 11 Cush. 145 756 Com. V. 96 Penn. St. 506 320 People V. 5 Barb. 205 913 V. People, 26 N. Y. 589 805, 810 R. b. 4 Cox C. C, 326 404, 428 Dufour, State v. 63 Ind. 569 95 Dugan, in re, 2 Low. 367 52, 56 Dugdale v. R. Dears. C. C. 64 177 Duignan v. Wyatt, 3 Blaokf. 385 865 Duke, R. V. Holt, 399 ; 1 Salk. 400 549, 550 SECTION Dulany, State v. 45 Md. 100 602 Dulittle, State v. 58 N. H. 92 311 Dull V. Com., 25 Grat. 965 189 V. People, 4 Denio, 91 614 Dumas v. State, 62 Ga. 88 661 V. State, 63 Ga. 600 835, 844 Duncan, ex parte, 54 Cal. 75 1007 a V. Com., 6 Dana, 295 465, 471, 481, 489 ... Com., 4 S. & R. 449 148, 522, 527, 528 R. V. 44 L. T. N. S. 521 ; 7 Q. B. D. 198 785, 787 State V. 6 Ired. 98, 236 271, 350, 593, 844, 845 State V. 9 Port. 260 220 State V. 7 Yerg. 271 344, 347, 350 Dungey, R. «. 4 F. & F. 99 246 Dunham v. Baxter, 4 Mass. 79 876 Com. V. Thao. C. C. 516 597 V. State, 6 Iowa, 245 958 u. State, 9 Tex. Ap. 330 158 Dunlap V. Bartlett, 10 Gray, 282 75 Dunn V. Com., 6 Barr, 387 540, 545, 875 ex parte, 25 How. Pr. 467 979 People v.' 1 Idaho, 75 709 V. People, 109 IlL 635 590, 602, 813 People V. 90 N. Y. 104 . 285 B. w. 1 C. & K. 730 383 V. R. 12 a. B. 1031 79, 941 V. State, 70 Ind. 47 481 State V. 80 Mo. 681 504 V. State, 2 Pike, 230 438 u. State, 7 Tex. Ap. 600 669 Dunster, Com. v. 145 Mass. 102 384, 472 Durand v. People, 47 Mich. 332 159 Durant v. Wash. Co. Woolw. 377 967 Durein, State v. 29 Kan. 688 614 a, 617 Durham v. People, 4 Scam. 172 460, 471 V. State, 9 Ga. 306 447 V. State, 70 Ga. 264 829, 845 State V. 72 N. C. 447 261, 464 Durrett v. State, 62 Ala. 434 804 Durst, State v. 7 Tex. 74 279 Dutcher v. State, 16 Neb. 30 894 Dutchess Co., People v. 2 Barb. 282 791 Dutton V. State, 5 Ind. 533 390, 452 Duval, V. S. V. Gilp. 356 813 Dwinnels v. Boynton, 3 Allen, 310 25, 26 Dyches, State v. 28 Tex. 535 522, 528 Dyer v. Com., 23 Pick. 402 756 R. V. 6 Mod. 96 386 V. State, 86 Ind. 525 84 743 TABLE OF CASES. SECTION Dyer v. State, 11 Lea, 509 420, 426 Dynes v. Hoover, 20 How. (U. S.) 65 439 Dyott V. Com., 5 Whart. 67 360, 417, 886 Dyson, ex parte, 25 Miss. 356 82, 540 E. Eagan, ex parte, 18 Fla. 194 1007 V. State, 53 Ind. 152 241 Eagen, Com. v. 4 Gray, 18 665, 668 Eames d. State, 6 Humph. 53 9 V. State, 10 Tex. Ap. 421 577 Earll c. People, 73 111. 329 781 V. People, 99 111. 123 671 Early, State v. 3 Barring. 561 294 V. State, 1 Tex. Ap. 248 822 Earnest, People v. 45 Cal. 29 844 Earp V. Com., 9 Dana, 302 588, 590, 592 State V. 41 Tex. 487 273 Easland, Com. v. 1 Mass. 15 309 Eason i;. State, 17 Am. L. Reg. 313 ; 6 Baxt. 466 642, 757 East Boston Ferry Co., Com. u. 13 Allen, 589 ' 108 Easter, State o. 30 Ohio St. 542 344. 350 Eastman, Com. o. 1 Gush. 189 309, 386, 387, 405, 725 V. Com. 2 Gray, 76; 4 Gray, 416 189, 191, 212, 262, 470 V. State, 64 Ind. 441 752 Eastwood, People v. 3 Park. C. R. 25 707, 816, 823, 834 Eaton, in re, 27 Mich. 1 996, 996 6 R. u. 8 C. & P. 417 464 State V. 76 Mo. 586 452, 665 Eberle, Com. w. 3 S. & R. 11 802 Ebert, U. S. v. 1 Cent. L. J. 205 89 Ebner, People v. 23 Cal. 168 541 Eccles, R. V. 1 Leach, 274 165 Eckford, People v. 7 Cowen, 535 386, 389 Eckardt v. People, 83 N. Y. 462 236 Eden's case, 2 M. & S. 226 988 Edgar v. State, 43 Ala. 312 798 Edge V. Com., 7 Barr, 275 251, 285 Edgerly, Com, v. 10 Allen, 184 801, 828 Edgerton, Com. «. 5 Allen, 514 771 Edmon v. State, 1 Swan, 14 788 Edmonds, R. <-. 4 B. & Aid. 471 622, 686, 694 u. State, 34 Ark. 720 297,601 Edmondson o. State, 17 Ala. 179 101 Edsall, R. V. 2 East P. C. 984 184 744 BECTTON Edson, State v. 10 La. An. 229 208 Edwards, Com. v. 4 Gray, 1 91, 92, 94, 146, 388, 696 V. Com., 19 Pick. 124 131, 133 V. Edwards, 3 East, 451 801 996 ex parte, 35 ITan. 99 328, in re, 43 N. J. L. 555 925 a People V. 41 Cal. 640 650 V. People, 39 Mich. 393 414 R. V. R. & R. 224; 2 Leach, 621, ».. ; 3 Camp. 207 508 R. V. R. & R. 497 209 V. State, 22 Ark. 253 678 V. State, 25 Ark, 444 260 V. State, 63 Ga. 428 712, 846 State V. 34 La. An. 1012 856 V. State 47 Miss. 581 556 State V. 19 Mo. 674 273 State V. 70 Mo. 480 273 State V. 90 N. C. 710 261 V. State, 45 N. J. L. 419 733 Edymoin, in re, 2 How. Pr. 478 531, 533, 1006 Efflnger i-. .State, 47 Ind. 256 125 Efler, State v. 85 N. C. 585 637 Egan, State v. 10 La. An. 699 124, 306 Eggington, ex parte, 2 E. & B. 717, 992 Egglesht, State v. 41 Iowa, 574 470, 471 Eggleton V. Smiley, 17 Johns. 133 846 Eichenlaub v. State, 36 Ohio St. 140 385 Eighmy v. People, 79 N. Y. 546 343 a, 521,601 Elam V. State, 26 Ala. 48 294, 296 Elborn, State v. 27 Ind. 483 220 Elden, State v. 41 Me. 166 435 a, 535 Elder, State v. 65 Ind. 282 467, 460, 471 Eldred v. Ford, 46 Wis. 530 996 Eldredge v. State, 370 Ohio St. 191 910 Eldridge v. Fancher, 1 Hun, 27 1011 V. State, 12 Tex. Ap. 208 601 Eleck V. Terr., 1 Wash. 126 641 Electoral College, in re. 1 Hughes, 571 ■ 981 Elkin V. People, 6 Col. 508 822 Elkius, R. V. 4 Burr. 2129 967 V. State, 13 Ga. 435 240 State V. 1 Meigs, 109 369 State «. 63 Mo. 159 548 Ellerbe, in re, 4 MoCrary, 449 ; 4 Crim. Law Mag. 60 954, 965 Ellington, State v. 7 Ired. 61 623, 637 TABLE OF CASES. BEOTIOH Elliott, Com. V. 2 Mass. 372 453, 599 a ex parte, 3 Mont. & Ayr. 110 453 V. People, 13 Mioh. 365 928 V. State, 26 Ala. 78 302, 315 State V. 7 Blaokf. 280 271 V. State, 73 Ind. 10 624, 645 State u. 15 Iowa, 72 813 State V. 14 Tex. 423 278 Ellis V. Com., 78 Ky. 130 243, 255 People V. 15 Wend. 371 512 R. u. 6 B. & C. 145 780, 945 R. V. 4 Cox C. C. 258 194 State V. 4 Mo. 474 161, 228 State V. 74 Mo. 385 464 V. State, 10 Tex. Ap. 540 813 Ellison, State v. 4 Lea, 229 456 State V. 12 Tex. Ap. 557 672 Elrington, R. v. 10 W. R. 13 ; 9 Cox C. C 86 ; 1 B. & S. 689 465, 467 Elsee V. Smith, 1 D. & R. 97 18, 22 Elsham, State v. 70 Iowa, 731 290 Elwell, Com. v. 2 Met. 190 164, 301 Ely u. Hallett, 2 Caines, 57 633 V. Hoi ton, 15 N. Y. 595 320 Emanuel v. State, 36 Miss. 627 996 Embden, R. v. 9 East, 437 456, 471 Emeriok, State v. 35 Ark. 324 239 Emerson, U. S. v. 4 Cranoh, 188 955 Emery v. Chesley, 18 N. H. 198 3 State V. 59 Vt. 84 351, 508 Emory, State v. 79 Mo. 461 577 Emporia v. Volmar, 12 Kans. 622 602 England, State v. 19 Mo. 481 95 State V. 78 N. C. 552 507 Engleman v. State, 2 Carter, 91 124, 274, 293 English, State v. 34 Kans. 629 779 a State V. 2 Mo. 182 818, 385 V. State, 4 Tex. 125 91 Eno's case, 30 Alb. L. J. 144 47 Enoch, People!!. 13 Wend, 159, 175 230, 281 Ensign, State v. 13 Neb. 250 1007 Entic V. Carrington, 19 St. Tr. 1067 24 Enwright v. State, 58 Ind. 567 96 Epes's case, 5 Grat. 676 517, 636 Ephraim, State v. 2 Dev. & Bat. 1B2 495, 722 Epps V. State, 19 Ga. 102 654, 689, 815, 836, 848 V. State, 102 Ind. 539 548, 561 State V. 76 N. C. 55 641 Erles's case, 2 Lew, 133 231 Erwin, ex parte, 21 Alb. L. J. 87 ; 7 Tex. Ap. 288 35 a, 81 0. State, 29 Ohio St. 186 449, Esdaile, R. u. 1 F. & F. 213 157, 703 SECTION Eskridge, State v. 1 Swan (Tenn.), 413 121 Esmon v. State, 1 Swan, 14 466, 895 Esselborn, in re, 20 Blatch. 1 328 Estep V. Lacy, 35 Iowa, 419 528 Estes V. State, 55 Ga. 131 911 V. State, 2 Humph. 490 941 State V. 70 Mo. 428 577 Etting V. Bank U. S., 1 Wheat. 59 797 Evans, Com. v. 101 Mass. 26 466, 476 V. Com., 3 Met. 463 87, 405 V. Com., 13 S. & R. 426 232 V. People, 44 Miss. 762 802 V. Roberts, 3 Salk. 147 779 b R. u. 5 C. & P. 663 194, 464 R. w. 8 C. & P. 766 111 V. State, 62 Ala. 6 99 V. State, 33 Ga. 4 801, 804 State V. 1 Gill & J. 290 281 State V. 8 Humph. 110 354 V. State, 7 Ind. 271 815, 817 State w. 21 La. An. 321 722, 81 5 State V. 23 La. An. 625 918 State V. 65 Mo. 574 866 V. State, 8 Ohio St. 196 194 State V. 15 Rich. (S. C.) 31 189 State V. 23 S. C. 209 252 V. State, 6 Tex. Ap. 513 672, 856 V. State, 13 Tex. Ap. 225 688, 802 Evarts v. State, 48 Ind. 422 - 146 Everett, R. «. 8 B. & C. 114 152 State V. Dudley S. C. 296 81 Eyland v. State, 4 Sneed (Tenn.), 357 216 Ezell, ex parte, 40 Tex. 451 995 F. Faderman, R. v. 4 Cox. C. C. 357 ; 3 C. & K. 359 ; 1 Den. C. C. 565 404 Fagan, Com. v. 16 Gray, 194 277 Pagnan v. Knox, 66 N. Y. 526 453 Fahey, State v. 35 La. An. 9 866 Fahnestock v. State, 23 Ind. 231 643, 664 State V. 102 Ind. 156 246 Fair, People v. 43 Cal. 137 660, 844 Fairie, R. «. 8 Cox C. C. 66 475 Falconer, State v. 70 Iowa, 416 518 Falk V. People, 42 111. 331 810, 813 Falkner v. State, 3 Heisk. 33 486 Falvey, in re, 7 Wis. 630 964 Fanoher, People v. 3 Th. & C. 189 1011 State V. 71 Mo. 460 151, 251 Fanning v. State, 12 Lea, 651 742 Farez's case, 2 Abb. U. S. 346 56, 67 745 TABLE OF OASES. SECTIOH Farez's case, 7 Blatoh. 34, 388 50, 51, 52, 53, 55 Faris u. State, 1 Ohio St. 188 744 Farnham, ex parte, 3 Col. 545 996 Farr, State v. 12 Rich. 24 423, 426 Farrand v. Fowler, 2 Am. L. T. (U. S. Ot.) 4 9gO in re, 1 Abb. U. S. 140 980, 981 State V. 3 Halst. 333 167 Farrell, Com. u. 105 Mass. 189 425, 507 Farrer, State v. 35 La. An. 315 693 V. State, 2 Ohio St. 64 829, 830, 847 Farrier, State v. 1 Hawks, 487 202 a Farring, 0. S. v. 4 Cranch C. C. 465 447 Farrington, People v. 14 Johns. 348 193 State V 2 Crim. L. Mag. 525 ; S. C. 5 Fed. Rep. 343 363, 367, 380 Farris v. State, 35 Ga. 241 709 Farrow, State v. 48 Ga. 30 114, 576, 579, 856 State V. 74 Mo. 531 641 Fasset, State v. 16 Conn. 457 358, 363, 367, 378, 379 Faulk V. State, 52 Ala. 415 478, 481 V. State, 30 La. An. Ft. II. 831 747 Faulkner's case, 1 Saund. 249 93 Faulkner, State v. 32 La. An. 725 470 Fauntleroy, R. «. 1 C. & P. 421 ; 1 Mood. C. C. 52 197 Fanst V. Judge, etc., 30 Mich. 266 996 Fayetteville, State v. 2 Murph. 371' 468, 471 Fee, State v. 19 Wis. 562 388 Fehrenbaok, U. S. v. 2 Woods, 175 316 Feigel v. State, 85 Ind. 589 158 Felch, State v. 58 N. H. 1 261 Felker, People t'. 61 Mich. 110 713 Feller, State v. 25 Iowa, 67 819 Fellows V. State, 5 Greenl. 533 750 State V. 2 Hayw. 340 362 Fells, Com. v. 9 Leigh, 613 494, 508, 724 Felton, Com. v. 101 Mass. 14 304 State V. 25 Iowa, 67 819 Fendersou, State v. 28 La. An. 82 995 Fenleson, State v. 78 Mo. 495 756 Fenn, State v. 41 Conn. 590 212, 213 Fennessy, ex parte, 54 Cal. 101 328 Fenno, Com. v. 125 Mass. 387 156, 220 Fenwiok, U. S. v. 4 Cranch C. C. 675 810 Ferguson, in re, 9 Johns. 239 980 746 BECTIOW Ferguson, v. People, 90 111. 570 246 E. «. 6 Cox C. C. 454 289, 291 State V. 2 Hill (S. C), 619 8 State V. 49 Ind. 33 561 Ferrell v. State, 2 Lea, 25 158, 251 V. State, 43 Tex. 503 712 V. State, 22 W. Va. 759 120 Ferelle, in re, 28 Fed. Rep. 878 51 Perrens, in re, 3 Ben. 442 982 Ferris, in re, 35 N. Y. 262 928 State V. 56 Cal. 142 118 State V. 16 La. An. 424 597 State V. 3 Lea, 700 243 Ferro, U. S. v. 18 Fed. Rep. 901 152, 251 Fetter's ease, 3 Zbr. 311, 29, 30, 36 Pew, People v. 2 Johns. R. 290 969 Fiddler v. State, 7 Humph. 508 471 Field, Com. o. 11 Allen, 786 82 ex parte, 5 Blatch. C. C. 63 979 U. S. V. 16 Fed. Rep. 778 ; 21 Blatoh. 330 89 Fielder, R. w. 2 D. & R. 46 893 Fielding's case, 2 Burr. 719 384, 599 a Fielding, State v. 32 Me. 585 248 Fields V. State, 52 Ala. 348 465 State V. Pecks' Tenn. R. 140 91 Fife V. Com. , 29 Penn St. 429 312, 772 State V. 1 Bailey, 1 468, 471 Fight V. State, 7 Ohio, 180 543, 875 Files, State v. 3 Brev. 304 ; 1 Const. R. 234 583, 587, 590 Finch, People v. 5 Johns. 237 188 V. State, 81 Ala. 41 661 V. State, 6 Blackf. 533 124 V. State, 53 Miss. 363 504 V. State, 64 Miss. 461 154 Findley, State v. 77 Mo. 338 125 Finlay v. Stewart, 56 Penn St. 183 566 Finley, State v. 61 Ala. 201 391a, 438, 507, 927 Finn, State v. 31 La. An. 408 90 Finnegan, People v. 1 Park. C. R. 147 568, 810 Fiott V. Com., 12 Grat. 564 588 First, State v. 82 Ind. 1 85 Firth, -R. «. L. R. 1 C. C. R. 172 ; 11 Cox C. C. 234 474 Fisohblatt, Com. u. 4 Met. 359 457, 465, 518 Fischer v. State, 56 How. Pr. 218 950 Fish, State v. 4 Ired. 219 141, 147 Fisher v. Com., 1 Bush, 211 470 Com. V. 7 Gray, 492 92, 95 Com. V. 17 Mass. 46 193 in re, 6 Neb. 309 996,9966 V. People, 23 111. 283 749, 829 TABLE OP OASES. SECTION Fisher v. People, 103 111. 101 869 People V. 14 Wend. 9 452, 517 V. Phil. 4 Brewst. 375 669 V. State, 46 Ala. 717 466 State V. 103 Iiid. 503 742 State V. 37 Kans. 404 293 V. State, 40 N. J. L. 169 110 State V. 2 Nott & MoC. 261 791, 813, 846 V. State, 33 Tex. 792 290 Fisk, ex parte, 113 U. S. 913 994, 999 People V. 45 How. Pr. 294 980, 993 *,. State, 9 Neb. 62 131 Fisslngton v. Hutchinson, 15 L. T. N. S. 390 453 Fitch V. Chapman, 10 Conn. 8 801 FitchburgR. R., Com. v. 10 Allen, 189 238, 706, 812 Com. V. 120 Mass. 372 907 a Com. V. 126 Mass. 472 396 Fitzcox V. State, 53 Miss. 585 371 Fitzgerald, R. «. 1 C. & K. 201 511 R. V. 1 Salk. 401 913 State V. 49 Iowa, 260 555 V. State, 4 Wis. 395 92, 93 Fitzhugh V. State, 13 Lea, 258 350 Fitzpatrick v. Kelly, L. R. 8 Q. B. Fitzpatrick's case, 1 Salk. 103 77 337 164 V. People, 98 111. 269, 700 People V. 30 Hun, 493; lN.Y.Cr.425, 344,350 Flagg, Com. v. 135 Mass. 545 737 Flaherty v. Longley, 62 Me. 420 22 Flanagan, Sljate v. 26 W. Va. 117 837 Flanakin, U. S. v. Hem. 30 358 Flannagan, State v. 6 Md. 167 246, 465 Flanigan, Com. «. 7 W. & S. 68 415, 623, 634, 791, 813, 844, 866, 871, 889 Flannigan, Com. v. 139 Mass. 560, 760 Flavel's case, 8 W. & S. 197 533 Fleming v. Clark, 12 Allen, 191 995 V. People, 27 N. Y. 329 238, 242 State V. 7 Humph. 152 383, 448 V. State, 11 Ind. 234 643, 707 Flemming, State «. 66 Me. 142 350 Fletcher v. People, 81 111. 116 910 V. People, 117 111. 184 869 V. State, 7 Eng. Ark. 169 413 V. State, 6 Humph. 249 508, 654, 665 V. State, 60 Miss. 675 588 State V. 18 Mo. 425 251 State V. 13 R. I. 522 120 Fley, State v. 2 Brev. 338 445 SECTION Flint, R. V. Hardw. 370 161 State V. 33 La. An. 1238 261 State V. 62 Mo. 393 228 Flitters v. Allfrey, L. R. 10 C. P. 29 481 Flournoy v. Atty.-Gen., 1 Kelly, 606 528 Flower, R. w. 3 C. & P. 413 291 V. State, 1 Walk. 518 640, 655 Floyd V. State, 30 Ala. 511 353 Flye, State v. 26 Me. 312 293 Flynn, State v. 31 Ark. 35 602 State V. 42 Iowa, 164 358 u. State, 8 Tex. Ap. 398 940 Fogarty, R. v. 5 Cox C. C. 161 559 Fogerty, Com. v. 8 Gray, 489 220, 263 Fogg V. State, 9 Yerg. 392 198 Foggy, Com. v. 6 Leigh, 638 405 Folden v. State, 13 Neb. 328 551 Foley, ex parte, 62 Cal. 508 203 V. State, 9 Ind. 363 247 V. State, 15 Nev. 64 535 Fonda, ex parte, 117 U. S. 552 981 Fong, People v. 70 Cal. 8 866 Fonsonetta, State v. 38 La. An. 61 90 Fontaine v. State, 6 Baxt. 514 470 Fooks, State v. 65 Iowa, 452 745, 804 Foote V. State, 59 Md. 264 921 Poran, Com. v. 110 Mass. 179 798 Forbes, People v. 22 Cal. 135 931 People V. 4 Parker C. "R. 611 80 Ford V. Ford, 10 Abb. Pr. N. S. (N.Y.)74;41How. Pr.l69 950 R. u. 1 N. & Man. 776 901 V. State, 34 Ark. 649 507, 577, 579, 751 o. State, 112 Ind. 373 158, 350, 353 State V. 30 La. An. 311 549 State V. 37 La. An. 443 602, 651, 758, 810 V. State, 71 Mo. 200 577 U. S. V. 99 U. S. 594 447, 536 Foreman v. Hunter, 59 Iowa, 550 798 a Forrest v. State, 13 Lea, 103 255, 468 Forshner, State v. 43 N. H. 89 692 Forsyth, R. u. R. & R. 274 212 Fortenberry v. State, 55 Miss. 403 273, 664 Forward v. State, 49 Md. 537 810 Foster, Com. «. 122 Mass. 317 909 a, 913 V. Com., 8 Watts & S. 77 404, 405, 421, 453, 486, 599 a V. People, 50 N. Y. 598 712 R. «. 3 C. & K. 201 718 R. V. R. & R. 412 119 V. state, 38 Ala. 425 323, 325, 328 747 TABLE OF CASES. SECTION Foster v. State, 39 Ala. 229 420, 471, 478, 484 State V. 33 Iowa, 525 467 State V. 30 Kan. 365 154, 220 State V. 32 La. An. 34 608 State V. 3 MoCord, 442 190, 220 V. State, 52 Miss. 595 872 State V. 61 Mo. 549 712 State V. 9 Tex. 65 388 V. State, 1 Tex. Ap. 531 98 Foust V. State, 12 Lea, 404 438 V. State, 85 Teun. 342 438 Foute V. State, 15 Lea, 712 291 Fonts V. Prince, 64 Iowa, 71 1010 State V. 7 Ohio St. 471 638 V. State, 8 Ohio St. 78 696 Fowler, Com. v. 4 Call (Va.), 35 533 in re, 18 Blatch. 430 62, 57 R. u. 4 B. & Aid. 273 790 V. State, 3 Heisk. 154 254, 301, 461 V. State, 85 Ind. 538 810 State V. 52 Iowa, 103 345, 358, 363 State V. 28 N. H. 184 255 State V. 13 R. I. 661 251 Fox, Com. V. 7 Gray, 585 156 Com. 0. 7 Penn. St. 336 980 ' o. Gaunt, 3 B. & Ad. 798 17 V. Ohio, 5 How. U. S. 410 442, 490 V. People, 95 111. 71 577 R. II. 10 Cox C. C. 502 700 State V. 1 Dutch. 566 633, 844 State V. 79 Mo, 109 588 V. State, 34 Ohio St. 377, 752 V. State, 3 Tex. Ap. 319 523 State V. 15 Vt. 22 227 U. S. V. 1 Low. 301 125 Foxworthy, R. v. 7 Mod. 153 533 Foy, State v. 82 N. C. 679 211 Foye, U. S. v. 1 Curt. C. C. 364 158 Foynes, Com, v. 126 Mass. 267 90 Fraher, Com. v. 126 Mass. 265 435, 452 France, Com. v. 2 Brewst. 568 161 Com. V. 3 Brewst. 148 105 State V. 1 Tenn. 434 549 Francis, People v. 38 Cal. 183 591 People V. 52 Mioh. 575 779 Francisco K. State, 1 Carter, 179 283 V. State, 4 Zabr. 30 247, 465 Francois v. State, 20 Ala. 83 759 Frank, State v. 23 La. An. 213 819 Franklin, People v. 3 Johns. Cas. 299 167 II. State, 12 Md. 236 810 Franklyn, R. v. 2 Ld. Raym. 1179 106 Frazer v. People, 54 Barb. 306 220 748 BKOTrOS Frazier, Com. v. 2 Brewst. 490 613, 614 V. Com., 12 B. Mon. 369 528 V. State, 19 Mo. 678 121 State V. 23 Ohio St. 551 638, 639 Fredericks, Com. v. 119 Mass. 199 423 Free, State v. 2 Hill S. C. 628 ' 319 Freeland v. People, 11 111. 380 465, 471 Freels, State v. 3 Humph. 228 292 Freeman v. Jacob, 4 Camp. 209 135 u. People, 4 Deuio, 9, 35 615, 618, 631, 670, 676, 686, 690, 693 State V. 6 Black. 248 164 State V. 5 Conn. 348 847 State V. 21 Mo. 481 93, 131, 275 State V. 13 N. H. 488 369 State V. 27 Vt. 523 935 State ti. 59 Vt. 661 90 Freligh v. State, 8 Mo. 613 167 French, R. v. L. R. 1 C. C. R. 217 186 CI. Smith, 4 Vt. 363 847 V. State, 12 Ind. 670 277 U. S. V. 1 Gall. 1 981 Freston, in re, 49 L. T. (N. S.) 290 953 Frey, State v. 35 La. An. 106 759 Friar v. State, 3 How. (Miss.) 422 371,. 862 Friedburg v. People, 102 111. 190 869 Friederioks, Com. v. 119 Mass. 199 98 Priedlauder v. State, 7 Tex. Ap. 204 762 Fries's case, Wh. St. Tr. 606 560, 605, 798 a, 844, 847 Frisby, State v. 19 La. An. 143 830 Frittener, State v. 65 Mo. 422 865 Fritz V. State, 40 Ind. 18 457, 460, 466 State V. 27 La. An. 360 788, 895, 9,06 Froiseth, State v. 16 Minn. 296 359, 363 Frost, R. V. 9 C. & P. 129 61, 612, 672, 696 R. V. Dears. C. C. R. 474 ; 24 L. J. M. C. 116 90 State V. 1 Brev. 385 455 Fruge, State v. 28 La. An. 659 837, 847 Fry V. Bennett, 3 Bosw. 200 560 V. Oatley, 6 Wis. 42 27 R. y. R. &R.482 218 Fuers, U. S. «. 12 Int. Rev. Rec. 43 338 TABLE OF CASES. SECTION Fngate, Comi v. 2 Leigh, 725 521, 939 a Fugler V. State, 56 Miss. 829 541 Fulford, State v. 1 Phil. (N. C.) L. 563 183, 189 Fulkner v. State, 3 Heisk. 33 405, 420 Fuller, Com. u. 1 Wheel, C. C. 323 591 ex parte, 19 Tex. Ap. 241 996 V. People, 92 111. 182 177 People V. 2 Parker C. R. (N. Y.) 16 608 People V. 2 Parker C. E. 16 631, 689 R. u. 1 B. & P. 180 236, 253 State V. 1 MoCord, 178 522, 533 State V. 39 Vt. 74 696 FuUerton, People v. 10 Hun, 63 997 Fulmer a. Com., 97 Penn. St. 503 470, 772 Fults V. State, 2 Sneed (Tenn.), 232 913 Fuqna, People v. 61 Cal. 377 480 Furlong, U. S. v. 5 Wheat. 184 771 Furneaux's case, R. & R. 335 470 Purser, R. v. Say, 90 451 Fury, State v. 13 E. I. 623 101 Fussell, R. u. 3 Cox C. C. 291 285 G. Gahe v. State, 1 Eng. (Ark.) 519 164, 358 Gable, Com. o. 7 S. & R. 423 243, 261 Gaffney, People v. 14 Abb. Pr. N. S. 36 828 V. People, 50 N. Y. 416 568, 777 , State V. Rice, 431 247, 261, 291 State V. 56 Vt., 451 693 Gage V. State, 9 Tex. Ap. 259 549 Gaines, People v. 62 Cal. 480 409, 700 Gaiuey v. People, 97 111. 270 827 Gainus, State v. 86 N. C. 632 159 State V. 2 Woods, 342 783 a Galbreath v. State, 36 Tex. 200 302 Gale, Com. v. U Gray, 320 425 U. S. V. 109 U. S. 65 350, 353, 7.33, 760 Gallagher, Com. o. 126 Mass. 54 113, 189 Com. V. 4 Penn. L. J. 517; 2 Clark. 297 798, 802, 813, 844, 886 People V. 88 111. 335 328 V. People, 120 111. 179 87 SECTION Gallaher v. State, 17 Fla. 370 350, 779, 801 Gallears, R. t>. 2 C. & K. 981 ; 1 Den. C. C. 501 209 Galllard v. Laxton, 2 B. & S. 363 8 Galloway, State v. 5 Cold. 326 963 Galvin v. State, 6 Cold. (Tenn.) 283 5, 12, 242, 842 Gamble, Com. v. 11 S. & R. 93 997 Gauard, State v. 50 Miss. 147 802, 862 Gariaway v. State, 22 Ala. 777 278, 369 Gandolfo o. State 11 Ohio St., 114 547 779 Gandy v. State, 81 Ala. 68 ' 70 V. State, 13 Neb. 445 966, 974 Gane, Com. v. 3 Grant, 447 980 Gannon, State v. 11 Mo. Ap. 502 740 Ganz, R. v. 9 Q. B. D. 93 44, 53 Gaoler, Res. v. 2 Yeates, 258 991 Garcia, People v. 58 Cal. 102 285, 290, 297 a. State, 12 Tex. Ap. 335 669 V. State, 19 Tex. Ap. 383 151 V. Territory, 1 New Mex. 415 921 Gardener, R v. 1 Mood. C. C. 390 3 Gardenheir v. State, 6 Tex. 348 465 Gardiner v. People, 6 Park. C. R. 155 435, 447, 507 State V. 1 Ired. 27 180, 183, 184 State V. Wright (Ohio), 392 118 Gardner v. Gardner, 2 Gray, 434 705 f. People, 106 111. 76 414 V. People, 3 Scam. 83 369, 602, 644 V. State, 4 Ind. 632 385 State V. 13 Lea, 134 278 V. Turner, 9 Johns. R. 261 608 Garland, ex parte, 4 Wall. 333, 334 522, 527, 528 u. State, 25 La. An. 532 954 Garlick v. State, 79 Ala. 265 712 Garlingtou v. State, 68 Ga. 837 779 a Garnett, People «. 29 CaL 622 291, 466 Garret, State v. 1 Wins. (N. C.) No. 1, 144 7 Garrett v. State, 76 Ala. 18 665 Garrigues, State v. 1 Hayw. 241 491, 495 507 Garrison i;. People, 87 111. 96 ' 320 V. State, 87 111. 96 318 Garritty u. People, 107 111. 1^2 677, 813 Garrold v: State, 11 Tex. Ap. 219 601 '749 TABLE OP CASES. BECTION Garside, R. v. 4 Nev. & Man. 33 ; 2A. &E. 266 526,527 Garst, in re, 10 Neb. 78 440, 996 Garthwalte, State v. 3 Zabr. 143 449 Garvey v. Com., 8 Gray, 382 935 ex parte, 7 Col. 384 994 V. People, 6 Col. 559 559 State V. 42 Conn. 232 383, 447 State V. 11 Minn. 154 163 a Garvin v. State, 52 Miss. 207 90 Gary, State v. 36 N. H. 359 91, 161 Gasooine, R. v. 7 C. & P. 772 561 Gaston v. State, 11 Tex. Ap. 143 588 U. S. V. 28 Fed. Rep. 848 285 Gates V. MoDaniel, 4 Stew. & P. 69 974 V. People, 14 111. 433 644, 665 V. People, 13 Wend. 311 '. 907 State V. 20 Mo. 400 602 Gatty V. Field, 9 Ad. & El. (N. S.) 431 102 Gavignan u. State, 55 Miss. 533 855 Gavin, Com. v. 121 Mass. 54 208 Gay, State v. 10 Mo. 440 301, 314, 940 Geaoh, R. ... 9 C. & P. 499 612, 661 Geary, R. o. 2 Salk. 630 906 Geddis, State v. 42 Iowa, 164 595 Gee, Com. c. 6 Cusli. 174 93, 629, 656, 683 Geiger, People v. 49 Cal. 643 345 V. State, 5 Iowa, 484 104 Genet, People v. 59 N. Y. 80 774 Genner v. Sparks, 1 Salk. 79 3 Genung, People v. 11 Wend. 18 794 George v. Radford, Moody & M. 244 3 State V. 62 Iowa, 682 647, 693 793 State V. 8 Ired. 324 ' 568 State V. 34 La. An. 261 236 V. State, 39 Miss. 570 295, 845 Georgia v. Bolton, 11 Fed. Rep. 217 783 a V. O'Grady, 3 Woods, 496 783 a V. Post, 4 Woods, 513 783 a Geraghty v. State, 110 Ind. 103 108 Gerard v. People, 3 Scam. 363 456, 471, 507 Gerbracht v. Com., 1 Pennyp. 471 812 Gerdemann v. Com., 11 Phila. 374 1001 Gerrish v. State, 53 Ala. 476 102 Gertrude, Terr. v. 1 Ariz. 74 715 Giacomo, in re, 12 Blatch. C. C. 391 38, 40 Gibbons, R. v. 12 Cox C. C. 237 164 State V. 1 South. 51 220 750' Gibbs, Com. v. 4 Gray, 146 555 State V. 6 Baxt. 238 120 State ». 39 Iowa, 318 379 V. State, 45 N. J. 379 350 Gibert, U. S. v. 2 Sumn. 19 309, 407, 408, 490, 500, 785, 790, 791, 828, 861, 866, 873, 874 Gibson, Com. v. 2 Va. Cas. 70 890, 891 ex parte, 31 Cal. 619 995 V. People, 5 Hun, 542 93n R. V. 1 C. & M. 672 378 R. V. 8 East, 107 428, 486 R. V. 18 a. B. D. 542 802 V. State, 54 Md. 447 239, 771 V. State, 59 Miss. 341 588 Giddins, R. v. C. & M. 634 254, 301, 469 Giesea, People v. 63 Cal. 217 457 Gilbert, People v. 57 Cal. 96 748 People V. 60 Cal. 108 742 V. State, 65 Ga. 449 294 V. State, 7 Humph. 524 862 State v: 24 Mo. 380 260 State w. 13 Vt. 647 91,124, 161, 274, 276 Gilchrist, R. «. 2 Leaoh, 657 ; 2 M. C. C. 233 ; C. & M. 224 184, 192, 193 Giles, Com. v. 1 Gray, 466 157, 703, 705 Gilham, R. v. M. & M. 165 961 Gilkie, State v. 35 La. An. 53 742, 805 Gilkinson, People v. 4 Park. C. R. 26 161 Gill, R. B. 2 B. & Aid. 204 165 V. state, 33 Ark. 129 318, 457 V. State, 38 Ark. 524 136 V. State, 14 S. C. 410 692 Gillespie, Com. v. 7 Serg. & R. 469 119, 154, 167, 251, 285, 383, 422, 760, 910 State V. 80 N. C. 396 215 Gillett, State d. 56 Iowa, 430 247 Gilliek, State o. 7 Clarke, Iowa, 289 346, 350, 692, 844 Gillis, R. V. 11 Cox C. C. 69 535 Gillman v. State, 1 Humph. 59 369 Gillon, Com. v. 2 Allen, 502 144 Gillooley v. State 58 lud. 182 577, 643, 672, 846 Gillow, R. V. 1 Mood. C. C. 85 253, 369 Gilman, State v. 70 Me. 329 844 Gilmore, People v. 4 Cal. 376 465 State V. 9 W. Va. 641 273 Gilson, ex parte, 34 Kan. 641 996 Gilstrap, ex parte, 14 Tex. Ap. 240 991 Giorgetti, R. t. 4 F. & F. 546 672 TABLE OF OASES. SECTION Gipson V. State, 44 Ala. 17 982 V. State, 38 Miss. 29.5 751, 756 Girardln, People a. 1 Mann. (Mich.) 90 177 Girr, People v. 53 Cal. 629 159 Gise v: Com., 81 Penn. St. 428 321 Gisson, E. v. 2 C. & K. 781 261 Given, State v. 32 La. An. 782 273 Giveiis V. State, 6 Tex. 344 845 Gladden v. State, 12 Fla. 562 350, 540, 588, 875 Glasoow, State v. 59 Md. 209 344 Glasgow, State v. Conf. 38 92 Glass, Com. v. 33 Grat. 827 225 State V. 5 Oregon, 73, 712 State V. 50 Wis. 218 747 Gleason, Com. v. 110 Mass. 66 369 State i^. 66 Iowa, 203 456, 471 Glen, R. u. 3 B. & Aid. 373 395 Glenn, ex parte, 154 Md. 572 995 Glidewell v. State, 15 Lea, 133 842 Glodo V. People, 12 111. Ap. 348 772 Glover's case, 109 Mass. 340 583 Glover, Com. v. Ill Mass. 401 113 State t). 3 Greene, Iowa, 249 371 V. State, 109 Ind. 391 293 Glyden, State r. 61 Iowa, 463 709 Goas, R. V. London Law Times, July 18, 1882 805 Goddard, Com. v. 13 Mass. 456 405, 438, 439. 440, 486 V. State, 14 Tex. Ap. 566 120 Godet, State v. 7 Ired. 210 237 Godfreison v. People, 88 111. 284 548 Godfrey, R. v. Dears. & B. 426 190, 218 State V. 24 Me. 232 239, 240 Godwin's case, 5 City Hall Reo. (N. Y.) 11 75 Godwin, People v. 5 Ired. 401 847 Goersen v. Com., 99 Penn. St. 388 90, 151, 159, 702, 711 V. Com., 106 Penn. St. 477 835 Goggen, U. S. v. 9 Biss. 259 221 Golden, People v. 3 Park. C. R. 330 935 a. State, 19 Ark. 590 583 Golding, Com. v. 14 Gray, 49 452, 486 Goldsmith, E. v. 12 Cox C. C. 594 ; L. R. 2 C. C. 74 ■ 760 V. State, 63 Ga. 86 709 Goldstein, Com. v. 114 Mass. 272 133 People V. 32 Cal. 432 436 R. V. R. & R. 473; 7 Moore, 1 181, 185 SECTION Goldswain's case, 2 W. Bl. 1207 991 Gompertz, R. v. 9 Q. B. 824 305, 306 Gonince, State v. 87 Mo. 627 844 Gonzales, People v. 36 N. Y. 49 802 \ V. State, 5 Tex. Ap. 584 293 V. State, 12 Tex. Ap. 657 289 State V. 26 Tex. 197 354, 555 Good V. State, 61 Ind. 69 457 Goode V. State, 76 Ga. 752 456, 480 Goodenough, Com. o. Thatch. Cr. C. 132 447 Goodenow, State v. 65 Me. 30 164 Goodhue, Com. v. 2 Met. 193 249 in re, 1 City Hall Rec. 153 998 V. People, 94 111. 37 295 People V. 2 Johns. Cti. 198 993 Goodin, in re, 67 Mo. 637 614 Gooding, R. v. C. & M. 297 151 U. S. V. Wheat. 473 169 Goodman v. State, 1 Meigs, 195 595 Goodrich, r. Hooper, 97 Mass. 181a V. People, 3 Park. C. R. 622 111 State V. 46 N. H. 186 213, 217 Goodwin, Com. v. 122 Mass. 19 203, 1070 People V. 18 Johns. 187 490, 502, 511, 520, 725 State V. 33 Kans. 538 255 U. S. V. 20 Fed. Rep. 237 222, 759 Gordon, ex parte, 1 Black, 503 770 a V. Harvey, 4 Call, 450 865 People V. 39 Mich. 508 813 People V. 40 Mich. 716 565 R. V. 2 Dowl. 417 565 V. State, 3 Iowa, 410 465 U. S. V. 5 Blatch. C. C. 18 299 U. S. V. 22 Fed. Rep. 250 866 a Gore, Com. v. 3 Dana. 474 358 Goree ;■. State, 71 Ala. 7 692 Gorham v. Lnckett, 6 B. Mon. 638 962 Gorman, ex parte, 4 Cranoh, 572 963 Gormley v. State, 37 Ohio St. 120 475 Gose V. State, 6 Tex. Ap. 121 750 Goshen v. Sears, 7 Conn. 92 224 Gosline, in re, 10 Abb. Pr. 282 993 Goss V. State, 69 Me. 22 158 State V. 74 Mo. 592 358 V. State, 40 Tex. 520 714 Gouge, State v. 12 Lea, 132 369 Gough, R. o. 2 Dougl. 791 890 751 TABLE OF CASES. SECTION Gougleman >;. People, 3 Park C. R. 15 263 Gould, Com. V. 12 Gray, 171 447 V. People, 89 111. 216 409 E. v.SG.k P. 364 466 State V. 90 N. C. 659 212 a, 850 Gove, State v. 34 N. H. 510 164, 235, 263, 284, 452, 457 Grady v. State, 11 Ga. 253 906 State V. 84 Mo. 220 350, 378 State V. 83 N. C. 643 793 V, Superior Court, 64 Cal. 154 999 Graeter v. State, 54 Ind. 159 700 Graffenmuller, State v, 26 Minn. 6 1 Graliam v. Com., 51 Penn. St. 255 324 V. Graham, 1 S. & R. 331 1000 V. People, 63 Barb. 468 780, 906, 928 People V. 21 Cal. 261 602 V. People, 115 111. 566 813 V. People, 6 Lansing, 149 906 R. V. 2 Leacli, 547 109 V. State, 40 Ala. 659 116 State V. 61 Iowa, 72 247 State V. 65 Iowa, 617 189 a State V. 74 N. C. 646 707 State V. 41 N. J. (12 Vroom) 15 536 V. State, 1 Pike, 428 973 State V. 15 Rich. 310 99 Granger, R. v. 3 Burr. 1617 423 ^. State, 5 Yerg. 459 614 V. Warrington, 3Gilman, 299 379 Granlce, ex parte, 51 Cal. 375 992, 995 ' People V. 50 Cal. 447 733 Grant v. Astley, 1 Dougl. 730 771 !/. Com.,.71 Penn. St. 495 775 o. Moser, 5 Man. & G. 125 17 V. State, 65 Ala. 201 189, 216 V. State, 2 Cold. 216 383 State V. 22 Me. 171 108 State V. 76 Mo. 236 8 State V. 79 Mo. 113 9 Grate, State v. 68 Mo. 22 370, 544 V. State, 23 Tex. Ap. 468 869 Grattan v. State, 71 Ala. 344 221, 238 Graves, ex parte, 61 Ala. 381 392 V. Short, Cro. Eliz. 616 861 i;. State, 63 Ala. 144 226 V. State, 63 Ga. 740 829 V. State, 41 N. J. L. (16 Vroom) 347 96, 777 Gray, ex parte, 77 Mo. 160 779 6 People V. 61 Cal. 164 841 752 ,616 BECTIOW 762 644 80 796 293 315 260. 916 156, 251 946 a Gray v. People, 21 Hun, 140 V. People, 26 111. 344 People V. 4 Park. C. R People V. 5 Wend. 289 R. V. 7C. &P. 164 R. V. 2 Den. C. C. 87 R. V. Leigh & Cave, 365 V. state, 55 Ala. 86 V. State, 29 Minn. 142 State V. 1 Murph. 147 State V. 14 Rich. (S. C. ) 174 280 V. State, 11 Tex. App. 4ll 159 Grayson, Com. v. 6 Grat. 712 791, 813, 902 Grear, State v. 28 Minn. 426 -712 Great North of Eng. R. R. Co., R. V. 9 a. B. 315 100 Great Works, State v. 20 Me. 41 100 Greathouse, U. S. v. 4 Sawy. 857 ; 2 Abb. U. S. 364, 383 523, 525, 533, 808, 1006 Green, Com. v. 17 Mass. 515 30, 790, V 801, 884 V. Com., Ill Mass. 417 266 Com. V. 122 Mass. 333 189 People V. 53 Cal. 60 707, 838 V. People, 3 Col. 68 549 People V. 58 N. Y. 295 320, 520 People V. 13 Wend. 55 726 V. Rennet, 1 T. R. 782 136 R. V. Dears & B. 113 ; 26 L. J. M. C. 17 ; 7 Cox. C. C. 186; 2 Jur. N. S. 1146 460 V. State, 66 Ala. 40 779 a V. State 73 Ala. 26 387, 388 V. State, 17 Fla. 669 740 State V. 3 Heisk. 131 161 State u. 16 Iowa, 239 451, 486 State V. 27 La. An. 598 218 V. State, 59 Md. 123 345, 692, 772 243 583 295, 341 775 V. State, 23 Miss. 509 V. State, 13 Mo. 382 State V. 66 Mo. 632 t. State, 10 Neb. 102 V. State, 9 Tex. Ap. 71 249 V. State, 21 Tex. Ap. 64 215 Greene v. State, 59 Ga. 869 760 V. State, 79 Ind. 637 369 Greeniield, People v. 6 Abb. N. C. 1;74N.Y.277 621,631, 633, 670 V. State, 7 Baxt. 18 913 Greenley v. State, 60 Ind. 141 664 Greehough, in re, 31 Vt. 279 31 Greenwall, People v. 108 N. Y. 296 801 Greenwood, R. v. 2 Den. C. C. 453 304 R. V. 23 Up. Can. Q. B. 250 471 V. State, 6 Baxt. 567 440 TABLE OF CASES. (SECTION Greenwood, State v. 1 Hayw. 141 518, 871 V. State, 44 Ind. 250 469 State V. 23 Minn. 104 344 State V. 6 Port. 474 420 Greer v. State, 14 Tex. Ap. 149 683 - V. State, 22 W. Va. 800 347 494, 546, 602, 664, 841, 845 Greeson v. State, 5 How. (Miss.) 38 92, 183 Gregg, in re, 15 Wis. 179 986 V. State, 64 Ind. 223 266 Gregory's case, 4 Burr. 1991 983 Gregory, Com. v. 2 Dana, 417 284 ex parte, 56 Miss. 144 528 People V. 30 Mich. 371 137, 139, 417, 420, R. ». 1 C. & K. 228 944, 945 V. R. 15 Q. B. 957, 974 771 Gresham v. Walker, 10 Ala. 370 119 Grevil, R. v. 1 And. 194. 236 Grey, Com. v. 2 Gray, 501 161, 162, 251 Griffin, Com. v. 3 Cush. 523 123, 125, 134, 314 Com. V. 21 Pick. 523, 525 226, 246, 314, 465 in re, Chase's Dec. 364 996 People V. 2 Barh. 427 350 V. State, 76 Ala.-"32 711, 798 V. State, 15 Ga. 476 655, 646 V. State, 34 La. An. 37 742 State V. 38 La. An. 502 350 State V. 87 Mo. 608 555 State V. 89 Mo. 49 222 State V. 74 N. C. 316 350 State V. 14 Ohio St. 55 167 V. State, 34 Ohio St. 299 548 V. State, 12 Tex. Ap. 423 160 V. Wilcox, 21 Ind. 370 979 Griffiths, Com. v. 126 Mass. 252 189 a Griggs V. People, 31 Mich. 471 700 Grimes, Com. v. 10 Gray, 470 189, 207, 217, 218 Grimm v. People, 14 Mich. 300 549 Grimme v. Com., 5 B. Mon. 263 145 Grisham, State v. 1 Hayw. 12 244 a. State, 19 Tex. Ap. 504 477 Grissom v. State, 4 Tex. Ap. 374 652, 733, 819 V. State, 18 Tex. Ap. 386 693 Grogan v. State, 44 Ala. 9 447, 517 V. State, 63 Miss. 147 111 Gross, Com. v. 1 Ashm. 281 623, 634 Resp. V. 2 Yeates, 479 599 a K. State, 2 Cart. (Ind.) 329 347, 664 Grosse v. State, 11 Tex. Ap. 364 577 Grosset v. Ogilvie, 5 Bro. P. C. 527 628 48 BBCTIOIt Grovenor v. Penwiok, 7 Mod. 156 851 Groves v. State, 73 Ga. 205 88 Gruher v. 3 W. Va. 700 447 Gruffey, State v. 75 Mo. 889 465, 896 Grummond v. State, Wilcox, 510 183, 184 Grumon v. Raymond, 1 Conn. 40 26 G. S., State v. 1 Tyler, 295 130, 139 Guedel v. People, 43 111. 226 456, 457, 471 Guenther v. People, 24 N. Y. 100 771 Guernsey, People v. 8 Johns. Cas. 265 92 Guess V. State, 1 Eng. Ark. 147 421 Guetig V. State, 66 Ind. 94 643 Guffy V. Com., 2 Grant, 66 785, 805 Guibert, State v. 73 Mo. 20 321 Guioe V. State, 60 Miss. 714 669, 683 Guidici, People v. 100 N. Y. 503 781 Gumble, R. v. 42 L. J. M. C. 7; 12 Cox C. C. 248 90 Gummer, State v. 22 Wis. 441 285, 910 Gundy v. Fresno, 64 Cal. 155 1011 Gunnell, U. S. v. 5 Mackey, 196 711 Gunter, State v. 30 La. An. Pt. I. 536 878 Gunyan v. State, 68 Ind. 70 158 Guogando v. State, 41 Tex. 626 587 Gurney, State v. 37 Me. 149 220, 238, 239, 518 Gustave, State v. 27 La. An. 395 812 Gustin, State v. 2 South. 749 167 Gut V. State, 9 Wall. 35 602 State V. 13 Minn. 341 608 Guthrie, R. v. L. R. 1 C. C. 241 255 V. State, 16 Neh. 601 112 Guykowski, People v. 1 Scam. 476 760 Guyott V. Butts, 4 Wend. 679 868 Gwatkin, Com. v. 10 Leigh, 687 793 H. Habersham v. State, 56 Ga. 61 712, 810 Hackett v. Com., 15 Penn. St. 95 261, 273 V. State, 13 Tex. Ap. 406 595 Hackley v. Hastie, 3 Johns. 252 828 Hackney v. State, 8 Ind. 494 317, 318 Hadcraft, Com. v. 6 Bush, 91 762 Haddix v. Wilson, 3 Bush, 523 525 Haddock, State v. 2 Hawks, 461 91, 92, 124 State V. 2 Hayw. 162 109, 111 Hagan, ex parte, 25 Ohio St. 426 996 5 Hagarman, Com. v. 10 Allen, 401 124 Hageman, State v. 1 Greene, 314 386 753 TABLE OF CASKS. SECTION Haggerty, Com. v. 4 Brewst. 329 533 v. People, 6 Lansing, 332 933 Hailey, State v. 6 Jones N. C. 42 325 Hailstook's case, 2 Grat. 564 623, 636 Haiman v. Moses, 39 Ga. 708 801, 804 Haines v. Com., 100 Penn. St. 317 612, 772 V. Haines, 35 Mich. 138 975 State V. 23 S. C. 170 164 Hair v. State, 16 Net. 601 835 Ealberstadt, U. S. v. Gilpin, 262 232 Haider, State v. 2 McCord, 377 273 Hale, Com. v. 13 Phila. 452 328 V. Cove, 1 Strange, 642 842 V. State, 8 Tex. 171 190 Haley, People v. 48 Mich. 495 8, 164 Hall's Kjase, 6 Penn. L. J. 412 31 Hall, Com. v. 4 Allen, 305 251 '' Com. V. 6 Leigh, 615 836 Com. V. 15 Mass. 240 29 Com. *■. 142 Mass. 254 742 Com. «. 3 Pick. 362 101 ti. Com.,-80 Va. 562 759 V. People, 47 Mich. 636 249 V. People, 4« Mich. 482 358 V. State, 40 Ala. 698 548 State V. 51 Ma. 9 639 V. State, 3 Cold. 125 220 State V. 4 Hakt. 256 508 V. State, 8 Ind. 439 312, 830 V. State, 3 Kelly, 18 124, 127 a, 222, 274 State V. 85 Mo. 669 197 V. State, 3 Ohio St. '575 191 V. Washington, 2 Greeme, 473 559 V. Wolff, 61 Iowa, 559 577 Halloran v. State, 80 Ind. 586 451 Halloway, Com. u. 44 Penn. St. 210 531, 532 R. w. 1 C. & P. 128 209 Halsted v. State, 12 Vroom, 552 164 Ham V. State, 4 Tex. Ap. 645 37, 173 Hambleton, State v. 22 Mo. 452 237 Hamblett v. State, 18 N. H. 384 183, 189, 207, 217 Hamilton, Com. v. 15 Gray, 480 369 Com. V. 129 Mass. 479 440 V. Com., 16 Penn St. 129 540, 560, 675, 906 in re, 51 Mich. 174 996 V. People, 29 Mich. 173 70 E. «. 7 C. & P. 448 157 V. State, 35 La. An. 1043 State V. 55 Mo. 520 V. State, 17 S. C. 462 State V. 3 Tex. Ap. 643 v.V.S. 7 Ct. of CI. 144 754 SECTION Hamilton, U. S. v. 3 Dall. 17 37, 1007 U. S. V. 106 U. S. 63 387 Hamlin, State v. 47 Conn. 95 304, 350, 367, 871 State «. 77 Md. 383 614 a Hammell v. State, 14 Tex. Ap, 326 161, 228 Hammond v. Hawes, Wall. C. C. 1 597 V. People, 32 111. 446 1010 V. Wadhams, 5 Mass. 353 869 Hampton's case, 3 Grat. 590 220, 225 Hampton v. State, 8 Ind. 336 125 Hancock v. Haywood, 3 T. R. 433 292 V. State, 14 Tex. Ap. 392 595, 804 Hand, State v. 1 Eng. Ark. 165 97 Handly v. Harrison, 3 Bib. 481 876 Haney, State v. 2 Dev. & B. 390, 400 273, 294 State V. 1 Hawks, 460 122 State V. 67 N. C. 467 525 ». State, 2 Tex. Ap. 504 273, 756 V. State, 5 Wis. 529 918 Hankins v. State, 106 111. 628 440, 477, 942 Hanley, Com. v. 140 Mass. 457 480 Hanlon, Com. v. 3 Brewst. 461 677, 853, 861 Hann, People v. 44 Cal. 96 316 Hanna v. People, 19 Mich. 316 464 Terr. v. 6 Mont. 245 568 Hannah v. State, 11 La. 201 819 Hannahan v. State, 7 Tex. Ap. 664 924 Hanrahan v. State, 91 111. 142 146 V. State, 95 111. 165 927 Hanscom's case, 2 Hale P. C. 295 608 Hanson, ex parte, 28 Fed. Rep. 127 981 R. 1). C. & M. 334 158 State V. 39 Me. 337 120 V. State, 43 Ohio St. 376 245, 700 State V. 23 Tex. 232 177 Hanvey v. State, 68 Ga. 612 862, 884 Hanway, U. S. v. 2 Wall. Jr. 139 555, 617, 625, 658 Harden, State v. 2 Rich. 533 353 V. State, 12 Tex. Ap. 186 447 Hardiman, Com. v. 9 Allen, 487 Hardin v. State, 4 Tex. Ap. 355 „. State, 13 Tex. Ap. 192 o. State, 26 Tex. 113 Harding, ex parte, 120 U. S. 782 712 People V. 53 Mich. 482 577 V. State, 22 Ark. 210 813 State v. 2 Bay, 267 440 Territory v. 6 Montana, 525 323 472 658 813 101 996 505 421 862 354 TABLE OF CASES. SECTION Harding, U. S. v. 6 P. L. J. 14 486 U. S. V. 1 Wall. Jr. 127 312, 465, 791, 895, 929 Hardlsson, People v. 61 Cal. 378 435 a Hardy, Com. v. 2 Mass. 303 791 R. V. 24 How. St. Tr. 755 566 R. V. 24 St. Tr. 418 718 V. State, 7 Mo. 607 805, 810 State V. 47 N. H. 538 247, 465 Hare, People v. 57 Mich. 505 798 V. State, 4 How. (Miss.) 187 815, 826 V. State, 95 N. C. 682 119 U. S. V. 1 Brunf. 449 417 U. S. V. Pamph. 417, 658 Hargrave, State v. 13 Lea, 178 716 Barker v. State, 8 Blaokf. 540 447 Harland, R. v. 8 Dowl. P. C. 328 953 Harley, State v. 54 Me. 562 387 Harman, Com. v. 4 Barr, 269 810 V. Com., 12 S. & R. 69 263, 285, 291 Harmon, Com. v. 2 Gray, 289 167 Harne v. State, 39 Md. 552 116, 386, 400 Harp V. Osgood, 2 HiU (N. Y.), 216 62 V. State, 31 Kan. 496 125 Harper, Com. v. 14 Weekly Notes, 10 261 R. V. 44 L. T. (N. S.) 615 187 State ». 64 N. C. 129 161 Harrall v. State, 26 Ala. 63 354 Harriden, People v. 1 Park. C. R. 544 749 Harriman v. State, 2 Greene (Iowa), 270 279, 358, 716 Harrington, Com. v. 130 Mass. 135 90 V. Harrington, 107 Mass. 329 705 People u. 42 Cal. 165 540 a Harriot, People v. 3 Park. C. R. 112 350 Harris, Com. v. 7 Grat. 600 940 V. Com., 23 Pick. 280 9^2 in re, 47 Mo. 164 992 People V. 4 Denio, 150 602 People V. 1 Edm. Sel. Ca. 453 706 People V. 21 How. Pr. 83 81 V. People, 59 N. Y. 599 780 R. a. 1 Den. C. C. 461 256 R. V. 1 Ld. Raymond, 482 916 V. State, 31 Ark. 196 750 V. State, 34 Ark. 469 712 State V. 2 Halst. 361 92 State V. 11 iowa, 414 251 State V. 30 La. An. 90 672 State V. 34 La. An. 118 548, 829 V. State, 3 Lea, 324 273 SBOTIOM Harris v. State, 7 Lea, 538 810 V. State, 47 Miss. 318 713, 793 V. State, 61 Miss. 304 845 State V. 12 Nev. 414 555, 838 State V. 91 N. C. 656 446 U. S. V. 1 Abb. U. S. 110 528 Harrison v. Bank, Lond. L. T. July 5, 1884 565 Com. V. 11 Gray, 308 ; 11 Mass. 63 121, 991 Com. V. 2 Va. Cas. 202 773 in re, 1 Cranch C. C. 159 982 V. State, 36 Ala. 248 471 V. State, 78 Ala. 5 577 V. State, 35 Ark. 358 953 State V. 10 Yerg. 542 278 U. S. V. 3 Sawy. 556 466, 467 Harrod, R. v.2C.k K. 294 ; 2 Cox C. C. 242 527, 535 State V. 34 La. An. 118 828 Hart, Com. v. 11 Cush. 130 238, 241 Com. V. 10 Gray, 468 158 a R. ». 6 C. & P. 106 187, 194 R. U.I G.& P. 652 294 R. V. 1 Leaoh, 145 167 V. State, 55 Ind. 599 . 176 V. State, 57 Ind. 102 643 State V. 4 Ired. 246 90 State V. 33 Kans. 218 447, 518 State V. 14 Neb. 72 560 V. State, 21 Tex. Ap. 163 890 Hartell, R. u. 7 C. & P. 475 293, 562 Hartford v. State, 96 N. C. 461 231 Hartigan v. Terr., 1 Wash. 360 549 Hartley v. Hindmarsh, L. R. 1 C. P. 553 438 in re, 31 L. J. M. C. 232 469 Hartman v. Aveline, 63 Ind. 344 34 V. Com., 5 Barr, 60 771, 910 ex parte, 44 Cal. 32 996 State V. 8 Baxt. 384 269 Hartnett, State v. 75 Mo. 251 150 Hartranfft's App., 85 Penn. St. 433 338 Hartung v. People, 22 N. Y. 95 836 V. People, 26 N. Y. 154 167, 420, 502, 773 People V. 28 N. Y. 400 ; 23 How. Pr. 314 502 People V. 4 Park. C. R. 256, 316, 339 827, 838 Hartwell, State v. 35 Me. 129 73 U. S. V. 3 Cliff. 221 418 Hartwright v. Badham, 11 Price, 383 848 Hartzell, Com. v. 40 Penn. St. 463 613 State V. 58 Iowa, 520 710 Harvey's case, 10 Mod. 334 78 Harvey, R. v. L. R. 1 C. C. 284 236, 341 755 TABLE OF CASES. SECTION Harvey, R. v. R. & R. 227 185 V. State, 67 Ga. 639 597 V. State, 40 Ind. 516 571 State u. 3 N. H. 65 306 a Harwell r. State, 10 Lea, 544 966 V. State, 22 Tex. Ap. 251 756 Hascall, State v. 6 N. H. 362 849, 886 Basel], R. v. 2 Giro. C. C. 220 660 Haskell, State v. 76 Me. 399 251 U. S. V. 4 Wash. C. C. 402 600, 508, 509, 724, 820 Basket, State v. 3 Hill (S. C.) , 95 383, 447 Haskett v. State, 51 Ind. 176 954, 969 Baskln, ex parte, 3 Sawy. 262 37 b Basklns, Com. B. 128Mass. 60 737, 909 a V. People, 16 N. Y. 344 146 U.S. w. 3 Sawy. 262 37 6 Haslett, Com. v. 1 Crumr. (Pitts.) 169 913 Basley v. State, 14 Tex. Ap. 217 360, 352 Haslip V. State, 4 Bawy. 273 284 Basselmeyer v. State, 6 Tex. App. 21 862 Hastings, State v. 53 N. H. 452 261 State V. 86 N. C. 696 452 Hatch V. State, 6 Tex. Ap. 384 470 V. State, 8 TexAp. 416 577, 798 a Hatcher, State v. 18 Ga. 460 560 Batchett, Com. v. 76 Va. 1026 813 Batfield, State v. 3 Bead, 231 359 Bathaway o. Johnson, 55 N. Y. 93 320 Battabough, State v. 66 Ind. 223 461, 465, 476 Batton, Com. o. 3 Grat. 623 457, 752 Hatwood V. State, 18 lud. 492 137, 317 Hauok V. State, 1 Tex. Ap. 357 871 Baught V. Com., 2 Va. Cas. 3 106, 358 Baun, People ;■. 44 Cal. 96 560 V. State, 13 Tex. Ap. 833 27 Bausen v. State, 33 Wis. 678 996 Haven, State v. 59 Vt. 399 251, 256 Bavey, State v. 68 N. H. 377 120 Hawart, R. v. Ry. & M. 207 13 Hawes, Com. u. 13 Bush, 697 38, 49, 993 Bawk V. Minnlok, 19 Ohio St. 462 453 Bawker v. People, 75 N. Y. 487-96 291, 737 Hawkins, Com. v. 11 Bush, 603 471 Com. V. 3 Gray, 463 394, 771 People V. 34 Cal. 181 302 756 SBCTTOK Bawkins v. People, 106 111. 628 477, 942 V. State, 9 Ala. 137 309, 3iO V. State, 1 Port. 476 623, 626 Bawley v. Butler, 54 Barb. 490 13 V. Com., 75 Va. 847 304 Baworth, R. v. 4 G. k P. 264 176 V. State, Peck (Tenn.), 89 116 Hawthorne v. State, 56 Md. 630 90, 187 Bayden v. Com., 10 B. Mon. 125 358 Com. K. 4 Gray, 18 683 in re, 35 Minn. 283 996 State V. 51 Vt. 296 844 Hayes v. Missouri, 120 U. S. 68 641, 693 - People V. 1 Edm. Sel. Ca. 862 631 R. !). 2 M. & Rob. 166 302 State V. 58 Ga. 35 602, 700 State V. 14 Mo. Ap. 173 602 State V. 24 Mo. 358 125, 133 State V. 78 Mo. 307 641 V. U. S., 32'Fed. Rep. 662 793 Baymw. U. S.,7Ct.ofC1.443 531,533 Baynes, R. ». 4 M. & S. 214 120 State V. 71 N. C. 79 566 State V. 36 Vt. 667 484 Bays, State v. 21 Ind. 176 189 V. State, 77 Ind. 450 159 State V. 2 Lea, 156 496 V. State, 13 Mo. 246 156 State V. 23 Mo. 287 356, 555 State V. 78 Mo. 600 467, 507 Hayward, in re, 1 Sandf. 701. See Heyward, in re, 1. V. Knapp, 22 Minn. 5 707 State V. 83 Mo. 299 177, 220 Baywood, State v. 73 N. C. 437 344 State V. 94 N. C. 847 360 Bazard, State v. 2 R. I. 474 290, 291, 294 Bazen v. Com., 23 Penn. St. 355 771, 780 Beacock v. State, 42 Ind. 393 354, 371, 643, 754 V. State, 13 Tex. Ap. 97 668 Heane, R. v. 4 B. & S. 947 ; 9 Cox, 433 385, 388, 396 Heanley v. State, 74 Ind. 99 88 Heath, Com. v. 1 Robins. 735 631, 636, 654, 658, 676, 682, 694, 735, 793, 844 R. V. 14 Bow. St. Tr. 123 833 V. State, 68 Ga. 287 600 V. State, 7 Tex. Ap. 464 712 Beaton, State v. 81 N. C. 542 238, 239 State V. 23 W. Va. 369, 370 Beck, State v. 23 Minn. 651 122, 158 o, 164 TABLE OF OASES. SECTION Hector v. State, 2 Mo. 135 508, 724 Hedge, State v. 6 Ind. 330 273 Hefferman, People v. 38 How. Pr. 402 984 Hefifernan v. Porter, 6 Cold. 391 439 Heffren, ex parte, 27 Ind. 87 75 Heffron, Cora. v. 102 Mass. 148 145 K, Com., 4 Mete. (Ky.) 5 202a People V. 53 Mich. 527 154 Height, People v. 50 N. Y. 392 804 Heikes v. Com., 26 Penn. St. 613 144, 456, 472 Heilbron's case, 12 N. Y. Leg. Obs. 65 57 Heineman v. State, 22 Tex. Ap. 44 243 Heinrich, in re, 5 Blatoli. 425 ' 50, 53, 57 Helbing, ex parte, 66 Cal. 215 220 People V. 61 Cal. 620 466, 480 Helding, People v. 59 Cal. 364 419 Helgen, State v. 1 Speers, 310 230 Heller v. State, 23 Ohio St. 682 466 Helm, State v. 6 Mo. 263 220 V. State, 20 Tex. Ap. 41 860 Helpick V. Com., 29 Gratt. 844 220 Helvenstou, State ». R. M. Charlt. 48 956 Hemanus v. State, 7 Tex. Ap. 372 781 Hempstead, R. v. R. & R. 344 316, 383 Henderson, People v. 28 Cal. 465 803 R. V. C. & M. 328 466, 471 State V. 1 Rich. 179 167, 181a State V. 29 W. Va. 147 683 Hendrick v. Com., 6 Leigh, 708 442, 617, 636, 675, 679 Hendricks, State v. Conf. 369 125, 134, 256 V. State, 73 Ga. 577 793 V. State, 36 Ind. 493 794 State w. 32 Kan. 569 824 Hendrie, Com. v. 2 Gray, 503 111, 112 Hendryx, People v. 56 Mich. 319 555 Hennepin, State v. 24 Minn. 87 996 Hennessey u. People, 21 How. Pr. 239 469 a State V. 23 Ohio St. 339 262, 470 Henning v. State, 106 Ind. 386 350, 733 V. State, 24 Tex. Ap. 315 590 Henrich, see Heinrich. Henrie v. State, 41 Tex. 673 844 Henries, People v. 1 Park. C. R. 579 612 Henry v. Ellis, 49 Iowa, 206 957, 969 V. State, 33 Ala. 389 420 V. State, 77 Ala. 75 672 V. State, 4 Humph. 270 793 State V. 59 Iowa, 391 291 SECTION Henry v. State, 7 Tex. Ap. 388 273 Hensey, R. v. 1 Burr. 643 408 Henshaw, People ;;. 52 Mich. 564 813 Hensley, State v. 7 Blackf. 324 388 Henson, in re, 24 Tex. Ap. 305 81 Henwood v. Com., 52 Penn. St. 424 289, 291 Hepburn's case, 3 Bland, 114 463 Herber y. State, 7 Tex. 69 813, 869 Herbert, R. v. 5 Cranoh C. C. 87 159, 435, 462 Herndon, State v. 5 Blackf. 76 345, 350 Herres, In re, 32 Fed. Rep. 683 53 in re, 33 Fed. Rep. 105 50, 53, 55 Herring v. State, 1 Clarke (Iowa), 206 566 Herron v. Com., 79 Ky. 38 925 Hersey, Com. ». 27 Allen, 1 163 a Herty, Com. u. 109 Mass. 348 465, 896 Heshew v. State, 14 Tex. Ap. 606 859, 876 Hess V. State, 6 Ohio, 5 180, 261, 464 U. S. V. 124 U. S. 488 222 Hessing, People v. 28 111. 410 1010 Hevice, Res. v. 2 Yeates, 114 285 Hewitt, R. V. R. & R. 158 385 V. State, 26 Tex. 722 90 Hewlett V. Cruchley, 5 Taunt. 277 879 Heydon, R. v. 1 W. Bl. 351 870 Heymann, R. v. 12 Cox C. C. 383 ; L. R. 8 a. B. D. 102 760 Heyward, in re, 1 Sand. (N. Y.) 701 29, 36, 991, 1002 Hey wood, Terr. v. 2 Wash. Ter. 181 255 Hibbs, ex parte, 26 Fed. Rep. 421, 431 37, 49, 51, 910, 911 Hibler f. State, 43 Tex. Ap. 197 28, 993 Hickery, ex parte, 12 Miss. 751 958 Hickey, Com. o. 2 Pars. 317 1005 ex parte, 4 Sm. & M. 751 530 V. State, 23 Ind. 21 189 V. State, 12 Neb. 490 846 Hicklin, R. v. h. R. 3 Q. B. 360 164 Hickling, State v. 45 N. .J. L. (16 Vroomj 152 383, 384 Hickman, R. v. 1 Moody C. C. 34 89 State V. 3 Halst. 299 220 State ». 75 Mo. 416 595 Hicks, R. a. 2 M. & Rob. 302 . Ill State V. 92 Mo. 431 813, 853 Hidden, People v. 32 Cal. 445 350 Higbee, People v. 66 Barb. 131 215 Higden v. Higden, 3 A. K. Marsh. 42 861 Higgenbotham v. State, 79 Fla. 567 577 757 TABLE OF CASES. SECTION Higgins, in re, 27 Fed. Eep. 443 951 People V. 59 Cal. 357 511, 543 R. V. 2 East, 5 159 R. V. 1 Vent. 366 772 State V. 53 Vt. 191 111, 153, 221 Highland v. People, 1 Scam. 392 753 Hilands v. Com., Ill Penn. St. 1 493 . 4 Allen, 591 629, 661 Com. V. 11 Cush. 137 111, 112, 113, 156, 378 Com. V. 5 Grat. 682 238, 813 Com. V. 14 Mass. 207 417 V. Crandall, 52 111. 70 955, 963 V. Davis, 4 Mass. 137 87 ex parte, 3 Cow. 355 817 5 Nev. 154 980 V. People, 16 Mich. 351 846 V. People, 26 Mich. 496 696 R. V. 2 Mood. C. C. 30 253 State V. 3 Brev. 89 77, 81 V. State, 53 Ga. 472 241, 249 State V. 13 R, I. 314 702 v. State, 11 Tex. Ap. 379 798 V. State, 17 Wis. 675 543, 549, 875 V. State, 2 Yerg. 248 419, 922 D. S. „. 1 Brock. 166 340 Hills, Com. V. 10 Cush. 530 290, 910 Hilton, R. V. Bell, 201 ; 8 Cox, 87 291 Hineh v. State, 25 Ga. 699 709 Hinchman v. Clark, Cox^, 446 660 Hiudle V. Birch, 1 Moore, 455 847 Hinds, Com. v 101 Mass. 209 196, 759 Hiner v. People, 34 111. 297 771 Hines, Com. v. 101 Mass. 33 93 V. State, 26 Ga. 614 937 V. State, 8 Humph. 597 513, 517, 815, 823 V. State, 24 Ohio St. 134 435, 505, 520, 785 Hlng, State v. 16 Nev. 307 664 Hlnkle v. Com., 4 Dana, 518 251 • State r. 27 Kan. 308 139, 669 Hinley, R. «. 2 M. & R. 524 294 Hinman, U. S. v. 1 Baldw. 292 167, 173, 183 Him V. State, 1 Ohio St. 16 486 Hirsch v. State, 8 Baxt. 89 954 V. U. S., 100 U. S. 33 321 Hirsohfleld v. State, 11 Tex. Ap.' 207 456, 471 Hirst, in re, 9 Phila. 216 959 Hitohman, Com. i-. 46 Penn. St. 357 622, 528 758 Hite V. State, 9 Yerg. 357 SECTION 183, 354, 460, 471 Hix V. Drury, 5 Pick. 296 828 Hizer v. State, 12 Ind. 33d 124 Hoard v. State, 15 Lea, 318 844 Hobbs, Com. u. 140 Mass. 443 164, 272 State V. 39 Me. 212 137, 318 V. State, 9 Mo. 855 188 Hoberg v. State, 3 Minn. 262 830 Hodde V. State, 8 Tex. Ap. 382 881 Hodge V. R., 5 Crim. Law Mag. 391 918 V. State, 85 Ind. 561 87 Hodgeden, State v. 3 Vt. 481 124, 274 Hodges, R. !). 8 C. & P. 195 362 State V. 55 Md. 127 151 V. State, 6 Tex. Ap. 615 847 Hodgkins, State v. 42 N. H. 475 438 Hodgkiss, R. «. 7 C. & P. 298 566 R. V. L. R. 1 C. C. 212 158 Hodgson's case, 1 Lew. C. C. 236 108 Hodgson, R. ,.. 3 C. & P. 422 703 Hoffman, Com. ,: 121 Mass. 369 456 V. Coster, 2 Whart. R. 453 523 V. State, 20 Md. 425 603 V. State, 78 Mo. 256 619, 548 V. State, 12 Tex. Ap. 406 602 V. State, 65 Wis. 46 560 Hogan, State u. R. M. Charlton, 474 293 V. State, 30 Wis. 437 914 Hoge V. People, 117 111. 35 711 Hogg, R. !). 2 M. & Rob. 380 111 .;. Ward, 3 H. & N. 417 9 Hogshead v. State, 6 Humph. 59 841 Hoh Ah Kow v. Nun an, 20 Alb. L. J. 250 920 Holies V. U. S., 3 McArth. 370 261, 470 Holbrook, People v. 13 Johns. 90 183, 184, 189 Holchester, R. v. 10 Cox C. C. 226 576 Holcomb, State v. 86 Mo. 371 345 Holden. R. u. 5 B. & Ad. 347 602 ' R. i>. 8 C. & P. 609 565 V. State, 1 Tex. Ap. 225 279 Holder v. State, 13 Tex. Ap. 601 588 Holeman v. State, 13 Ark. 105 862 Holland v. R., 2 Jebb & S. 357 780 V. State, 14 Tex. Ap. 182 716 HoUenscheit, State v. 61 Mo. 302 314 HoUey, Com. v. 3 Gray, 458 90 V. State, 75 Ala. 14 355 Hollidjiy V. People, 4 Gilman, 111 650 HoUingberry, R. u. 4 B. & C. 329 ; 6 D. & R. 345 168, 883 HoUingsworth v. Duane, 4 Dall. 363 ; Wall. C. C. 77 846, 958, 963, 968 V. Napier, 3 Caines, • 182 855 TABLE OF CASES. SECTION Hollis V. Davis, 56 N. H. 74 85 V. State, 8 Tex. Ap. 620 886 HoUon V. Hopkins, 21 Eans. 638 925, 925 a HoUond, R. v. 5 T. R. 607, 623 120, 166 Holloway v. Com., 42 Penn. St. 446 996 y.R.2Deii.287;17a.B. 317 771,777,780,782 Holly V. Mix, 3 Wend. 350 13 Holman v. Austin, 34 Tex. 668 954 ex parte, 28 Iowa, 89 980 V. State, 105 Ind. 513 955 Holmes, Com. ,.. 17 Mass. 336 177, '771 Com. V. 103 Mass. 440 298 Com. V. 119 Mass. 198 255 Com. u. 137 Mass. 248 737 V. Com., 25 Penn. St. 221 549 ex parte, 21 Neb. 324 890 ex parte, 12 Vt. 631 37 c V. Jennison, 14 Pet. 540 37, 37 c, 1010 People V. 5 Wend. 192 877 V. State, 54 Ga. 303 866 V. State, 17 Neb. 73 403 State V. 48 N. H. 377 15 U. S. V. 1 Wall. Jr. 1 208 Holt V. Com., 2 Va. Cas. 156 588, 591 V. People, 13 Mich. 224 649, 653 R. !). 7 C. &P. 518 941 u. R., 2 D. & L. 774 780 R. V. 5 T. R. 436 890 V. State, 38 Ga. 187 456, 471 V. State, 62 Ga. 314 • 798 State V. 90 N. C. 749 733 V. State, 9 Tex. Ap. 571 693 Holten ». State, 2 Pla. 476 830 Holton, ex parte, 69 Ala. 164 602 Homan, State v. 41 Tex. 155 302, 315 Homer, State v. 40 Me. 438 101, 427 Honeyoatt v. State, 8 Baxt. 371 712 State V. 74 N. C. 391 495 Honeyman, People «. 3 Denio, 121 631, 690 Resp. V. 2 Dall. 228 131 Honig, State v. 78 Mo. 249 562 Hoobach v. State, 43 Tex. 242 677 Hood, People v. 6 Cal. 236 161 E. V. 1 Moody, 281 6 State V. 51 Me. 363 217, 291, 292, 295, 911, 931 Hoogkerk, People v. 96 N. Y. 149 344 Hooker v. Com., 13 Grat. 763 540, 548 V State, 4 Ohio, 350 617, 677 State V. 17 Vt. 658 292, 911 Hooper, in re, 52 Wis. 699 28, 35 State V. 2 Bailey, 37 791 State V. 82 N. C. 663 159 Hoover v. State, 5'Baxt. 672 837 SECTION Hoover, State v. 56 Md. 584 121 Hope V. Com., 9 Met. 134 217 Com. V. 22 Pick. 1 249, 290 People V. 62 Cal. 291 634, 712 V. People, 83 N. Y. 418 359, 363, 771 Hopkins v. Com., 50 Penn. St. 9 369 State V. 1 Bay, 373 844 State V. 7 Blackf. 494 123, 940 V. State, 10 Lea, 204 602 State V. 56 Vt. 250 469, 810, 827 Hopkirk, State v. 84 Mo. 278 641 Hoppe, State v. 39 Iowa, 468 189 Hopper, Com. v. 6 Grat. 684 555 State V. 71 Mo. 425 710, 793, 813, 827, 829 Hopt V. Utah, 110 U. S. 574, 577 541, 545, 812 V. Utah, 120 U. S. 430 698 Horan v. State, 7 Tex. Ap. 183 164 Hord V. Com., 4 Leigh, 674 430 Horford v. Wilson, 1 Taunt. 12 801 Horn, People v. 70 Cal. 17 435, 517, 785 State V. 34 La. An. 400 793 Home V. State, 37 Ga. 86 302 State V. 9 Eans. 119 847 Horneby, State v. 8 Ro,b. La. 583 447 Horneman, State y. 16 Kans. 452 468 Horner, R. v. 1 Leaoh, 270 81 Hornsby, State v. 32 La. An. 1268 749 Horsey v. State, 3 Har. & J. 2 759 Horspool V. Harrison, 1 Stra. 556 105 Horton, Com. «. 9 Pick. 206 418, 945 V. Horton, 2 Cow. 589 815 People V. 4 Park. C. R. 222 338, 345 People V. 13 Wend. 9 667, 670 V. State, 60 Ala. 73 161 V. State, 33 La. An. 389 601 U. S. V. 2 Dill. 94 963 Hoskey v. State, 9 Tex. Ap. 202 221 Hoskins v. State, 11 Ga. 92 193, 243, 251, 285, 409 State !J. 77 N. C. 530 783 a Houghton V. Bachman, 47 Barb. 388 61 House, R. V. 6 Cr. L. Mag. 500 27 State V. 55 Iowa, 466 251 V. State, 65 N. C. 747 871 V. State, 19 Tex. Ap. 227 577 Houseman, R. w. 8 C. & P. 180 185 Housh, People v. 75 111. 487 1 Houston, R. V. 2 Cr. & D. 310 404, 405, 435 o, 452, 457, 773 Hover, State v. 58 Vt. 496 220 How, R. V. 2 Str. 699 203 Howard, Com. v. 13 Mass. 222 453 759 TABLE OP CASES. SECTION Howard v. Durand, 36 Ga. 346 974 ex parte, 17 N. H. 545 916 V. People, 3 Mich. 207 994 People V. 50 Mich. 241 813 V. State, 34 Ark. 433 297, 776 II. State, 50 Ind. 190 793 State V. 17 N. H. 171 627, 664, 670, 683, 844, 847 V. State, 25 Ohio St. 399 244 State V. 15 Rich. 274 318, 323, 383, 385 V. State, 8 Tex. Ap. 447 466 State V. 31 Vt. 414 602 U. S. V. 3 Sumn. 12, 19 114, 158 Howarth, R. v. 1 Ry. & Moody C. C. 207 3, 8 Howe, Com. v. 14 Gray, 26 771 V. Plainfield, 8 Vroom, 150 440 V. State, 9 Miss. 690 1010 State V. 1 Rich. 260 ' 255 Howel V. Com., 5 Grat. 664 220, 811 Howell V. People, 5 Hun, 620 812 People V. 4 Johns. 296 187, 194 305 V. People, 69 N. Y. 607 ' ' 812 V. State, 1 Oregon, 241 780 State V. R. M. Charlt. 120 29 Howerton v. State, Meigs, 262 642, 844 Howes, Com. v. 15 Pick. 231 230 Howland v. Gifford, 1 Pick. 43 886 Howser v. Com., 51 Penn. St. 333 654, 658, 682, 833 Hoxey, Com. w. 16 Mass. 385 284 Hoy V. State, 11 Tex. Ap. 32 756 Hoye, Com. v. 11 Gray, 462 224 V. State, 39 Ga. 718 866 Hoyer, Com. o. 125 Mass. 299 121, 241 Hoyt, State v. 46 Conn. 330 916 State V. 47 Conn. 518 560, 566, 631, 665, 693, 750, 906 Hubbard v. Rutledge, 67 Miss. 7 660 V. State, 72 Ala. 164 290, 369, 414, 603, 696 Hubbs, State v. 58 Ind. 415 159 Huber «. Reily, 53 Penn. St. 112 939 State V. 8 Kans. 447 923 Huddleston v. State, 14 Tex. Ap. 73 409 Hudelson v. State, 94 Ind. 426 ; 5 Crim. Law Mag. 524 810, 812 Hudglns V. State, 61 Ga. 182 859 V. State, 2 Kelly, 174 646 V. State, 32 La. An. 1052 935 Hudson, Com. v. 14 Gray, 11 472 V. State, 1 Blackf. 318 345, 654 V. State, 40 Tex. 12 712 V. State, 9 Yerg. 408 831, 847 760 SEOTIOS Huff's case, 14 Grat. 648 385 Huff V. State, 23 Tex. Ap. 291 90 Huffman v. Com. 6 Rand. 685 273 Penn. v. Addis. 140 435 V. State, 22 Tex. Ap. 491 474 Hufford, State v. 28 Iowa, 391 28 Hugel, State v. 27 La. An. 375 906 Hughes, Com. v. 133 Mass. 496 934 Com. u. 11 Phil. 430 309, 400 Com. V. 5 Rand. 655 844 in re, Phill. N. C. (L.) 57 30 31 32 People V. 29 Cal. 257 ' 847, 925 V. People, 8 Col. 536 440 V. People, 116 111. 330 844 R. o.lC.k K. 235, 519 366, 378, 684 R. V. 4 Cox, 519 696 State V. 1 Ala. 655 (N. S.) 346, 358, 541 State V. 2 Ala. 102 646, 649 State V. 75 Ala. 31 711 State !). 2 Har. & McHen. 479 106, 423 V. State, 66 Ind. 39 752 t'. State, 4 Iowa, 564 550 State V. 58 Iowa, 165 344 State V. 1 Swan, 26 101 U. S. V. 1 Bond, 574 531 Huidekoper v. Cotton, 3 Watts, 56 378 Hulbut, People w. 4 Denio, 133 363, 375, 378, 379 Huling V. State, 17 Ohio, 683 350 Hull V. Alexander, 26 Iowa, 569 560 V. L'Eplattimer, 49 How. Pr. 600 954 R. w. 2 F. & F. 16 323 U. S. V. 14 Fed. Rep. 324; 4 McCr. 273 162, 251 Hulse V. People, 35 Ohio St. 421 714 Humbree v. State, 81 Ala. 67 712 Hummel, in re, 9 Watts, 416 974 V. State, 17 Ohio St. 628 189 Humphreys, R. v. C. & M. 601 373 State V. 10 Humph. 442 185 Hunckcler, People v. 48 Cal. 331 498 Hung Hung, ex parte, 108 U. S. 552 1010 Hunnioutt v. State, 18 Tex. Ap. 623 829, 830 Hunt, Com. v. 4 Pick. 252 114 ex parte, 5 Eng. 284 533 V. People, 78 N. Y. 330 777 R. ». 3 B. & Aid. 430, 444 602, 886 R. V. 1 Ry. & M. 93 8 o. state, 49 Ga. 256 560 V. State, 61 Miss. 677 733 TABLE OF OASES. SECTION Hunt V. State, 6 Tex. Ap. 663 212 a Hunter v. Com., 79 Penn. St. 503 261, 289, 291, 860 o ex parte, 2 W. Va. 122 537 V. Fairfax, 3 Ball. 305 697 People V. 64 Cal. 65 368 R. t). 4 C. & P. 128 176 R. V. 2 Leach, 624 185, 196 State V. 33 Iowa, 361 940 <-■. State, 40 N. J. L. 495 297, 771, 802 State V. Peck's Tenn. R. 166 91 V. State, 8 Tex. Ap. 75 842 Huntley, R. v. 8 Cox C. C. 260 291 Huntzinger v. Com., 97 Penn. St. 336 774, 918 Hurd V. Com., 5 Leigh, 715 589 V. People, 25 Mich. 405, 556, 565 Hurds, State v. 19 Neb. 316 163 a Hurlbut, State v. 1 Root, 90 549, 550 Hurley v. State, 29 Ark. 17 846 State V. 71 Me. 354 146 r. State, 6 Ohio, 399 815 Hurst, People v. 41 Mich. 328 555 State V. 11 W. Va. 54 189 Hurston, Penn. v. Addison, 334 306 Hurt V. State, 26 Ind. 106 601 V. State, 26 Miss. 378 449, 462 State V. 7 Mo. 321 358 Hurtado v. Gal., 110 U. S. 516 85 Huse, Pringle v. 1 Cow. 432 631 Hussey, Com. v. Ill Mass. 432 189 State V. 7 Iowa, 409 317, 31 8 Hasted, People v. 52 Mich. 624 130 Huston, State v. 50 Iowa, 512 363 Hatchings, State v. 24 S. C. 142 293 Hutohins v. State, 28 Ind. 34 151 Hutchinson's case, 3 Keb. 785 437 Hutchinson, Com. v. 2 Pars. 453 317, 318 320 V. State, 62 Ind. 556 'l25, 134 V. State, 6 Tex. Ap. 468 856, 862 State V. 26 Tex. Ill 273 Hutchison v. Com., 82 Penn. St. 472 291, 292, 407, 771 Hutson, State v. 15 Mo. 512 119 Hutton, Com. o. 5 Gray, 89 123 Halts V. State, 7 Tex. Ap. 44 273 Hyler, People v. 2 Park. C. R. 566, 570 338, 361, 362, 1007 Hylliard v. Nichols, 2 Root, 176 849 lams. People v. 57 Cal. 115 617 Igo, State V. 21 Mo. 459 814 SECTIOK Ike V. State, 23 Miss. 525 220 lUidge, R. B. 2 C. & K. 871 ; 3 Cox C. C. 562 ; T. & M. 127 193 Imlay v. Rogers, 2 Halst. 347 378 Inder, R. v.2C.k K. 635 181 Ingalls, State v. 59 N. H. 88 120, 137 u. State, 48 Wis. 647 934 Ingram v. State, 39 Ala. 247 401, 945 State «. 16 Kans. 14 447 Inness, State v. 53 Me. 536 420 Insall V. State, 14 Tex. Ap. 145 154 Iiiskeep V. State, 35 Ohio St. 482 775 Intox. Liquors, Com. v. 6 Allen, 596-9 26 Com. !). 13 Allen, 52 26 Com. 0. 109 Mass. 371-373 22 Com. V. 116 Mass. 21 111 Irvin, State v. 6 Blackf. 343 111 V. State, 19 Fla. 872 551, 812 V. State, 7 Tex. Ap. 109 273 Irvine v. Keen, 14 S. & R. 292 634 V. State, 20 Tex. Ap. 12 590, 712 U. S. V. 98 U. S. 450 321 Isaacs, People v. 1 N. Y. Cr. R. 148 181a Isham V. State, 1 Sneed, 112 356, 771 U. S. V. 17 Wall. 496 89 Ismahl, Com. v. 134 Mass. 201 288, 293 I. S. S., State V. 1 Tyler, 178 383 Iverson v. State, 52 Ala. 170 693 Jack V. State, 20 Tex. Ap. 658 843 Jackson's case, 12 Am. L. R. 602 31 1 Black, U. S. 484 139 1 East P. C. 298 12 Jackson v. Com., 19 Grat. 656 546, 547, 649, 830, 874 V. Com., 23 Grat. 919 70, 635 Com. V. 2 "Va. Cas. 501 451, 485 V. Dickenson, 15 Johnson, 309 847 ex parte, 14 Blatch. 245 1 ex parte, 96 D. S. 727 22, 919, 924 in re, 2 Flip. .123 31 in re, 3 MacArth. 24 924 V. Malin, 16 Johns. 293 865 People V. 8 Barb. 637 110, 183, 188, 208 People V. 3 Den. 101 122 Peoples. 3 Hill (N. Y.), 92 249, 261, 464 761 TABLE OF CASES. SECTION Jackson v. People, 18 111. 264 132 V. Provost, 2 Caines, 165 108 R. V. Cowp. 297 232 ?'. Sheriff, 1 Oreg. 246 802 State V. 74 Ala. 26 369, 664, 738, 779 V. State, 77 Ala. 18 639 V. State, 54 Ga. 439 894 V. State, 64 Ga. 344 400 V. State, 76 Ga. 651 220, 384, 777, 829 State V. 7 Ind. 270 221 V. State, 14 Ind. 327 467, 470 V. State, 4 Kan. 150 354 State V. 27 Kan. 581 846, 886 State;;. 12 La. An. 679 696 State V. 21 La. An. 574 88 State V. 36 La. An. 207 350 State V. 37 La. An. 768 651 State V. 1 Lea, 160 238 State V. 39 Me. 291 133, 141 State V. 17 Mo. 644 293 State V. 90 Mo. 156 737 State V. 95 Mo. 623 853 V. State, 39 Ohio St. 37 253, 740 State V. 7 S. C. 283 307 V. State, 11 Tex. 261 360 State V. 26 W. Va. 250 218 V. Warford, 7 Wendell, 62 852 Jacob, Ees. v. 1 Smith's Laws (Penn.), 57 82 State V. 10 La. An. 141 290, 293 Jaoobi, R. v. 46 L. T. 593 45 Jacobs, Com. v. 9 Allen, 274 179 o. Com., 5 S. & R. 315 120, 123, 134, 875 V. State, 4 Lea, 196 479 People V. 66 N. Y. 8 975 State V. 6 Tex. 99 344 V. State, 9 Tex. Ap. 278 661 V. State, 18 Tex. Ap. 586 871 Jacoby, U. S. v. 12 Blatoh. C. C. 491 220, 291 Jacquins v. Com., 9 Cush. 279 780 Jaeger, State v. 66 Mo. 208 812 Jailor, U. S. v. 2 Abb. U. S. 265 981 James's case,5 Cr.Crim. L. Mag. 216 62 James, Com. v. 99 Mass. 438 310 Com. V. 1 Pick. 376 208 V. Com. 12 S. & R. 220 155, 919, 920 in re, 18 Fed. Rep. 854 37 6 People ti. 2 Caines, 57 533 R. ». 8 C. & P. 292 194 R. V. 6 Q. B. 620 385, 396 762 SECTION James, State v. 37 Conn. 355 75 V. State, 45 Miss. 572 344, 906 17. State, 55 Miss. 57 750, 831 State V. 80 N. C. 370 6, 10, 15 Jane v. Com., 3 Mete. (Ky.) 18 260 V. State, 3 Mo. 61 123, 133 Jaques i\ Com., 10 Grat. 690 660 B. 68 Mo. 260 238 Jarnigan v. State, 10 Yerg. 529 356, 555, 815 Jarrell v. State, 58 Ind. 293 394 Jarvis, State v. 63 N. C. 556 396 V. State, 19 Ohio St. 585 788, 895 Jasper, State v. 4 Dev. 323 125 Jay, State v. 57 Iowa, 164 249 Jefcoat, State v. 20 S. C. 383 273, 548, 906 Jefferds, People v. 5 Park. C. R. 518 81 Jeffers, State v. 64 Mo. 376 504 State V. 3 Murph. 480 518 Jefferson, Com. v. 6 B. Mon. 313 773 People V. 52 Cal. 453 946 V. People 101 N. Y. 19 238 State V. 66 N. C. 309 495, 520 Jeffries v. Com., 12 Allen, 145 92, 134, 906 I'. Randall, 14 Miss. 205 849 V. State, 40 Ala. 381 457, 507 Jeffs, R. V. 2 Strange, 984 512 Jenkins, Com. v. Thatch. C. C. 118 827 ex parte, 2 Wall. Jr. 521 537, 981, 991, 993 V. State, 78 Ind. 133 482 w. State, 84 N. C. 812 518, 641 State V. 20 S. C. 351 471 Jenks, Com. v. 1 Gray, 496 383, 472, 488 Com. V. 138 Mass. 484 189, 309 Jennes, People v. 5 Mich. 305 294 Jennings v. Com., 105 Mass. 586 314, 383 Com. V. 121 Mass. 47 119, 239 241 Com. V. 17 Pick. 80 233', 771 R. V. 1 Cox, 115 261 States. 24 Kan. 642 906 State V. 18 Mo. 435 771 Jenour, R. v. 7 Mod. 400 254 Jenson, State v. 60 Wis. 577 239 U. S. V. 15 Fed. Rep. 138 771 Jericho, State v. 40 Vt. 121 124, 276 Jerry v. State, 1 Blackf. 395 92, 95, 813 Jesse, State o. 3 Dev. & B. 297 461, 466 TABLE OF CASES. SECTION Jesse V. State, 20 Ga. 156 671, 683, 692 Jessie, State v. 30 La. An. 1176 744 Jetton V. State, 1 Meigs, 192 343, 358 Jewell V. Com., 22 Penn. St. 94 548, 613 State V. 33 Me. 583 626, 664 Jewett, People «. 3 Wend. 314, 819 91, 344, 346, 347, 350, 608 Jillard v. Com., 26 Penn. St. 169 356, 359 Jilz, ex parte, 64 Mo. 205 974, 1010, 1011 Jim, State v. 1 Dev. 142 263 V. State, 15 Ga. 535 591, 646, 844 V. State, 4 Humph. 289 843, 844 State V. 3 Murph. 3 190, 191, 281, 282 Jipton V. State, Peck's R. 308 92 Joan V. Com., 136 Mass. 162 778 Job, ex parte, 17 Nev. 184 446 Jobe V. State, 28 Ga. 235 913 Jooelyn, People v. 29 Cal. 562 405, 588, 883 Joel V. State, 28 Tex. 642 120 John V. State, 2 Ala. 290 918 V. State, 16 Ga. 200 646, 750 V. State, 8 Ired. 330 623 Johns V. State,: 55 Md. 350 693 U. S. V. 4 Call. 413 1001, 1005 U. S. V. 1 Wash. C. C. 363 614 Johnson, ex parte, 15 Neb. 512 924, 996 V. Burrell, 2 Hill, 238 320 J). Com., 137 Mass. 562 803 V. Com., 24 Penn. St. 386 914 V. Com., 115 Penn. St. 361 540, 733 Com. V. 2 Wheel. C. C. 367 658 V. People, 65 Barb. 342 ; 55 N. Y. 512 935, 938 V. People, 83 111. 431 910 Peoples. 104 N.Y. 213 90 R. r. 6 East, 583 428 R. V. 1 Wils. 325 386 V. State, 29 Ala. 62 285, 295, 296 V. State, 32 Ala. 583 161 V. State, 47 Ala. 9 716 V. State, 50 Ala. 456 161 V. State, 73 Ala. 21 6 .1^, State, 74 Ala. 537 716 V. State, 29 Ark. 31 465 State u. 33 Ark. 174 858 V. State, 2 Dutch. 313 124 V. State, 8 Eng. (Ark.) 685 315 SECTION Johnson v. State, 14 Ga. 55 246, 466 u. State, 59 Ga. 189 978 a V. State, 61 Ga. 212 291 V. State, 62 Ga. 299 193 State V. 3 Hill S. C. 1 252, 255, 760 V. State, 23 Ind. 32 869 V. State, 65 Ind. 204 110 State V. 72 Iowa, 393 853, 866 State w. 5 Jones (N. C), 221 256, 291, 325 State V. 10 La. An. 456 297 State V. 31 La. An. 369 693 V. State, 33 La. An. 889 651 State V. 34 La An. 48 244, 309 V. State, 35 La. An. 208 540 V. State, 35 La. An. 279 842 State V. 30 La. An. Pt. I. 305 266 State I). 30 La. An. Pt. II. 904 206 V. State, 11 Lea, 47 642 State V. 12 Minn. 476 131 V. State, 59 Miss. 543 440 State V. 76 Mo. 121 565 State V. 93 Mo. 73, 317 102 State V. 67 N. C. 58 102, 906 V. State, 11 Ohio St. 324 190 V. State, 42 Ohio St. 207 328, 449, 601 State V. 3 R. I. 94 472 State V. 11 Tex. 22 159 V. State, 27 Tex. 758 847 V. State, 5 Tex. Ap. 48 8 V. State, 14 Tex. Ap. 306 759 State V. 1 Vroom, 185 247, 261, 465 State V. 1 Walker (Miss.), 892 131, 279, 640 V. U. S., 3 McLean, 89 317, 320 Johnston, Com. ». 85 Penn. St. 54 713, 798, 810, 918, 927, 982 People V. 46 Cal. 78 650, 653 People V. 48 Cal. 549 369 V. Riley, 13 Ga. 97 32, 34, 36 V. State, 2 Dutch. 313 464 Joiner, State v. 19 Mo. 224 358 Joliffe, Com. v. 7 Watts, 585 613, 661 Jones's case, 1 Leigh, 598 509, 598, 655, 685, 895, 897 Jones V. Board, 56 Miss. 766 521, 537 V. Clay, 1 Bos. & P. 191 ^84, 453 Com. V. 136 Mass. 173 802 763 TABLE OF CASES. SECTION Jones, Com. v. 12 Phila. 550 669, 839 ex parte, 13 Ves. 237 951 V. Fletcher, 41 Me. 254 25 V. Harris, 1 Strobh. 160 523 V. Kelly, 17 Mass. 116 1007 V. Leonard, 60 Iowa, 106 31, 35, 36 People V. 53 Cal. 58 244 V. People, 2 Col. 351 864 V. People, 6 Col. 452 652, 664, 712, 813, 841, 843 People V. 5 Lans. 340 183, 189 People I'. 24 Mich. 216 711, 712 People V. 48 Mich. 554 488 R. «. 2 B. & Ad. 611 158 E. u. 2 Camp. 121, 132 285, 293, 910 R. V. 1 Cox C. C. 105 219 R. ... 4 C. & P. 217 474 R. V. 6 C. & P. 343, 391 61, 938 E. w. 8 C. & P. 776 292 R. V. Dougl. 300 184 R. V. 8 East, 34 592 State V. 5 Ala. 666 387, 394, 673, 716, 810 V. State, 50 Ala. 161 193 K. State, 63 Ala. 27 104 V. State, 81 Ala. 79 363 V. State, 15 Ark. 261 787 V. State, 2 Blackf. 477 347, 664 V. State, 6 Col. 452 652, 664, 712, 813, 841, 843 State V. 7 Ga. 422 451, 773 State V. 48 &a. 163 871 V. State, 65 Ga. 147, 506, 621 118, 297, 571 1'. State, 68 Ga. 760 827 State V. 4 Halst. 357 92, 93, 139, 283 V. State, 89 Ind. 82 828, 847 State V. 52 Iowa, 284 712 State V. 70 Iowa, 505 545 V. State, 10 Lea, 585 600 State V. 16 Kan. 608 445 V. State, 1 Kelly, 610 309 V. State, 10 Lea, 585 585 V. State, 1 MoMall. 236 162, 251 V. State, 51 Miss. 718 906 V. State, 57 Miss. 424 665 V. State, 60 Miss. 117 590, 600 State V. 61 Mo. 232 798 State V. 64 Mo. 391 810 State V. 7 Nev. 408 824, 841 State V. 87 N. C. 547 796 a State V. 88 N. C. 671 6 V. State, 13 Tex. 168 465, 841 ■ V. State, 12 Tex. Ap. 424 220 V. State, 14 Tex. Ap. 85 733, 846 764 SECTION Jones v. State, 21 Tex. Ap. 540 276 I'. Timberlake, 6 Raud. 678 992 V. Tnrpin, 6 Heisk. 181 378 U. S. V. 31 Fed. Rep. 725 457 U. S. V. 32 Fed. Rep. 569 802 U. S. v. 3 Wash. C. C. 224 77, 78 V. Ward, 2 Meto. (Ky.) 271 932 Jorasoo v. State, 6 Tex. Ap. 238 112, 261 Jordan, People v. 63 Cal. 217 457 R. i>. 9 C. & P. 118 573 o. State, 81 Ala. 20 465, 797, 896 V. State, 22 Ga. 545 141, 147, 465 State V. 19 Mo. 213 159 Jordon v. State, 14 Tex. 436 974 Jordt V. State, 31 Tex. 571 237 Josephine v. State, 39 Miss. 613 504, 513, 658 Josslyn V. Com., 6 Met. 236 285, 291, 465, 771 Jonrdan, State v. 32 Ark. 203 294 Journey v. State, 1 Mo. 304 230 Joy V. State, 14 Ind. 139 435 a Joyce V. State, 7 Baxt. 273 841 R. V. 10 Cox C. C. 100; L. & C. 576 200 V. Joyner, 81 N. C. 534 279 J. P., State V. 1 Tyler, 283 137, 385 Judd, Com. V. 2 Mass. 329 165 Judson, ex parte, 3 Blatch. 84, 148 954, 963, 967, 988 in re, 3 Blatch. 148 963, 968 Jukes, R. V. 8 Term R. 536, 625 164, 229 Jumpertz v. People, 21 111. 375 815, 819, 823, 831 Jung Ah Lung, U. S. v. 124 U. S. 621 991, 996 6, 1000, 1011 People V. 70 Cal. 469 551 Jurche v. State, 17 La. An. 71 810 Justice V. Com., 81 Va. 209 456, 477 R. V. 1 M. & S. 444 913 Justices, R. u. 10 L. R. Ir. 294 80 Justus, State v. 11 Oregon, 17 367 J. W., State V. 1 Tyler, 417 871 Kaine, ex parte, 14 How. 103 50, 52, 53, 57, 1009 in re, 3 Blatch. 1 50, 57 Kallooh V. San Francisco Court, 66 Cal. 229 85,358 a Kaltmeyer, U. S. u. 16 Fed. Rep. 760 ; 5 McCr. 260 177 TABLE OE CASES. SECTION Kane v. Com., 89 Penn. St. 552; S. C. 12 Phila. 630 ; 109 Penn. St. 341 810, 866, 935 V. People, 3 Wend. 364 394, 771 V. People, 8 Wend. 203 290, 292, 294, 301, 908, 918, 922 State V. 63 Wis. 260 238 U. S. V. 6 Cr. Law Mag. 530 951 Kannon v. State, 10 Lea, 366 468 Kanouse, State v. 33 Iowa, 365 457 State V. 1 Spencer, 115 785 V. Lexington, 12 111. Ap. 318 918 Earn, State v. 16 La. An. 183 273 Karstendiok v. U. S. 93 U. S. 396 918 Kauffman, u. Com. 1 Phila. 534 966 ex parte, 73 Mo. 588 996 V. State, 51 Iowa, 578 733 Kay, R. v. L. R. 1 C. C. R. 257 194 Kazinski, U. S. !J. 2Sprague, 7 302 Kean, State v. 10 N. H. 347 102, 271, 279 Kearney's case, 13 Atb. Pr. 459 991 Kearney, ex parte, 7 Wheat. 38 710 a, 970, 971,974,986,999 ex parte, 55 Cal. 212 996 6 State V. 1 Hawks, 54 921, 924 V. State, 48 Md. 16 189 a Kearns, Com. v. 1 Va. Cas. 109 173 Kee, State v. 28 Ark. 155 841 Keech v. State, 15 Fla. 591 299, 906 Keefe, Com. v. 7 Gray, 332 124 Keefer v. State, 4 Ind. 246 162, 291, 293 People V. 65 Cal. 232 518 Keeler, People v. 99 N. Y. 463 964 Keeling v. State, 107 Ind. 563 742 Keely, People v. 94 N. Y. 526 759, 830 Keen, U. S. v. 1 McLean, 429 183, 383, 465 Keenan, Com. v. 67 Penn. St. 203 181 a, 374 Com. V. 10 Phil. 194 612 People V. 13 Cal. 581 560 V. People, 104 111. 385 860, 861 V. State, 8 Wis. 132 14 Keeper of Prison, Com. u. 2 Ash. 227 76, 81, 1007 Com. V. 26 Penn. St. 279 996 Keffer, Penn. v. Addis. 290 377, 379 Kegan, State v. 62 Iowa, 106 742 Keger, Com. v. 1 Duvall, 240 278 Keim, State v. 79 Mo. 515 87 Keith, Com. v. 8 Met. 531 457, 460, 507 State V. 63 N. C. 140 525, 526 BECTIOlf Keithler v. State, 10 Sm. & M. 192 354, 712 Kelcher, Com. v. 3 Meto. (Ky.) 484 102 Kell, R. V. 1 Cr. & D. 151 511, 516, 518 Kellenbeck v. State, 10 Md. 431 263 Keller, U. S. v. 19 Fed. Rep. 633 810 Kellerman. State v. 14 Kans. 135 856, 900 Kelley, ex parte 37 Ala. 474 980 in re, 25 Fed. Rep. 268 51, 55 in re, 2 Low. 339 50, 52 People V. 39 Hun, 536 996 People V. 24 N. Y. 74 954, 974 V. State, 25 Ark. 392 104 Kellogg, ex parte, 6 Vt. 609 996 Kellam v. State, 64 Miss. 226 756 Kelly, Com. v. 9 Phila. 586 532 ex parte, 65 Cal. 154 994 V. Holdship, 1 Browne 'Pa. 36 865 in re, 26 Fed. Rep. 852 51, 57 People V. 6 Cal. 210 90 V. People, 115 111. 583 936 People V. 24 N. Y. 75 967 People V. 97 N. Y. 212 996 V. State, 7 Baxt. 323 927 State w. 97 N. C. 404 549 u. State, 3 S. & M. 518 124, 274, 550, 780, 927 t). State, 13 Tex. Ap. 158 49, 422 Terr. v. 2 New Mex. 292 540 a V. U. S. 27 Fed. Rep. 616 90, 500 U. S. V. 4 Wash. C. C. 528 310 Kelso V. State, 11 Mo. Ap. 91 ; 76 Mo. 505 482 Kemp V. Com., 18 Grat. 969 894 V. State, 11 Tex. Ap. 174 350 V. State, 16 Wis. 359 979 Kendall v. State, 65 Ala. 492 518 Kendrick, R. «. 5 A. & E. N. S. (5 Q. B.) 49 157, 305, 308 Kennedy, Com. v. 15 B. Mon. 531 282 Com. V. 97 Mass. 224 472 Com. u. 131 Mass. 584 247, 400, 413, 927 Com. V. 136 Mass. 152 8 V. Com. 2 Va. Cas. 510 815, 844 V. Howard, 74 Ind. 87 932 V. People, 40 111. 488 712, 793 People V. 58 Mich. 572 913 State V. 7 Blackf. 233 247, 261 ■u. State, 62 Ind. 136 158, 918 V. State, 81 Ind. 379 585 765 TABLE OP CASES. SECTION SECTION Kennedy, State v. 89 N. C. 589 770 Kimpton's case, 18 Alb. L. J. 298 34 ' " ' ' 120 555 844 405 437 916 923 386 712 283 V. State, 19 Tex. Ap. 537 517, 664 Territory v. 3 Mont. 520 623 V. Williams, 2 Nott & McCord, 79 886 Kenney v. State, 5 R. I. 385 254 Kent, People v. 1 Dougl. (Mich.) 42 191 0. State, 42 Ohio St. 383 847 Kentucky v. Dennison, 24 How. 66 30, 32, 34, 36 Kenworthy, R. u. 3 D. & R. 173 ; 1 B. & C. 711 775 Keuyon, ex parte, 5 Dill. 385 981 Keogh, State v. 13 La. An. 243 466, 471 Kepper, Com. v. 114 Mass. 278 193 Ker, ex parte, 18 Fed. Rep. 167 ; 4 Crim. Law Mag. 913 27, 993, 996 u. People, 110 111. 627 ; aff. S. C. U. S., 119 U. S. 436 27, 49, 220, 293 Kerr, ex parte, 64 N. C. 816 990 Kernsdie v. Cason, 25 Ind. 362 964 Kerrigan, in re, 4 Vroom, 344 963 Ketchey, State v. 70 N. C. 621 660 Ketchingman v. State, 6 Wis. 426 290 Kettleman, State u. 35 Mo. 105 788, 895 Key, R. v. 5 Cox C. C. 369 ; 2 Den. C. C. 347 938 Keyes, State v. 8 Vt. 57 88 Kibble, State v. 7 Mo. 317 285 Kidder v. State, 58 Ind. 68 294 Kie, U. S. V. 1 West. Coast Rep. 553 78 V. U. S., 27 Fed. Rep. 351 551, 875 Kilbourn v. Tliompson, 103 U. S. 168 964 Kilcrease, State v. 6 Rich. N. S. 444 358, 385 Kilgore, ex parte, 3 Tex. Ap. 247 968 V. State, 74 Ala. 1 738 State V. 93 N. C. 533 637, 686 Kilham, R. v. L. R. 1 C. C. R. 264 191 Kilkelly v. State, 43 Wis. 604 159 Killaoky, Com. o. 3 Brewst. 565 989 Killminster, R. v. 1 G. & P. 228 323 Kilpatrick v. Com., 31 Penn. St. 198 798 17. U. S.,11 Fed. Rep. 765 366 Kilrow u. Com., 89 Penn. St. 480 90, 252, 470 Kimball, Com. v. 7 Gray, 328 383, 447 Com. V. 21 Pick. 373 759 State V. 29 Iowa, 267 366 State V. 50 Me. 409 829 766 Kincaird v. State, 8 Tex. Ap. 465 King, Com. v. 3 Gray, 501 People V. 27 Cal. 507 People V. 28 Cal. 265 People V. 64 Cal. 338 R. V. 3 Barr. 1812 R. V. 7 Q. B. 782 R. V. 2 Str. 1268 State V. 71 Ala. 1 V. State, 2 Carter, 523 V. State, 5 How. (Miss.) 730 358, 359, 640, 655 State V. 37 La. An. 91 213 State V. 71 Mo. 551 413 V. State, 4 Tex. Ap. 256 813 V. Tremaine, 7 Dowl. & Ryl. 684 846 Kingen v. State, 46 Ind. 132 518 Kingsbury's case, 106 Mass. 223 31, 35,44 Kinsbury, Com. v. 5 Mass. 106 456, 464, 465 State V. 58 Me. 239 626 Klngsley, People v. 2 Cow. 522 176 Kingston, R. v. 1 East, 468 285, 302 Kinlock's case, Fost. 16, 28 512, 724 Kinnear, R. v. 2.B. k Aid. 462 718, 733 Kinnersley v. Knott, 7 C. B. 980 102 R. V. 1 Stra. 193 305 Kinney, Com. v. 2 Va. Cas. 139 471 V. People, 108 111. 519 806 State V. 31 Mo. 101 354, 813 V. State, 5 B. I. 385 469 State V. 26 W. Va. 110 158 Kinsey, People v. 51 Cal. 278 485, 488 R. u. 7 C. & P. 447 61 State V. 80 N. C. 458 798 V. State, 21 Tex. Ap. 348 220 Kinsler v. Terr., 1 Wv. 112 906 Kinsley v. State, 3 Ohio St. 508 775 Kirby, Com. v. 2 Gush. 577 164, 907, 908, 927 V. State, 62 Ala. 51 994 State V. 3 Humph. 489 813 U. S. V. 7 Wall. 482 59 Kirk V. Com., 9 Leigh, 627 465 V. State, 73 Ga. 620 835 V. State, 6 Mo. 469 93 Kirkpatrick, State n. 54 Iowa, 393 1010 Kistler v. State, 64 Ind. 371 447 Kit V. State, 11 Humph. 167 151 Kitoatw. Sharp,48L.T. (N.S.)64 957 Kitchens, State v. 2 Hill, S. C. 612 916 Kite V. Com., 11 Met. 581 291, 383, 387, 911, 932, 933 TABLE OF CASES. SECTION Kitrol V. State, 9 Fla. 9 350 Kittle, State v. 2 Tyler, 471 457, 465, 788 Kittrell, ex parte, 20 Ark. 499 10] 1 Kizer v. State, 12 Lea, 564 560 Klein v. People, 113 111. 596 866 ... People, 31 N. Y. 229 304, 306, 312, 752 State V. 78 Mo. 627 288 Klepper, ex parte, 26 111. 532 982 Klinger, State v. 43 Mo. 127 587, 592 State V. 46 Mo. 224 671 Klock V. People, 2 Park C. R. 676 512 Knapp, Com. v. 9 Pick. 498 358, 555, 617, 629, 664, 696, 707 Com. V. 10 Pick. 477 555, 672, ■ 805 People M. 26 Mich. 112 465,896 People V. 42 Mich. 267 827 State V. 45 N. H. 148 707 V. Thomas, 39 Ohio St. 377 . 531, 532, 1006 Kneeland, Com. w. 20 Pick. 206 203 Knickerbocker, People v. 1 Park. C. R. 302 682, 693 Knight, ex parte, 61 Ala. 482 777 V. Freeport, 13 Mass. 218 831, 849 R. V. 9 Cox C. C. 439 470 R. V. 14 Cox C. C. 31 760 State V. 3 Baxter, 418 309 <;. State, 84 Ind. 73 355 Knopf !>. State, 84 Ind. 316 243 Knote V. U. S., 10 Ct. of CI. 397 ; 95 U. S. 149 521, 528 Knott V. Sargent, 125 Mass. 95 380 Knouff V. People, 6 111. Ap. 154 781 Knowles v. State, 3 Day, 103 284 State V. 34 Kans. 393 762 ,,. State, 2 Root, 282 923 Knowlton v. Baker, 72 Me. 202 1010 Koch V. State, 32 Ohio St. 353 348 Koerner v. State, 96 Ind. 243 916 Kohle, People v. 4 Cal. 198 672 Kohler, People v. 5 Cal. 72 546, 547 People V. 49 Mich. 324 813 Kohlheimer v. State, 39 Miss. 548 507 Koontz V. State, 41 Tex. 670 273, 756 Kopke V. People, 43 Mich. 41 238 Krans v. State, 61 Miss. 158 578 Kraus, ex parte, 1 B. & C. 258 27 Krebs v. State, 8 Tex. Ap. 1 309 Kreps, State v. 8 Ala. 951 383, 447 Krieger, ex parte, 7 Mo. Ap. 367 954, 963 Kriel v. Com., 5 Bush (Ky.), 362 118 Kriug, State v. 74 Mo. 612 417 Kroer v. People, 78 111. 294 910 Krous, ex parte, 1 Barn. & C. 261 13 Kniise, State v. 3 Vroom, 313 70 SECTION Krull, state v. 5 Mo. Ap. 589 90 Kryder, Com. v. 1 Pennyp. 143 770, 1010 Kube, State v. 20 Wis. 217 771 Kuhnke, State v. 30 Kan. 462 456 Kurtz V. Moffit, 115 D. S. 487 472 L. Labbaite v. State, 6 Tex. Ap. 257 370, 602 Lacaze, Resp. v. 2 Dall. 118 816, 890 Lacefield v. State, 34 Ark. 275 158, 409 Lacey v. State, 58 Ala. 385 383 Lackey, Com. v. 1 Watts, 66 996 V. State, 14 Tex. Ap. 164 87 La Costa, U. S. ». 2 Mason, 129 125, 282 La Creux, State v. 1 M'MuU. 488 220 Lacy V. State, 8 Baxt. 401 249 Lad's case, Leech, 112 259 Ladd, Com. v. 15 Mass. 526 186 . V. State, 17 Fla. 315 692 State V. 10 La. An. 271 830 State V. 2 Swan. 226 220 Lafferty, State v. 5 Harring. 49 8 La Fonta, ex parte, 2 Rob. La. 495 1010 Lafontaine, U. S. v. 4 Cranch, 173 59 Lago's case, 18 Alb. L. J. 149 30 Lagrave, in re, 45 How. Pr. 301 993 Lagrone v. State, 12 Tex. Ap. 436 203, 221 Lakey, State v. 65 Mo. 217 132 Lake, State v. 34 La. An. 1069 924 Lamar v. State, 64 Miss. 687 844 Lambert v. People, 7 Cowen, 166 386 State V. 9 Nev. 321 452, 470 State V. 93 N. C. 619 844 Lamkin i-. People, 94 111. 101 136, 318 Lamon, State v. 3 Hawks, 175 146, 350 Lamothe, State v. 37 La. An. 43 859 Lamphere's case, 61 Mich. 105 932 Lamphier v. State, 70 Ind. 317 847 Lampson, People v. 70 Cal. 204 589 Lancaster v. State, 3 Cold. 339 709 V. State, 43 Tex. 519 . 228 U. S. V. 2 McLean, 431 183, 220, 827 U. S. V. 4 "Wash. C. C. 64 528 Land, State v. 42 Ind. 311 121, 125 Lander v. People, 104 III. 248 813 Landis, Com. v. 34 Leg. Int. 204 ; 12 Phila. 576 828 Landrum v. State, 63 Miss. 107 711 Lane v. Com., 59 Penn. St. 371 713 ex parte, 6 Fed. Rep. 34 51 State V. 4 Ired. 113 92, 124, 144 767 TABLE OF CASES. BECTIOB Lane v. State, 39 Ohio St. 312 836 Lanergan v. People, 39 N. Y. 39 294 Lang, Com. v. 10 Gray, 11 751 Langdale, People v. 100 111. 263 167, 180, 273 Langdon, ex parte, 25 Vt. 680 954, 968, 974 Lange, ex parte, 18 Wall. 163 492, 500, 780, 913, 981, 986, 994, 996 6 State V. 59 Mo. 418 591 Langenotti v. State, 22 Tex. Ap. 61 221 Langford, Stater v. 3 Hawks, 381 221 Langbnrst, R. v. 10 Cox C. C. 353 ; 4 F. & V. 969 585, 591 Lanier, State v. 88 N. C. 658 239 State V. 90 N. C. 714 350 Lanigan, Com. u. 2 Bost. L. R. 49 284 Lannan, Com. v. 13 Allen, 563 433 Lantz, State v. 23 Kan. 728 828 Lapeyre v. U. S., 17 Wall. 191 525, 531 La Puente, People v. 6 Cal. 202 139 Laque, State v. 37 La. An. 853 293 Larison v. State, 49 N. J. L. 257 251 Larkin, R. v. Dears. C. C. 365 ; 23 L. J. M. C. 125 90 State u. 11 Nev. 314 672 State V. 49 N. H. 36 458, 471 Lamed v. Com., 12 Met. 240 183, 189, 217 Larney v. Cleveland, 34 Ohio St. 599 932, 935 Larrigan, State v. 66 Iowa, 436 733 Larrimore, State v. 20 Mo. 425 866 Larson, People v. 68 Cal. 18 507 Laslius, State v. 79 Me. 540 425 Lassiter v. State, 67 Ga. 739 220, 549 Lasure v. State, 19 Ohio St. 44 90 Latham v. R., 9 Cox C. C. 516 ; 5 B. & S. 635 771 Lathrop v. State, 51 Ind. 192 246 Laubach v. State, 12 Tex. Ap. 583, 592 561, 577, 793 Lauglin v. State, 18 Ohio, 99 569 Launig, State v. 42 Ind. 541 726 Laura v. State, 26 Miss. 174 464 Laura, The, 19 Blatoh. 562 528 Lautensohlager, State o. 22 Minn. 514 679, 712 Lavarre v. State, 1 Tex. Ap. 685 218 Lavender v. State, 60 Ala. 80 209 Lavery, Com. v. 101 Mass. 207 217 V. Com., 101 Penn. St. 560 733 Lavett V. People, 7 Cow. 339 774 Lavin v. People, 69 111. 603 668 Law, ex parte, 35 Ga. 285 525 Lawler, State v. 28 Minn. 216 693 768 SECTION Lawless, Com. v. 101 Mass. 32 185, 256 Lawley, R. v. 2 Stra. 904 153 Lawrence i^. Com., 30 Grat. 845 540, 549, 716, 875 ex parte, 5 Binn. 304 1011 <;. Hedger, 3 Taunt. 14 9 V. People, 1 Scam. 414 457 R. w. 4 F. & F. 901 585 V. State, 10 Ind. 453 309 State V. 67 Me. 474 803 State V. 81 N. C. 521 236, 281, 282, 291, 777, 927 State V. 12 Oregon, 297 344 U. S. V. 13 Blatoh. 295, 306 27, 49 U. S. u. 4 Cranch C. C. 514 360 Lawther, State v. 65 Mo. 454 602 Laxton, State v. 78 N. C. 564 566 Layer, R. u. 8 Mod. 93 ; 6 St. Tr. 328 204, 699 Layton, R. v. 1 Salk. 353 922 V. State, 56 Miss. 791 798 Lazarre, State v. 12 La. An. 166 62 Lazier v. Com., 10 Grat. 708 124, 273, 274, 290, 400 Lea, State v. 1 Cold. (Tenn.) 175 299 Leaoh v. People, 53 111. 311 644 Leafe, R. v. Andr. 226 152, 385 League v. State, 36 Md. 259 733 Leak v. State, 10 Humph. 144 813 State V. 5 Ind. 359 532 Learned, People v. 5 Hun, 626 964 State f. 47 Me. 426 90 State V. 80 N. C. 403 173 Leary's case, 6 Abb. (N. Y.) N. C. 43 ; S. C. 10 Ben. 197 35, 903, 981, 1000 Leary, R. v. 3 Cr. & D. 212 508 Leath v. Com., 32 Grat. 873 251 Com. V. 1 Va. Cas. 151 931, 932 Leatherwood v. State, 6 Tex. Ap. 244 87, 239 Le Bur, ex parte, 49 Cal. 160 ' 995 Le Cerf, State v. 1 Bailey, 410 62 Leek V. State, 55 Ga. 435 996 Leckey, Com. v. 1 Watts, 66 995 Lee V. Chadwiok, 11 Int. Rev. Reo. 133 968 V. Clark, 2 East, 333 229 V. Murphy, 22 Grat. 789 523, 533 People V. 17 Cal. 76 683, 757, 880 u. State, 26 Ark. 260 611, 517 V. State, 69 Ga. 706 360, 869 V. State, 29 Minn. 445 440 V. State, 45 Miss. 114 640, 653 V. State, 51 Miss. 696 560 State V. 10 R. I. 494 785 V. State, 22 Tex. Ap. 547 120 TABLE OF CASES. BECTIOK Lee, U. S. w. 4 MoL. 103 536 Lee Ping, State v. 10 Oreg. 27 273 Lee Ping Bow, fetate v. 10 Oreg. 27 677 Lee Tong, in re, 5 Crim. Law Mag. 67 981 Lee Yan, State v. 10 Oreg. 27 266 Lees, ex parte, E., B. & E. 828 995 Le Fanu v. Macolmson, 1 H. of L. Gas. 637 181a Le-Flemming v. Simpson, 1 M. & Ryl. 269 876 Lefroy, K. v. L. R. 8 Q. B. 134 961, 963 968 974 Leftwioh v. Com., 20 Grat. 716 ' 218, 774 Legmon v. Latimer, 3 Exch. D. 15 521 Legori v. State, 8 Sm. & M. 697 148 Leigh V. People, 113 III. 372 793 Leighton v. People, 10 Abb. (N. Y.) N. C. 261 869 Leland, in re, 7 Abb. Pr. (N. S.) 64 29, 36, 993 ■ Lemley, Com. v. 2 Pitts. 362 76, 81 Lemons v. State, 4 W. Va. 755 279, 776, 777 Lennox, People v. 67 Cal. 113 414 Lenox, Com. y. 3 Brewst. 249 355, 356, 623, 634 Leonard, State v. 22 Mo. 449 295 U. S. V. 18 Blatoh. 187 742 Lepper, State v. 51 Mich. 196 414 Leppere, State v. 66 Wis. 355 813 Lesohi v. Terr., 1 Wash. Terr. 23 875 Lesher, Com. o. 17 Serg. & R. 155 664, 793 Leslie v. State, 83 Ind. 180 602 V. State, 18 Oh. St. 390 788, 895 Lessing, State v. 16 Minn. 75 247, 465 Lester v. Goode, 2 Murph. 37 865 c. State, 11 Conn. 415 779, 862, 897 V. State, 33 Ga. 192 76, 506 V. State, 9 Mo. 658 132 Lesynski, in re, 7 Rep. 358 ; 14 Blatch. 9 453 Leunig, State v. 42 Ind. 541 505, 726 Leong Quong, People v. 60 Cal. 107 103 Levells v. State, 32 Ark. 585 751 Leverett v. State, 1 Tex. L. J. 113 842 Levi V. Milne, 4 Bing. 198 791 Levien v. R., L. R. 1 P. C. C. Ap. 536 521 Levining v. State, 13 Ga. 513 869 Levison v. State, 54 Ala. 520 385 Levy, R. v. 2 Stark. N. P. 458 285 V. State. 79 Ala. 259 189 a V. State', 6 Ind. 281 440 State V. 24 Minn. 362 82, 748 Lewis V. Commiss., 74 N. C. 194 338 49 SECTION Lewis, Com. u. 25 Grat. 938 309 Com. V. 1 Met. (Mass.) 151 98, 106, 306 a Com. V. 15 Weekly Notes, 205 338 u. Com., 81Va. 416 413 People V. 61 Cal. 366 220 People V. 64 Cal. 401 587, 414, 934 V. State, 51 Ala. 1 465, 891 V. State, 21 Ark. 209 440 V. State, 4 Ham. 389 712 State V. 2 Hawks, 98 465, 471 V. State, 1 Head, 329 425 State V. 48 Iowa, 578 464 V. People, 51 Mich. 172 414 V. State, 11 Mo. 366 405 State V. 69 Mo. 92 551, 711 State V. 74 Mo. 222 601, 598 a State V. 80 Mo. 110 548 State V. 9 Mo. Ap. 321 878 V. State, 14 Mo. Ap. 191 707, 793 State V. 93 N. C. 581 577 „. State, 9 S. & M. 115 664 o. State, 1 Tex. Ap. 323 435, ~ 471 V. State, 15 Tex. Ap. 647 651 U. S. V. 2 New Mex. 459 902 V. Wake Co., 74 N. C. 194 366 Leyman v. Latimer, L. R. 3 Exch. D. 352 ; 14 Cox C. C. 51 523 Leyton, R. v. Cro. Car. 584 386 Libby v. Nicola, 21 Ohio St. 414 528, 533 Light R. u. 7 Cox C. C. 389 8 Lightner, -People u. 49 Cal. 226 520 Ligon, State v. 7 Port. 167 350 Lillard, State v. 59 Iowa, 479 146 Lilly, People w. 38 Mich. 270 773 Lincoln, State v. 17 Wis. 579 119 Linda v. Hudson, 1 Cush. 385 983 Liude, State v. 54 Iowa, 139 609 Lindley w. State, 11 Tex. AA. 283 871 Lindsay, Com. v. 2 Va. (M. 345 383, 447 V. People, 63 N. Y. 143 536 V. State, 48 Ala. 169 302, 315 Lindsey v. State, 72 Ind. 40 88 State V. 78 N. C. 499 307, 309 Links V. State, 13 Lea, 70 709 Linney, State v. 52 Mo. 40 560, 566 , People V. 5 Tex. Ap. 344 220 Linton, Com. v. 2 Va. Cas. 476 759 Lippard, Com. u. 6 S. & R. 395 344, 608 Lipsey, State c. 3 Dev. 485 518, 791 Liscomb, People, ex rel. Tweed v. 60 N. Y. 559 900, 932, 994, 996 b Lisle V. State, 58 Ind. 182 846 V. State, 6 Mo. 426 696, 844 Litch, State v. 33 Vt. 67 120, 134 769 TABLE OF CASBS. SECTION Lithgow V. Com., 2 Va. Cas. 297 110, 465, 635, 654, 693 little V. Com. , 25 Grat. 921 343 a, 378 u. Com., 82 Ky. 250 252 V. State, 90 Ind. 338 956 State V. 42 Iowa, 51 358 State V. 1 N. H. 257 451, 483, 485 State V. 1 Vt. 331 220 Littlefleld, People v. 5 Cal. 355 120, 206, 752 State V. 70 Me. 452 476, 477 Littler w. Thompson, 2 Beav. 129 951 Livermore, Com. v. 4 Gray, 18 194 LiviBgston's case, 14 Grat. 592 465 Livingston, State v. 64 Iowa, 560 842 Lloyd, in re, 5 Penn. L. J. 60 ; 3 Clark, Phil. 193 377 V. State, 45 Ga. 57 646, 653 Lockbaum, State v, 38 Conn. 400 154 Locke, State v. 77 N. C. 480 711 V. State, 32 N. H. 106 753 Lockett, R. V. 1 Leach, 110 194 Lockhart, ex parte, 1 Disney, 108 531 Looklear, State ». Busbee, 205 163, 251 Lockley, R. w. 4 F. & F. 155 8 Loeklin, State v. 59 Vt. 64 471, 482 Lockwood, Com. v. 109 Mass. 323 522, 523, 526 People V. 6 Cal. 205 101 State 0. 58 Vt. 378 273, 290, 883 U. S. V. 43 Wis. 403 733 Lodano v. State, 25 Ala. 64 220 Loehr, State v. 93 Mo. 402 358 Loew u. State, 60 Wis. 559 805,829 Loftin, State v. 2 Dev. & B. 31 230, 238, 239 V. State, 11 Sm. & M. 358 774 Lofton V. Vogles, 17 Ind. 105 453 Logan, People v. 4 Cal. 188 597 V. State, 2 Brev. 415 ; 1 Treadw. 493 1006 V. State, 50 Miss. 269 344, 640 State V. 1 Mo. 377 208 State V. 1 Nev. 509 363, 388 o. State, 5 Tex. Ap. 306 238 Logg V. People, 8 111. Ap. 99 459, 895 Loggins V. State, 12 Tex. Ap. 65 693 Lohman, People v. 2 Barb. 450 76, 164, 690 V. People, 1 Comst. (1 N. y.)379 261,464,466,631 Long, Com. v. 2 Va. Cas. 318 425 „. State, 12 Ga. 293 13, 243, 712 t>. State, 38 Ga. 491 597, 601 w. State, 66 Ind. 182, 294,853 V. State, 52 Miss. 23 548 V. State, 36 Tex. 6 935, 938 V. State, 10 Tex. Ap. 186 844 770 SECTION Long, State v. 11 Tex. Ap. 381 711 Longbottoms, State v. 11 Humph. 39 218 Longfellow v. Langton, 35 Kan. 375 70 V. State, 10 Neb. 105 741 Longley, State v. 10 Ind. 482 299 Longnecker, State v. 22 Ind. 247 709 Lonsdale v. Brown, 4 Wash. C. C. 148 828 Loom, R. V. 1 Mood. C. C. 160 237 Loomis, State v. 27 Minn. 531 226 Loop, People v. 3 Park. C. R. 559 189, 466 Lopez, State v. 19 Mo. 254 279, 383 State «. 15 NeT. 407 707 Lord V. State, 18 N. H. 173 696 u. State, 20 N. H. 404 217 Lorey, State v. 2 Brev. 395 423 Lorraine, ex parte, 16 Nev. 63 35 Lorton v. State, 7 Mo. 55 252, 470 Lot, State v. 1 Rich. 260 243 Lott V. State, 18 Tex. Ap. 627 571 Lottery Tickets, Com. v. 5 Cush. 369 1 Lou Yong, State v. 34 La. An. 346 869 Loud, Com. V. 3 Met. (Mass.) 328 438, 457, 507 Love, State v. 6 Bax. 159 832, 835 State V. 4 Humph. 255 338 State V. 63 Mo. 541 779 Lovell V. State, 45 Ind. 550 92 Lovet V. State, 60 Ga. 257 798 Low V. People, 2 Park. C. R. 37 207, 217 Lowder, State v. 85 N. C. 564 6 Lowe's case, 4 Greenl. 448 376 •Lowe V. State, 57 Ga. 171 470 Lowenberg v. People, 5 Parker C. R. 414; 27 N. Y. 336 653, 664, 916 Lowry, Com. v. 14 Leg. Int. 332 82 People V. 70 Cal. 193 707 State V. 1 Swan. 34 451 Loyd V. State, 45 Ga. 57 597, 646, 653 <;. State, 19 Tex. Ap. 137 774 a Luck V. State, 96 Ind. 16 836 Lucy V. State, 8 Mo. 134 358 Lnkens, Resp. m. 1 Dall. 5 358 Lum V. State, 11 Tex. Ap-. 483 693 Lumm V. State, 3 Ind. 293 81, 985 Lumpkin v. State, 68 Ala. 56 358 a Lung's case, 1 Conn. 428 364, 367 Lunu V. State, 44 Tex. 85 215 Lunsford v. State, 9 Tex. Ap. 217 812 Lupton, State v. 63 N. C. 483 358 Lurch, State v. 12 Or. 104 Luster v. State, 11 Humph. 169 827, 835 Lutton V. State, 14 Tex. Ap. 518 598 Luttrell V. State, 14 Tex. Ap. 147 772 TABLE OF CASES. SECTION Lutwell V. State, 85 Tenn. 232 801 Lutz V. Com., 29 Penn. St. 441 760 Lyerly, State v. 1 Jones (N. C), 159 314 Lylea v. State, 41 Tex. 172 669, 860, 873 U. S. V. 4 Cranch C. C. 469 337 Lyman, People v. 7 111. Ap. 345 343 People V. 2 Utah, 39 354 Lynch v. Com., 88 Penn. St. 189 541, 549, 550, 762 V. People, 38 111. 497 75, 1007 State V. 5 Grim. Law Mag. 397 938 Lynes v. State, 46 Ga. 208 580 V. State, 36 Miss. 617 802 V. State, 5 Port. 236 106, 423 Lynne Regis, R. v. 1 Dougl. 159 1 51 Lynott, State v. 2. Ames (R. I.), 295 798 Lyon, State v. Cox, 403 1002, 1004 R. V. R. &. R. 255 197 State V. 12 Conn. 487 813 State V. 81 N. C. 600 536 State V. 46 N. J. L. 272 120 State V. 17 Wis. 237 299 Lyons v. People, 68 111. 271 265 People V. 49 Mich. 78 71 Lytle, State v. 5 Ired. 58 722 M. Mahel, R. v.SC.k P. 474 8 Maas, State v. 37 La. An. 202 169 Macartney v. Corry, Irish R. 7 C. L. 242 958 Macaulay, People v. 1 Cal. 379 650 Macdonuell, in re, 11 Blatch. 79 50, 51, 52, 57, 980, 990 Maee, State v. 76 Me. 64 251 State V. 86 N. C. 666 354 Mackalley's case, 9 Coke, 65 3 Mackesey v. People, 6 Park. C. R. 114 159 Mackey v. State, 3 Ohio St. 362 93, 251 State V. 12 Or. 154 902 V. State, 20 Tex. Ap. 603 111 Mackin v. People, 115 III. 313 350, 378 Mackintosh, R. v. 1 Stra. 308 81 Macloon, Com v. 5 Gray, 91 124 Macready v. Wilcox, 33 Conn. 321 1010 Madan, R. v. 1 Leach, 224 533 Madden, R. v. 12 Cox C. C. 239 576 w. State, 70 Ga. 383 774 o V. State, 1 Kans. 340 823 Maddocks, R. v. 1 Sid, 430 532 Maddox, State v. 74 Ind. 105 238 V. State, 12 Tex. Ap. 429 793 SECTION Maden v. Emmons, 83 Ind. 381 605 Madon's case. Leech C. C. 220 533 Madoil, State v. 12 Fla. 151 661, 825 Maeder v. State, 11 Mo. 363 405 Magee, Com. v. 10 Phila. 201 812 V. State, 14 Tex. Ap. 367 278, 602 Maginnis v. Parkhurst, 4 N. J. Eq. 433 969 Magoon, State v. 50 Vt. 338 565, 566 Magrath, State v. 19 Mo. 678 120 State V. 44 N. J. L. 227 369 Maguire v. State, 47 Md. 485 762, 935 Mahala v. State, 10 Yerger, 532 496, 508, 513, 724 Mahan v. State, 10 Ohio, 232 614 a State, V. 12 Tex. 283 350 Maher, Com. v. 4 Crim. Law. Mag. (Phil.) 411 477, 480 People V. 4 Wend. 229 457 State V. 35 Me. 225 472 V. State, 3 Min. 444 823 Mahly, State o. 68 Mo. 315 561, 570, 712, 713, 853 Mahon, in re, 34 Fed. Rep. 395 27 R. «. 4 A. & E. 475 945 State V. 3 Barring. 568 62 Mahone v. State, 66 Ga. 539 810 Mahony, People v. 18 Cal. 180 650 Main v. MoCarty, 15 III. 422 8 Maine, State ». 27 Conn. 281 733 State V. 31 Conn. 572 447 Maines v. State, 23 Tex. Ap. 568 711, 801 Mainor, State v. 6 Ired. 340 301, 305 Major, R. v. 2 East P. C. 1118, 190 V. State, 4 Sneed, 597 642 Majors, People v. 65 Cal. 138 468, 681, 914 Malaspina, People v. 57 Cal. 328 711 Mailings, R. u. 8 C. & P. 242 579 Mallet V. Stevenson, 26 Conn. 428 122 Mailing, State v. 11 Iowa, 239 788, 895 Mallon, People v. 3 Lansing, 225 632 State V. 75 Mo. 355 256, 292, 293 Malloy, Com. v. 119 Mass. 347 220 Malone, Com. v. 9 Fed. Rep. 897 913 V. State, 49 Ga. 212 600 IT. S. V. 20 Blatch. 137 164, 739 890 Maloney, States. 12 R. I. 251 350, '387, 738 Manahan, People v. 32 Cal. 68 346 Manchester, in re, 5 Cal. 237 35, 993 Mangrum, State v. 35 La. An. 619 555 Manley, Com. u. 12 Pick. 173 111 V. State, 7 Md. 149 292, 911 ManluflF, State v. 1 Houst. 268 293 Manly, State v. 52 Ind. 215 602 771 TABLE OF CASES. SECTION Mann, E. «. 4 M. & S. 337 457 State V. 27 Conn. 281 541 V. State, 3 Head, 373 824 State V. 83 Mo. 589 654, 658, 670, 676 V. State, 44 Tex. 642 869 U. S. V. 1 Gall. C. C. 3 89 Manning, R. v. 12 Q. B. D. 241 ; 51 L. T.N. S. 121 305 State V. 14 Tex. 402 90, 101, 793 ManseU v.R.,8 El. & Bl. 54 ; Dears. & B. 375 612, 782 Manson, Com. k. 2 Ashm. 31 293, .305, 309, 696, 871, 873, 874 Manzano, E. v. 2 F. & P. 64 579 Mapes V. State, 13 Tex. Ap. 85 549 V. State, 14 Tex. Ap. 129 688 Marble, People v. 38 Mich. 117 712 March, People v. 6 Gal. 543 507 V. R. E., 19 N. H. 372 627 V. Stale, 44 Tex. 64 853 Marchant, U. S. v. 4 Mason, 160; 12 Wheat, 480 310, 614 a, 620, 680 Marigold, U. S. a. 9 How. (U. S.) 560 442 Markhaiii, People v. 64 Cal. 157 400 Markley v. State, 10 Mo. 291 134 Marks, ex parte, 64 Cal. 29 533 E. V. 3 East, 157 27 V. State, 15 Nev. 33 844 Marlatt v. People, 104 111. 304 813 Marler v. State, 67 Ala. 55 309 Marsden, E. v. L. E. 1 C. C. E. 131 8 E. V. 4U.& S. 164 167 Marseiler, People v. 70 Cal. 98 220 Marsh, People v. 2 Cow. 493 949 E. V. 6 A. & E. 236 91, 92, 341 379 R. a. Bulst. 27 ' 986 E. V. 1 Den. C. C. 505 159, 221 Marshall v. Com., 5 Grat. 663 756 E. i.. 1 Mood. C. C. 158 161 State V. 8 Ala. 302 669, 683, 692 State V. 37 La. An. 26 407 V. State, 6 Neb. 121 441, 442 c. State, 13 Tex. Ap. 492 221 Marston v. Jenness, 11 N. H. 156 438 Martha v. State, 26 Ala. 72 484 Martin, Com. v. 2 Barr, 244 271, 774 V. Com., 2 Leigh, 745 814, 816 Com. V. 98 Mass. 4 6 Com. 0. 125 Mass. 394 156 in re, 45 Barb. 142 979, 980 People V. 32 Cal. 91 202 772 SECTION Martin, People «. 52 Cal. 201 152,221 People V. 1 Park. C. R. 187 320, 991 V. People, 13 111. 341 ; 54 111. 226 773, 837 E. „. 3 Cox C. C. 56 560 E. V. 9 C. & P. 213 299 E. V. L. R. 1 C. C. 214, 378, 388 707, 831, 938 R. V. 1 Mood. C. C. 483 ; 7 C. & P. 649 185 V. State, 28 Ala. 71 759 V. State, 69 Ala. 34 472 V. State, 62 Ala. 240 407 V. State, 40 Ark. 364 541 V. State, 46 Ark. 38 752 v. State, 25 Ga. 494 833 V. State, 6 Humph. 204 115 State V. 2 Ired. 101 360, 602 V. State, 63 Miss. 606 661, 863 State V. 10 Mo. 391 101 State V. 76 Mo. 337 466, 896 State u. 82 N. C. 672 212, 474 V. State, 16 Ohio, 364 664 V. State, 24 Tex. 61 320 States. 30 Wis. 294 465,483, 602, 896 TJ. S. V. 8 Sawy. 473 282 a Martinez v. State, 41 Tex. 164 189 Marvin, State v. 34 Conn. 113 292 Marx V. People, 63 Barb. 618 801, 803 Mash, Com. v. 7 Met. 472 522, 527 Mask V. State, 32 Miss. 405 304, 310, 312, 755 V. State, 36 Miss. 77 712 Mason v. Bustill, 8 Mod. 51 106 ex parte, 106 U. S. 696 979, 997 in re, 8 Mich. 70 913 V. People, 15 111. 636 310 E. w. 2 East P. C. 975 167 V. State, 42 Ala. 632 220 V. State, 15 Tex. Ap. 534 677 Massengale v. State, 24 Tex. Ap. 181 429 a Massey, State v. 27 N. C. 465 236 Mastersonv. State, 20 Tex. A p. 574 293 Mastronada v. State, 60 Miss. 86 414 Mather v. Hood, 8 Johns. E. 44 963 People V. 4 Wend. 266 460, 464, 466, 631, 683, 688, 793 Mathis V. State, 33 Ga. 24 802 State V. 21 Ind. 277 96 State V. 3 Pike, 84 386, 394 Mato, ex parte, 19 Tex. Ap. 112 994 Maton V. State, 15 111. 536 680 Matthews, E. y. 1 Den. C. C. 596 306a State I'. 80 N. C. 419 577 TABLE OF CASES. SECTION Matthews, State v. 37 N. H. 450 958, 964, 968, 969 State V. 42 Vt. 542 251 V. State, 2 Yerg. 233 238, 240 Manll V. State, 37 Ala. 160 245 Maulsby, ex parte, 13 Md. 625 964, 974 Maurer n. People, 43 N. Y. 1 547 R. V. L. R. 10 Q. B. D. 513 57 Maurignos, State v. T. U. P. Charl- ton, 24 1006 Mawbey, R. v. 6 T. R. 638 894 Max, ex parte, 44 Cal. 579 995 Maxey, State v. 1 McMuUen, 503 80 Maxwell, Com. v. 2 Pick. 139 240, 241 ex parte, 11 Nev. 428 505 U. S. V. 3 Dill. 275 89 U. S. V. 21 Int. Rev. Reo. 148 89 May V. People, 8 Col. 210 814, 841 State V. 4 Dev. 328 125 V. State, 14 Ohio, 461 277 U. S. V. 2 MoArth. 512 913 Maver t». Allaire, 14 Ala. 400 440 Mayes v. People, 106 111. 306 577, 771 Mayloy, Com. «. 57 Penn. St. 291 913 Maynard v. State, 14 Ind. 427 291 Maynes, State v. 61 Iowa, 119 355, 356 Mayo V. State, 30 Ala. 32 293 U. S. v. 1 Curtis C. C. 433 411, 541, 542, 550 Mayor v. Cooper, 6 Wall. 247 783 a o. Hussey, 21 Ga. 80 440 Mayor, etc. of Manchester, R. v. 7 El. & Bl. 453 100 Mays, State v. 28 Miss. 706 555 State V. 24 S. C. 190 70 Maze, State v. 6 Humph. 17 230 MoAdams v. State, 24 Tex. Ap. 86 866 McAdory v. Hale, 62 Ala. 154 798 McAfee V. State, 31 Ga. 411 862, 866 V. State, 14 Tex. Ap. 688 102 McAlhey, R. u. 9 Cox C. C. 251 306 a McAllister v. State, 17 Ala. 434 845 V. State, 17 Ga. 434 846 State V. 26 Me. 374 95 McAnulty, State v. 26 Kans. 533 218, 252 McAtee, Com. o. 8 Dana (Ky.), 29 166 MoAuley, Com. v. 105 Mass. 69 472 V. State, 7 Yerg. 526 190 McAvoy, U. S. v. 4 Blatch. 418 354 McBeth V. State, 50 Miss. 81 118, 712 McBride, Com. v. 2 Brewst. 545 1011 V. State, 2 Eng. (Ark.) 374 247, 465 !>. State, 10 Humph. 615 139, 142 McBryde v. State, 34 Ga. 202 120 SECTION McCafferty, State v. 64 Me. 223 84 MoCahill, State v. 72 Iowa, 111 801, 813 MoCall V. McDowell, 1 Abb. U. S. 212 979 0. State, 14 Tex. Ap. 353 742 MoCalla, People v. 8 Cal. 301 614 a MoCanless, State v. 9 Ired. 375 800 McCann's case, 14 Grat. 570 440, 445 McCann v. People, 88 111. 105 910 State V. 1 Meigs, 91 358 V. State, 9 Sm. & M. 465 728, 814, 815, 826, 836 McCarney v. People, 83 N. Y. 408 566 MoCarter, State v. 98 N. C. 637 163 McCarthy u. Hinman, 35 Conn. 538 996 6 People V. 49 Cal. 241 617 V. State, 56 Miss. 295 90, 913 V. Terr., 1 Wy. 311 221 McCartie, R. v. 11 Ir. C. L. R. 207 612 McCarty, State v. 1 Bay S. C. 334 526 State V. 17 Minn. 76 369 ». State, 26 Miss. 299 683 McCaul, Com. v. 1 Va. Cas. 271 815, 822 MoCauley, Com. u. 105 Mass. 69 410 McCay v. Ins. Co., 2 Gaines, 384 583 MoChord, Com. v. 2 Dana, 242 302, 313, 315, 463 McClain v. Com., 10 Yerg. 241 815 MoClary v. State, 75 Ind. 260 353 McClay, U. S. v. 23 Int. Rev. Rec. 80 993 McCleroy v. State, 77 Ala. 95 712 McClintook, State v. 8 Iowa, 203 254, 469 MoCloskey, People v. 5 Park. C. R. 57 110 McCluer, State v. 5 Nev. 132 793 MoClure v. Com., 86 Penn. St. 353 164 V. State, 1 Yerg. 206 91, 92, 672, 846 McCollum, State v. 44 Mo. 343 162, 251 McConkey v. State, 20 Iowa, 574 111 V. Com. 101 Penn. St. 416 902 McConnell b. State, 46 Ind. 298 954, 968 McConologue, in re, 107 Mass. 172 980, 983, 997 McCord, State v. 8 Kans. 232 465 McCormack, Com. u. 126 Mass. 258 407, 410, 775 Com. V. 130 Mass. 61 436, 660 People B. 4 Park. C. R. 9 995 773 TABLE OF CASES. SECTION McCormack, State v. 56 Iowa, 585 251 State V. 8 Oreg. 236 470 MoCormlck, State v. 27 Iowa, 402 914 C. S. V. 4 Cranoh C. C. 104 475 McCort, State v. 23 La. An. 326 578 McCortney, State v. 6 Mo. 649 358 MoCory, State v. 2 Blaokf. 5 785 McCoy V. State, 46 Ark. 141 70, 460 V. State, 15 Ga. 205 712, 797 State V. 29 La. An. 593 279 McCracken, State v. 20 Mo. 411 146 McCready, ex parte, 1 Hughes, 598 981 MoCreary v. Com.', 29 Penn. St. 323 493, 815, 818 McCrory, People v. 41 Cal. 458 591, 701 MoCue V. Com., 78 Penn. St. 185 777, 780, 906 State V. 39 Mo. 112 292, 752, 911 McCulley v. State, 62 Ind. 428 916 McCuUough V. Com., 67 Penn. St. 30 338, 354, 368 MoCuUy, R. V. 2 Mood. C. C. 34 237 MoCune v. Com., 2 Rob. Va. 790 791 MoCurdy, People v. 68 Cal. 576 836 MoCurry, State v. 63 N. C. 33 803 McCutoheon v. State, 69 111. 601 236 MoDade v. State, 20 Ala. 81 120 McDaniel v. State, 30 Ga. 853 810 V. State, 8 S. & M. 401 600 McDermott v. State, 89 Ind. 187 589 MoDevro v. State, 23 Tex. Ap. 429 119 McDonald v. Beall, 55 Ga. 288 846 Com. V. 5 Cush. 365 159 - ex parte, 29 Alb. L. J. 382 964 ex parte, 2 Whart. 440 528 Rob V. 29 Iowa, 330 999 v. State, 63 Ind. 544 793 V. State, 45 Md. 90 780 State V. 65 Me. 465 712 V. State, 8 Mo. 283 183, 369 State V. 37 Mo. 41 253, 254 State V. 67 Mo. 13 212 a, 256 State V. 85 Mo. 539 907 State V. 9 W. Va. 456 661, 849 McDonnell, in re, see Maodonnell, in re. People V. 47 Cal. 134 866 People w. 92 N.y. 657 246, 249 Statew. 32Vt.491 709,810 McDonough, Com. v. 13 Allen, 581 759 MoDougal V. State, 88 Ind. 24 710 774 SECTIOV McDowell, Com. v. 1 Browne, 360 183 , State V. 6 Blackf. 49 105 State «. 84 N. C. 798 127 MoDuffie, State v. 52 Ala. 4 963 MoElhaney, Com. <;. Ill Mass. 439 890 McElhanon v. People, 92 111. 469 391 a MoElhinney v. Com., 22 Penn. St. 365 230 McElmurray, State v. 3 Strobh. 33 815, 824 V. State, 21 Tex. Ap. 691 456 McElrath v. State, 2 Swan, 378 832, 850 MoElroy v. State, 8 Eng. (13 Ark.) 708 141, 147 V. State, 14 Tex. Ap. 235 258 MoEntee v. State, 24 Wis. 43 189 a McEntie u. Sandford, 42 N. J. L. 200 321 MoEntire, State v. Car. L. R. 287 359 McEwen, People v. 62 N. Y. Pr. 412 924 MoFadden v. State, 23 Penn. St. 12 447, 493, 517, 617, 663, 665, 672, 675, 724, 816 McFarland, State v. 49 Iowa, 99 244 V. State, 68 Wis. 400 451, 486 MoGahahin v. State, 17 Fla. 665 289 MoGahey, Com. v. 11 Gray, 194 20 McGarrigall's case, cited 1 Ben. & Heard Lead. Cas. 551 164 McGary v. People, 45 N. Y. (6 Hand) 153 100, 110 McGee, State v. 36 La. An. 207 350 McGehan, ex parte, 22 Ohio St. 442 449 MoGehee v. State, 58 Ala. 360 383 McGill, ex parte, 6 Tex. Ap. 498 996 V. State, 34 Ohio St. 328 846 McGilver, People o. 67 Cal. 55 117 MoGimpsey, State v. 80 N. C. 377 495, 513 McGinnis v. Com., 102 Penn. St. 66 902 McGlinchy v. Barrows, 41 Me. 74 25 McGovern, Com. v. 10 Allen, 139 387 McGowan v. Com., 2 Mete. (Ky.) 3 121 Com. ... 2 Pars. 341 464, 802 V. People, 104 111. 100 774 a People V. 17 Wend. 386 466, 470, 482 i>. State, 9 Yerg. 154 642, 693 McGrath, Com. v. 115 Mass. 150 752 State V. 19 Mo. 678 137 State V. 1 Vroom (44 N. J. L.), 227 369 McGraw, State v. 1 Walker, 208 457, 460 TABLE OF CASES. 8BCTI0N MeGregg v. State, 4 Blackf. 101 354, 643, 754 McGregor v. State, 16 Ind. 9 161 State V. 41 N. H. 407 385 MoGrew, State v. 13 Rich. 316 309 McGuffie V. State, 17 Ga. 497 369, 686, 847 MoGuire, Com. v. 1 Va. Ca. 119 302 a. ^tate, 10 Ala. (Sel.) Ca. 69 ; 37 Ala. 161 193, 194, 282 V. State, 35 Miss. 366 405 V. State, 37 Miss. 369 661 a, 672 V. Wallace, 109 Ind. 284 996 McGungill, People v. 41 Gal. 429 673, 693 MoHale, Com. v. 97 Penn. St. 397 354 McHenry, U. S. v. 6 Blatch. 503 625 MoHugh V. State, 38 Ohio St. 153 608, 638 V. State, 40 Ohio St. 154 638 V. State, 42 Ohio St. 154 608, 779 Mclntire, State v. 1 Jones (N. C), 1 532 Mcintosh, R. v. 2 East P. C. 942 194 V. State, 18 Tex. Ap. 288 209, 237 Mclntnrf v. State, 20 Tex. Ap. 230 555, 751 Mclntyre v. People, 38 III. 514 827 People V. 1 Park. C. R. 371 309 V. State, 58 Iowa, 572 793 V. State, 59 Iowa, 267 370 McJunkins v. State, 10 Ind. 140 309 McKane v. State, 11 Ind. 195 218 McKay v. Ins. Co., 2 Caines, 384 597 People V. 18 Johns. 212 457,. 890 R. V. 3 Cr. & Dix. 205 61 V. State, 8 Tex. 376 108 V. State, 44 Tex. 43 173 McEean, ex parte, 3 Hughes, 213 981, 993 McKee, Penns. v. Add. 36 134 V. People, 32 N. Y. 239 928 State V. 1 Bailey, 651 383, 447, 508, 511, 815, 819 D. S. V. 4 Dillon, 128 453, 528 McKenna, Com. v. 125 Mass. 397 407, 417 McKenzie, R. v. R. & R. 429 769 V. State, 26 Ark. 334 502, 722 McKettrick, State v. 14 S. C. 346 281 MoKiernan, State v. 17 Nev. 224 204 McKinney, People v. 10 Mich. 54 157 State V. 31 Kan. 570 447, 452, 750, 818 SECTroir McKisson, Com. «. 8 S. & R. 420 292, 771 McLain, State v. 2 Brev. 443 237 McLaine v. State, 4 Ga. 335 137, 317, 318, 813 State ». 15 Nev. 345 310 V. U. S. 6 Pet. 405 528 McLaughlin, Com. v. 12 Cush. 615 8, 254, 301, 469 V. Com., 4 Rawle, 464 110, 183, 188, 273 ex parte, 41 Cal. 211 520 in re, 58 Vt. 136 994 V. State, 45 Ind. 338 ; 52 Ind. 476 90, 119 State V. 44 Iowa, 82 841, 847 V. Stevens, 2 Cranoh C. C. 149 440 McLean v. State, 8 Mo. 153 819, 822 McLellan v. Croftou, 6 Greenl. 307 846 ' V. Richardson, 13 Me. 82 366, 380 McLemore, State v. 2 Hill (S. C), 680 513 McLeod, People v. 1 Hill (N. Y.), 377 ; 25 Wend. 483 ; 3 Hill, 658 383, 447, 991, 995, 1010 V. State, 35 Ala. 395 940 State )'. 1 Hawks, 344 379 McLoon, Com. v. 5 Gray, 91 274 State V. 78 Me. 420 222 McMahon, Com. v. 133 Mass. 394 760 People ». 2 Parker C. R. 663 689 State V. 17 Nev. 365 518 McMahone v. State, 13 Tex. Ap. 220 203 McMannis v. Butler, 49 Barb. 176, 181 320 McManns v. Com., 91 Penn. St. 57 779 McMath V. State, 55 Ga. 303 134, 578, 810 McMillan v. State, 5 Ohio, 269 183 McNab, State v. 20 N. H. 160 75, 1007 McNair v. People, 89 111. 441 177 MoNally, State v. 32 Iowa, 580 261 State V. 55 Md. 559 387 State V. 34 Me. 210 6 McNamara, R. «. 14 Cox C. C. 289 707 McNamee v. People, 31 Mich. 473 88 State V. 25 S. C. 168 837 McNaught, State v. 36 Kan. 624 895 McNeal, U. S. v. 1 Gall. 387 135 McNealy, People w. 17 Cal. 333 507 775 TABLE OF CASES. SECTION McNeill, State v. 3 Hawks, 183 383, 447 State V. 93 N. C. 552 293, 294, 376, 614 a MoNeVins, People v. 61 Barb. 307 713 McNiel's case, 1 Caines, 72 82 NcNinch, State v. 12 S. C. 89 366, 608 McNutt, People v. 64 Cal. 116 801 McO'Blenis, State v. 21 Mo. 272 314, 528 McPherson, State v. 29 Ark. 228 602 V. State, 22 Ga. 478 810 McPhun, In re, 30 Fed. Rep. 57 63 McPike, Com. v. 3 Cush. 181 253, 464 McQuaige, State v. 5 S. C. 429 344, 620, 693 McQueen v. State, 82 Ind. 72 189 a McQuillan v. State, 8 Sm. & M. 587 44, 350, 819 MoQuillon, ex parte, 1 West. L. Month. 440 ; 9 Pitts. L. J. 29 979 MoQuoid V. People, 3 Gilman, 76 152, 482, 918 McRae v. Americanus, 59 Ga. 168 471 MoReynolds v. State, 4 Tex. Ap. 327 212 n McRoberts, ex parte, 16 Iowa, 600 980 McShane, Com. v. 110 Mass. 502 472 McTigue V. State, 4 Baxt. 318 244 McWaters v. State, 10 Mo. 167 358 McWilliams, State v. 7 Mo. Ap. 99 251, 387 Mead, Com. v. 10 Allen, 396 472 Com. V. 12 Gray, 167 343 a, 378, 379, 847 V. Norris, 21 Wis. 310 950 People V. 92 N. Y. 415 6, 444 Peoples. IN. Y.Cr. 417 965 R. v.iC.k P. 535 191 V. State, 26 Ohio St. 505 102, 117 State V. 27 Vt. 722 110 Meader, State v. 54 Vt. 126 802, 803 Meadows v. State, 22 W. Va. 766 265 Meaker, State v. 54 Vt. 112 615, 628, 680 Meany, R. «. L. & C. 213 ; 9 Cox, 231 7.54 Mears v. Com., 2 Grant, 385 260 Medaris v. State, 10 Yerg. 239 358 Medler v. State, 26 Ind. 171 824 Medlicott, State v. 9 Kans. 257 652 Meece V. Com., 78 Ky. 586 547, 758 Meek v. Peiroe, 19 Wis. 300 2 State V. 70 Mo. 355 239 Meeks v. State, 57 Ga. 327 871 Meeaer, Com. v. 1 Brewst. 49 181 a Megary, Com. v. 8 Phila. 607 1001 Meinhart, State v. 73 Mo. 562 263 Meister v. People, 31 Mich. 99 555 776 SECTION Melin v. Taylor, 2 Hodges, 126 791 Mellor, State v. 13 R. I. 666 350 Melton V. State, 37 La. An. 77 693, 712, 797 «. State, 8 Tex. Ap. 619 409 Melvin v. Easley, 1 Jones N. C. L. 386 571 Mentor v. People, 30 Mich. 91 395 Mercein, People v. 3 Hill N. Y. 399 932 Mercer v. State, 17 Ga. 146 646 Merill, State v. 2 Dev. 269 802 Merkle v. State, 37 Ala. 139 171 Merrick v. State, 63 Ind. 327 297, 327 Merrill, Com. v. 8 Allen, 545 420, 478 17. Nary, 10 Allen, 416 829 Peoples 14 N.Y. 75 773,775 State V. 37 Me. 329 405 V. State, 45 Miss. 651 183, 189 State r. 44N. H. 624 255, 292, 383, 470 Merryman, ex parte, Taney, 246 979, 990 Mersey Dock Trustees v, Gibbs, L. R. 4 H. L. 298 602 Mershen v. State, 44 Ind. 598 602 Mershom v. State, 51 Ind. 14 290, 345 Mertens, State i>. 14 Mo. 94 369 Mervin v. People, 26 Mich. 298 90, 156, 213, 218 Merwin, State v. 34 Conn. 113 911 Mesca, Resp. v. 1 Ball. 73 352 Meschao, State v. 30 Tex. 518 221, 231 Meshek, State v. 51 Iowa, 308 709, 793 V. State, 61 Iowa, 316 561 Messenger, Com. v. 4 Mass. 462 87 State V. 58 N. H. 348 151 Messersmith, People W..61 Cal. 246 711, 799 Messinger, Com. ». 1 Binn. 373 227 a Messingham, R. v. 1 Mood. C. C. 257 302, 312 Messner v. People, 45 N. Y. 1 780, 906, 928 Metcalf, R. v. Arch. C. P. 162 718 Metharde v. State, 19 Ohio St. 363 460 Metzger's case, 1 Barb. 248 ; S. C. 1 Edm. Sel. Ca. 399 38 Metzger v. State, 18 Fla. 481 653, 664 Metzker v. People, 14 111. 101 238, 240 Mewherter, State v, 46 Iowa, 85 605 Meyer i-. Clark, 41 N. Y. Sup. Ct. 105 8 V. State, 19 Ark. 156 645, 844 State V. 58 Vt. 457 628, 810 State V. 1 Speers, 305 162 .,. State, 4 Tex. Ap. 121 218 Meyers v. Com., 83 Penn. St. 131 712 ex parte, 44 Mo. 279 925, 932 State V. 68 Mo. 266 318, 760 TABLE OF OASES. SECTION Miazza v. State, 36 Miss. 613 452 Mickey v. Com., 9 Bush, 593 752 Middlebrook i'. State, 43 Conn. 257 A 967, 973 Middlehurst, R. v. 1 Burr. 400 163 Middlesex Commis., 6 C. & P. 90 358 a Middlesex Just., R. v. 3 Nev. & Man. 110 520 Middletqn, R. v. L. R. 2 C. C. 41 266 State V. 5 Port. 484 350 Middletown v. Ames, 7 Vt. 166 348, 662 Mieir v. McMillan, 51 Iowa, 540 932 Mifflin V. Com., 5 Watts & S. 451 165 Migotti V. Colville, 14 Cox C. C. 263 925 Mikell V. State, 62 Ga. 68 610 Mikels V. State, 3 Hei^k. 321 438 Mikesell, State v. 70 Iowa, 176 465 Milburn, ex parte, 9 Pet. 704 62, 445 in re, 59 Wis. 25 991, 996 Miles V. Com., 13 Penn. St. 631 918 in re, 52 Vt. 609 35, 37 17. Rem., 4 Yeates, 319 775 State V. 31 La. An. 825 350 U. S. 0. 103 U. S. 304 664 Millar v. State, 2 Kans. 174 926, 927 Millard, Com. v. 1 Mass. 6 587, 588 Miller's case, 9 Cow. 730 913 Miller v. Allen, 11 Ind. 889 932 Com. V. 2 Ashm. 61 383, 446, 517 Com. V. 5 Dana, 320 438, 440, 467, 471 V. Com., 79 Ky. 457 120 Com. w. 2 Pars. R. 197,480 221, 230, 299, 302 Com. V. 107 Penn. St. 276 251 in re, 6 Cr. Law Mag. 511 ; 23 Fed. Rep. 32 48, 49 People V. 12 Cal. 291 137, 318 K. People, 39 111.457 101 V. People, 90 111. 409 780 V. state, 54 Ala. 155 98 V. State, 41 Ark, 489 278 State V. 6 Baxt. 513 913 State V. 2A Conn. 622 238, 255 State V. 1 Dev. & B. 500 791, 815, 817, 819 V. State, 58 Ga. 200 465 V. State, 5 How. (Miss.) 250 163, 243 V. State, 42 Ind. 544 591 V. State, 51 Ind. 405 293 State V. 7 Ired. 275 771 V. State, 25 Kan. 679 159 State V- 29 Kan. 43 652 State V. 93 Mo. 263 220 State V. 75 N. C. 73 560 V. State, 3 Ohio St. 475 472 SECTION Miller v. State, 3 Ohio St. 476 90 State II. 24 W. Va. 802 837 U. S. V. 3 Hughes, 553 305 Millican, State v. 15 La. An. 557 762, 847 Milligan, ex parte, 4 Wall. 3 979 Millington, in re, 24 Kan. 214 995 Mills V. Com., 13 Penn. St. 634 256, 285, 927, 932 D. State, 52 Ind. 187 296 Millsops, State v. 69 Mo. 359 400 Millspangh, Blake u. 1 Johnson, 316 631 Milne v. State, 61 Cal. 71 253 Mimms v. State, 16 Ohio St. 221 803 Mims V. State, 26 Minn. 498 932 Miner, 0. S. v. 11 Blatch. 511 470 Mingo, U. S. t,. 2 Curtis C. C. 1 563 Minich v. People, 8 Col. 440 541 Minor v. Mead, 3 Conn. 289 784 V. State, 63 Ga. 318 400 Mirelles v. State, 13 Tex. Ap. 346 775 Mitchell, R. v. 3 Cox C. C. 93 ; 12 Eng. L. & E. 588 247, 383, 447 Mitchell, R. t>. 2 F. & F. 44 ^^.^5^ u. Semen, 34 Md. 176; 43 Md. 490 9 V. State, 60 Ala. 26 798 State V. 1 Bay, 267 87, 88 V. State, 7 Eng. 50 11 V. State, 22 Ga. 211 594, 751, 813, 815 V. State, 41 Ga. 527 619 V. State, 3 Mo. 283 774 State V. 6 Mo. 147 220 State V. 64 Mo. 191 709 State V. 83 N. C. 674 422 . i). State, 42 Ohio St. 88 456, 505, 517 Mitchum v. State, 11 Ga. 616 844 Hither, People v. 4 Wend. 229 134 Mix V. Woodward, 12 Conn. 262 181 a Mixou V. State, 55 Ala. 129 508 Mize V. State, 49 Ga. 375 441 Moan, ex parte, 65 Cal. 216 996 Mobley v. State, 46 Miss. 501 886 Moett V. People, 85 N. Y. 67 927 Molfett V. Bowman, 6 Grat. 219 847 State V. 1 Greene (Iowa), 247 232 Mohr, ex parte, 73 Ala. 503 ; 5 Crim. Law Mag. 639 31,32,37 a Mohun's case, 1 Salk. 104 81 Moice, People v. 15 Cal. 329 655 Moland, R. .,. 2 Mood. C. C. 270 304 Moles, State v. 9 Mo. 685 358 Molier, State v. 1 Dev. 263 169, 273 Mollor, U. S. V. 16 Blatch. 65 87, 400, 477 MoUoy, D. S. V. 31 Fed. Rep. 19 700 777 TABLE OF CASKS. SECTION Monagle, Com. v. 1 Mass. 517 283, 383 Monahan, Com. v. 9 Gray, 119 135 Moncrieflf v. State, 59 Ga. 470 844 Money u. Com., 108 Mass. 433 471 V. Leach, 1 W. Bl. 555 6 Mongeon v. People, 55 N. Y. 613 320 Monroe v. State, 5 Ga. 85 646, 842 V. State, 23 Tex. 210 813 Montague, Com. v. 10 Grat. 767 623, 636, 666, 683 V. State, 17 Fla. 662 652 State V. 2 MeCord, 257 291 Montee v. Com., 3 J. J. Marsh. 150 805, 810 Montross v. State, 61 Miss. 429 438, 507 Montgomery, ex parte, 79 Ala. 275 924 People V. 13 Abbott Pr. Rep. N. S. 207 866 People V. 53 Cal. 576 672 Res. V. 1 Yeates, 419 16 V. State, 40 Ala. 684 771 State V. 65 Iowa, 483 555 V. State, 7 Ohio St. 107 780, 927 b. State, 11 Ohio, 424 810 V. State, 13 Tex. Ap. 94 842 V. State, 23 Tex. Ap. 650 801 Moody V. People, 20 111. 315 314, 59] R. V. L. & C. 173 185 V. State, 60 Ala. 78 480 V. State, 7 Baxt. 100 159 V. State, 54 Ga. 660 600, 712 State V. 69 N. C. 529 383 0. State, 1 W. Va. 337 292 Moon V. State, 68 Ga. 687 689, 845 State V. 41 Wis. 684 456 Mooney v. People, 111 111. 388 813 State V. 74 N. C. 98 528 Moore, Com. v. 9 Mass. 402 417 Com. V. 99 Penn. St. 570 742, 760 V. Coxe, 10 Weekly Notes, 135 26 ex parte, 64 N. C. 90, 398, 802 953, 979, 990 V. Illinois, 14 How. U. S. 13 442, 473 in re, 63 N. C. 397 958 V. Mausert, 49 N. Y. 332 320 People t;. 2 Douglass (Mich.), 1 11 K. People, 14 How. (0. S.) 13 36 People V. 65 How. (N. Y.) Pr. 177 363 ». The Phila. Bank, 5 Serg. & Rawle, 41 854 778 BBGTTOff Moore v. State, 71 Ala. 307 467 V. State, 65 Ind. 213 112 u. State, 85 Ind. 90 711 V. State, 59 Miss. 529 466 State V. 66 Mo. 372 481 V. State, 82 N. C. 659 169 State V. 12 N. H. 42 263 State V. 42 N. J. L. 208 ; 43 N. J. L. 203 320 V. State, 12 Ohio St. 387 145 V. State, 13 Sm. & M. 259 358 w. State, 7 Tex. Ap. 42 275 V. State, 21 Tex. Ap. 666 561 V. State, 22 Tex. Ap. 117 733 V. State, 1 Walker, 134 504, 513 Mopsey, R. v. 11 Cox C. C. 143 187 Morales v. State, 1 Tex. Ap. 494 662 Moran, Com. v. 130 Mass. 281 350 More, People v. 68 Cal. 500 388 U. S. V. 3 Cranoh, 159 773 Morea, State v. 2 Ala. 275 639 Morehead v. State, 34 Ohio St. 212 465 Morel V. State, 189 Ind. 276 869 Morey, Com. v. 30 Leg. Int. 141 770 V. Com. 108 Mass. 433 464, 472 State V. 2 Wis. 494 209 Morgan v. Com., 14 Bush, 106 585 V. Com., 7 Grat. 692 161 ex parte, 20 Fed. Rep. 278 28 R. V. 11 East, 467 945 V. State, 19 Ala. 556 95 V. State, 47 Ala. 34 924 V. State, 48 Ala. 65 823 V. state, 13 Fla. 671 125, 150, 213, 601 V. state, 31 Ind. 193 643 State V. 62 Ind. 35 438, 440 State V. 35 La An. 293 273 State V. 95 N. C. 641 466 State V. 98 N. C. 641 236 Moriarty, Com. v. 135 Mass. 540 160 State V. 50 Conn. 415 472 V. State, 62 Miss. 668 693 Morley, R. w. 1 Y. & J. 221 161 Morman v. State, 24 Miss. 54 164, 472 Morningstar v. State, 52 Ala. 405 109 Morphin, State v. 37 Mo. 373 470 Morrell v. Kimball, 1 Greenl. 322 870 V. Quanels, 35 Ala. 544 27, 29 Morrill, State v. 16 Ark. 384 958 Morris, Com. v. Pamph. 668 R. V. L. R. 1 C. C. 90 465, 476 State V. 1 Blaokf. 37 465, 788 V. State, 7 Blaokf. 607 672 State V. 47 Conn. 546 710, 793 State V. 1 Houst. 124 396 V. State, 104 Ind. 457 560 V. State, 8 Sm. & M. 762 465, 895 V. State, 13 Tex. Ap. 65 169 TABLE OP CASES. SECTION Morris, U. S. v. 1 Cnrtis C. C. 23 447, 609, 672, 726, 810 U. S. V. 10 Wheaton, 246 528 V. Whitehead, 65 N. C. 637 972 Morrisette, People v. 20 How. Pr. 118 913 V. State, 77 Ala. 71 457, 510, 518 Morrisey, State v. 70 Me. 41 212 a Morrison, People v. 1 Park. C. R. 624 791 State V. 31 La. An. 211 325 State V. 31 La. An. Pt. n. 817 369 Morrow v. State, 14 Lea, 475 458 V. State 57 Miss. 836 565 Morse, Com. v. 2 Mass. 128 759 Com. V. 14 Mass. 217 111 Mortier, People v. 58 Cal. 262 846 Mortimer, Com. v. 2 Va. Cas. 325 460 People V. 46 Cal. 114 844 People V. 48 Mich. 37 810 Morton, Com. v. 12 Phil. 595 339, 350 R. V. 12 Cox C. C. 456 ; L. R. 2 C. C. R. 22 197 V. Skinner, 48 Ind. 123 30, 36 V. State, 1 Lea, 498 470, 833 State V. 27 Vt. 310 243, 251 Moshy, ex parte, 31 Tex. 566 75 Moseley v. State, 33 Tex. 671 505, 520, 722, 725 Moser, State v. 33 Ark. 140 220 Moses, State v. 2 Dev. 452 273, 274 V. State, 11 Humph. 232 642, 660 Mosley, State v. 31 Kan. 355 577 Moss V. Com., 107 Penn. St. 267 493, 823 Mostranda v. State, 60 Miss. 87 414 Mott, Cbm. V. 21 Pick. 492 522 People V. 34 Mich. 80 90 R. V. 3 East P. C. 1075 237 State V. 29 Ark. 147 90 State V. 45 N. J. L. 494 182 Moughau V. State, 59 Ga. 308 623 Moulton, Com. v. 4 Gray, 39 , 566 Com. V. 108 Mass. 308 203 U. S. V. 5 Mason, 537 183, 191 Moultrie, State v. 33 La. An. 1146 291, 601, 742 Mount V. Com., 2 Duvall, 93 457, 534 R. V. L. R. 6 P. C. 283 995 Mountain v. State, 40 Ala. 344 420, 479 Mounts V. State, 14 Ohio, 295 278, 383, 435, 447 Mowhray v. Com., 11 Leigh, 643 771 sEcnow Mowry, in re, 12 Wis. 52 988 Moyer v. Com., 7 Barr, 439 161, 273 Mudge V. Pierce, 32 Me. 165 566 Muir, State v. 32 Kans. 481 549 Mulcahy v. R. L. R., 3 H. L. Cas. 306 92, 401, 692 Mulhisen, State v. 69 Ind. 145 269 Mull's case, 8 Grat. 695 587, 591 Mullee, in re, 7 Blatoh. 23 528, 971, 972 Mullen, Com. v. 13 Allen, 551 92, 93 V. State, 45 Ala. 43 906 State V. 14 La. An. 570 90 Muller's case, 5 Phil. Rep. 289 39 Mullinix v. People, 76 111. 211 810 Mulroony v. State, 26 Ohio St. 326 90 Munch, State v. 22 Minn. 67 124, 158 Mundel, U. S. v. 6 Call, 245 358 Munford v. State, 39 Miss. 558 457 U. S. V. 16 Fed. Rep. 164 344 345 Munger, State v. 15 Vt. 291 120,'l25, 134, 240, 271 Munly «. State, 7 Blaokf. 593 672 Munroeu. Brigham, 19 Pick. 318 692 Munshower v. Patton, 10 S. & R. 334 608 V. State, 56 Md. 517 766 Munson v. State, 79 Ind. 541 176 State V. 76 Mo. 109 711 V. State, 21 Tex. Ap. 349 465 Murback, People v. 64 Cal. 369 923 Murdock v. State, 65 Ala. 520 159 V. State, 35 La. An. 729 756 State V. 9 Mo. 730 260 Murphey v. Com., 23 Grat. 960 466, 771 Com. V. 2 Gray, 516 306 a Murphy, Com. v. 2 Allen, 163 245, 250 Com. V. 11 Cush. 472 452, 453, 764 V. Com., 1 Mete. (Ky.) 365 733 V. McMillan, 59 Iowa, 515 918 People V. 45 Cal . 137 650, 916 People V. 47 Cal. 103 555 R. V.8C.& P. 297 287, 292, 569 V. State, 6 Ala. 845 218 V. State, 37 Ala. 147 664 V. State, 97 Ind. 579 733 V. State, 47 Mo. 274 251 V. State, 15 Neb. 383 648, 813 State V. 9 Port. 487 93 State V. 39 Tex. 46 206 V. State, 6 Tex. Ap. 554 173 V. State, 55 Vt. 547 122, 158 779 TABLE OF CASES. SECTIOX Murphy, U. S. v. 1 McArth. & Mao. 375 359 Murray, Com. v. 2 Ashm. 41 518, 8.')4, 857 u. Com.,79Penn. St. 311 710 Com. V. 2 Va. Cas. 504 992 ex parte, 43 Cal. 455 994, 995 People V. 41 Cal. 60 567 People V. 67 Cal. 103 220 People V. 52 Mich. 288 546, 804, 878 V. R., 3 D. & L. 100 ; 7 Q. B. 700 238, 549 V. State, 48 Ala. 675 672 State V. 41 Iowa, 580 151 State V. 55 Iowa, 20 471 State V. 15 Me. 100 456, 464, 465 State V. 91 Mo. 423 823 V. State, 36 Tex. 642 866 V. State, 1 Tex. Ap. 417 589 Musick V. People, 40 111. 268 346, 349, 350, 668 Myddleton, R. v. 6 Term. R. 739 164 Myers v. Com., 79 Penn. St. 308 121 Com. V. 1 Va. Cas. 188 ; 3 Wheel. C. C. 550 438, 480, 517 - People V. 70 Cal. 582 827 V. People, 92 Ind. 390 158, 908 State V. 10 Iowa, 448 251 State V. 10 Lea, 717 426 State V. 85 Tenn. 203 273, 354, 355 V. State, 9 Tex. Ap. 157 712 Myriok, State v. 88 Kan. 238 541 N. Nagle, State v. 14 R. I. 331 125 U. S. V. 17 Blatch. 258 354, 446 Nance v. State, 21 Tex. Ap. 457 836-7 Naramore, State v. 58 N. H. 273 1 61 Nardln v. State, 22 Ind. 347 452 Nash V. R., 9 Cox C. C. 424 ; 4 B. & S. 935 255, 777 State V. 7 Iowa, 347 592 State u. 86 N. C. 650 469 Nathan, State v. 5 Rich. 213 465 Naughton, People v. 7 Abb. Pr. (N. S.) 421 358 Nayues, State v. 54 Iowa, 109 345 Neal V. Delaware, 103 U. S. 370 783 a V. Farmer, 9 Ga. 555 453 V. State, 64 Ga. 272 822 Neale, R. v. 1 Den. C. C. 36 464 Neales v. State, 10 Mo. 498 239, 733 780 , SECTION Ned ». State, 33 Miss. 364 815, 836 «. State, 7 Port. 187 490,491,497, 513, 639, 640 Needham, People v. 98 111. 275 712 Neely i-. People, 13 111. 685 644 Neff V. State, 57 Md. 385 775 Nelderluok v. State, 21 Tex. Ap. 320 119 Neill, in re, 8 Blatch. 156 988 Neilson, People ». 22 Hun, 1 684, 995 Nelms V. State, 58 Miss. 362 711 V. State, 13 Sm. & M. 500 640, 815 Nels V. State, 2 Tex. 280 810 Nelson v. People, 23 N. Y. 293 295 State V. 7 Ala. 610 406, 487 State V. 58 Cal. 104 244 State I'. 26 Ind. 366 505, 520 V. State, 58 Iowa, 208 647 State V. 32 La. An. 842 847 State V. 29 Me. 329 98, 106, 240, 251, 290, 294, 297, 306 a, 470 V. State, 61 Miss. 212 709 State V. 8 N. H. 163 243, 255 State V. 14 Rich. 169 291, 292, 293 ji. State, 2 Swan, 482 590, 810 r. State, 52 Wis. 534 911 U. S. V. 29 B'ed. Rep. 202 238 Nemo V. Com., 2 Grat. 558 751 Nesbitt, ex parte, 8 Jurist, 107l 6 Nestle, People v. 19 N. Y. 583 773, 775 Neverson, U. S. v. 1 Mack. 152 293, 453, 565 a, 693 Neville, State v. 6 Jones (N. C), 423 804 NeWns, People «. 1 Hill (N. Y.), 154 953, 996, 1005 State V. 23 Vt. 519 194 Newberry, in re, 4 Ad. & E. 100 953 Newoomb v. State, 37 Miss. 397 90 Newell, Com. .,. 7 Mass. 244 249, 260, 261, 464 V. Cowan, 30 Miss. 492 463 Resp. ». 3 Yeates, 407 284, 870 Newer, State v. 7 Blackf. 307 351 Newfane, State v. 12 Vt. 422 350 Newman, People v. 5 Hill (N. Y.), 295 791 R. V. 1 El. & Bl. 268; Dears. C. C. 85 890 R. & 1 Ld. Ray. 562 101 State V. 2 Car. L. R. 423 V. State, 62 Ga. 533 239 V. State, 14 Wis. 393 297 Newsom, State v. 13 W. Va. 859 161, 756 Newson, State v. 13 W. Va. 859 158 TABLE OF CASES. BECTTOM Newton, Com. «. 1 Grant, 453 974 ex parte, 13 Q. B. 716 991 in re, 16 C. B. 97 983 V. Loeklin, 77 111. 103 963 V. Maxwell, 2 Cr. & Jer. 215 103 R. V. 2 Mood. 59 194 R. t). 2 M. & Rob. 506 373, 446 R. V. 13 Q. B. 716 ; 3 Cox C. C. 484 727 V. State, 15 Fla. 610 536 V. State, 21 Fla. 53 853 State V. 59 Ind. 173 80 State V. 42 Vt. 537 252, 470 New York v. Mason, 4 E. D. Smith, 142 125 New York & Osw. M. R. R. Co. v. Van Horn, 57 N. Y. 473 320 Nicholas's case, Fost. Cr. L. 64 456, 476 Nichols, Com. v. 10 Allen, 199 251 a. Com., 78 Ky. 180 470 V. Cornelius, 7 Ind. 611 984 V. Nichols, 136 Mass. 256 841 State V. 26 Ark. 74 523, 531 State V. 38 Ark. 550 438 State V. 8 Conn. 496 466 State V. 83 Ind. 228 227 a State V. 29 Minn. 357 828 V. State, 58 N. H. 41 125 V. State, 2 South. 539 79 V. State, 35 Wis. .308 279 Nicholson v. Com., 96 Penn. St. 503 285, 291, 338, 810 V. State, 72 Ala. 176 438 State V. 77 Md. 1 151 Nickerson, Com. v. 5 Allen, 519 771 Niles V. Brackett, 15 Mass. 378 852 u. State, 11 Lea, 694 838, 847 Nillins, R. v. 53 Law .Jonrn. 157 45 Nitingale, ex parte, 12 Fla. 272 996 6 Nixon V. State, 68 Ala. 535 344 State V. 78 N. C. 558 452 State V. 18 Vt. 70 94, 95, 145 Noakes v. People, 25 N. Y. 380 193 Noble V. People, Breese, 54 644 V. State, 59 Ala. 73 161 Noblett, State v. 2 Jones (N. C), 418 831 Noe V. People, 39 111. 96 146 V. People, 92 Ind. 92 643 V. State, 4 How. (Miss.) 330 640 Noel, State v. 5 Blackf. 548 220 Noelke, U. S. v. 17 Blatch. 554 167, 566, 624 Nolan V. State, 55 Ga. 521 517 State V. 13 La. An. 376 664, 699 Noland, State v. 29 Ind. 212 120, 134, 318 BECTIOW Noland v. State, 85 N. C. 576 579 V. State, 19 Ohio, 131 798 Nolen V. State, 2 Head, 520 833 V. State, 8 Tex. Ap. 585 545 ... State, 14 Tex. Ap. 474 590 Noles V. State, 24 Ala. 672 88, 90, 91 Nomague v. People, Breese, 109 369, 641, 750 Nonemaker v. State, 34 Ala. 211 420, 479 Norfleet v. State, 4 Sneed, 340 642, 693, 844 Norris v. State, 3 Greene (Iowa), 513 145, 341 V. State, 25 Ohio St. 217 36 North, R. u. 6 D. & R. 143 162, 251 Northampton, Com. o. 2 Mass. 116 280 Northington r. State, 14 Lea, 424 670, 697 Northway, U. S. v. 120 U. S. 327 220 Norton, Com. w. 8 S. & R. 7 996 R. w. 8 C. & P. 196 . 162 R. V. R. & R. 510 109, 118 V. State, 14 Tex. 387 438 , State V. 45 Vt. 168 696 State V. 3 Zab. 33 92, 93, 350 U. S. V. 91 U. S. 566 316 Norvell v. State, 50 Ala. 174 285 State V. 2 Yerg. 24 436, 467, 436 a, 518, 786 Norwood, State v. 93 N. C. 578 918 Nowlan v. Griffin, 68 Me. 183 463 Nowlass V. Griffin, 68 Me. 236 453 Noyes v. Byxbee, 46 Conn. 382 964 in re, 17 Alb. L. J. 407 27, 37 Nugent, ex parte, 1 Am. L. J. 107 964 People V. 4 Cal. 341 238 V. State, 4 St. & Port. 72 514 Nulf, State v. 15 Kans. 404 354 Null, State v. 15 Kans. 404 854 Nunnemacher, U. S. t,. 7 Biss. 129 236, 243 Nutt, R. V. 1 Barnard, 307 772 State V. 28 Vt. 598 472 Nutting, State v. 39 Me. 359 383 Nuzum V. State, 88 Ind. 699 810, 812, 852 Nye, ex parte, 8 Kans. 99 982 Nyman, State v. 55 Conn. 17 560 0, O'Banson, State v. 1 Bail. 144 220 O'Brian's case, 1 Towns. St. Tr. 469 633 O'Brian v. Com., 6 Bush, 563 506 V. Com., 9 Bush. 333 435, 506, 509, 722 781 TABLE OF CASES. SECTION O'Brian v. State, 12 Ind. 369 438 U. S. V. 3 Dill. 381 31 O'Brien, Com. v. 2 Brewst. 566 90 Com. V. 107 Mass. 208 254, .301, 314, 469 People V. 64 Cal. 53 281 V. People, 36 N. Y. 276 ; 48 Barb. 274 118,632,664 V. R., 2 Ho. Lords Cas. 465 686 R. V. 46 L. T. (N. S.) 177 456, 460 V. State, 22 La. An. 27 757 State V. 74 Mo. 549 268 State V. 7 R. I. 337 309, 823 O'Callahan, U. S. v. 6 McLean, 596 285, 301, 910 O'Connell, Com. v. 12 Allen, 451 207, 217, 252, 291, 470 V. R., 11 CI. & Fin. 155 ; 9 Jurist, 30 79,423,427, 608, 771, 886, 910, 941 O'Connor v. Guthrie, 11 Iowa, 180 830 ». State, 9 Fla.215 660,661 O'Dea V. State, 57 Ind. 31 862 Odell, People v. 1 Dak. 197 742 State V. 4 Blackf. 156 438, 439 Odgers, R. u. 2 M. & Rob. 479 404 Odle V. State, 6 Baxt. 159 822, 832 O'Donnell, R. «. 7 C. & P. 138 61 State V. 10 B. I. 472 241 Offutt V. Parrott, 1 Cranoh, 154 956 State V. 4 Blackf. 355 378 Ogden V. State, 13 Neb. 436 845, 869 Ogilvie, B. w. 2 C. & P. 230 109 Ogle V. State, 33 Miss. 383 640, 693 O'Gorman, State v. 68 Mo. 179 238 O'Grady, State v. 31 La. An. 378 871 O'Hara v. People, 41 Mich. 623 339, 414 O'Hearn, Com. v. 132 Mass. 553 116 Ohms V. State, 49 Wis. 415 876 Ohio B. R. V. Fitch, 20 Ind. 505 980 O'Kane, State v. 23 Kans. 244 249 O'Keefe, State v. 41 Vt. 691 125 O'Kelly, State v. 88 N. C. 609 898 Olathe r. Thomas, 26 Kans. 233 469 Olcutt, People d. 2 Johns. Cas. 301 502, 698 Olds, Com. V. 5 Little, 137 . 506 V. Com., 3 Marsh. 467 595 Oleson, State v. 26 Minn, 507 440 Olifer, R. v. 10 Cox, 402 164 Olive V. State, 11 Neb. 1 648 Oliyer, R. v. 8 Cox C. C. 384 ; Bell C. C. 287 246, 251, 465 State V. 2 Houst. 585 8 Olivera, People v. 7 Cal. 403 260 O'Malia v. Wentworth, 65 Me. 129 992, 996 782 SECTFOir O'Mally, State v. 48 Iowa, 501 203 O'Mara v. Com., 75 Penn. St. 424 635, 655 O'Meara v. State, 17 Ohio St. 515 452 O'Neal, State v. 7 Ired. 251 570, 712 V. State, 14 Tex. Ap. 474 588 O'Neil, Com. v. 6 Gray, 343 668 V. State, 48 Ga. 66 119, 457, 810 O'Neill, People v. 47 Cal. 109 974-5 U. S. V. 2 Sawy. 481 1835, 1837 On Gee, State v. 15 Neb. 184 220 Onions v. Naish, 7 Price, 203 848 Onnmacht, State v. 10 La. An. 198 369 Onslow, R. V. 12 Cox. C. C. 358 957, 968, 969 Ooton V. State, 5 Ala. 463 918 Orbell, R. v. 6 Mod. 42 386 Organ v. State, 26 Miss. 78 823, 848 Ormond, State v. 1 Dev. & B. 119 220 Ormsby, People v. 48 Mich. 494 548 O'Rourke, State v. 55 Mo. 440 602 Orr V. State, 18 Ark. 540 285 Orrell, R. ». 1 Mood. & R. 467 561-2 Orton, State v. 67 Iowa, 554 995, 996 Ortwein, Com. u. 76 Penn. St. 414 623, 635 Osborn v. State, 61 Iowa, 330 345 U. S. V. 91 U. S. 474-8 521, 528, 533 Osborne v. State, 14 Tex. Ap. 225 116 Oscar, State v. 13 La. An. 297 916 Osgood V. People,- 39 N. Y. 449 254 V. State, 63 Ga. 791 846 O'Shields v. State, 55 Ga. 696 727, 731, 844, 866 Osiander, Com. b. 3 Leigh, 780 636 Osmer, R. v. 5 East, 304 152 Osterhout, People v. 41 N. Y. 261 700, 701 Ostrander, State v. 18 Iowa, 434 647, 653, 683 Osulton, R. V. 2 Str. 1107 444 Oswald's case, 1 Dall. 319 958 Otto, People V. 70 Cal. 523 474 Oulaghan, R. v. Jebb, 270 516 Outs, State v. 30 La. An. 1155 548 Overbee u. Com., 1 Robins. (Va.) 756 8.15, 822 Overshiner v. Com., 2 B. Mon. 344 369 Owen, R. v. 20 Q. B. D. 829 247 V. State, 38 Ark. 612 541 V. State, 78 Mo. 367 325, 507, 740 State V. 72 N. C. 605 716 V. Warburton, 1 N. B. 326 847 Owens, State v. 28 La. An. 5 457 V. State, 63 Miss. 450 711 V. State 79 Mo. 619 803 TABLE OF CASES. BECTlOir Oxford, E. B. 3 N. & M. 877 790 State V. 30 Tex. 428 379 Oyer & Terminer Court, People v. 83 N. y. 436 631 -Pace V. State, 69 Ala. 231 101 State V. 9 Richs. 855 771 Packard v. U. S., 1 Iowa, 225 847 Packer, People v. 8 Col. 361 246, 279 Padelford, D. S. v. 9 Wall. 531 528 Padgett, State v. 58 N. H. 379 130 State V. 82 N. C. 544 785 Page, Com. v. 27 Grat. 954 483, 636 (.. Com., 9 Leigh, 683 457, 518 ex parte, 49 Mo. 291 994, 996 b People V. 1 Idaho, 114 828 R. V. 9 C. & P. 756 935 Pagels, State v. 92 Mo. 300 358, 556, 586, 591 Paget, R. V. 1 Leon. 5 772 Paine v. Fox, 16 Mass. 129 122 Painter, State v. 40 Iowa, 298 601 Palmer v. State, 32 La. An. 565 251, 760 V. People, 4 Neh. 68 813 State V. 35 Me. 9 243 V. State, 39 Ohio St. 236 424 State V. 18 Vt. 570 239 U. S. 0. 2 Cranch C. C. 11 360, 366 Palmore v. State, 29 Ark. 248 712 Pancake v. State, 81 Ind. 93 121, 711 Pannell, Com. v. 86 Penn. St. 260 793, 798 Papineaa v. Bacon, 110 Mass. 319 10, 70 Parchman v. State, 2 Tex. Ap. 228 505 Pargoud's case, 13 Wall. 156 522, 528 Parham v. State, 10 Lea, 498 869 Paris, State v. 36 Ala. 232 602 Parish, State v. 43 Wis. 395 435, 435 a, 518 Park V. State, 3 Ohio St. 101 752 Parker v. Com., 12 Bush, 191 363 V. Com., 8 B. Men. 30 771 Com. 0. 2 Pick. 563 350 V. Hardy, 24 Pick. 246 857 in re, 5 M. & W. 32 982 V. People, 97 111. 32 911 R. v. 9 Cox C. C. 475 ; L. & C. 459 323 State V. 1 Chlpm. 298 176 State V. 1 Houst. 9 ' 266 State V. 66 Iowa, 386 505 State V. 5 Lea, 568 123 V. State, 51 Miss. 535 913 o. St^te, 55 Miss. 414 640 8B0TIOS Parker, State v. 81 N. C. 548 234, 279 V. State, 9 Tex. Ap. 351 111 V. Stevens, 24 Pick. 277 533 Parkhurst, People v. 49 Mich. 22 813, 927 Parkin, E. v. 1 Mood. 45 750, 751 Parkinson, R. v. 2 Den. C. C. 459 548 Parks, ex parte, 93 U. S. 18 981, 995, 9966 State V. 21 La. An. 251 844 V. State, 4 Ohio St. 234 844, 846 Parmenter, Com. v. 101 Mass. 211 108 Com. V. 5 Pick. 279 173 Parmer v. State, 41 Ala. 416 309 Parr, Com. v. 5 Watts & S. 345 407, 456, 464, 465, 773, 793, 801 R. u. 2 F. & F. 861 820 R. u. 2-M. &Rob. 346 312 V. Seams, Barnes, 438 842 Parrant, State v. 16 Minn. 178 815 Parris v. People, 76 111. 274 88 Parrish v. State, 12 Lea, 655 660, 846 V. State, 14 Neb. 60 712 Parroh's case, 6 Sawy. 376 981 Parry, R. w. 7 C. & P. 836 463, 481, 483, 612, 619, 679 Parsons, Com. v. 139 Mass. 381 888 V. Hunter, 2 Sumn. 419 316 V. State, 22 Ala. 50 774 a Partee v. State, 67 Oa. 570 869 Passmore, Res. v. 3 Yeates, 441 958 Patience, R. «. 7 C. & P. 775 11 Patrick, R. v. 1 Leach, 253 110 State V. 3 Jones N. C. 443 672, 844 State V. 71 N. C. 656 209 State V. 16 Neb. 330 346 Patterson's case, 18 Alb. L. J. 190 31 Patterson v. People, 46 Barb. 625 309 R. V. 2 Lew. C. C. 262 573 V. state, 2 Eng. 59 810 V. State, 70 Ind. 341 447, 846 State V. 7 Ired. 70 155 State V. 38 Kans. 204 652 State V. 1 MoCord, 177 583 State V. 68 Me. 473 273 State V. 73 Mo. 695 447 State V. 88 Mo. 88 518 V. State, 49 N. J. L. 326 328 State V. 45 Vt. 308 829 U. S. »: 26 Fed. Rep. 344 955 U. S. V. 29 Fed. Rep. 775 923 Pattison, ex parte, 56 Miss. 161 78 Patton V. Freeman, Coxe, 143 453 State V. 19 Iowa, 458^ 928 783 TABLE OF CASES. Patty, U. S. V. 9 Blss. 429 SECTION 125, 253, 470 Paull V. Com., 89 Penn. St. 432 812 Paulus, Com. v. 11 Gray, 305 188 Paxton'soase, lOLow. Can.R. 212 49 Paylor, State v. 89 N. C. 539 546, 716, 770 Payne v. People, 6 Johns. 103 213 State V. 4 Mo. 376 438 Payson, State v. 37 Me. 362 465 Pay ton. State v. 90 Mo. 220 821 Peace's case, 3 B. & Aid. 579 108, 111 Peace, State v. 1 Jones N. C. 251 810 Peacher v. Stdte, 61 Ala. 22 293 Pearce, State v. 14 Fla. 153 95 „. State, 1 Sneed, 63 154, 221, 230 Pearse, R. v. 9 East, 358 6 Pease, Com. v. 137 Mass. 576 813 People V. 3 Johns. (N. Y.) Gas. 333 533 !J. State, 13 Tex. Ap. 492 813 Peck, ex parte, 3 Blatoh. C. C. 113 954 Peebles v. State, 55 Miss. 454 90 Peek V. State, 2 Humph. 78 260, 802 Peele, R. r. 9 Cox C. C. 220 149 Petferling v. State, 40 Tex. 487 712 Pegalow V. State, 20 Wis. 61 898, 929 Peichart, U. S. v. 32 Fed. Rep. 142 276 Peiffer v. Com., 15 Penn. St. 468 733, 815, 819, 822 Pelham v. Page, 1 Eng. (Ark.) 535 841 People ». 14 Wend. 48 985 R. V. 8 Q. B. 959 132 Pember's case, 1 Whart. 439 996 Pemberton,. Com. v. 118 Mass. 36 712 V. State, 85 Ind. 507 1.''5 State V. 30 Mo. 376 762 Pender v. People, 18 Hun, 560 632 Pendleton v. Com., 4 Leigh, 694 176 Pennell v. Com., 86 Penn. St. 260 793 State V. 56 Iowa, 29 249 Pennington, State ti. 3 Head (Tenn.), 119 235, 367 V. State, 13 Tex. Ap. 44 558 Penns. i>. Bell, Add. 173 93 Penny v. Walker, 64 Me. 430 59 Peoples, in re, 47 Mich. 626 70, 996a Pepper, R. v. Comb. 298 81 Percival. R. v. 1 Sid. 243 661 Perdue v. Com., 96 Penn. St. 311 273, 779 a People V. 49 Cal. 425 602 Perez v. State, 8 Tex. Ap. 610 946 U. S. V. 1 Wheaton, 579 600, 518, 520 Perham, State v. 4 Oregon, 188 231 Peri i;. People, 65 111. 17 931, 932 784 SECTION Perigo, State v. 70 Iowa, 657 602 Perkins, Com. v. 7 Gtrat. 654 180 Com. t,'. 1 Pick. 388 101, 108 People V. 1 Wend. 91 546, 649, 750 R. V. Holt, 403 518 R. V. Ld. Raym. 64 820 ... State, 50 Ala. 154 798, 812 V. State. 66 Ala. 457 452- V. State, 8 Baxt. 559 762 V. State, 4 Ind. 222 378 State V. 82 N. C. 681 247, 924 V. State, 26 N. H. 494 831 Perrigo, Com. v. 3 Meto. (Ky.) 5 161 Perrin, State v. 2 Brev. 474 181 a Perry, in re, 2 Cr. Law Mag. 84 28, 34 in re, 19 Wis. 676 76 in re, 30 Wis. 268 999 V. McLendon, 62 Ga. 548 1011 People V. 8 Abb. (N. Y.) Pr. N. S. 27 75,76 B. V. 1 Den. C- C. 69 ; 1 C. & K. 727 202, 214 V. State, 43 Ala. 21 906 State V. 1 Basbee, 330 660, 815 V. State, 41 Tex. 488 994 Perteet, People v. 70 111. 71 602, 733 Pervear v. Com., 5 Wall. 476 920 Peter, ex parte, 2 Paine, 348 981 State V. Ga. Dec. (pt. i.) 46 814 V. State, 3 How. (Miss.) 433 358, 371 Peters, Com. v. 12 Met. 387 438, 440 ex parte, 4 Dill. 169 910 ex parte, 2 McCrary, 403 910 R. V. 1 Burr. 568 790 V. State, 67 Ga. 29 798 Peterson v. Barry, 4 Binn. 481 881 V. State, 74 Ala. 34 716 U. S. .;. 1 W. & M. 305 241, 285, 383 Petite V. People, 8 Col. 518 561, 902 Petrea, People v. 92 N. Y. 128 85, 344, 360 Petrie v. Woodworth, 3 Caines, 219 119 Petry, People w. 2 Hilt. 523 542 Pettes, Com. v. 126 Mass. 245 297, 760 Pettie, State v. 80 N. C. 367 921 Pettingill v. Rideout, 6 N. H. 454 453 Pettus V. State, 42 Ga. 358 37 Petty, in re, 22 Kan. 477 994, 996 State V. Harp. 59 222 V. State, 4 Lea, 328 595 Pety, R. V. 2 Salk. 503 770 Pew, R. V. Cro. Car. 183 4 Pfeiffer v. Com., 15 Penn. St. 468 493, 516 Pfitzer, ex parte, 28 Ind. 450 29, 34, 36 Phair, State v. 48 Vt. 366 628 TABLE OF CASES. Pharr v. State, 7 Tex. Ap. 472 810 Phelps V. People, 13 N. Y. S. C. (6 Hun) 401 ; 72 N. Y. a34 187, 1,88, 215, 220, 273, 632, 771 People V. 4 Thomp. & C. 467 954, 962 E. 17. 1 C. & M. 180 404 V. State, 15 Tex. 45 590 State V. 11 Vt. 117 284 Phil, State v. 1 Stew. 31 457 Philadelphia, Com. v. 4 Brewst. 320 533 Philbin, State v. 38 La. An. 964 231 Philbrick, State v. 31 Me. 401 151 Philips V. Com., 19 Grat. 485 728, 815, 823 Phillips, Com. v. 16 Mass. 426 583 w. Com.,44Penn. St. 197 90 Com. 0. 16 Pick. 211 90 ex parte, 57 Miss. 357 994 ex parte, 7 Watts, 363 328 V. Fadden, 125 Mass. 198 8 People V. 70 Cal. 61 173 V. People, 55 111. 430 442 V. People, 88 111. 160 507 People V. 42 N. Y. 200 780, , 927, 928 People V. 42 N. Y. 200 918 People V. 1 Parker C. R. 95 80 R. V. 11 Cox C. C. 142 509 R. V. R. & R. 369 317, 323 R'. V. 2 Str. 921 302 V. State, 68 Ala. 469 695 V. State, 58 Miss. 578 528 State V. 78 Mo. 49 713 State V. 66 N. C. 647 773 V. State, 85 Tenn. 551 470, 473 V. State, 6 Tex. Ap. 44 798 a V. Trull, 11 Johns. 486 16 V. Welsh, 13 Nev. 158 968 Phillipsburg, Com. v. 10 Mass. 78 100 Philpot, State w. Dudley (S. C), 46 982 Phinney's case, 32 Me. 440 122 Phipps, ex parte, 8 Ontario App. R. 77; 14 Crim. Law Mag. 865 54 V. State, 3 Cold. 344 709 Pickens v. State, 58 Ala. 364 373 Picket V. State, 22 Ohio St. 405 780, 923 928 Pickett V. State, 60 Ala. 77 ' 161 Pico, People v. 62 Cal. 50 237 Piela V. People, 6 Col. 343 866 Pierce, State v. 19 La. An. 90 318 V. State, 3 N. H. 536 622, 656, 810 V. State, 14 Tex. Ap. 365 278 50 SECTION Pierre, State v. 38 La. An. 91 244 Pierson v. People, 79 N. Y. 424 608, 701 V. State, 12 Ala. 153 810 State V. 59 Iowa, 271 189, 213 V. State, 18 Tex. Ap. 524 561 Pike, State v. 65 Me. Ill 96, 547, 712, 831, 847 State w. 49 N. H. 399 627 Pinckford u. State, 13 Tex. Ap. 468 590 Pine, People v. 2 Barb. 571 805 R. 0. R. & R. 425 283 Pinkerton, People v. 77 N. Y. 245 ; S. C. 17 Hun, 199 35, 37, 993 Pintard, Com. v. 1 Browne, 59 153 Plot, ex parte, 48 L. T. (N. S.) 120 51 Piper V. Com., 14 Grat. 710 924 People V. 50 Mich. 390 746 Pipher v. Lodge, 16 Serg. & R. 214 661 Pirates, U. S. v. 5 Wheat. 184 297, 441 Piscat. Bank w; Turnley, 1 Miles, 312 453 Pistorius v. Com., 84 Penn. St. 158 712 Pitman's case, 1 Curtis, 186 953 Pitman v. Clarke, 1 McMullen, 816 949 V. Com., 2 Robin. 800 232 in re, 1 Curt. U. S. 186 969 Pitner v. State, 44 Tex. 578 477 Pitt V. Davidson, 37 N. Y. 235 974 Pittman v. State, 14 Tex. Ap. 576 87, 213 Pitts, State o. 57 Mo. 85 466 Pizano v. State, 20 Tex. Ap. 139 491, 505, 520 Plant, R. ... 7 C. & P. 575 458 Plating Co. v. Faquharson, 44 L. T. (N. S.) 389 958 Piatt, R. ... 1 Leach C. L. 187 81 Pleasant v. State, 15 Ark. 624 813 V. State, 8 Bug. (13 Ark.) 360 810 Plime, State v. T. Chalt. 142 980 Plumbly V. Com., 2 Met. 413 935 Plumer, U. S. v. 3 Cliflf. 25 1, 28, 771, 779 6 Plummer, People v. 9 Cal. 298 844 Plunkett, State v. 3 Harrison, 5 441 State V. 2 Stew. 11 223, 237 Poage V. State, 3 Ohio St. 239 509, 520, 815, 819 Poe, 11. State, 10 Lea, 673 540 a Pogue V. State, 12 Tex. Ap. 283 813 Point V. ^tate, 37 Ala. 148 119 Pointer v. Hill, L. R.' 12 Q,. B. D. 306 80 785 TABLE OP CASES. SECTION Pointer v. State, 89 Ind. 255 350, 419, 420, 424 Polin V. State, 14 Neb. 540 350, 572, 691, 819 Polinskl V. People, 78 N. Y. 65 ; 11 Hun, 393 158, 440, 910 Polk, State v. 92 N. C. 652 405 Pollard, Com. v. 5 Randolph, 639 636 State V. 53 Me. 124 209 Pollock V. The Laura, 12 Rep. 453 528 Polser V. State, 6 Tex. Ap. 510 853, 855, 866 Poison, State v. 29 Iowa, 133 646 Pomeroy, Com. ,j. 117 Mass. 143 767 Pond V. People, 8 Mich. 150 16 X U. S. V. 2 Curtis C. C. 265 220, 221 388 Pool, People V. 27 Cal. 572 '4 State V. 2 Dev. 202 283 State V. 4 Lea, 363 496 State V. 75 N. C. 603 779 .;. Trumbal, 3 Mod. 56 628 Poole, in re, 2 MacArth. 683 983 Poore V. Com., 2 Va. Cases, 474 844 Pope, ex parte, 40 Mo. 491 994 V. Foster, 4 T. R. 590 135 V. State, 36 Miss. 122 838 V. State, 63 Miss. 53 469 Popplewell, R. v. 2 Str. 686 203 Popnlus, State v. 12 La. An. 710 518, 733, 815, 822 Porter, Com. v. 1 Gray, 476 629 Com. V. 10 Met. (Mass.) 286 805, 810 People V. 4 Park. C. R. 524 383 V. State, 2 Ind. 435 815 V. State, 17 Ind. 415 482 State V. 34 Iowa, 241 666 V. State, 57 Miss. 300 159 State V. 26 Mo. 201 861 U. S. V. 1 Bald. 78 598 U. S. V. 2 Cranoh C. C. 60 286, 320 Portwood V. State, 29 Tex. 47 265 Posey f. State, 73 Ala. 490 602 State V. 7 Rich. 484 291 Post V. State, 10 Tex. Ap. 579 662 State V. 4 Woods, 513 783 a Potsdamer v. State, 17 Fla. 895 363, 779 a, 781, 924 Potter V. Mnller, 1 Bond, 601 960 People V. 1 Parker C. R. 47 533 V. State, 42 Ark. 29 505 State V. 18 Conn. 166 617, 623, 630, 677, 679 State V. 1 Dudley, 295 992 State V. 15 Kan. 303 757 State V. 16 Kan. 80 733 786 SECTION Potter, Terr. u. 1 Ariz. 421 566, 558 U. S. V. 6 McLean C. C. 182, 186 161, 750, 771 Poulson, ex parte, 15 Haz. Pa. Reg. 380 958 Pound V. State, 43 Ga. 88 833 Powell's case, 17 Tex. Ap. 345 491, 506 Powell, Com. v. 8 Bush, 7 256 ex parte, 73 Ala. 517 531 ex parte, 20 Fla. 806 34 R. V. 14 Eng. L. & Eq. 575 ; 2 Den. C. C. 403 191 E. V. 1 Leach, 77 187 State V. 19 Ala. 577 508, 513, 620 State V. 48 Ala. 164 672 V. State, 66 Ga. 707 810 State V. 2 Halst. 244 833 State V. 86 N. C. 640 773 State V. 10 Oreg. 145 847 V. State, 61 Wis. 319 828 Powers, in re, 25 Vt. 261 991 People V. 2 Selden, 60 935 State V. 25 Conn. 48 142, 238 V. State, 87 Ind. 97 164, 167, 183 394 V. State, 87 Ind. 144 802^ 810 Powner, R. v. 12 Cox C. C. 236 220, 221 Praed, R. v. 4 Burr. 2257 457 Pratt V. Bogardus, 49 Barbour, 89 6 Com. V. 132 Mass. 246 266 Com. V. 137 Mass. 98 290, 295, 394 470 People u. 22 Hun, 220 ' 1 V. State, 66 Ind. 179 841 State V. 10 La. An. 191 220 State V. 54 Vt. 484 220, 271, 364 Pray, Com. v. 13 Pick. 359 125, 155 Prell V. McDonald, 7 Kan. 457 385 Presbury v. Com., 9 Dana, 203 669, 844, 845 Presby, Com. v. 14 Gray, 65 9 Prescott, State v. 7 N. H. 287 790, 814, 815, 823 Preston v. People, 45 Mich. 486 440 R. V. 2 Str. 1040 772 V. State, 25 Miss. 383 435 State V. 77 Mo. 294 813 Prewitt, Com. v. 82 Ky. 240 465 Price V. Com., 21 Grat. 846 369 ,;. Com., 33 Grat. 819 560, 761, 913 V. Hutchinson, L. R. (9 Eq.) 634 949 !). People, 9 111. Ap. 36 471, 742 V. Seeley, 10 CI. & F. 28 16 V. State, 67 Ga. 723 784 TABLE OP CASES. SECTION Price, State v. 8 Gill, 295 602 State V. 12 Gill & J. 260 240 State V. 6 Halst. 203 92, 162, 251 State V. 37 La. An. 215 350, 847, 859 V. State, 36 Miss. 533 504, 550 V. State, 19 Ohio, 423 101, 456, 471 State V. 10 Rich. Law, 351 678 Prickett v. Gratrex, 8 Q,. B. 1021 80 Priebnow, State ». 16 Neb. 131 457, t 507 Pries, R. v. 6 Cox C. C. 165 185 Priest V. State, 10 Neb. 393 350 Prigg V. Com., 16 Pet. 608 37 Primm, State v. 60 Mo. 166 447 Prince, R. v. L. R. 1 C. C. R. 154 164 V. Shepherd, 9 Pick. 176 801 State V. 63 N. C. 528 495 State V. 41 Tex. 300 467 V. Towns, 33 Fed. Rep. 161 50 Prindeville v. People, 42 111. 217 249, 464 Prine v. Com., 18 Penn. St. 104 540, 549, 875 Pringle v. Huse, 1 Cow. 432 608, 631 Prior, V. State, 77 Ala. 57 750 U. S. V. 5 Cranch C. C. 37 291 Pritchard, R. y. 7 C. & P. 303 417 State V. 15 Nev. 74 617, 665 State V. 16 Net. 101 664, 672, 722 Pritchett, State v. 3 Sneed, 285 507 Profit V. State, 5 Tex. Ap. 51 797 Profit, Com. V. 4 Binn. 424 774 Puckering, R. v. 1 Mood. C. C. 242 209 Puddiok, R. ». 4 F. & F. 497 576 Puddifoot, R. V. 1 Mood. C. C. 247 237 Pugh, State v. 15 Mo. 509 221 Pulbrook, R. u. 9 C. & P. 37 194, 196 Pulham, R. v. 9 C. & P. 293 302 Pullen V. State, 11 Tex. Ap. 89 589 Pullens, State v. 81 Mo. 387 119, 169 Purchase, Com. v. 2 Pick. 521 490, 501, 505, 507, 520 R. u. 1 C. & M. 617 404, 426 Pnrdie, State v. 67 N. C. 326 261 Purdy V. State, 68 Ga. 295 440 Putnam, State v. 38 Me. 296 386, 387, 759 State V. 18 S. C. 175 304 Putney v. Celestine, 4 Am. L. J. 164 441 Pybos V. State, 3 Humph. 49 341 Pye's case, 1 East P. C. 783 158 SECTION Quarrel, State v. 2 Bay, 150 846 Queen's case, 2 Brod. & B. 292 566 Quesenbury, State u. 3 Stew. & Port. 308 639, 640 Quick, People o. 56 Mich. 321 358, 556 Quimby v. Blackey, 63 N. H. 77 453 State V. 51 Me. 395 346, 350, 692 Quin, Com. v. 5 Gray, 478 143 Quinlan, People v. 6 Park. C. R. 9 189 Quinn v. Heisel, 40 Mich. 576 8, 9 V. State, 49 Ala. 353 285 V. State, 14 Ind. 589 819 B. State, 35 Ind. 485 154 Quintzow V. State, 1 Tex. Ap. 47 470 Quong Woo, in re, 7 Sawy. 626 981 Quvise, People v. 56 Cal. 396 255 R. Raake, R. v. 2 Mood. C. C. 66 192 Rabon, R. v. 1 Chit. R. 698 165 State V. 4 Rich. 260 258 Raborg, State v. 2 South. 545 990 Rader v. State, 5 Lea, 610 844, 847 Radley, R. v. 3 Cox C. C. 460 ; 1 Den. C. C. 450 ; 2 C. & K. 977 158, 191 R. V. R. & R. 489 10^ Radloff, Att.-Gen. v. 10 Ex. 84 230 Rafe V. State, 20 Ga. 60 661 Rafiferty v. People, 69 111. Ill ; S. C. 72 111. 37 5, 6, 813 Raganthall, Com. v. 14 Bush, 457 669 Ragsdale, State v. 10 Lea, 671 956, 785, 918 Raiford, State v. 7 Port. 101 124, 163, 223, 274 Railroad, Com. v. 1 Grant, 331 523 Rainer, R. v. 1 Sid. 214 923 Rainey v. People, 3 Gilman, 71 371 V. State, 53 Ind. 278 871 V. State, 19 Tex. Ap. 479 841 Raisler v. State, 56 Ala. 64 161 Rake v. Pope, 7 Ala. 161 483 Ranch v. Com., 78 Penn. St. 490 935 Rand v. Com., 9 Grat. 738 935, 936 Com. V. 1 Met. 475 189 R. V. L. R. 1 Q. B. 230 605 State V. 33 N. H. 216 350, 836 Randall v. Bridge, 2 Mass. 549 988 Com. u. 4 Gray, 36 158 Com. V. Thatcher's C. C. 500 876, 879 R. V. R. & R. 195 187 State V. 88 N. C. 611 898 Randle, State v. 41 Tex. 292 285 787 TABLE OP CASES. SECTION Randolph v. Com., 6 S. & E. 398 159 V. Woodstock, 35 Vt. 291 568 Rank ». Shewey, 4 Watts, 218 660 Rankin, State v. 4 Cold. 145 439, 473, 496 Ransom,; People J). 7 Wend. 423 815, 866 Rasberry v. State, 1 Tex. Ap. 664 371 Rash V. State, 61 Ala. 89 779 a Rasnick v. Com., 2. Va. Cas. 356 162, 243, 251 Rastall V. Stratton, 1 H. Bl. 49 135 Rataree v. State, 62 Ga. 245 762 Rathbuu, People v. 21 Wend. 509 518, 631, 688, 793, 798 Rather v. State, 1 Port. 132 306 a Ratliflf V. State, 12 Tex. Ap. 330 585 Rattray v. State, 61 Miss. 377 167 Ratts, State v. 63 N. C. 503 281 Ratzky v. People, 29 N. Y. 124 435, 780 Ranscher, U. S. v. 119 U. S. 407 38, 49 Ravara, U. S. v. 3 Ball. 299, re. 59 Rawlins v. State, 2 Md. 201 918 Rawls V. State, 8 Sm. & M. 599 350, 406 Rawson v. State, 19 Conn. 292 274 Ray, Com. o. 1 Va. Cas. 262 940 ex parte, 45 Ala. 15 995 V. People 6 Col. 231 409 0. State, 15 Ga. 223 646, 648, 844, 847 State V. Rice, 1 456, 457, 471 I V. State, 4 Tex. Ap. 450 658 Raye, ex parte, 63 Cal. 491 966 Raymond, People v. 93 N. Y. 38 936 State V. 20 Iowa, 682 273, 762 Read v. Bertrand, 4 Wash. C. C. 556 37 V. Com. 22 Grat. 924 772, 827, 832, 847, 854, 859, 902 i;. People, 86 N. Y. 381 251 Beading, R. o. 2 Leach, 590 ; 2 East P. C. 952 184 Reagle, People v. 60 Barb. 529 502, 722, 824 Reaky, State v. 1 Mo. Ap. 3 279 Reardon v. State, 44 Ark. 331 540 Reavey, People v. 38 Hun, 418 189 a Reavy, People «. 45 Hun, 418 293, 831 Reckards, State v. 21 Minn. 47 541 Record, State v. 66 Ind. 107 154 Recorder, People v. 6 Hill, 429 1 Rector v. Com., 80 Ky. 468 935 V. State, 1 Eng. (Ark.), 187 438 D. S. V. 5 McLean, 174 981 788 SECTION Reddick v. State, 4 Tex. Ap. 82 89 Redemier, State v. 71 Mo. 173 866 Redinger, People «. 55 Cal. 280 774 o Redman, State v. 40 Ark. 445 869 V. State, 28 Ind. 205 955 State V. 17 Iowa, 329 457, 505, 722, 753 Redmond v. State, 12 Kans. 172 73 State V. 37 La. An. 77 693 Reed's case, 2 Rodger's Rec. 168 208 Reed, Com. v. 3 Am. L. J. 140 260 Com. V. 59 Penn. St. 425 990 People V. 47 Barb. 235 129 R. V. 1 Eng. L. & E. 595 435 R. V. 2 Mood. C. C. 62 200 V. Rice, 2 J. J. Mar. 44 25 V. State, 16 Ark. 499 111, 112, 113, 156 State V. 26 Conn. 202- 451, 486 State V. 49 Iowa, 85 602, 605, 798 a State V. 12 Md. 263 456, 466, 471 State V. 35 Me. 489 124, 274 State V. 67 Me. 127 354 V. State, 1 Tex. Ap. 1 344 State V. 40 Vt. 603 247, 465 U. S. V. 2 Blatch. 436, 456 340, 363, 378, 379 U. S. V. 100 U. S. 13 994,996 5, 997 Reel, State v. 80 N. C. 442 289, 292, 296 Reese «. U. S. 9 Wall. 13 70 Reeves v. State, 20 Ala. 33 91, 92, 93 V. State, 84 Ind. 116 370 Regan, State v. 62 Iowa, 108 742 Reggel, ex parte, 114 U. S. 642 30, 34, 36, 55 ex parte, 114 U. S. 642 30, 31, 35 Rego, People v. 43 Huff; 129 709 Reich V. State, 53 Ga. 73 350 Reichart, U. S. v. 32 Fed. Rep. 142 274 Reid, R. v. 2 Den. C. C. 88 ; 1 Eng. L. & E. 599 260, 435 R. V. 15 Jur. 181 466 V. State, 50 Ga. 556 661 State V. 20 Iowa, 413 131 U. S. V. 12 How. 361 847 Reiley, State v. 2 Brev. 126 785 Reilly, R. v. 1 Leach, 464 527 U. S. V. 20 Fed. Rep. 46 89 Reins v. People, 30 HI. 266 823 Reiter, U. S. v. 4 Am. L. Reg. N. S. 534 439 Remley v. De Wall, 41 Ga. 466 950 Renfrew, People v. 41 Cal. 37 673 Reno, ex parte, 66 Mo. 266 531 TABLE OF CASES. SECTION Renshaw, ex parte, 6 Mo. Ap. 474 954 Reside v. State, 10 Tex. Ap. 675 189 a Kestell, People v. 3 Hill (N. Y.), 289 801 Renok v. McGregor, 3 Vroom (N. J.) , 70 13 Revels, State v. 1 Bush. 200 471 State V. 35 La. An. 302 651 Reyes, People v. 5 Cal. 347 622, 668 Reynolds, Com. u. 120 Mass. 190 18 ex parte, 3 Hughes, 559 981 995 People V. 16 Cal. 128 ' 668 V. People, 83 111. 479 458, 466 V. State, 68 Ala. 502 906 V. State, 64 Ind. 498 895 State V. 1 Kelly, 222 613, 646 V. State, 3 Kelly, 53 447 V. State, 11 Tex. 120 247, 354, 465 t>. U. S., 98U. S.145; 1 Utah, 319 226, 341, 625, 661 0,670, 688,711,798 a Rhea v. State, 25 Kan. 576 842 V. State, 10 Yerg. 258 592 Rhinehart u. Lance, 43 N. J. L. (14 Vroom) 311 963 Rhode Island v. Mass., 11 Pet. 226 597 Rhodes, Com. v. 1 Dana, 595 87 ex parte, 2 Whart. Cr. Cas. 559 37 in re, 65 N. C. 518 530, 972 R. V. 2 Stra. 703 453 U. S. V. 1 Ahb. U. S. 28 224 Ricard, ex parte, 11 Neb. 287 1005 Rice V. Com., 12 Met. (Mass.) 246 918 V. Com., 100 Penn. St. 28 710 V. People, 15 Mich. 9 159 V. State, 3 Heisk. 215 279, 771 V. State, 7 Ind. 332 643, 844 V. State, 16 Ind. 298 661 V. State, 3 Kans. 141 440 Rich V. State, 1 Tex. Ap. 206 860 Richards, Com. u. 1 Mass. 337 183, 188, 189 V. Com., 81 Va. 110 386, 396, 771, 909 a People V. 1 Maine. 216 464 R. !'. 1 M. & R. 177 145 R. V. 5 Q. B. 926 27 R. V. R. & R. 193 193 State V. 23 La. An. 1294 161 V. State, 22 Neb. 145 446 Richardson v. Com., 126 Mass. 34 241 V. Fisher, 1 Bing. 145 879 SECTIOS Richardson v. Luntz, 26 La. An. 313 599 a People V. 4 Park. C. R. 656 991 U. S. V. 28 Fed. Rep. 61 344, 345, 346, 425 Richie v. State, 58 Ind. 355 865 w..State, 59 Ind. 121 577 Richmond v. Dayton, 10 Johns. R. 393 963 R. «. 1 C. & K. 240 507 Riokard v. State, 74 Ind. 275 827 Ricketson, Com. v. 5 Met. (Mass.) 412 830 Rickey, State v. 4 Halst. 293 386, 388 State V. 5 Halst. 83 346, 347, 350 Rickles v. State, 68 Ala. 538 477 Ricks V. State, 16 Ga. 600 810 State V. 32 La. An. 1098 651 Ricord v. R. R., 15 Nev. 167 474 Riculfl, State v. 35 La. An. 770 712 Riddle, State v. 20 Kans. 711 560 Ridenhour v. State, 75 Ga. 382 810 Ridenour v. State, 38 Ohio St. 272 738, 740, 771, 779 Rider, R. ?;. 8 C. & P. 539 579 Ridgeway's case, 2 Ashm. 247 338, 991, 1007 Rldgway v. State, 41 Tex. 231 189 Ridley, R. v. R. & R. 515 145 V. Sherbrook, 3 Coldw. 569 537 Ridling v. State, 56 Ga. 601 341 RifFe, State v. 10 W. Va. 794 220, 396 Riggs, Com. V. 14 Gray, 376 277, 278 V. State, 104 Ind. 261 189 a Righetti, People v. 66 Cal. 184 213 Rigsby, U. S. v. 2 Cranch C. C. 364 21 8 Riley's case, 2 Pick. 172 995 Riley v.- State, 95 Ind. 446 827 V. State, 43 Miss. 397 240, 241 V. State, 20 Tex. Ap. 100 712 U. S. V. 5 Blatch. C. C. 204 500, 517, 578, 808, 810 Ring, in re, 28 Cal. 247 1005 State V. 29 Minn. 78 669 Risher, State v. 1 Rich. 219 456, 460, 471 Risley, People v. 1 N. Y. Cr. Rep. 492 557 State V. 72 Mo. 609 435 Ritchey v. State, 7 Blackf. 168 215 Ritson, R. V. 50 L. T. (N. S.) 727 565 Rivers, State v. 58 Iowa, 102 278 V. State, 10 Tex. Ap. 177 158, 237, 522, 533 Rives, State v. Sup. Ct. U. S. 1880 783 a 789 TABLE OP CASES. SECTION Rives, U. S. V. 100 U. S. 313 783 a Koach V. People, 77 III. 25 712, 798 1^. State, 5 Cold. (Tenn.) 39 310 V. State, 34 Ga. 78 859, 871 State V. 2 Hayw. 352 123, 385 Eoane, State v. 2 Dev. 58 13 Eobb V. Connolly, 111 U. S. 624 35, 37 a, 980 in re, 64 Cal. 431 35 in re, 19 Fed. Rep. 25; 5 Grim. Law Mag. 366 37 a in re, 1 Pac. Rep. 881 ; 19 Fed. Rep. 25 37 a V. McDonald, 29 Iowa, 330 963 Robbins's case, Whart. St. Tr. 392 44 47 Robbins v. People, 95 111. 175 440 R. V. 1 C. & K. 456 164 V. State, 20 Ala. 36 945 V. State, 8 Ohio St. 131 771, 810 State V. 1 Strobh. 355 283 Roberts, Com. u. 1 Yeates, 6 245 ex parte, 24 Fed. Rep. 132 30 ex parte, 9 Nev. 42 932, 994 People V. 6 Cal. 214 369 V. People, 9 Col. 458 139, 597 R. V. C. & M. 682 194 R. V. 2 Strange, 1208 874 V. Reilly, 116 U. S. 80 29, 30 31 33 Resp. V. 2 Ball. 124 ' 466 ^. State, 19 Ala. 526 120 State V. 2 Dev. & B. 540 359 V. State, 14 Ga. 8 465, 466, 471, 472, 815 V. State, 111 111. 340 714 V. State, 3 Kelly, 310 862 State 1-. 26 Me. 263 146 V. State, 55 Miss. 414 236, 466-742 V. State, 14 Mo. 138 9, 80, 533 State t'. 15 Mo. 28 309 Robertson v. State, 42 Ala. 509 752 ... State, 43 Ala. 325 696 Robins, R. v. 1 Cox C. C. 114 326 Robinson, Com. v. 1 Gray, 555 310, * 311 Com. V. 126 Mass. 269 472, 474 Com. ». 1 S. & R. 353 986 V. Com., 32 Grat. 866 460, 507 V. Culph, 1 Const. 231 453 ex parte, 1 Bond, 39 981 ex parte, 3 McArthur, 418 247 790 SECTION Robinson, ex parte, 6 McLean, 355 441, 981, 1010 ex parte, 19 Wall. 505 513, 953, 962 V. Flanders, 29 Ind. 10 34 a, 35, 993 V. Gleadow, 2 Scott, 250 795 in re, 23 L. J. Q. B. 286 76 ». McElliane, 2 How. (N. y. Prac.) 454 955 People V. 2 Park. C. R. 285 797 R. V. 2 Burr. 799 233 R. V. 1 Holt N. P. 595 112, 113, 156 R. V. 1 Moody, 413 909 V. Richardson, 13 Gray, 454 26 V. Spearman, 3 B. & C. 493 794 V. State, 32 Ala. 587 457 State V. 33 Ark. 180 805, 810, 859 V. State, 38 Ark. 548 121 State V. 9 Fost. 274 137, 317, 385 V. State, 66 Ga. 707 810 V. State, 57 Ind. 113 324 V. State, 1 Lea, 673 309 State V. 2 Lea, 114 428 State V. 2 Lea, 114 339, 425 V. State, 21 Tex. Ap. 160 465 State V. 20 W. Va. 713 829 Robles, People v. 34 Cal. 591 217 Robson, R. v.iF.k F. 360 820 Roby, Com. v. 12 Pick. 496 249, 464, 476, 523, 750, 751, 814, 823, 831 894 state V. 8 Nev. 312 247^ 465 Rocoo V. State, 37 Miss. 357 90, 378, 480 Roche, R. V. 1 Leach, 134, 160 420, 437, 478 Rock, Com. V. 10 Gray, 4 810 Rockafellow, State v. 1 Halst. (1 N. J. L.) 332 75, 347, 350, 1007 Rockett, State v. 87 Mo. 666 866 Roderigas, People v. 49 Cal. 9 239 Rodes V. State, 10 Lea, 414 358 Roe, People v. 5 Park. C. R. 231 317, 420 V. Rodrigo, 69 Cal. 601 388 State «. 16 Vroom, 49 709 State V. 12 Vt. 93 383, 447, 448 Roebuck v. State, 67 Ga. 154 328 TABLE OF OASES. SECTION Roelker, ex parte, 1 Sprague, 276 954 Rogers, Com. v. 7 Met. 500 617, 677 V. Com., 6 S. & R. 463 159 ex parte, 10 Tex. Ap. 655 507 V. Jones, 1 Wend. 261 440 V. Lamb, 3 Blackf. 155 661 V. People, 34 Mich. 345 249, 261 R. V. 3 Burr. 1812 540 a R. t. 8 C. & P. 629 187 R. y. 9 C. & P. 41 185, 196 State V. 94 N. C. 860 853 U. S. V. 6 Crim. Law Mag. 549 37 6 Rogers Man. Co. v. Rogers, 38 Conn. 121 350 Eohfrisoht, State v. 12 La. An. 382 369 Roland, Com. v. 97 Mass. 598 278 RoUaud V. Com., 82 Peun. St. 306 346, 350 Rollins V. Ames, 2 N. H. 349, 350 627 ex parte, 80 Va. 314 994 State V. 8 N. H. 550 522 Rolls V. State, 52 Miss. 391 465, 540, 546, 550 Romaine, in re, 23 Cal. 585 29, 34 V. State, 7 Ind. 63 844 . Terr. v. 2 New Mex. 114 839 Roman v. State, 4 Wis. 312 712, 841 Romp V. State, 3 Greene (Iowa), 276 238 Rondeau, U. S. v. 16 Fed, Rep. 109 ; 4 Woods, 185 344, 350 Ronzone, U. S. v. 14 Blatch. 69 87, 337 Rooker v. State, 65 Ind. 86 167 Rookwood, R. v. Holt, 684 396 Roozevelt v. Gardiner, 2 Cow. 463 101 Roper, R. v. 1 Cr. & D. 185 447 . State V. 88 N. C. 656 260 Rorabaoher, State v. 19 Iowa, 155 601 Rose V. Leggett, 61 Mich. 445 8 V. State, 8 Cow. 17 841 State V. 32 La. An. 854 747 State V. 32 Mo. 560 641 V. State, 20 Ohio, 31 540, 541, 874 Rosenblatt, ex parte, 51 Cal. 285 28, \ 29 Rosencrants v. State, 6 Ind. 407 882 Rosenweig v. People, 63 Barb. 634 . 801 Ross, ex parte, 2 Bond. 252 29, 50 V. Leggatt, 61 Mich. 445 8 V. State, 55 Ala. 177 323 State V. 1 Blackf. 390 345 V. State, 64 Ga. 27 • 890 State V. 14 La. An. 364 773 State V. 4 Lea, 442 456, 471 V. State, 9 Mo. 687 405, 421 SECTrOW Ross, State v. 29 Mo. 32 465, 798 Rosser, R. u. 7 C. & P. 648 833 Roth, in re, 15 Fed. Rep. 506 51 V. House of Refuge, 31 Md. 329 1010 State V. 17 Iowa, 336 73 Rothschild, State v. 68 Mo. 52 798 ex parte, 2 Tex. Ap. 560 1010 B. State, 4 Tex. Ap. 419 652 V. State, 7 Tex. Ap. 519 366, 548 Roulstone, State v. 3 Sneed, 107 302 Rounds V. State, 76 Me. 127 737 c.. State, 57 Wis. 555 Roundtree v. State, 58 Ala. 381 266 V. State, 32 La. An. 1144 663 Roussel's case, 28 Grat. 930 588 Rout, State v. 3 Hawks, 618 183, 188 Rowan v. State, 30 Wis. 129 85, 88, 90, 823 State V. 35 Wis. 303 602 Rowand v. Com., 82 Peun. St. 405 338, 373 Rowe, People v. 4 Park. C. R. 252 27, 388 V. State, 1 Humph. 491 831, 836 State V. 8 Richs. 17 6 V. Yuba, 17 Cal. 61 559 Rowland v. State, 55 Ala. 210 771 Rowlands, R. v. 2 Den. C. C. 367 ; 17 Q. B. 671 383 R. u. 2 Den. C. C. 386 890 Rowley, State v. 12 Conn. 101 87, 453 Roy V. State, 2 Kans. 405 652 State V. 83 Mo. 268 358 Royal, State v. 90 N. C. 755 847 Royall, ex parte, 117 U. S. 241, 254 981 U. S. V. 3 Cranch C. C. 618 154, 155, 919 Royster, ex parte, 6 Ark. 28 982 Ruby, State v. 61 Iowa, 86 354, 817 Rucker, State v. 93 Mo. 88 220 V. State, 7 Tex. Ap. 549 301, 309 Rudland, R. «. 4 F. & F. 495 576 RufiFner, Com. v. 28 Penn. St. 259 317 Ruggles V. Hall, 14 Johns. 112 881 Ruhl, in re, 5 Sawy. 186 533 State V. 8 Clarke (Iowa), 447 566 Rule V. State, 19 Ind. 298 508 RulofF V. People, 18 N. Y. 179 707, 733, 815, 834 V. People, 45 N. Y. 213 13, 14 Rumford Works, Com. v. 16 Gray, 231 232 791 TABLE OF CASES. SECTION Rundlett, U. S, v. 2 Curtis C. C. 41 963 Runnels v. State, 28 Ark. 121 856, 900 Ruse, U. S. V. 3 Wash. C. C. 224 1007 Rush V. Cavanaugh, 2 Barr, 187 356, 555 State V. 95 Mo. 199 847 State V. 13 R. I. 198 238 Rushworth, R. fl. R. & R. 317 163 a Russel V. Com., 7 S. & R. 489 281 Russell V. Ball, Barnes, 455 846 Com. V. 32 Grat. 912 813 R. ... 1 C. & M. 247 359 R. t). 3 E. & B. 942 787 V. State, 71 Ala. 348 238 V. State, 68 Ga. 785 750, 813 State V. 1 Houst. 122 8 V. State, 50 Ind. 174 238 V. State, 53 Miss. 368 841 V. State, 11 Tex. Ap. 288 824 U. S. o. 22 Fed. Rep. 390 750 Russen v. Lucas, 1 Car. & P. 163 3 Rust, People v. 1 Cainea, 133 152 State V. 8 Blackf. 195 137, 318 V. State, 31 Kans. 509 447 State V. 35 N. H. 438 220, 298 Ruth, Com. V. 104 Penn. St. 294 '?75 State V. 14 Mo. Ap. 226 144 Rutherford v. Com., 78 Ky. 639 546 Com. V. 5 Rand. 646 81 V. Holmes, 5 Hun, 317 ; 66 N. Y. 368 954, 963 State V. 13 Tex. 24 394 V. State, 13 Tex. Ap. 92 111 Ruthven, ex parte, 17 Mo. 541 995 State w. 58 Iowa, 121 350 Rutledge, State v. 8 Humph. 32 232, 405 Rutter's case, 7 Abb. Pr. (N. S.) 67 36, 993 Riitzen v. Farr, 5 Nev. & M. 617 801 Ryalls V. R., 11 Q. B. 781 ; 18 L. J. M. C. 69 122, 158 a Ryan, Com. v. 5 Mass. 90 348 V. Donelly, 71 111. 100 15 V. Harrow, 27 Iowa, 494 841 in re, 45 Mich. 173 918 R. u. 7 C. & P. 854 ; 2 Mood. C. C. 15 220 State V. 13 Minn. 370 819 State V. 15 Oregon, 512 250 Rynders, People v. 12 Wend. 425 286 S. Saal, Com. v. 10 Phila. 496 733 Safford v. People, 1 Park. C. R. 474 906 Sage, State v. 89 Ind. 141 429 a 792 SECTION Sahllnger v. People, 102 111. 241 541, 549, 771, 866 Saine v. State, 14 Tex. Ap. 144 94 Sale V. State, 68 Ala. 530 605 Sales, State v. 2 Nev. 268 966 Salge, State v. 2 Nev. 321 354, 414, 477 Saliba, State w. 18 La. An. 35 810 Salisbury v. Com., 79 Ky. 425 601 V. State, 6 Conn. 101 183 Sallie V. State, 39 Ala. 691 183, 189 Salvi, R. V. 10 Cox C. C. 481 n. 465, 476 Sam, ex parte, 51 Ala. 34 995 State V. 2 Dev. 569 305 „. State, 13 Sm. & M. 189 640 u. State, 1 Swan, 61 833 Sammis, People v. 3 Hun, 560 602 Sampson, Com. v. 97 Mass. 407 301 V. Com., 6 W. & S. 385 298, 299 777 Samsels, People v. 66 Cal. 99 ' 672 Sanders v. State, 85 Ind. 318 414, 779 6 V. State, 12 Iowa, 230, 278 749 State V. 68 Mo. 202 707, 828 V. State, 26 Tex. 119 120 Sandos, State v. 37 La. An. 376 285 Sands v. Robinson, 20 Miss. (12 S. & M.) 704 378 Sanford v. Bennet, 24 N. Y. 20 320 Com. .;. 5 Litt. 289 773 People V. 43 Cal. 29 672, 712 State V. 1 Nott & McC. 612 655, 566 San Francisco v. Randall, 64 Cal. 408 108 Santo V. State, 2 Iowa, 165 22, 26 Santos, 0. S. v. 5 Blatch. C. C. 104 541, 546, 549 Sarah v. State, 16 Ark. 114 945 V. State, 28 Ga. 576 733, 906 V. State, 28 Miss. 267 293 Sargent, Com. v. Thaoh. Cr. C. 116 369 V. Roberts, 1 Pick. 337 830 c: State, 96 Ind. 63 774 a V. State, 11 Ohio, 473 749, 750, 751, 824 V. , 6 Cow. 106 881 Sarmon, R. v. 1 Burr. 516 385 Sartain v. State, 10 Tex. Ap. 661 934 Sasse V. State, 68 Wis. 530 707, 853 Sater, State v. 8 Iowa, 420 647 Satterlee, People u. 6 Hun, 167 289, 293 Satterwhite v. State, 6 Tex. Ap. 609 813 Sattler v. State, 69 111. 68 371 TABLE or OASES. SECTION Saunders, People s. 4 Park. C. R. 197 465 V. State, 85 Iiid. 318 414, 779 6 State V. 53 Me. 234 700 V. State, 10 Tex. Ap. .336 413 Sauvinet, State v. 24 La. An. 119 975, 999 Savage, R. v. 1 Mood. C. C. 51 609, 684 V. State, is Fla. 909 94, 420, 612, 614, 617 State V. 69 Me. 112 781 Savina v. State, 63 Ga. 513 13, 29 Sawdon's ease, 2 Lewin. C. C. 117 661 Sawtelle, Com. v. 11 Gush. 142 176, 183, 189, 207, 217, 218 Sawyer v. Hannibal R. R., 37 Mo. 240 847 in re, 124 U. S. 201 770 V. Joiner, 16 Vt. 497 549 V. Merrill, 10 Pick. 16 860 Sayres, Com. v. 8 Leigh, 722 341, 368, 423 V. Com., 88 Penn. St. 291 770 Scagg V. State, 8 S. & M. 722 540 Soaife, R. v. 2 Den. C. C. 281 ; 17 Q. B. 238 ; 9 D. P. C. 553 75, 513, 785, 790 Soalbert, R. v. 2 Leacb, 620 508 Scannel, Com. u. llCush.547 261,271 State V. 39 Me. 68 756 Scarborough v. State, 46 Ga. 26 577 ScUaefFer, Resp. v. 1 Dall. 236 360, 362 Schaeffler v. State, 3 Wis. 823 648, 670 Scheie, State v. 52 Iowa, 608 247 Sohenck, People v. 2 Johns. 479 29 Schlagel, State v. 19 Iowa, 169 712 Schlemm, State v. 4 Harring. 577 35 Schleter, R. v. 10 Cox C. C. 409 417 Schlinger v. People, 102 111. 241 543 Sohloss, State v. 63 Mo. 361 247, 284 Schmidt, People v. 63 Cal. 28 236 People V. 64 Cal. 260 457 V. State, 78 Ind. 41 236 Schnelle, State v. 24 W. Va. 767 90, 561, 636, 836, 884 Sohoch, State v. 56 Mo. 552 847 Schoeffler v. State, 3 Wis. 823 614 Schoeneth, People v. 44 Mich. 489 436 Soholfield, U. S. u. 1 Cranch, 130 969 Schricker, State v. 29 Mo. 265 90 Schuler v. State, 105 Ind. 290 555, 602, 707 U. S. v: 6 McLean, 28 164 SECTIOir Schultz V. State, 15 Tex. Ap. 258 278 Schumaker v. State, 5 Wis. 324 670 Schumann, U. S. v. 2 Abb. (U. S.) 523 ; 7 Sawy. 439 366, 383 Schuylkill v. Reifsnyder, 46 Penn. St. 446 528 Schwartz, ex parte, 9 Tex. Ap. 381 9966 , People K. 32CaL160 110 Schweiter, State v. 27 Kans. 499 285 Scofield, State v. 54 Ga. 635 878 Scoggins V. State, 32 Ark. 205 321 Scott, Com.!). 5 Grat. 697 752 Com. V. 10 Grat. 750 773 V. Com., 14 Grat. 687 394 Com. V. 121 Mass. 33 383 Com. V. 123 Mass. 122 555, 579 V. Com., 6 S. & R. 224 158 in re, 9 B. & C. 446 27 People V. 59 Cal. 341 414 V. People, 63 111. 508 358, 696 People V. 60 Miss. 268 249 R. V. 4 B. & S. 368 254, 469 R. V. 3 Burr. 1262 306, 698 R. V. Dears. & B. C. C. 47 122 V. Soans, 3 East, 111 99, 423 State V. 25 Ark. 107 358 V. State, 64 Ind. 600 711, 737, 798 a State V. 78 N. C. 485 601 State V. 30 N. H. 274 991 State u. 15 S. C. 434 290, 911 V. State, 10 Tex. Ap. 112 712 State V. 24 Vt. 129 260, 261, 464 U. S. I.. 4 Biss. 29 289 V. U. S. 8 Ct. of Claims, 457 533 o. U. S., 1 Morris, 142 465, 471 ScrafiFord, in re, 21 Kans. 735 328, 449 Soragg V. State, 8 S. & M. 722 540 Scribner, State o. 2 Gill & Johns. 246 208 Scruggs, State v. 7 Baxt. 38 255 Soudder v. State, 62 Ind. 13 260 Scully, R. V. 1 Al. & Nap. 262 548 Scurry, State v. 3 Rich. 68 119 Seaborn, State v. 4 Dev. 305 350 Seaoord v. People, 121 111. 623 220 Seal V. State, 13 Sm. & M. 286 670 Sealy v. State, 1 Kelly, 213 613 Seamens, State v. 1 Iowa, 418 124 Seamons, State v. 1 Greene (Iowa), 418 ' 220, 274 Searcy v. State, 4 Tex. 450 141, 150 Searight v. Com., 13 S. & R. 301 314 Searle, Com. v. 2 Binney, 332 167, 280 281 Searls v. Viets, 2 Th. & C. 224 ' 3 Seaton, State v. 61 Iowa, 563 974, 999 793 TABLE OF CASES. SECTION Seawood, R. v. 2 Ld. Ray. 1472 87 Seely, State v. 30 Ark. 162 117 Sego, Com. u. 125 Mass. 210 120 Selfridge's case, Pamph. 658 Sellers v. People, 3 Scam. 412 844 Semler, in re, 41 Wis. 517 995 Semmes, Com. v. 11 Leigh, 665 81 Senott, People v. 20 Alb. L. J. 230 . 31, 37 Sepulveda, People v. 59 Cal. 342 755, 756 Sergeant, R. u. 1 R. & M. 352 306 a Serpentine v. State, 1 How. (Miss.) 260 134, 256 Severin v. People, 37 111. 414 440, 465 Sexton, State v. 3 Hawks, 184 385 Seymour, Com. v, 2 Brewst. 567 90, 383, 447 Shsickelford, U. S. v. 3 Cranch C. C. 178 661 Shackleford, U. S. v. 18 How. (U. S.) 588 614 Shafer v. People, 1 Utah, 260 518 Shafifer's case, Sup. Ct. Utah, 1885 963 Shaffer v. State, 27 Ihd. 131 505 State V. 59 Iowa, 290 244 Shakespear, R. v. 10 T. R. 83 119 Shank, in re, 15 Abb. Pr. 38 999 Shanks, Com. v. 10 B. Mon. 304 918 a Shanley v. Wells, 71 111. 78 8, 80 Shannahar, Com. v. 145 Mass. 99 238 Shappoonmash v. Terr., 1 Wash. Terr. 219 875 Shark v. State, 72 Mo. 37 555 Sharp V. State, 17 Ga. 290 220 V. State, 6 Tex. Ap. 650 693 U. S. V. Peters C. C. 118, 131 243, 874 Sharpless, Com. u. 2 S. & R. 91 177 Shattuok, People v. 6 Abb. (N. C.) 33 368, 379 V. State, 11 Ind. 473 366, 367 V. State, 51 Miss. 50 975 State V. 45 N. H. 205 924 Shaver, Com. w. 3 W. & S. 338 89 Shaw, Com. v. 1 Crumrine (Pitts.), 492 541 Com. V. 6 Cr. Law Mag. 243 27 ex parte, 7 Ohio St. 81 994, 995, 996, 996 6 People V. 5 Johns. 236 194 People V. 13 N. Y. 36 486 People V. 63 N. Y. 36 605 V. State, 18 Ala. 547 254, 469, 771 State V. 35 Iowa, 575 221, 236 794 BBCTIOIT Shaw, state v. 3 Ired. 20, 532 11, 16, 660 State w. 4 Jones (N. C.) Law, 440 712 State V. 58 N. H. 74 273 V. State, 27 Tex. 750 862 Shay V. People, 22 N. Y. 317 273 Shea, State v. 95 Mo. 85 " 898, 927 Sheaff V. Gray, 2 Yeates, 273 828 Sheazle, in re, 1 Wood. & Minn. 66 45 Sheehau's case, 122 Mass. 445 996 Sheen, R. «. 2 C. & P. 635 111, 456, 483, 488 Sheets, State v. 89 N. C. 543 544, 562, 577, 750 Sheffield, Com. v. 11 Cush. 178 127 Shehane v. State, 13 Tex. Ap. 533 802 Sheight, State v. 69 N. C. 72 771 Sheldon, ex parte, 34 Ohio St. 319 33 People V. 68 Cal. 434 220 Shelledy, State v. 8 Iowa, 477 647, 771 Shelters v. State, 73 Ala. 5 696 State V. 51 Vt. 102 181 a Shelton, State v. 64 Iowa, 333 647 State V. 65 N. C. 294 523, 525, 526 State V. 79 N. C. 605 5 V. State, 1 Stew. & Por. 208 120, 137 Shepard, State v. 7 Conn., 54 464, 465 State V. 10 Iowa, 126 465 State V. 8 Ired. 195 273 State V. 32 La. An. 1216 297 U. S. V. 1 Abb. (U. S.) 431 88, 385, 388 U. S. V. 12 Int. Rev. Rec. 10 358 Sheperd, R. v. 2 East P. C. 944 194 Shepherd v. People, 25 N. Y. 407 320, 435, 502 V. State, 64 Ind. 43 339, 340, 561, 769, 764, 853 Sheppard v. State, 42 Ala. 531 213, 215, 217 State V. 97 N. C. 401 359 Sherburne, State v. 58 N. H. 535 435, 507 State V. 59 N. H. 99 160 Sheriff, Com. v. 3 Brewst. 394 521 Sheriff, etc.. Com. •,. 16 S. & R. 304 325, 326, 328 Cora. «. 7 W. & S. 108 996 State V. 37 La. An. 617 996 Sherill, State v. 81 N. C. 550 116 State V. 82 N. C. 694 459 Sherlock, R. u. L. R. 1 C. C. R. 30 10 TABLE OF CASES. BBCTION Sherman, Com. «. 13 Allen, 248 111, 413 V. State, 17 Fla. 888 813 Sherry, Com. v. Wh. on Hom. App. 658, 810 Shevlin v. Com., 106 Penn. St. 362 7 Shields, Com. a. 2 Bush, 81 827 State V. 45 Conn. 266 856, 869 State V. 33 La. An. 991, 1410 371, 665, 699, 906 State V. 40 Md. 301 785 Shlflet, State v. 20 Mo. 415 220 Shlmmlr, R. v. London Law Times, May 13, 1882 579 Shines u. State, 42 Miss. 331 753 Shinn, State v. 68 Ind. 423 269 Shipley, Terr. v. 4 Mont. 498 189 Shipman, State v. 63 Mo. 147 602 Shipp V. State, 11 Tex. Ap. 46 542 Shippey, State v. 10 Minn. 223 369 Shisler, Com. v. 2 Phila. 256 526, 528 Shive, U. S. c.. 1 Bald. 512 578, 805, 808 Shiver, State v. 20 S. C. 392 189 a, 387, 456, 490, 813 Shock, State v. 58 Mo. 552 .847 Shoeferoater v. State, 5 Tex. Ap. 207 137 Shoemaker, U. S. v. 2 McLean, 114 383, 447, 500, 512 Sholes, Com. v. 13 Allen, 554 94, 501, 507 Shonhausen, State v. 26 La. An. 421 189 Shoop V. Com., 3 Barr, 126 528 Shorey, U. S. v. 9 Int. Rev. Rec. 201 317 Short V. State, 63 Ind. 376 290, 740 V. State, 36 Tex. 644 209 V. State, 7 Yerger, 339 746 Shott, R. v.SC.k K. 206 464 Shotwell, People v. 27 Cal. 394 255, 292 Shouse V. Com., 5 Barr, 83 245, 247, 312 Shreve, State v. 39 Mo. 90 601 Shubert v. State, 21 Tex. Ap. 551, 691 470, 482 Shubrick v. State, 12 S. C. 21 237 Shufelt, People v. 61 Mich. 237 597, 649 Shule, State v. 10 Ired. 132 754 Shuler, People v. 28 Cal. 490 602, 608 V. State, 105 Ind. 289 707 ShuU, State v. 3 Head (Tenn.), 42 146 Shumaker v. State, 10 Tex. Ap. 117 932 Shumpert, State v. 1 Rich. (S. C.) N. S. 85 88 Sias, State v. 17 N. H. 558 460, 471 BEOTIOU Sibley v. Phelps, 6 Cnsh. 172 188 Siebert v. State, 95 Ind. 471 247, 464, 555 Siebold, ex parte, 100 U. S. 371 981, 995, 996 6 Sifford, ex parte, 5 Am. L. R. 659 981 Sikes V. State, 67 Ala. 77 221 Sillem, R. t. 2 H. & C. 431 297 Silvera, People v. 59 Cal. 592 712 Silversides v. R. 2 G. & D. 617 ; 3 Q. B. 406 780 Silvey, Com. u. 71 Ga. 553 818 Simco V. State, 9 Tex. Ap. 338 457 Simien, State «. 36 La. An. 923 881 Simmerman v. State, 16 Neb. 615 15 Simmonds, R. y. 1 C. & P. 84 565 Simmons v. Com., 1 Rawle, 142 123, 153, 274 ex parte, 62 Ala. 416 996 R. i>. 8 C. & P. 50 599 a V. State, 7 Hammond, 116 180 State V. 73 N. C. 269 221 U.S. .,. 96U. S.360 151, 158, 159, 222 Simms, State v. 68 Mo. 305 588 State V. 71 Mo. 538 465, 700, 896 V. State, 8 Tex. Ap. 230 844 V. State, 10 Tex. Ap. 131 293 Simon, State v. 50 Mo. 370 146 Simonds, State v. 3 Mo. 415 441 Simons, Com. ,;. 6 Phil. R. 167 338, 354, 367 R. V. Sayer, 35 847 V. State, 25 Ind. 331 255 Simpson v. Norton, 45 Me. 281 899 People V. 50 Cal. 304 813 R. v.SG.k K. 207 464 State V. 28 Minn. 269 451 V. State, 56 Miss. 297 548 State V. 67 Mo. 647 278 V. State, 10 Yerg. 525 232 Sims, Com. v. 2 Va. Cas. 374 105, 106 in re, 7 Cush. 285 980, 986 State V. 2 Bailey, 29 518, 791 State V. 75 Mo. 538 465, 896 State V. 16 S. C. 486 8 State V. 3 Strobh. 137 294, 295 Singer, People v. 18 Abb. (N. Y.) N. C. 96 363 V. People, 13 Hun, 418 ; 75 N. Y. 608 159 Singleton v. Johnston, 9 M. & W. 67 111 Sing Lung, People v. 61 Cal. 538 557 Sinnot v. State, 11 Lea, 281 956 Sipple V. People, 10 111. App. 44 405, 518 Sites, State y. 20 W. Va. 13 774a Six Lots, U. S. V. 1 Woods, 234 533 795 TABLE OF CASES. BECTIOH Skains v. State, 21 Ala. 218 944 Skates v. State, 64 Miss. 644 823 Skeen, R. v. 8 Cox C. C. 143 ; Bell C. C. 97 419 Skinner, State v. 34 Kan. 256 293, 427, 614 a U. S. V. 1 Bruns. 446 339 Skipwortli, R. v. 12 Cox C. C. 371 957, 958, 968 V. State, 8 Tex. Ap. 135 358 Slack, State v. 1 Bailey, 330 790, 886 State V. 30 Tex. 354 120, 131 Slacum, U. S. v. 1 Cranoh C. C. 485 V 320, 322 Slagle, State v. 82 N. C. 653 '285 Slater, People ... 5 Hill (N. Y.), 401 145 Slaughter v. State, 6 Humph. 410 457, 465 Slawson v. Stater, 7 Tex. 63 309 Slicker v. State, 8 Eng. (Ark.) 397 251 Sloan, State v. 55 Iowa, 217 321 State V. 47 Mo. 604 465 State V. 67 N. C. 357 385 State V. 65 Wise. 647, 651 996 Sly V. State, 4 Oreg. 277 440 Slymer v. State, 62 Md. 237 90 Small, Com. v. 26 Penn. St. 42 971 State V. 31 Mo. 197 481, 483 Smalley, State v. 50 Vt. 736 291 Smalls, State v. 11 S. C. 262 251, 256 Smallwood, State v. 75 N. C. 104 565, 847 Smart, State v. 4 Rich; 356 213 Smethurst, in re, 2 Sandf. 724 967 Smith's case. East P. C. 783 267 Smith V. Bowker, 1 Mass. 76 98, 106 V. Com., 7 Grat. 593 467, 468, 469, 471 Com. ;. 29. Grat. 780 599 a Com. V. 113 Mass. 1 107 Com. V. 11 Phi'la. 386 81 V. Com. 2 Va. Cas. 94 142 1.. Com., 77 Va. 692 -601 V. Greely, 3 Greenl. 204 847 People V. 3 Denio, 91 151, 156, 166, 167, 405, 486 R. u. 3 B. & C. 502; 5 D. & R. 422 462, 486 R. v.l G.k K. 213 ; 7 D. & R. 622 194, 985 R. V. L. R. 1 C. C. R. 194; 11 Cox C. C. 261 466 R. V. 13 Cox C. C. 77 571 State V. 48 Ala. 180 602 State V. 2 Bailey, 49 464 State I). 3 Brev. 243 202 a V. State, 44 Ga. 263 209 State V. 1 Hawks, 462 457 V. State, 6 Humph. 285 237, 276 State V. 15 Kans. 420 109 State V. 20 Kans. 643 836 State V. 27 La. An. 393 906 State V. 31 La. An. 851 321 V. State, 34 La. An. 978 446, 773 V. State, 11 Lea, 708 693, 696, 856 V. State, 11 Lea, 709 517, 588, 696 State V. 64 Mo. 358 844, 845 V. State, 84 N. C. 773 503, 740 State V. 3 Oregon, 10 246, 465 V. State, 35 Tex. 98 447 V. State, 42 Tex. 504 830 ' V. State, 5 Tex. Ap. 569 756 u. Taintor, 16 Wall. 366 28, 30 32 33 U. S. II. 11 Fed. Rep. 470 733 U. S. u. 3 McCrary, 500 812 Teahan, State v. 50 Conn. 92 251 Teal, R. v. 11 East, 307 ; 1 Sess. Cas. 428 802, 893 Teas V. State, 7 Humph. 174 354 Teat V. State, 53 Miss. 439 468, 504 Teft V. Com., 8 Leigh, 721 92 Teissedre v. State, 30 Kans. 876 358 Tempest, R. ■/. 1 P. & F. 381 820 Temple, Com. v. 38 Vt. 37 125, 126 State V. 3 Fairf. 214 271 Templeman, R. o. 1 Salk. 55 550, 945 Tennessee v. Davis, 100 tJ. S. 257 783 a Tenuey, Com. v. 97 Mass. 50 456, 471 ex parte, 23 N. H. 162 968 801 TABLE OF CASES. SECTION Terraz's case, 14 Cox C. C. 153 38, 53, 58 L. R. 4 Ex. D. 63 54 Terrel v. State, 41 Tex. 463 371 Terrell v. State, 9 Ga. 58 350, 766 Territory v. MoFarlaiie, 1 Martin, 224 271 Terry, Com. v. 114 Mass. 263 151, 154 People V. 108 N. Y. 1 996 V. State, 17 Ga. 204 712 State V. 30 Mo. 368 337, 338 v. State, 15 Tex. Ap. 66 363 Testerman, State v. 68 Mo. 408 132, 293, 771 Testick's case, 1 East P. C. 181, n. ; 2 East P. C. 925 180, 185 Texas v. Gaines, 2 Woods, 342 783 a Thayer, Com. v. 5 Met. 246 161 u. People, 2 Dougl. (Mich.) 418 345 Thayers, People o. 1 Park. C. R. 395 810 Thedge v. State, 83 Ind. 126 756 Thetge v. State. 83 Ind. 126 810 Thibeau, State v. 30 Vt. 100 91 Thomas v. Ashland, 12 Ohio St. 127 9 Com. V. 8 Grat. 637 871 Com. V. 22 Grat. 912 938 V. Com., 2 Robins. 795 378 in re, 12 Blatch. 370 50 People V. 3 Hill N. Y. 169 793 V. People, 113 111. 531 287 V. People, 39 Mich. 309 565 People V. 67 N. Y. 218 621, 632, 633, 694, 931 R. K. 3 D. & C. 290 386 R. V. 2 Mood. C. C. 16 194 V. State, 58 Ala. 368 87 State V. 47 Conn. 546 810 V. State, 52 Ga. 509 859 V. State, 67 Ga. 460 608 State V. 71 Ga. 44 139 V. State, 5 How. (Miss.) 20 429 V. State, 103 Ind. 419 177 State V. 63 Iowa, 214 289 V. State, 34 La. An. 1084 715 State V. 30 La. An. Pt. I. 301 317, 318 State V. 2 MoCord, 527 213 V. State, 6 Miss. 20 354 V. State, 61 Miss. 60 588, 853 V. State, 78 Mo. 327 813 State V. 8 Richards. 295 319 State V. 14 Richards. 163 910 .,. State, 4 Tex. 6 78 V. State, 40 Tex. 36 466 Thomason, State v. 71 N. C. 146 189 802 SECTION Thomasson v. State, 22 Ga. 499 396 U. S. V. 4 Biss. 336 528 Thompson's case, 8 Grat. 638 841, 842 Thompson v. Barkley, 27 Penn. St. 263 560 Com. V. 11 Allen, 23 164 Com. V. 8 Grat. 638 815, 831, 854, 869 .,. Com., 20 Grat. 724 279, 369 Com. V. 4 Leigh, 667 351 Com. V. 3 Litt. 284 447 Com. V. 108 Mass. 461 226 Com. V. 116 Mass. 346 245 Com. D. 1 Va. Cas. 319 513 ex parte, 1 Flip. 507 981 ex parte, 93 111. 89 996, 1010 V. Ogleby, 42 Iowa, 598 983 People V. 4 Cal. 238 690, 693 913 People V. 28 Cal. 214 ' 290 V. People, 96 HI. 168 169 People V. 2 Wheel. C. C. 473 513 R. V. 2 T. R. 18 6 R. V. 9 W. R. 203 465, 467 a. State, 25 Ala. 41 90, 310 V. State, 48 Ala. 165 117 0. State, 70 Ala. 26 742 V. State, 37 Ark. 408 161 V. State, 9 Ga. 210 350 V. State, 24 Ga. 297 646, 844 V. State, 54 Ga. 577 859 V. State, 65 Ga. 47 813 State V. 3 Hawks, 613 383 State V. 9 Iowa, 188 647, 653 State V. 44 Iowa, 399 25 State V. 46 Iowa, 699 927 State V. 13 La. An. 516 309 V. State, 51 Mass. 353 150 State V. 32 Minn. 144 700 State V. 49 Mo. 188 6 V. State, 6 Neb. 102 438 State V. 96 N. C. 596 737 State V. 2 Strobh. 12 232, 288 V. State, 25 Tex. (Sup.) 395 75 V. State, 30 Tex. 356 251 V. State, 37 Tex. 121 566 V. State, 9 Tex. Ap. 649 510 V. State, 16 Tex. Ap. 39 279 V. State, 19 Tex, Ap. 594 652, 694 TABLE OP CASES. BECTIOIT Thompson, State v. 21 W. Va. 741 711, 798 U. S. V. 6 McLean, 56 91, 93 Thomson v. People, 24 111. 60 644 Thorn, R. v. 1 Leaoh, 396 535 Thome, State «. 81 N. C. 558 235, 236, 282 927 U. S. V. 15 Fed. Rep. 739 ' 328 Thornton v. State, 13 Ired. 256 447 State V. 37 Mo. 360 438, 440, 481, 483 State V. 2 Rice Dig. 109 271 V. State, 56 Vt. 35 759 Thrasher, Com. u. 11 Gray, 57 623, 629, 668 State V. 79 Me. 17 318 Thurlow, Com. v. 24 Pick, 374 240 Thurmond, State v. 37 Tex. 340 974 Thursfleld, R. v.SC.k P. 269 565 Thurston, People v. 5 Cal. 69 341 State V. 2 McMuU. 382 252, 410 Thurtell v. Beaumont, 1 Bingham, 339 870 Tiohborne case, 1879 784 V. Mostyn, Law. Rep. 7 Eq. 55 958 Ticket, State v. 13 Nev. 502 798 Tidwell, State v. 70 Ala. 33 696, 798, 810 Tilghman, State v. 11 Ired. 513 823, 831, 836 Tilladam v. Bristol, 4 N. & M. 144 323 Tillery, State w. 1 N. & MoC. 9 213 Tllley, State v. 8 Baxt. 381 391 o V. State, 21 Fla. 242 369 Tillotson, State v. 7 Jones, 114 , 513 Tilton, Com. v. 8 Met. 232 418 V. State, 52 Ga. 478 750 Timmons v. State, 56 Miss. 786 746, 752 Tindal v. Nichols, 20 Mo. 326 379 Tindall, State v. 10 Richards. 212 828 Tinder, People v. 19 Cal. 539 361 Tiner v. State, 44 Tex. 128 8 Tinney, State v. 26 La. An. 460 369 Tinsdale, People v. 10 Abb. Pr. N. S. 374 254 Tiot, in re, 48 L. T. N. S. 120 51 Tipper v. Com., 1 Mete. (Ky.) 6 759 Tipton, State v. 1 Blackf. 166 949 V. State, 2 Yerg. 542 271 Tisdale, State v. 2 Dev. & B. 159 390, 431, 441, 452 Titus's case, 8 Ben. 412 993 Titus V. State, 49 N. J. L. 36 220, 231 Tivnan, R. r. 5 B. & S. 645 45, 72 Toakley, R. v. 10 Cox C. C. 406 573 Tobin, Com. !/. 125 Mass. 123 819 V. People, 101 111. 121 865, 869 BBCTION Tobin V. People, 104, 111. 665 737 Tod, U. S. V. 25 Fed. Rep. 815 89 Todd V. Gray, 16 S. C. 635 660 a. State, 25 Ind. 212 881 Toland, Com. v. 11 Phila. 433 860 Tolever, State v. 5 Ired. 452 146 Tom Tong, ex parte, 108 U. S. 556 1010 Tombes v. Ethrington, 1 Lev. 120 528 Tomlinson, People v. 35 Cal. 503 161, 251 Tompkins, People v. 1 Park. C. R. 224 991 V. State, 17 Ga. 356 293, 294 State V. 71 Mo. 613 828 V. State, 4 Tex. Ap. 161 161 U. S. V. 2 Cranoh C. C. 46 337 Tompson, Com. i/. 2 Cnsh. 551 111 Toney, ex parte, 11 Mo. 662 779 5 V. State, 60 Ala. 97 771 State V. 13 Tex. 74 96 Tongate, ex parte, 31 Ind. 370 922 Tooel V. Com., 11 Leigh, 714 672, 814, 815, 816 Tootle, State v. 2 Barring. 541 237 Tower v. Com., HI Mass. 117 142 Com. V. 8 Met. (Mass.) 527 418, 940 Towle I). State, 3 Fla. 202 358 State V. 42 N. H. 540 963, 999 Town, State v. Wright's R. 79 664 Townley v. State, 3 Earring. 311 283 Townsend, Com. v. 5 Allen, 216 520, 719 People II. 3 Hill (N. Y.), 479 475, 793. V. Smith, 47 Wis. 423 27 State V. 2 Earring. 543 465, 471 State V. 5 Earring. 48 77 State V. 1 Houst. 337 212 a State V. 86 N. C. 676 167, 168 V. State, 5 Tex. Ap. 674 90 Tracy, Com. v. 5 Met. 536 29 ex parte, 25 Vt. 93 541 Trafford, R. v.lB.k Ad. 874 301 Trainer, Com. v. 123 Mass. 414 118 Traube v. State, 56 Miss. 154 746 Travers, Com. v. 11 Allen, 260 126 People V. 73 Cal. 580 752 Traviss v. Com., 106 Penn. St. 362 634 Trehearne, R. v. 1 Mood. C. C. 298 121, 318 803 TABLE OF CASES. SECTION Tremaine, R. v. 7 D. & R. 684 ; 5 B. & C. 254 845, 846, 886 Trexler v. State, 19 Ala. 21 159 Trezevant, State v. 20 S. C. 363 863 Tricksy, Com. v. 13 Allen, 559 471 Trim v. Com., 18 Grat. 983 827, 835 Trimble v. Com., 2 Va. Cas. 143 90 Trimmer, Com. v. 1 Mass. 476 306 a Com. V. 84 Penn. St. 65 402, 403, 456, 460 Trinidad v. Simpson, 5 Col. 65 669 Trittip V. State, 10 Ind. 343 441 Troia, in re, 64 Cal. 152 1007 Trout, U. S. V. 4 Biss. 105 283 V. State, 111 Ind. 499 158 Troutman's case, 4 Zabr. 634 33 Trowbridge v. State, 74 Ga. 431 742 Trueman, in re, 44 Mo. 181 995 R. t). 8 C. & P. 727 290, 294 297 Tryer, Res. v. 8 Yeates, 451 22o[ 232 Tryon, Com. v. 99 Mass. 442 306 a Tuck, Com. V. 20 Pick. 356 243, 244, 255, 383, 447, 448, 760 Tucker's case, 8 Mass. 286 345, 348 Tucker v. State, 57 Ga. 503 812 State V. 20 Iowa, 608 363, 388 V. State, 6 Tex. Ap. 251 255 Tudor, State v. 5 Day, 329 793 Tufts, State v. 56 N. H. 137 383 Tuller, State v. 34 Conn. 280, 281, 292 125, 290, 292, 295, 518, 844, 911 Tullis V. Fleming, 69 Ind. 15 29 TuUy V. Com., 13 Bush, 142 325 V. Com., 4 Met. 357 265 in re, 22 Blatch. 213 ; 20 Fed. Rep. 812 39, 47 V. People, 67 N. Y. 15 236 Turbeville v. State, 56 Miss. 793 605 Turk V. State, 2 Hammond, 7 Ohio, pt. ii. 240 363 Turley v. State, 8 Humph. 323 287 Turnbull, State v. 78 Me. 392 221 Turner's case, 5 Ohio, 542 417 Turner, Com. v. 8 Bush, 1 220, 269 V. Com., 86 Penn. St. 54 ,711 ex parte, 45 Mo. 331 932 ex parte, 3 Woods, 603 981 w. People, 33 Mich. 363 120 R. V. 1 Mood. C. C. 239 235 V. State, 40 Ala. 21 401, 457 State V. 6 Baxt. 201 802, 842 V. State, 70 Ga. 767 577, 597 V. State, 102 Ind. 425 208 u. State, 4 Lea, 206 577 V. State, 1 Ohio St. 422 164 Turnpike, Com. v. 2 Va. Cas. 361 230 Turns, Com. v. 6 Met. 423 717 Turpin v. State, 4 Blackf. 72 305 804 SECTION Turpin v. State, 80 Ind. 148 541, 700 V. State, 55 Md. 462 612, 613, 617, 620 V. State, 19 Ohio St. 640 163 Tuska, U. S. V. 14 Blatch. 5 351 Tutohin, R. v. 5 St. Tr. 532 181 a Tuttle V. Com., 2Gpy, 505 937 V. State, 6 Baxt. 556 545 V. State, 6 Tex. Ap. 556 841, 866 Tweed v. Liscomb, 60 N. Y. 5 605, 910, 953, 994, 996 ft People V. 50 How. Pr. 262 344 Tweedy ;;. Jarvis, 27 Conn. 42 102 State V. 11 Iowa, 350 465 Twiggs, State v. 1 Wins. (N. C.) 142 926 Twitchell, Com. v. 4 Cush. 74 251 Twitty, State v. 2 Hawks, 248 167 State V. 4 Hawks, 193 533 Two Calf, ex parte, 11 Neb. 221 328 T^fohig, ex parte, 13 Nev. 302 996 Twombly, Com. v. 10 Pick. 480 672 Tyler, Doe v. 6 Bing. 561 801 ex parte, 64 Cal. 434 955 People V. 36 Cal. 522 670 Tyra v. Com., 2 Mete. (Ky.) 1 733 U. Udderzook, Com. u. 76 Penn St. 340 828 Ulrich V. People, 39 Mich. 245 649, 712 Ulriel, U. S. v. 3 Dill. 535 169 Underwood, in re, 30 Mich. 502 994 State V. 2 Ala. 746 764 V. State, 6 Ired. 96 802 State V. 75 Mo. 230 9 V. State, 76 Mo. 630 793, 827 State V. 64 N. C. 599, 600 528 State V. 77 N. C. 502 307 Union Ins. Co. v. Cheever, 36 Ohio St. 201 571 Unknown, Com. v. 6 Gray, 489 222 Upchurch, State v. 9 Ired. 455 261 Updegraph v. Com., 6 S. & R. 5 232 V. Com., 11 S. & R. 394 203 Upstone V. People, 109 111. 169 793 Upton, State v. 1 Dev. 513 119 State II. 20 Mo. 397 841 Urbyn, R. v. 2 Saunders R. (Wil- liams's ed.) 308 703 Useful Man. Co., State v. 42 N. J. L. 504 94 Utley, State v. 82 N. C. 656 159 TABLE OF CASES. V. SECTION 353 Vahl, State v. 20 Tex. 779 Vail, People v. 6 Abb. (N. Y.) Sel. Ca. 206 548 Vaise v. Delaval, 1 Term. Rep. 11 847 Valencia, People v. 43 Cal. 552 290, 304, 710 Valentine, State v. 6 Yerg. 533 261 Valeseo, State v. 9 Tex. Ap. 76 237 Vallandigham's Trial, Pamph. 5 West L. Month. 37 997 Vallandingham, ex parte, 1 Wall. 243 997 Valle V. State, 9 Tex. Ap. 57 882 Van Aernam's case, 3 Blatch. 160 57 Vananken u. Bremer, 1 Southard, 364 608 Vanatta v. State, 31 Ind. 210 87 Van Boven's case, 9 Ad. & El. N. S. 676, 1003 Van Buskirk, State v. 59 Ind. 384 378, 380 Van Campen, ex parte, 2 Ben. 419 73 Vance v. Com., 2 Va. Cas. 162 592, 602, 793, 844 Vanderoomb, R. «. 2 Leach, 708, 818 294, 456, 488 Vanderkarr v. State, 51 Ind. 91 354 Vandermark v. People, 47 III. 122 102, 117 Vanderpoel, State v. 39 Ohio St. 273 49 Vandervelpen, in re, 14 Blatch. 137 57 Van Duzen i: Howe, 21 N. Y. 531 453 Vandyke v. Dare, 1 Bailey, 65 93 Vane's case, 1 Sid. 85 ; 1 Keble, 384 772 Van Hagan, ex parte, 25 Ohio St. 426 994, 995 Van Hooen, in re, 4 Dill. 411 51 Van Hook, State v. 88 Mo. 105 700 Vanhook v. State, 12 Tex. 252 344, 350 Van Home, People v. 8 Barb. 158 76, .447, 448 Van Houten, State v. 37 Mo. 357 397 Van Hoven, ex parte, 4 Dill. 411 50 Van Keuren, People v. 5 Park. C. R. 66 471 Van Matre, State v. 49 Mo. 268 733 Van Meter v. People, 60 111. 168 595 Vann, State v. 82 N. C. 631 672 Van Santvord, People v. 9 Cow. 660 120, 318 Vansiokle, Com. v. 1 Brightly, 69 232, 810 Van Tuyl, Com. v. 1 Meto. (Ky.) 1 810 SECTION Vanvickle v. State, 22 Tex. Ap. 625 94 Van Wyck, People v. 2 Caines, 333 548 Varnadoe v. State, 67 Ga. 768 590 Varnes v. State, 20 Tex. Ap. 107 505 Varney, Com. v. 10 Cash. 402 109, 167 Varnum, People v. 53 Cal. 630 446 Vasquez, People v. 49 Cal. 860 694 People V. 16 Nev. 42 756 Vattier v. State, 4 Blackf. 73 350 Vaughan v. Com., 17 Grat. 576 244 V. Com., 2 Va. Cas. 273 468, 469 R. V. Doug. 516 969 State V. 29 Iowa, 286 505, 549, 722 Vaughn v. State, 4 Mo. 530 302 State V. 26 Mo. 29 220 State w. Harper S. C. 313 6 Vaux's case, 4 Coke R. 44a 457,460, 507 Veal V. State, 8 Tex. Ap. 474 946 Veatch v. State, 60 Ind. 291 465, 756 Venters v. State, 18 Tex. Ap. 211 447 Veremaitre's case, 7 N. Y. Leg. Obs. 137 , 57 Vermilyea, ex parte, 6 Cow. 555 632 People V. 7 Cow. 108, 369 595, 790, 793, 844, 860, 861, 862, 863, 873, 874 Vermont Cent. R. R., State v. 27 Vt. 103 269 Vermont Cent. R. R., State o. 28 Vt. 583 100, 110 Vernon v. Hankey, 2 T. R. 113 859 Vest, State v. 21 W. Va. 796 90 Vestal, State v. 82 N. C. 563 672 Vicary v. Farthing, Cro. Eliz. 411 828 Vickery, U. S. v. 1 Har. & J. 427 918 Victor, in re, 31 Ohio St. 206 633 Videto, People v. 1 Park. C. R. 603 810 Vigol, U. S. V. 2 Dall. 347 ; Wh. St. Tr. 176 830 Villarino, People v. 66 Cal. 228 70, 407 5 Vincent, ex parte, 43 Ala. 402 722 R. ». 9 C. & P. 22 696 State V. 1 Car. L. R. 493 354 State V. 91 Mo. 662 452, 772 Vines, State v. 34 La. An. 1079 324, 459, 471, 481, 835 State V. 93 N. C. 493 812 Vinson, State v. 37 La. An. 792 810 Virginia, ex parte, 100 U. S. 339 980, 981, 993 V. Rivers, 100 U. S. 313 783 a 805 TABLE OF OASES. BEOTION Vise V. Hamilton, 19 111. 78 559 Vittum, State v. 9 N. H. 519 108 Vivian, R. ... 1 C. & K. 719 ; 1 Den. C. C. 35 192 Vodden, R. v. Dears. C. C. 229 ; 6 Cox C. C. 226 750, 751 Vogel V. State, 31 Ind. 64 87 Voight, State v. 13 Tex. Ap. 21 874 Volmer v. State, 6 Kan. 379 935 Volz, U. S. V. 14 Blatch. 15 376 Vondersmith, D. S. v. MS. 322 Voorhees, State v. 3 Vroom (31 N. J. L.) 141 30, 31, 32, 34, 993 Voshall, State v. 4 Ind. 690 124, 274 W. Waddell, U. S.ti. 112 U. S. 76 89 Waddington, R. c. 1 East, 143 ; 2 East P. C. 513 82, 130 Wade, Com. c. 17 Pick. 395 456, 460, 469 a, 471, 516, 676 V. Judge, 5 Ala. 18 1010 R. V. 1 Mood. C. C. 86 516 V. State, 40 Ala. 74 309 V. State, 12 Ga. 25 647, 830, 844 State V. 34 N. Hi 496 238 V. State, 12 Tex. Ap. 358 694 V. State, 23 Tex. Ap. 308 111 V. State, 54 Vt. 358 628 Wadkins, U. S. v. 7 Bawy. 85 164, 439 Wadsworth, R. ». 5 Mod. 13 386 V. State, 30 Conn. 56 804 Wage, in re, 21 Blatch. 300; 16 Fed. Rep., 332 53, 55, 66 Wagner v. People, 4 Abb. App. Dec. 509 92 V. State, 78 Mo. 644 695 Waite, Com. v. 5 Mass. 261 869 Com. V. 11 Allen. 264 164 R. a. 4 Burr. 780 80 Wakefield u. Maokey, 1 Phill. R. 134 111 Wakely v. Hart, 6 Binney, 316 13 Wakker, in re, 3 Barb. 1 62 996 Waldo V. Wallace, 12 Ind. 582 440 Walkden, R. v. 1 Cox, 282 249 Walker, ex parte, 26 Ala. 81 964 V. Martin, 43 111. 608 1011 R. V. 3 Camp. 264 166 R. «. 6 C. & P. 657 261, 464 V. State, 61 Ala. 30 447 V. State, 72 Ala. 218 716 c. State, 35 Ark. 386 756 V. State, 39 Ark. 221 804 State V. 26 Ind. 346 505, 520 State V. 87 N. C. 566 760 806 BECTION Walker v. State, 13 Tex. Ap. 618 688, 597, 756 V. State, 14 Tex. Ap. 609 769, 813 V. State, 37 Tex. Ap. 366 828 U. S. V. 1 Crumrine (Pitts.) 437 73 Wall, in re, Sewell, J. 188 ; 12 Rep. 222 997 V. State, 23 Ind. 160 369 V. State, 51 Ind. 463 293 State V. 16 Mo. 208 387 Wallace, Com. v. 108 Mass. 12 383 Com. I'. 114 Penn. St. 405 387 «. People, 27 111. 46 176 V. People, 63 Dl. 451 110 V. State, 28 Ark. 531 869 V. State, 2 Lea, 29 369, 746 Waller v. State, 40 Ala. 326 467, 766 State V. 3 Murph. 229 125 U. S. V. 1 Sawy. C. C. 701 89 Wallman, State v. 31 La. An. 146 Walsh, Com. v. 124 Mass. 33 608, 686 Com. V. 132 Mass. 8 756 People V. 43 Cal. 447 712, 797 Walston V. Com., 16 B. Mon. 15 762 Walter v. Com., 6 Weekly Notes, 389 238, 254 V. People, 32 N. Y. 147 664 State V. 14 Kans. 375 146 Walters, Com. v. 6 Dana, 291 226, 369 People V. 16 Abb. N. Ca. 461 996 R. V. C. & M. 688 194, 196 State V. 16 La. An. 400 457 State V. 97 N. C. 489 924 Waltham, State v. 48 Mo. 56 560, 662 Walton, Cora. v. 11 Allen, 238 387 ex parte, 2 Whart. 501 81, 328 V. People, 3 Sneed. 687 447 «. State, 74 Mo. 270 641 Waltzer v. State, 3 Wis. 785 314, 940 Wanklyn, R. w. 8 C. & P. 291 698 Want, State r. 51 Iowa, 587 779 Wanzer v. Bright, 52 111. 36 27 Ward, Com. v. 2 Mass. 397 180 V. People, 30 Mich. 116 733 People V. 15 Wend. 231 471 R. V. 10 Cox C. C. 42; 17 L. T. N. S. 220 293, 436, 490, 508 V. State, 22 Ala. 16 354 V. State, 60 Ala. 120 273 State V. 49 Conn. 429 419 State V. 2 Hawks, 443 350 State V. 9 Heisk. 100 532 TABLE OF CASES. Ward V. State, 1 Humph. 253 SECTION 447, 672 V. State, 48 Ind. 289 350, 351 State V. 14 La. An. 673 651, 844 V. State, 64 Miss. 207 203 V. State, 2 Mo. 120 337 State V. 74 Mo. 253 132, 845 State V. 39 Vt. 226 664 Warden, People v. 66 N. Y. 343 925, 942 People V. 100 N. Y. 20 994 Wardle, R. ■-•. C. & M. 647 509, 660, 718 Ware, State v. 62 Mo. 597 712 Waring v. V. S., 7 Ct. of CI. 501 531, 533 Warman, in re, 1 W. Bl. 1204 989 Warner v. Com., 1 Barr, 154 281 People V. 5 Wend. 271 203, 273 State V. 14 Ind. 572 465, 466, 471 V. U. S., 26 Fed. Eep. 616 221 Warnook v. State, 6 Tex. Ap. 450 465 Warren v. Com., 37 Penn. St. 45 613 People V. 53 Mich. 78 742 People V. 1 Park. C. R. 338 . 467, 468, 469, 470 V. State, 19 Ark. 214 541, 550 State V. 92 N. C. 825 913 V. State, 9 Tex. Ap. 619 842 V. State, 13 Tex. Ap. 3,48 409 V. State, 22 Tex. Ap. 383 798 U. S. i;. 17 Fed. Rep. 145 167 Warshaner, R. v. 1 Mood. C. C. 466 ; 7 C. & P. 429 181, 218, 229, 278 a Wart, State v. 51 Iowa, 587 836 Wartena v. State, 105 Ind. 445 560 Warwick v. Bruce, 4 M. & S. 140 870 u. State, 73 Ala. 517 774 a V. State, 25 Ohio St. 21 1263 Wasden, State v. N. C. Term R. 163 91, 92 Wash V. State, 14 Sm. & M. 120, 126 .296, 771 Washburn, Com. v. 128 Mass. 421 151, 221 in re, 4 Johns. Ch. 106 38 State V. 91 Mo. 571 823 Washington v. State, 63 Ala. 189 359, 810 V. State, 68 Ala. 85 98 State V. 1 Bay, 120 279 State V. 28 La. An. 129 477 V. State, 33 La. An. 896 350 BBCTIOW Washington, State v. 89 N. C. 635 495, 722 State V. 90 N. C. 664 495 Wassels v. State, 26 Ind. 30 369, 595, 601 Waterborough, Com. v. 5 Mass. 257 88 Waterhouse, State v. 1 Mart. & Y. 278 496 Waterman, ex parte, 33 Fed. Rep. 29 550, 916, 918 State V. 1 Nev. 543 751 Waters v. Campbell, 5 Sawy. 17 979 People V. 5 Park. C. R. 661 386 V. People, 6 Park. C. R. 16 109, 118 R. V. 1 Den. C. C. 356 97 R. V. 1 Mood. C. C. 457 ; 2 C. & K. 862 111 V. State, 51 Md. 430 635 State V. 39 Me. 54 246, 247, 465 State V. 62 Mo. 196 733 State V. 2 Tred. 669 173 Watkinds, U. S. b. 7 Sawy. 85 ; 11 Rep. 560 164, 939 Watkins, R. v. 2 Moody, 217 250 o. State, 37 Ark. 320 742 V. State, 60 Ga. 601 509, 517 V. State, 68 Ind. 427 451 U. S. «. 3 Cranch C. C. 441 317, 320, 406 Watson, in re, 9 A. & E. 731 533, 989, 991 , in re, 3 Lans. 408 963 V. People, 64 Barb. 130 711, 794 798 R. V. 2 Ld. Raym. 818 ' 530 R. V. 2 T. R. 200 176 State V. 68 Ga. 832 324 V. State, 30 Kan. 281 742, 802 V. State, 31 La. An. 379 350 State V. 34 La. An. 669 353, 367 V. State, 5 Mo. 497 465 State V. 65 Mo. 115 236 State'u. 95 Mo. 411 913 State V. 86 N. C. 624 350 V. State, 39 Ohio St. 123 251 V. State, 5 Tex. Ap. 271 451 V. State, 9 Tex. Ap. 237 159 U. S. «. 3 Ben. 1 436, 500 U. S. V. 7 Blatchf. 60 383 Watts, Com. -. 4 Leigh, 672 759 State V. 10 Ind. 369 756 State V. 82 N. C. 656 261, 291 IJ. S. 0. 8 Sawy. 370; 14 Fed. Rep. 130 49 Wau-kon-chaw-neck-kaw v. U. S., 1 Morris, 332 369, 647 807 TABLE OF CASES. SECTION Waverton, R. v. 17 Q. B. 562 ; 2 Den. C. C. 347 95 Way V. Butterworth, 106 Mass. 75 378 in re, 41 Mich. 299 80 People, V. 10 Cal. 336 194 Wayne v. Com., 26 Penn. St. 154 292 U. S. V. Wall. C. C. 134 967 V. Walker, 7 Weekly Notes, 377 559 Weare, State v. 38 N. H. 314 87, 108 Weatherhead, Com. v. 110 Mass. 175 301 Weatherspoon, State v. 88 N. C. 18 445 Weaver v. Com., 29 Penn. St. 445 766, 918 V. State, 83 Ind. 289 517, 700, 813 State V. 13 Ired. 491 .173 State V. 13 Ired. 203 512 V. State, 24 Ohio St. 584 560 o. State, 19 Tex. A p. 547 369 V. Ward, Hob. 134 620 Webb, People v. 38 Cal. 467 498, 508, 515, 518, 785 People V. 1 Hill, 179 602 R. V. 3 Burr. 1469 395, 396 R. u. 4 F. & F. 862 576 State V. 74 Mo. 333 452 State V. 29 Ohio St. 350 565, 566 V. State, 9 Tex. Ap. 490 884 Terr. o. 2 New Mex. 147 813 Webber v. State, 10 Mo. 5 756 Webster's case, 5 Cush. 295, 386, 394, 533 156, 297, 627, 664, 774, 916 Webster, 7-. People, 92 N. Y. 422 601 People V. 3 Park. C. R. 503 963 R. V. London, 1879 917 State V. 30 Ark. 166 102 State V. 5 Greenl. 432 369 State V. 5 Halst. 293 240 State V. 13 N. H. 491 627 Weed V. People, 31 N. Y. 465 916, 926 Weeks, State v. 79 Mo. 496 400 Weil, R. V. L. R. 9 Q,. B. D. 701 51 State V. 89 Ind. 533 973 Weimer, ex parte, 8 Biss. 321 535 Welnzorpflin v. State, 7 Blackf. 186 95, 285, 290, 391, 396, 447 Weis V. State, 22 Ohio St. 486 841 Weiterhold, Com. v. 112 Penn. St. 84 260 Welde V. Com., 2 Met. 408 87 Welker, State v. 14 Mo. 398 120 Welland, R. v. R. & R. 494 237 Wellesley, in re, 2 Rus. & M. 639 951 808 SECTION Wellington, Com. u. 7 Allen, 299 158 Wellook V. Constantiue, 2 H. & C. 146 453 Wells V. Abraham, L. R. 7 Q. B. 554 453 V. Com., 21 Grat. 500 970 V. Com., 12 Gray, 326 120, 125 ex parte, 18 How. 0. S. 307 533, 1010 ' ex parte, 18 Wall. 304 533 V. Gurney, 8 B. & C. 769 27 in re, 17 Alb. L. J. Ill 873a V. State, 28 Kan. 321 659 V. State, 4 Tex. Ap. 20 189 a Welsh V. Barber, 52 Conn. 219 954 Com. V. 97 Mass. 593 479 People V. 49 Cal. 174 752 V. Scott, 5 Ired. 72 6 State !). 37 Wis. 196 236 Welton, R. v. 9 Cox C. C. 297 90 Wenborn, R. v. 6 Jur. 267 718 Wentworth v. Alexander, 66 Ind. 30 994 State V. 37 N. H. 196 144 U. S. V. 11 Fed. Rep. 52 159, 163 a, 167, 285 Wentz, Com. v. 1 Ashm. 269 208 Werner v. State, 51 Ga. 426 121 Wesley v. State, 52 Ala. 182 370 V. State, 65 Ga. 731 672 V. State, 11 Humph. 502, 518, 733, 819, 822 West, in re, 111 Mass. 443 533 People r. 106 N. Y. 293 220 R. t.. 2 C. & K. 496 ; 1 Den. C. C. 258 185, 186, 199 R. V. 40 Eng. L. & E. 564 ; Dears. & B. 109; 7 Cox C. C. 183 190, 219 V. State, 48 Ind. 483 101 State V. 69 Mo. 401 841 State V. 95 Mo. 141 853 State V. 71 N. C. 263 773 V. state, 6 Tex. A p. 485 760 V. State, 7 Tex. Ap. 150 823 V. State, 2 Zab. 212 435, 771, 906 Westbeer, R. v. Leech, 14 249 Westbrook v. State, 52 Miss. 777 756 Westchester, People o. 1 Park. C. R. 659 442 Westley, R. v. Bell C. C. 193 222 Westmoreland v. State, 45 Ga. 228 646 Weston V. Com., Ill Penn. St. 257 634 V. State, 63 Ala. 155 350, 446 West Riding, R. v. 2 East, 362, n. 787 Wetherford, State v. 25 Mo. 439 602 Wetherold, Com. u. 2 Clark, 476 1011 Weymouth, Com. v. 2 Allen, 144 913 TABLE 01' CASES. SECTION Weyrieh, People v. 89 111. 90 711 Whaley, Com. v. 6 Bush. 266 151 Whalley, R. v. 1 G. k P. 245 1 Wheatley v. Thorn, 23 Miss. 62 453 Wheeler, Com. v. 2 Mass. 172 383, 447 R. V. 7 C. & P. 170 293 V. State, 42 Md. 563 401, 810 ■ State V. 3 Vt. 344 261 State V. 15 Vroom, 88 772 Whipple, People v. 9 Cow. 707 89 Whiskey, State v. 54 N. H. 164 22 Whit, State v. 5 .Tones N. C. 224 570 Whitaker, in re, 43 Ala. 323 995 State V. 85 N. C. 566 6 State V. 89 N. C. 472 751, 756 White V. Com., 6 Binn. 179 281 Com. V. 3 Brewst. 30 927 V. Com., 29 Grat. 824 369 V. Com., 80 Ky. 480 587 Com. u. 123 Mass. 430 189 Com. V. 10 Met. (Mass.) 14 810 ex parte, 49 Cal. 434, 442 28, 29, 36 V. Fort, 3 Hawks, 251 453 V. Fox, 1 Bibb, 369 378, 380 in re, 17 Fed. Rep. 723 997 People V. 55 Barb. 606 ; 32 N. Y. 465 112, 309, 312 -j>. People, 90 111. 117 560 Peoplet). 14Wend. Ill 562,801 People V. 22 Wend. 167, 175 261, 464, 794 R. i>. 9 C. & P. 282 194 V. State, 49 Ala. 344 507 V. State, 74 Ala. 31 387 V. State, 17 Ark. 404 866 V. State, 7 Cent. L. J. 461 ; 6 Tex. Ap. 476 318 V. State, 31 Ind. 262 584 State V. 32 Iowa, 17 98, 106 State V. 6 Ired. 418 181 a State V. 9 Kans. 445 541 State u. 33 La. An. 1218 733 State V. 35 La. An. 96 805, 813 V. State, 42 Miss. 635 528 V. State, 52 Miss. 216 640 State w. 88 N. C. 698 358 a X,. State, 13 Ohio St. 569 465 V. State, 15 S. C". 381 273, 285 V. State, 1 Sm. & M. 149 982 V. State, 9 Tex. Ap. 390 440 V. State, 10 Tex. Ap. 167 862 . 8 C. & P. 262 917 Wyeth 0. Richardson, 10 Gray, 240 34, 1010 Wylde, R. w. 6 C. & P. 380 569 Wyman. Com. v. 12 Cush. 237 946 Wymouth, Com. v. 2 Allen, 144 913 Wyndham, R. v. 1 Strange, 2 78 Wynn, R. v. 2 East, 226 395 U. S. V. 3 McCr. 266 89 Wyoming v. Anderson, 1 Wg. Ter. 20 358 Wyrral's case, 5 Coke, 49 a 523 Y. SECTION Yancey, State v. 1 Tread. Conf. Rep. 237 92, 279 State V. 1 Car. L. R. 519 444 Yanes v. People, 34 Mich. 286 73 Yanez v. State, 20 Tex. 656 882 V. State, 6 Tex. Ap. 429 669, 844 Yarberry, Terr. v. 2 New Mex. 391 533, 551, 866 Yarborough, ex parte, 110 U. S. 651 89, 995, 996 Yardley v. Arnold, 10 M. & W. 141 " 566 Yates's case, 4 Johns. 317 988 Yates, ex parte, 6 Johns. 387, 429 974, 1010 V. Lansing, 6 Johns. 282 445 V. Lansing, 9 Johns. 395 953 V. People, 38 111. 327 828 V. People, 6 Johns. 317 953 V. People, 32 N. Y. 509 3, 4 State V. 21 W. Va. 761 802 Yerger, State v. 86 Mo. 33 169 Yeadon, R. v. 9 Cox C. C. 91 246, 251, 465 Yoe V. People, 49 111. 410 571 Youmans, State v. 5 Ind. 280 528 Youndt V. State, 64 Ind. 443 740 Young, Com. v. 7 B. Men. 1 279 ■b. Com., 4 Grat. 550 883 J.. Com.,lRobt. Va.'744 79 V. Johnson, 53 N. Y. Sup. Ct. 167 632 People V. 31 Cal. 564 378 R. V. Peake's Add. Cas. 228 293 V. R. 3 T. R. 98, 104 285, 292, 301,302,307,907 V. State, 56 Ga. 403 871 State V. 77 N. C. 498 750 V. State, 6 Ohio, 435 95 State V. 34 La. An. 346 869 V. State, 19 Tex. Ap. 537 577 Territory v, 2 New Mex. 93 548 Younger v. State, 2 W. Va. 579 549 Zaohary v. State, 7 Baxt. 1 477 Zallner v. State, 15 Tex. Ap. 23 239 Zane, People v. 105 111. 662 602 Zarresseller ;;. People, 17 111. 101 279 Zeigler, State v. 46 N. J. L. 307 387 813 TABLE OP CASES. SECTION Zell V. Com., 94 Penn. St. 258 617 Zellers, State v. 2 Halst. 220 587, 654 V. State, 7 Ind. 659 112 Zembrod v. State, 25 Tex. 519 ' 75 Zepp, Com. V. 5 Penn. L. J. 255 457 Zimmerman, State v. 56 Md. 536 636 814 SECTION Ziord V. State, 30 La. An. Part II. 867 189 a, 216 Zule, State v. 5 Halst. 348 912 Zulioh, State v. 29 N. J. L. 409 980 Zumbunson, State v. 7 Mo. Ap. 526 ; 86 Mo. Ill 577 IlfDEX. [the pigubes kepek to the sectioks.] ABATEMENT, PLEA IN. Error as to defendant's name may be met by plea in abatement, 423. and so of error in addition, 424. and so of defects as to grand jury, 350, 351, 376. plea of insanity, 429 a. judgment for defendant no bar to indictment in right name, 425. after not guilty plea in abatement is too late, 426. plea to be construed strictly, 427. defendant may plead over, 428. ABATEMENT OF NUISANCES, 922 a. ' ABBREVIATIONS (see Clerical Errors), 274 etseq. ABSENCE of defendant on trial, 540 et seq. ACCESSARIES, pleading as to, 594 (see Joinder of Defendants). verdict as to, 313, 755 (see Verdict). how far indictment against is barred by proceedings against principal, 458. ACQUITTAL, mode of (see Verdict). effect of (see AtrTKBFOis Acquit). when court may direct, 812. when defendant may be held to bail after, 82. no new trial after acquittal, 785. otherwise when verdict was fraudulent, 786. so in quasi civil cases, 787. motion for new trial only applicable to counts where there has been a con- viction, 788. conviction of minor offence is acquittal of major, 789. of joint defendants, 305, 313, 755. "ACQUITTANCE," meaning of, 186. "ADDITION," what required in pleading (see Clerical Errors), 105-6. objecting to by plea, 424. ADDRESSES TO JURY (see Counsel). ADULTERY, not barred by acquittal of bigamy, 471. AFFIDAVIT OF JUROR, when admissible to affect verdict, 847. 815 INDEX. AFFIDAVITS, admissible to inform court before pronouncing sentence, 945. ■when receivable on habeas corpus, 1004. AFFRAY, right to disperse (see Arrest). conviction for assault under, 742. "AFORESAID," how far referring back to prior averments, 131, 297-300. AFTER-DISCOVERED EVIDENCE, when admissible for new trial, 854. "AGAINST THE PLACE," etc., when required in concluding indictment (see Conclusion op Indictments), 279. AGENCY OF WRONG, statement of, 212 a. AGENT, place of act of, how to be averred (see Agent), 140. act of, may be charged to principal, 159 a. AGGRAVATION, need not be pleaded, 165. unless essential to offence, 159. may be disregarded as surplusage, 158. AGGRAVATIVE TERMS, not necessary in indictment, 269. ALIAS, effect of averment of, 99. ALIBI, defective instructions as to, 711, 794. ALIENAGE, when disqualification to juror, 669, 846, 886. of juror, when ground for challenge, 669. when for new trial, 846. ALLOCATUR, SPECIAL, nature of (see Error), 774. ALTERATION (see Amendment). ALTERNATIVE STATEMENTS, in pleading, are inadmissible, 161. AMENDING, of indictment (see Jeofails), 90. AMENDING VERDICT, practice as to, 751. AMENDMENT OF SENTENCE, at what time permissible, 913. AMNESTY, meaning and effect of, 325. "AND," effect of as a copulative, 131, 161, 297. ANIMALS, description of (see Personal Chattels), 209. description of, in statute, 237. APPEALS (see Error), 770. APPEARANCE OF DEFENDANT IN COURT, must be in person, 540. right may be waived in misdemeanors of nature of civil process, 541. in such cases waiver may be by attorney, 542. removal of defendant for turbulent conduct does not militate against rule, 543. involuntary illness not a waiver, 544. presence essential at arraignment and empanelling, 545. also at reception of testimony, 546. also at charge of court, 547. but not at making and arguing of motions, 548. presence essential at reception of verdict, 549. and at sentence, 550. in fel&nies defendant must be in custody, 540 a. APPELLATE COURT, power of as to new trial (see New Trial), 897. ARGUMENT, practice as to (see Counsel), 560 et seg., 577, 853. 816 INDEX. ARRAIGNMENT. Defendant usually required to hold up the hand, 699. failure to arraign may be fatal, 700. defendant may waive right, 541, 701. ARRAY, challenges to (see Challenge), 608. ARREST, when reviewable by habeas corpus (see Habeas Corpus), 978 et seq. ARREST OF ACCUSED. Arrest generally. Criminal procedure usually begins with oath before magistrate, 1. officer may be described by office, 2. to arrest, corporal control and notice are essential, 3. but notice may be by implication, 4. By Officers. Officer not protected by illegal warrant, 5. warrant omitting essentials is illegal, 6. not necessary for officers to show warrant, 7. peace officers may arrest without warrant for offences in their presence, and for past felonies and breaches of the peace, 8. reasonable suspicion convertible with probable cause, 9. By Persons not Officers. Peace officers may require aid from private persons, 10. officers may have special assistants, 11. pursuers of felon are protected, 12. private persons may arrest with probable cause, 13. may use force necessary to prevent felony, 14. may arrest felon after escape, 15. ' may interfere to prevent riot, 16. and so as to other offences, 17. Breaking Doors and Search-warrants. House may be broken to execute warrant in felonies or breaches of the peace, 18. In felonies this may be done by private person, 19. peace officers may, on reasonable suspicion, break doors without warrant, 20. private person requires stronger ground for interference, 21. search-warrants may be issued on oath, 22. houses of third persons may be broken to secure offender or stolen goods, 23. in opening trunks, etc., keys should be first demanded, 24. warrant must be strictly followed, 25. search-warrants limited by Constitution, 26. that arrest was illegal is no defence on trial of offence, 27. Fugitives, Extradition of, between the several United States. Under federal Constitution fugitives may be arrested when fleeing from State to State, 28. 52 817 INDEX. ARKEST OF ACCUSED— (conijnued). arrest may be in anticipation of requisition, 29. sufficient if offence be penal in demanding State, 30. requisition lies only for fugitives, 31. federal courts cannot compel governor to surrender, 32. no objection that fugitive is amenable to asylum State, 33. governor of asylum State cannot impeach requisition, 34. habeas corpus cannot go behind warrant, 35. bail not to be taken, 35 a. indictment or aflSdavit must set forth a crime, 36. fugitive may be tried for other than requisition offence, 37. officers executing process protected by federal courts, 37 a. for federal offences warrants may be issued in all districts, 37 6. Between Federal Government and Foreign States. Limited by treaty, 38. offence must be one recognized in asylum State, 39. treaties are retrospective, 40. extradition refused when there cannot be fair trial, 41 . and so for political offences, 42. and so for persons escaping military service, 43. but not because person demanded is subject of the asylum State, 44. where asylum State has jurisdiction there should be no surrender, 45. conflict of opinion as to whether foreign State can claim a subject who has committed a crime in a third State, 46. extradition does not lie for a case not in treaty, 47. nor where defendant is in custody for another offence, 48. trial should be restricted to the offence charged, 49. courts may hear case before mandate, 50. complaint should be special, 51. warrant returnable to commissioner, 52. evidence should be duly authenticated, 53. terms to be construed as in asylum State, 54. evidence must show probable cause, 55. evidence may be heard from defence, 56. Circuit Court has power of review, 57. surrender is at discretion of executive, 58. Privilege from Arrest. Foreign ministers privileged from arrest, 59. Right to take Money from Person of Defendant. Proof of crime may be taken from person, 60. but not money unless connected with offence, 61. Right of Bail to arrest Principal. Bail may arrest and surrender principal, 62. ARREST OF JUDGMENT. At common law, most demurrable exceptions may be taken on motion in arrest, 759. 818 INDEX. ARREST OF JUDGMENT— (con«in«erf). informalities are cured by verdict, 760. misnomer no ground, 761. under statute right is restricted, 762. insensible verdict -will be arrested, 763. pendency of prior indictment no ground for arrest, 764. otherwise as to statute of limitations, 765. irregularities of jury no ground, 766.~ time and mode of motion is limited, 767. sentencing defendant is equivalent to discharge of motion, 768. precludes judgment from being a bar, 435 a. ARSON, autrefois acquit as to, 469 a, 470. ASSAULT, may be included in major crime, 248. aggravations may be discharged, 247. indictments for may be general, 159. joinder with other offences (jee Duplicity, Joinder op Offences). verdicts for (see Verdict). conviction of, how far affecting prosecution for riot, 471. - when on two persons at one time, 469. when cross-bills can be tried at one time, 698 when aggravating incidents should be averred, 159. conviction of, under indictment for major offence, 249, 742. ASSIGNMENTS OP ERROR (see Error), 781. ATTACHMENT may issue to enforce obedience to court, 948. may be used to enforce habeas corpus, 990. ATTEMPTS, must be specially averred, 159. may be verdict of, on major offence, 262. ATTENDANCE OF DEFENDANT IN COURT, at what times essential, 540. ATTORNEY-GENERAL, OR PROSECUTING ATTORNEY, duty of as to information, 87. duty in instituting prosecution, 332-8. must sanction bill of indictment, 354. must sign bill, 355. may attend grand jury, 366. cannot impeach finding, 380. may enter nolle prosequi, 383. may employ associates, 555. occupies semi-judicial position, 558. length of speech at discretion of court, 560. not to open confessions or matters of doubtful admissibility, or unduly pre- judice jury, 561. misconduct of ground for new trial, 561, 855. should call all witnesses to act, 565. in reading books may.be restricted by court, 571. when entitled to close, 573-6. 819 INDEX. ATTORNEY-GENERAL, OR PROSECUTING ATTORNEY— (con- tinned). misstatements of, 577. not to argue law to jury (see Counsel), 578. AUTREFOIS ACQUIT OR CONVICT. As to Nature of Judgment. Acquittal without judgment a bar, but not always conviction, 435. judgment arrested or new trial granted no bar, 435 a. arbitrary discharge may operate as an acquittal, 436. record of former judgment must have been produced, 437. court must have had jurisdiction, 438. judgment by court-martial no bar, 439. and so of police and municipal conviction or acquittal, 440. of courts with concurrent jurisdiction, the court first acting has control, 441. offence having distinct aspects separate governments may prosecute, 442. proceedings for contempt no bar, 444. nor proceedings for habeas corpus, 445. ignoramus and quashing no bar, 446. nor is nolle prosequi or dismissal, 447. after verdict nolle prosequi a bar, 448. discharge for want of prosecution not a bar, 449. foreign statutes of limitation a bar, 450. fraudulent prior judgment no bar, 451. nor is pendency of prior indictment, 452. nor is pendency of civil proceedings, 453. new trial after conviction of minor is bar to major, 455. specific penalty inflicted by sovereign may be exclusive, 455 a. As to Form of Indictment. If former indictment could have sustained a verdict, judgment is a bar, 456. judgment on defective indictment is no bar, 457. same test applies to acquittal of principal or accessary, 458. acquittal on one count does not affect other counts ; but otherwise as to conviction, 459. acquittal from misnomer or misdescription no bar, 460. nor is acquittal from variance as to intent, 461. otherwise as to variance as to time, 462. acquittal on joint indictment a bar if defendant could have been legally convicted, 463. acquittal from merger no bar, 464. where an indictment contains a minor offence inclosed in a major, a con- viction or acquittal of minor bars major, 465. conviction or acquittal of major offence bars minor when on first trial de- fendant could have been convicted of minor, 466. prosecutor may bar himself by selecting a special grade, 467. 820 INDEX. AUTREFOIS ACQUIT OR CONVICT— (continued). As to Nature of Office. When one unlawful act operates on separate objects, conviction as to one object does not extinguish prosecution as to other; e. g., when two per- sons are simultaneously killed, 468. otherwise as to two batteries at one blow, 469. so where several articles are simultaneously stolen, 470. when one act has two or more indictable aspects, if the defendant could have been convicted of either under the first indictment, he cannot be convicted of the two successively, 471. so in liquor cases, 472. severance of identity by place, 473. severance of identity by time, 474 but continuous maintenance of nuisances can be successfully indicted other- wise as bigamy, 475. conviction of assault no bar (after death of assaulted party) to indictment for murder, 476. Practice under Plea. Plea must be special, 477. must be pleaded before not guilty, 478. verdict must go to plea, 479. identity of offender and of offence to be established, 480. identity may be proved by parol, 481. plea, if not identical, may be demurred to, 482. burden of proof is on defendant, 483. when replication is nul tiel record issue is for court, 484. replication of fraud is good on demurrer, 485. on judgment against defendant he is usually allowed to plead over, 486. prosecution may rejoin on its demurrer being overruled, 487. issue of fact is for jury, 488. novel assignment not admissible, 489. Once in Jeopardy. Constitutional limitation taken from common law, 490. but in some courts held more extensive, 491. rule may extend to all infamous crimes, 492. in Pennsylvania, any separation in capital cases except from actual neces- sity bars further proceedings, 493. rule in Virginia, 494. in North Carolina, 495. in Tennessee, 496. in Alabama, 497. in California, 498. in the federal courts a discretionary discharge is no bar, 500. in Massachusetts and Connecticut, 501 . so in New York, 502. so in Maryland, 503. 821 INDEX. AUTREFOIS ACQUIT OR COJ>!YICT— (continued). so in Mississippi, Louisiana, and Missouri, 504. so in Illinois, Ohio, Indiana, Iowa, Nebraska, Nevada, Arkansas, and Texas, 505. so in Kentucky, 506. no jeopardy on defective indictment or process, 507. illness or death of juror is suflScient excuse for discharge, 508. discharge of jury from intermediately discovered incapacity no bar, 509. conviction no bar when set aside for defective ruling of judge, 510. and so of discharge from sickness of defendant, 511. discharge from surprise a bar, 512. discharge from statutory close of court no bar, 513. and so from sickness of judge, 514. and so from death of judge, 515. but not from sickness or incapacity of witness, 516. until jury are " charged," jeopardy does not begin, 517. waiver by motion for new trial on writ of error and motion for arrest, 518. in misdemeanors separation of jury permitted, 519. plea must be special ; record must specify facts, 520. \ AUTREFOIS CONVICT (see Autrefois Acquit), 435 et seq. BAIL. At common law bail to be taken in all but capital cases, 74. excessive bail not to be required, 75. proper course is to require such bail as will secure attendance, 76. after continuance bail may be granted, 77. and so in cases of sickness, 78. bail to keep the peace may be required, 79. vagrants may be held to bail, 80. Bail after Habeas Corpus. On habeas corpus court may adjust bail, 81, 1007. Bail after Verdict or Quashing. Bail permissible after verdict, 82, 941. after quashing bail may be taken, 83 . after acquittal may be required, 941. tests as to adequacy of, 76. right of to arrest principal (see Arrest), 62. not to be taken in extradition process (see Extradition), 36 a. incompetent as jurors, 661. BANK NOTES, averment of, 189. "BARRATOR, COMMON," may be indicted as such, 155. BASTARD CHILD, name of, how averred, 96-104. BATTERIES, several may be joined, 254. when two make one offence, 469. BATTERY, divisible from assault, 158, 247. BELLIGERENTS, when subject to martial law, 979, note. trial of, courts for, 439. 822 INDEX. BENEFIT OF CLERGY, now obsolete, 946 a. BIAS OF JUROR, when ground for challenge (see Challenge), 622. when for new trial (see New Trial), 844. BIGAMY, acquittal of does not bar adultery, 471. BILL OF EXCEPTION, rules as to, 772. "BILL OF EXCHANGE," meaning of, 187. BILL OF INDICTMENT (see Indictment). BILL OF PARTICULARS (see Particulars), 702. BILLS, BANK, averment of, 189, 189 a. BINDING OVER, by magistrate {see Magistrate), 74. by court (see Bail). BLASPHEMY, indictment for, 203. "BOND," meaning of, 197. BONDS TO KEEP THE PEACE (see Bail). BOOKS, what may be taken out by jury, 829. what may be read to jury, 571. averment of in larceny, 208. BREAKING DOORS AND SEARCH-WARRANTS. house may be broken to execute warrant in felonies or breaches of the peace, 18. in felonies this may be done by private person, 19. peace officers may, on reasonable suspicion, break doors without warrant, 20. private person requires stronger, ground for interference, 21. search-warrants may be issued on oath, 22. houses of third persons may be broken ta secure offender or stolen goods, 23. in opening trunks, etc., keys should be first demanded, 24. warrant must be strictly followed, 25. search-warrants limited by Constitution, 26. that arrest was illegal is no defence on merits of offence, 27. BURGLARY, effect of acquittal of in indictment for burglary and larceny, 455, 465, 789, 896. may be joined with larceny in one count, 244^ "BURGLARIOUSLY," essential to burglary, 265. CAPITAL PUNISHMENT, scruples as to, when ground for challenge, 665. CAPTION AND COMMENCEMENT OF INDICTMENT. Caption is no part of indictment, being explanatory prefix, 91. substantial accuracy only required, 92. caption may be amended, 93. commencement must aver office and place of grand jurors and also their oath, 94. each count must contain averment of oath, 95. CARET, effect of in pleading, 277. CERTAINTY, degree of, necessary in indictment, 151. 823 INDEX, CERTIORARI, used to bring up procedure to appellate court («ee- Error), 770. brings up caption, 91, 93. when applicable incases ot habeas corpus, 1003, 1010 CHALLENGE OF GRAND JURY, irregularities in empanelling to be met by challenge to array, 844. disqualified juror may be challenged, 345. preadjudication ground for challenge, 346. so of conscientious scruples, 347. personal interest a disqualification, 348. " Vigilance membership" no ground, 349. objection to juror must be before general issue pleaded, 350. plea should be special, 351. aliens not necessary in prosecutions against aliens, 352. CHALLENGE ON TRIAL. Challenges to Court. Judges not open to challenge, 605. Challenges to Jury. — J'o the Array. Principal challenge to array is based on irregularity of selection, 608. burden is on challenger, 609. after plea too late, 610. challenge to array for favor is where the question is disputed fact, 611. 2h the Polls. — (a.) Peremptory. Prosecution has no peremptory challenge, but may set aside juror, 612. practice is under direction of court ; and so as to order of challenge, 613. defendant may peremptorily challenge at common law, 614. rule as to joint defendants, and several counts, 614 a. on preliminary issues no challenge, 615. nor on collateral issues, 616. right ceases when panel is complete, 617. in misdemeanors no peremptory challenges at common law, 618. matured challenge cannot ordinarily be recalled, 619. right is to reject, not select, 620. (b) Principal. Principal challenge is where case does not rest on disputed fact, 621. (a'.) Preadjudication of Case. Preadjudication of case is ground for challenge, 622. but opinions thrown out as jest, or as vague, loose talk, do not ordinarily disqualify, 623. nor does a general bias against crime, 624. in United States courts a deliberate opinion as to defendant's guilt dis- qualifies, 625. and so in Maine, 626. and in New Hampshire, 627. in Vermont prior expression of opinion disqualifies, 628. in Massachusetts prejudice must go to particular issue, 629. 824 INDEX. CHALLENGE ON TRIAL— (continued). so in Connecticut, 630. in New York, at common law, opinion, butnot impression, disqualifies, 631. but by statute no disqualification of witness not under bias, 632. in New Jersey hypothesis does not exclude, 638. in Pennsylvania, opinion, but not impression, disqualifies, 634. so in Delaware and Maryland, 635. so in Virginia, 636. so in North and South Carolina, 637. so in Ohio, 638. so in Alabama, 639. so in Mississippi, 640. so in Missouri, 641. so in Tennessee, 642. so in Indiana, 643. so in Illinois, 644. so in Arkansas, 645. so in Georgia, 646. so in Iowa, 647. in Wisconsin and Nebraska when opinion is ground for challenge, 648. in Michigan opinion must be unqualified, 649. so in California, 650. so in Louisiana, 651. so in Kansas, Florida, Texas, and Colorado, 652. (b'.) General Propositions as to Prejudice. opinion must go to whole case, 653. juror must answer questions, though not to inculpate himself, 654. must be first sworn on voir dire, 655. court may ask questions, 656. only party prejudiced may challenge, 657. jury may be examined as to details, 658. bias must go to immediate issue, 659. relationship and business association cause for challenge, 660. and so of prior connection with case, 661. and so of participation of cognate offence, 661 a. and so of pecuniary interest in result, 662. and so of irreligion and infamy, 663. and so of conscientious scruples as to capital punishment, 664. and so of i other conscientious scruples, 665. and so of belief that statute is unconstitutional, 666. membership of specific "vigilance" associations, or prospective organiza- tions, may disqualify, but not of general association to put down crime, 668. (c'.) Alienage. Alienage or non-residence may be a disqualification, and so of ignorance of language, and drunkenness, 669. 825 INDEX. CHALLENGE ON TRIAL— (continued^). (c.) Challenges to Polls for Favor. Challenges for favor are those involving disputed questions of fact, 670. challenges cannot moot privileges of juror, 671. Mode and Time of Taking Challenge. Challenge must be prior to oath, 672. when for favor must specify reasons, 673. juror to be sworn voir dire, 674. passing over to court no waiver, 675. after principal challenge may be challenge for favor, 676. peremptory challenge may be after challenge for cause, 677. challenge may be made by counsel, 678. in cases of surprise may be recalled, 679. one defendant cannot object to co-defendant's challenges, 680. juror passed by one side may be challenged by other, 681. juror may be cross-examined and contradicted, 682. court may of its own motion examine, 683. How Challenges are to he tried. At common law at discretion of court, 684. as to array, triers are appointed on issues of fact ; otherwise when there is demurrer, 685. at common law, on challenges to the polls, triers are appointed by court, 686. no challenge to triers, 687. when triers are not asked for, parties are bound by decision of court, 688. all evidence tending to show bias is admissible, 689. but bias must be shown to set aside juror, 690. Juror's Personal Privilege not Ground for Challenge, 692. Revision by Appellate Court. Defendant not exhausting peremptory challenges cannot except to over- ruling challenge for favor, 693. otherwise where he has exhausted his personal challenges, 694. error lies when challenge is on record, 695. "CHALLENGE TO FIGHT," averment of, 202 a. CHANCELLOR cannot enjoin criminal proceedings, 770. CHANGE OF VENUE, motion for, 602. CHARACTER, evidence as to, admissible before sentence, 945. CHARGE OF COURT. Questions of law are for court, 708. defendant has a right to full statement of law, 709. misdirection a cause for new trial, 710, 793. error as to presumption, 794. judge may give his opinion on evidence, 711, 798. must, if required, give distinct answer as to law, 712. error to exclude point from jury unless there be no evidence, 713. charge must be in open court and before parties, 714, 799. 826 INDEX. CHARGE OF COURT— {continued). when required, must be in writing, 715. error in, ground for reversal, 794, 796. abstract discussions not required, 797. Opinion on evidence may be given, 798. "CHARGED WITH CASE," meaning of, 517. " CHARGING," meaning of in respect to jury, 517. CHATTELS, descriptions of {see Personal Chattels), 206 et seq. " CHEQUE," included under bill of exchange, 187. "CHOSES IN ACTION," averment of, 191. CIVIL RIGHTS, as affecting removal to federal courts, 783 a. when vindicated by habeas corpus, 980. CIVIL SUIT, not barring criminal prosecution, 453. CLERICAL ERRORS. Verbal inaccuracies not affecting sense are not fatal, 273. numbers may be given by abbreviations, 274. omission of formal words may not be fatal, 275. signs cannot be substituted for words, 276. erasures and interlineations not fatal, 277. tearing and defacing not necessarily fatal ; lost indictment, 278. pencil writing may be sufficient, 278 a. CLOSE OP TERM, whether verdict can be given after, 513. whether sentence can be amended after, 973. CO-DEFENDANTS, joinder of («ee Joinder of Dkpendants), 301. COIN, how to be averred, 218. COLOR, PERSONS OF, statutory disqualifications of, ground of removal to federal courts, 783 a. discriminations as to, when reviewable on habeas corpus, 980. COMMENCEMENT of indictment (see Caption), 94. COMMISSIONER, when with power to commit for contempt, 963. COMMITMENT by magistrate {see Magistrate), 74. COMMITMENTS, when reviewable by habeas corpus, 991 et seq. COMMITMENTS FOR CONTEMPT, how afiected by pardon, 530. "COMMON BARRATOR," common scold, indictable as such, 155. COMMON LAW, when absorbed by statute, 232, 234. COMMON THIEF, when indictable as such, 155. COMMON VAGRANT, or streetwalker, liable to arrest, 80. CONCLUSION OF INDICTMENTS. Conclusions must conform to Constitution, 279. where statute creates or modifies an offence, conclusion must be statutory, 280. otherwise when statute does not create or modify, 281. conclusion does not cure defects, 282. conclusion need not be in plural, 283. CONCLUSIONS OF LAW, not ordinarily sufficient in pleading, 159. 827 INDEX. CONCURRENT JURISDICTIONS, when absorptive, 44. CONCURRENT OFFENCES, merger of, 468. CONDITIONAL PARDONS, when valid, 533. CONFEDERATE, act of one may be charged to the other, 159 a. CONFEDERATE COURTS, sentences not reviewable on habeas corpus, 996. CONFLICT OF JURISDICTION, as to habeas corpus, 980, 981. CONSCIENTIOUS SCRUPLES, when ground for excusing grand juror, 347. when ground for challenge to petit juror, 664. CONSENT, to irregularities (see Waiver). CONSOLIDATION OF PROSECUTIONS, practice as to, 285, 294, 910 et seq. CONSPIRACY may be joined with misdemeanor, 287. bill of particulars allowed in, 703. at least two defendants necessary, 305. CONSPIRATOR, act of one may be charged to the other, 159 a. CONSTABLE, arrest by (see Arrest), 1-62. CONSTITUTIONALITY OF STATUTE, when considered on habeas corpus, 981 et seq. when authorizing insufficient indictment, 90. CONSULTATIONS OF JURY, to be protected from intrusion, 727. CONTEMPT. When the only Method of Suppression is by Summary Commitment. In such cases attachment may issue, 948. attachments may issue to enforce process, 949. and so as a penalty on disobedience, 950. and so on physical interference with parties and receivers, 951. and so on publication of proceedings ordered not to be published, 952. and so as to misconduct of officers of court, 953. and so as to obstruction to trial, 954. and so as to disorder in presence of court, 955. and so as to misconduct of or tampering with jurymen, 956. When the Contempt can be suppressed otherwise than by Commitment. Criticisms on cases before court constitute contempt, 957. and so as to other publications interfering with due course of justice, 958. but summary commitment only to be used when necessary, 959. in cases of this class an ordinary prosecution is the better course, 960. danger of depositing such power in courts, 961. By whom such Commitments may be issued. Superior courts have power to issue common law commitments, 962. other courts are limited to contempts in their presence, 963. commissioners and notaries have no power, 963. so as to legislatures, 964. Indictability of Contempts : Embracery. Interference with public justice indictable, 965. so with embracery, or improper interference with jury, 966. 828 INDEX. CONTEMPT— (conhnuerf). Practice. In cases in face of court rule may be made instantly returnable, 967. otherwise as to contempts not in face of court, 968. hearing may be inquisitorial, 969. Punishment. Court may fine and imprison, 970. commitment must be for fixed period, 971. fine goes to State, 972. Conviction no Bar to other Proceedings. Contempt not barred by other procedure, and the converse, 973. proceedings in, when a bar to indictments, 445. Appeal, Error, and Pardon. When on record, proceedings may be revised in error, 974. when by habeas corpus, 974 a, 999. pardon does not usually release, 975. CONTINUANCE AND CHANGE OF VENUE. On Application of Prosecution, By statute in some States trial must be prompt, 583. On Application of Defendant. — Absence of Material Witness. Such absence ground for continuance if due diligence is shown, 585. and so on unauthorized withdrawal of witness, 586. continuance not granted when witness was out of jurisdiction of court, or of uncertain attendance, 587. not granted when there has been laches, 588. or unless there was due diligence, 689. not granted when testimony is immaterial, 590. afiidavit must be special, 591. impeaching witnesses, and witnesses to character, not "material," 592. if object be delay, reason ceases, 593. refusal cured by subsequent examination of witness, 594. usually continuance is refused when opposite party concedes facts, 595. not granted when witness had notice, unless he secretes himself, 596. Inability of Defendant or Counsel to attend. Inability to attend may be a ground for continuance, 597. Improper Prejudice of Case. Continuance granted when there has been undue prejudice of case, 598. treachery of counsel, 598 a. Inability of Witness to understand Oath. In such case continuance may be granted, 599. Pendency of Civil Proceedings, 599 a. New Trial. For refusal to give continuance new trial may be granted, 600. Question in Error. Refusal to continue not usually subject of error, 601. 829 INDEX. CONTINUANCE AND CHANGE OF VENUE— (conhnued). Change of Venue. On due cause shown venue may be changed, 602. CONTINUANDO, averment of, 125. CONTINUOUS OFFENCE, how far divisible, 475. averment of, 474-5. how affected by statute of limitations, 821. CONTINUOUSNESS, presumed, 551. CONVICTION, former, how to be averred, 935. when a bar (see Autrefois Acquit). eifeet of foreign, 936. proceedings on second trial, 935. form of (see Sentence.). new trial after (see New Tkial), 790. when court may direct, 812. may be for part of divisible count, 742. CONVICTS, REIiAPSED, practice as to, 935 et seq. COPY, requisites of exactness of, in indictment (see Written Instru- ments), 167 et seq. COPY OF INDICTMENT, when to be furnished to defendant, 696. CORAM NOBIS, error, 779 6 (see Error). CORPORAL PUNISHMENT, 921. CORPORATIONS, name of, how to be given in indictment, 100, 110. COSTS, when removed by pardon, 628. on motion for new trial, 901. COUNSEL. Counsel for Prosecution, Prosecuting attorneys may employ associates, 555. prose.cuting attorney occupies semi-judicial post, 556. Counsel for 'Defence. Defendants entitled to counsel by Constitution, 557. counsel, if necessary, may be assigned by court, 558. such counsel may sue county for their fees, 559. Duties of Counsel. Order and length of speeches at discretion of court, 560. prosecuting attorney not to open confessions or matter of doubtful admis- sibility, or unfairly prejudice jury, 561. misconduct of, ground for new trial, 561, 853. counsel on both sides should be candid in opening, 662. opening speeches not to sum up, 663. examination of witnesses at discretion of court, 564. prosecution should call all the witnesses to the guilty act, 565. order of testimony discretionary with court, 666. impeaching testimony may be restricted, 667. witness to see writings before cross-examination, 568. witnesses may be secluded from court-room, 569. 830 INDEX. COUNSEL— (conh'nued). defendant's opening to be restricted to admissible evidence, 570. reading books is at discretion of court, 571. counsel may exhibit mechanical evidence in proof, 572. if defendant offers no evidence, his counsel closes, 573. otherwise when he offers evidence, 574. • defendants may sever, 575. priority of speeches to be determined by court,576. misstatements not ground for new trial if not objected to at time, 577, 853. ordinarily counsel are not to argue law to jury, 578. party may make statement to jury, 579. absence of, when ground for continuance (see Attorney-General). mistake of, when ground for new trial, 876. treachery of, ground for continuance, 598 a. COUNT, defective, when vitiating indictment, 771. COUNTS, distribution of punishment as to (see Sentence), 907. joinder of (see Joinder op Offences), 285. when bad, to be withdrawn by prosecution, 737. when bad, may be rejected in sentence, 907. " COUNTY," averment of (see Place), 146. how to be averred, when divided, 141. COURT, power of as to preserving order (see New Trial, Trial). may preserve order by attachments (see Contempt), 948. directs order and details of trial, 563 et seg. power of as to law and fact, 708 et seq. (see Charge of Court, New Trial). duty as to charging jury, 709. any material misruling ground for new trial, 793. and so as to mistaken ruling as to presumption of fact, 794. omission to charge cumulatively is no error, 795. not required to charge as to undisputed law, when no points are tendered, 796. otherwise when jury fall into error from lack of instruction, 796 a. abstract dissertations are not required, 797. may give, opinion as to weight of evidence, 798. may give supplementary charge, but not in absence of defendant, 799. erroneous instruction on one point vitiates when there is general verdict, 800. may adjourn during deliberations of jury, 744. power of as to contempts (see Contempts), 948 et seq. COURT-MARTIAL, judgment of, when a bar, 439. when reviewable by habeas corpus, 997. jurisdiction of, 979, note. CRIMINAL PROSECUTIONS, removal of to federal courts, 783 a. CROSS-BILL, practice as to, 698. 831 INDEX. "CRUEL AND UNUSUAL," what punishments are, 920. CUMULATIVE AVERMENTS, may be discharged as surplusage (see Du- plicity), 158. CUMULATIVE CONVICTIONS, practice as to (see Sentence), 935. CUMULATIVE PUNISHMENTS, when permitted on one indictment, 910. CURRENCY, averment of, 189, 189 a. CUSTODY, when defendant must be during trial, 640 a. escape from (see Arrest, Sentence). commitment to for misconduct (see Contempt). DATE, pleading of (see Time), 120 et seq. DATES, averment of in indictment (see Time), 120 et seq. DAY OF THE WEEK, when to be alleged, 121. DEAFNESS, when disqualifying juror, 669-692. DEATH, when to suggest on record, 308. sentence to, 914. place of in indictment for homicide, 138. " DEED," averment of, 197. DE FACTO OFFICERS, acts of not reviewable on habeas corpus, 996. DEFAULT, no conviction sustainable for, 540. DEFENDANT. Right to take Money from Person of. Proof of crime may be taken from person, 60. but not money unless connected with offence, 61. pleading name of, 96. right to be present on trial, 540 et seq. right to make Statement to jury, 579. to be asked if he has anything to say in sentence, 906. DEFENDANTS, joinder of (see Joinder of Defendants), 301. DEGREE OF CRIME, practice as to designating in verdict, 752. DELAY IN PROSECUTION, when barring prosecution, 326. DELIBERATIONS OF JURY, to be protected from intrusion, 727. DEMURRER, reaches defects of record, 400. may go to particular counts, 401. brings up prior pleadings, 402. admits facts well pleaded, 403. nature of judgment in, 404, 405. effect of judgment, 457. joinder in is formal, 407 a. demurrer should be prompt, 407 i. DEMURRER TO EVIDENCE, bring up the whole case, 407, 706. DEPOSITIONS, when evidence on habeas corpus, 1004. DESCRIPTIVE AVERMENT, must ordinarily be proved, 160. DISCHARGE OF DEFENDANT FROM FAILURE TO TRY, 328. DISCHARGE OF JURY FROM DISAGREEMENT, 490 et seq. DISCONTINUANCE (see Nolle Prosequi). 832 INDEX. DISCRETION, exercised in motion to quash, 385. DISCRETION OF COURT, limits of, 779. DISFRANCHISEMENT, penalty of, 939. DISJUNCTIVE AVERMENTS not ordinarily admissible, 161 et seq. 228. DISMISSAL OF CASE no bar to indictment, 447. DISOBEDIENCE, to magistrate, 10 et seq. to court, 947 et seq. DISORDER IN COURT may be punished by attachment, 954 et seq. DISORDERLY PERSONS, when to be held to bail, 80. DISQUALIFICATION, of judge, 605. of juror, 608 et seq. of grand juror, 344. DISSUADING WITNESSES, a contempt, 954. DISTRICT, what has jurisdiction in United States courts, 139 et seq. DISTRICT ATTORNEY (see Attorney-General). DIVISIBILITY OF COUNT, may be determined by verdict, 742. of offence as pleaded, 158. DIVISIBILITY OF OFFENCES, by place, 473. by time (see Sorplusage), 474. of things stolen, in larceny, 212, 252. DOCUMENTS, pleading of (see Written Instruments), 167 et seq. DOUBLE ACTS, when divisible, 488. DOUBLE OFFENCES, when to be joined (^ee Duplicity). DRUNKENNESS, disqualifying juror, 669, 841. DUMBNESS, when excusing plea, 417. DUPLICITY. Joinder in one count of two offences is bad, 243. exception when larceny is included in burglary or embezzlement, 244. and so where fornication is included in major offence, 245. when major offence includes minor, conviction may be for either, 246, 465. "assault" is included under " assault with intent," 247. on indictment for major there can be conviction of minor, 248. misdemeanor may be inclosed in felony, 249. but minor offence must be accurately stated, 250. not duplicity to couple alternate statutory phases, 225, 251. several articles may be joined in larceny, 252. and so of cumulative overt acts and agencies, 253. and so of double batteries, libels, or sales, 254. duplicity is usually cured by verdict, 255. DUTY, allegation of, 151 et seq. EAVESDROPPING, an offence, 721, 729. ELECTION between offences charged, when compelled, 293, 294. As to defendants, 309 et seq. EMBEZZLEMENT, bill of particulars allowed in, 703. jurisdiction in cases of, 149. 53 833 INDEX. EMBRACERY, how punished, 966. as to grand jury, 338. ENACTING clause of statute, scope of, 238. ENGLISH, indictment must be in, 274-276. juror must understand, 669. EQUITY cannot enjoin criminal proceedings, 770. ERASURES in indictment not fatal, 277. ERROR, WRIT OF. To what courts, 770. practice in federal courts, 770 a. How one had Count affects Conviction. when bad count may vitiate judgment, 771. Bill of Exceptions. At common law bill of exceptions cannot be tendered, 772. In whose behalf Writ of Error lies. At common law no writ of error lies for prosecution ; otherwise by statute, 773. for defendant a special allocatur is usually necessary, 774. fugitive cannot be heard on writ, 774 a. At what Time. Error does not lie till after judgment, 775. failure to demur, etc., does not affect right, 776. For what Errors. At common law only to matter of record, 777. otherwise by statute, 778. error does not lie to matters of discretion nor for matters not injuring the defendant, 779. regularity presumed, 779 n. for errors of fact error coram nobis lies, 779 6. Error in Sentence. Appellate court reversing for error in sentence must at common law dis- charge, 780. Assignment of Errors. Error must be assigned, 781. Joinder in Error. This is necessary, 782. Supersedeas. At common law, a writ of error is a supersedeas in capital cases, 783. Removal to Federal Courts. Such removal provided for by statute, 783 a. ESCAPE, right to arrest after, 8 et seq. of prisoner, trial after, 933. after escape, error will not be heard, 774 a. EVIDENCE, mistakes in admission of, ground for new trial (see New Trial), 801. need not be stated in indictment, 158. 834 INDEX. EVIDENCE— (continued). all relevant to res gestae must be presented by prosecution, 565. order of at discretion of court, 566 et seq. relation of to speeches of counsel, 573 et seq. exclusion of witnesses from court, 569. mistake of judge as to, ground of new trial, 794-8. and so of erroneous admission or rejection of, 801 . verdict against, ground for new trial, 813. after-discovered, when ground for new trial, 855. motion must be special, 855. must be supported by affidavits, 856. may be contested, 857. must be usually moved before judgment, 858. must be newly discovered, 859. acquitted co-defendant as a witness is no ground, 860. discovered before verdict should be given to jury, 861. if evidence could have been secured at trial, ground fails, 862. and so of withholding papers which due diligence could have secured, 863. otherwise in cases of surprise, 864. party disabled who neglects to obtain evidence on trial, 865. must be material and not cumulative, 866. surprise is an exception, 867. and so when evidence is of a distinct class, 868. new trial not granted merely to discredit opposing witness, 869. subsequent indictment for perjury no ground, 870. should be such as to change result on merits, 871.' new defence must not be merely technical, 872. EVIDENCE BEFORE GRAND JURY. Witnesses must be duly sworn, 358 a. defects in this respect may be met by plea, 359. evidence confined to prosecution, 360. probable cause enough, 361. legal proof only to be received, 362. grand jury may ask advice of court, 364. new bill may be found on old testimony, 365. witnesses for prosecution to be bound to appear, 357. names of witnesses usually placed on bill, 358. EVIDENCE, DEMURRER TO, nature and eflFect of, 407. EVIDENCE ON HABEAS CORPUS, 1000 et seq. EVIDENCE REQUISITE BEFORE MAGISTRATE. Practice not usually to hear witnesses for defence, 71. exception in cases of identity, or of one-sidedness in prosecution's case, 72. probable cause only need be shown, 73. EXACTNESS requisite in pleading, 151. 835 INDEX. EXAMINATIONS before magistrate, practice as to, 71 et seq. EXAMPLE, an incidental object of punishment, 943 et seq. EXCEPTIONS, in statutes, how to be pleaded, 240. EXCEPTIONS, BILL OF (see Error), 772. EXCITEMENT, public, when ground for continuance, 598. for change of venue, 602. for new trial, 889. EXCLUSION OF WITNESSES from court-room, when ordered, 569. practice as to, 569. EXCUSE, when to be averred in indictment, 238 et seq. EXECUTION, capital, mode of sentence for, 916. non-capital (see Sentence), 907 et seq. ordinance of necessary to satisfaction, 925 a. EXECUTIVE, duty to surrender on extradition, 32 et seq., 58. right of as to pardon (see Pardon), 521 et seq. duties of as to extradition (see Extradition), 28. EX POST FACTO punishment, 946. EXTRADITION. Between the several United States. Under federal Constitution fugitives may be arrested when fleeing from State to State, 28. arrest may be in anticipation of requisition, 29. suflScient if offence be penal in demanding State, 30. requisition must be duly framed, and lies only for fugitives, 31. federal courts cannot compel governor to surrender, 32. no objection that fugitive is amenable to asylum State, 33. governor of asylum State cannot impeach requisition, 34. ordinarily issues warrant, 34 a. habeas corpus cannot go behind warrant, 35. bail not to be talien, 35 a. indictment or affidavit must set forth a crime, and must be in course of judicial proceedings, 36. fugitive may be tried for other than requisition offence, 37. officers executing process protected by federal courts, 37 a. for federal offences warrants may be issued in all districts, 37 b. Between Federal Government and Foreign States. limited by treaty, 38. arrest in cases of, 27. offence must be one recognized in asylum State, 39. treaties are retrospective, 40. extradition refused when there cannot be fair trial, 41. and so for political offences, 42. and so for persons escaping military service, 43. but not because person demanded is subject of the asylum State, 44. where asylum State has jurisdiction there should be no surrender, 45. 836 INDEX, EXTR ADITIO N— (continued) . conflict of opinion as to whether foreign State can claim a subject who has committed a crime in a third State, 46. extradition does not lie for a case not in treaty, 47. nor where defendant is in custody for another offence, 48. trial should be restricted to the offence charged, 49. courts may hear case before mandate, 50. complaint and warrant should be special, 51. warrant returnable to commissioner, 52. evidence should be duly authenticated, 53. terms to be construed as in asylum State, 54. evidence must show probable cause, 55. evidence may be heard from defence, 56. Circuit Court has power of review, 57. surrender is at discretion of executive, 58. may be tested by habeas corpus, 993. FACTS, unnecessary, indictment need not specify, 158. jury judges of, 794, 813. when court can charge as to, 711, 798. "FALSELY," essential to perjury, 264. when requisite as a term of art, 264. FALSE PRETENCES, divisibility of, 253 et seq. joinder of counts, 297. specifications of, 221 et seq. FALSE RETURN, in habeas corpus, 988, 989. FAVOR, challenges for (see Challenge). FEDERAL COURTS, may discharge from State arrests, 981. removal of cases to from State courts, 783 a. ♦jurisdiction of in habeas corpus (see Habeas Corpus), 981. appellate jurisdiction of, 770 a. FEDERAL CURRENCY, averment of, 189 a. FELONIES, when to be joined in the same indictment (see Joinder of Offences), 290. right of officers to arrest for (see Arrest), 8 et seq., 17. " FELONIOUSLY," essential to felony, 260. may be rejected as surplusage, 261. FELONY, may inclose misdemeanor, 249. one charged with may be arrested, 8 et seq., 17. bail for parties charged with, 74, 1007. election in cases of, 293. indictment for attempts to commit, 159. verdict in cases of, 737 et seq. separation of jury in cases of, 719 et seq. defendant must be present on trial of, 540. challenges in cases of, 614 et seq. 837 INDEX. FEME COVERT, may be joined in indictment,. 306 a. FIGURES, when allowable in indictment, 276. FINDING AND ATTESTING BILL. Twelve must concur in bill, 368. foreman usually attests bill, 369. bill to be brought into court, 370. finding must be recorded, 371. bill may be amended by grand jury, 372. finding may be reconsidered, 373. jury usually cannot find part only of count, 374. insensible finding is bad, 375. grand jury may be polled, 376. FINE, may be imposed for contempt (see Sentence), 970. FINES, a common law penalty, 916. how to be imposed, 940. how collected (see Sentence), 920. remission of, by pardon, 528. FLIGHT, how afiecting statute of limitations, 324. "FORCE AND ARMS," not necessary in indictment, 271. " FORCIBLY," when necessary to forcible entry and rape, 270. FOREIGN CONVICTION. Will not sustain cumulative punishment, 936. FOREIGN LANGUAGE, how to be averred, 181. FOREIGN MINISTERS, privileged from arrest, 59. FOREIGN PARDONS, effect of, 537. FORfeIGN STATES, extradition to (see Extradition), 38 et seq. larceny in, jurisdiction of, 149. FOREIGN STATUTES OF LIMITATION, effect of, 329, 450. FOREMAN of grand jury, duties of, 342 et seq. of petit jury, duties of, 741 et seq. t FORFEITURE, effect of pardon as to, 528. may be imposed as a penalty, 922, 939. FORGED WRITINGS, pleading of (see Written Instruments), 167 et seq. FORGERY, conjunctive averment of allegations in venue in, 162. setting forth of document in, 167. averment of title of document in, 184 et seq. conviction of how far barring cognate offences, 471. FORM, errors of, when cured by verdict, 90, 273, 760. FORMAL ERRORS, how far vitiating, 273 et seq., 760. FORMER CONVICTION, how averred, 935. when a bar {see Autrefois Acquit.) FORMER JEOPARDY (see Jeopardy,) 490. FORNICATION, conviction of under indictment for greater offence, 245. FRAUD, operates to vacate pardon, 532. and to vacate judgment, 451. 838 INDEX. 1 FRAUDULENT JUDGMENT, not barring further proceedings, 452. "FRAUDULENTLY," when assented, 269. FREEMASONRY, whan cause for challenge, 667. FRIENDSHIP, when ground for challenge of juries, 659 et seq. FUGITIVE, cannot be heard in error, 774 a. FUGITIVES, who are under extradition acts (see Extradition), 28 et seq, GAMING, details required in indictment for, 155 et seq., 221 et seq. when exceptions in statutes against to be negatived, 238. GENERAL DEMURRER, characteristics of, 400 et seq. GENERAL ISSUE, characteristics of, 408. GENERAL VERDICT, practice as to, 747. effect of, 738. how to be rendered (see Verdict), 747. GOODS, how to be described (see Personal Chattels), 206 et seq. GOODS, when may be seized under search-warrant, 22. may be taken from defendant, 60. lumping description of, 252. "GOODS AND CHATTELS," averment of, 191. GOVERNOR OP STATE, duty of as to extradition (see Extradition), 82 et seq., 58. GRAMMAR, BAD, does not necessarily vitiate jndictment, 273 et seq. GRAND JURIES. Powers of to institute Prosecutions. Conflict of opinion as to power of grand jury to originate prosecutions, 332. theory that such power belongs to grand jury, 334. theory that grand juries are limited to cases of notoriety, or in their own knowledge, or given to them by court or prosecuting officers, 335. theory that grand juries are restricted to cases returned by magistrate, and ■* prosecuting officers, 339. power of grand juries limited to court summoning them, 340. Constitution of Grand Juries. Number must be between twelve and twenty-three, 341. foreman usually appointed by court, 342. jurors to be duly sworn, 343. bound to secrecy, 343 a. Irregularities in empanelling to be met by challenge to array, or motion to quash or plea, 344. cannot usually be examined on arrest of judgment or error, 350, 353, 766. nor on habeas corpus, 1005 et seq. disqualified juror may be challenged, 345. Disqualijications. preadjudication ground for challenge, 346. so of conscientious scruples, 347. personal interest a disqualification, 348. "vigilance membership" no ground, 349. 839 INDEX. > GRAND JURIES— (continued.) objection to juror by plea must be before general issue pleaded, 350. plea should be special, 351. aliens not necessary in prosecutions against aliens, 352. as to record jurisdictional objections, there may be arrest of judgment, 353. Sanction of Prosecuting Attorney. Ordinarily bill must be signed by prosecuting officer, 354. ' name may be signed after finding, 355. prosecuting officer's sanction necessary, 356. Summoning and Indorsement of Witnesses. Witnesses for prosecution to be bound to appear, 357. names of witnesses usually placed on bill, 358. Evidence. Witnesses must be duly sworn, 358 a. defects in this respect may be met by plea, 359. evidence confined to prosecution, 360. probable cause enough, 361. legal proof only to be received, 363. grand jury may ask advice of court, 364. new bill may be found on old testimony, 365. Powers of Prosecuting Attorney. Prosecuting officer usually in attendance, 366. defendant and others not entitled to attend, 367. Finding and Attesting Bill. Twelve must concur in bill, 368. foreman usually attests bill, 369. bill to be brought into court, 370. finding must be recorded, 371. bill may be amended by grand jury, 372. finding may be reconsidered, 373. jury usually cannot find part only of count, 374. insensible finding is bad, 375. grand jury may be polled or vote tested by plea in abatement, 376. Misconduct of Grand Juror. Grand juror may be punished by court for contempt, but is not otherwise responsible, 377. Duty to testify. Grand juror may be examined as to what witness said, 378. cannot be admitted to impeach finding, 379. prosecuting officer or other attendant inadmissible to impeach finding, 380. Tampering with an officer, 381. "GREENBACKS," averment of, 189 a. "GUARANTEE," averment of, 200. GUILT, grade of, as afi'ecting right to bail, 74, 81, 1007. as affecting degree of sentence, 942. 840 INDEX. GUILTY OR NOT GUILTY. Plea of not guilty is general issue, 408. plea is essential to issue, 409. omission o£ similiter not fatal, 410. in felonies pleas must be in person, 411. pleas must be several, 412. plea of guilty reserves motion in arrest and error, 413. may at discretion be withdrawn, 414. mistakes in may be corrected, 415. after plea degree of offence may be ascertained by witnesses, 416. plea of not guilty may be entered by order of court, 417. plea o{ nolo contendere equivalent to not guilty, 418. HABEAS CORPUS. Writ available at any stage of imprisonment, 978. cannot be suspended by president or governor, 979. State court cannot discharge from federal arrest, 980. federal courts may review state arrests, 981. petition to be verified by affidavit, 982. may be applied for by next friend, 983. to be directed to custodian and to be served personally, 984. notice to be given to pi-osecution, 985. writ not granted when relator should be remanded, 986. relator, if in custody, must be produced immediately in court, 987. causes of detention must be returned, 988. return must not be evasive, 989. writ to be enforced by attachment, 990. return may be controverted, 991. discharge from defects of process; and so in cases of oppression, 992. writ may test extradition process, 993. may obtain redress from void sentence, 994. but cannot overhaul indictment or matters within province of trial court, 995. cannot collaterally correct errors, and here oi de facto courts, 996. nor interrupt hearing, 996 a. practice where there can be no writ of error, 996 6. military judgments cannot be thus reviewed, 997. nor summary police convictions, 998. nor committals for contempt, 999. court determines questions of fact, 1000. probable cause enough, 1001. evidence not excluded on technical grounds, 1002. remitting procedure by certiorari, 1003. affidavits may be received, 1004. no discharge for technical defects or variance, 1005. discharge from pardon or limitation, 1006. 841 INDEX. HABEAS COUPHS— (continued). discharge from want of probable cause ; adjustment of bail, 1007. judgment must be discharge or remainder, 1008. during hearing custody is in court, 1009. no writ of error at common law ; proceedings in error, 1010. how far discharge affects subsequent arrest, 1011. proceedings in, when a bar to indictment, 445. may issue to bring "up prisoner, 931. " HAM," averment of in indictment, 209. HAND, holding up on arraignment, 699. HANGING, the usual form of capital execution, 916. HEARING BEFORE MAGISTRATE. Commitment for further Hearing. Waiver ; hearing may be adjourned from time to time, 70. Evidence requisite. Practice not usually to hear witnesses for defence, 71. exceptions in cases of identity, or of one-sidedness in prosecution's case, 72. probable cause only need be shown, 73. Final Commitment and Binding over. At common law bail to be taken in all but capital cases, 74. excessive bail not to be required, 75. proper course is to require such bail as will secure attendance, 76. after continuance bail may be granted, 77. and so in cases of sickness, 78. bail to keep the peace may be required, 79. Vagrants, Disorderly Persons, and Professional Criminals. Magistrates have power to hold vagrants, etc., to bail, 80. Bail after Habeas Corpus. On habeas corpus court may adjust bail, 81. Bail after Verdict. in exceptional cases bail permissible after verdict, 82. HIGH SEAS, venue of offences on, 139. HOLDING OVER TO COURT {see Arrest, Habeas Corpus). HOLIDAY, LEGAL, holding court on, 758. HOMICIDE, bail in, 74 et seq., 1007. averment of death in, 138. venue in cases of, 139 et seq. joinder of defendants in, 301 et seq. allegation of party killed in, 109 et seq. allegation of fatal instrument, 212 a, 297. divisibility of averments in, 246. conclusion of indictment in, 279 et seq. allegation of time in, 138. technical averments in, 258. attempts to commit how averred, 159. 842 INDEX. HOMICIDE— (continued) . verdict in, 742. sentence in, 914 el seq. HOMICIDES, two by one blow, when divisible, 468. " HORSES," averment of in indictment, 209, 237. HOUR, when to be stated in indictment (see Time), 130 et seq. HUSBAND AND AVIFE may be joined as co-defendants, 306 a. IDEM SONANS, what is as to name (see Indictment), 119. as to document, 173 et seq. IDENTITY, proof of in autrefois acquit, 480, 481. plea denying, 408-419. IGNORANCE OF JUROR, how excepted to, 669, 839. IGNORAMUS, not a bar to indictment, 446. action of grand jury as to, 368 et seq. ILLNESS, of defendant during trial, effect of, 544. of juror, when ground for discharge, 508. " IMMEDIATELY," whfen defective as an averment of time, 132. IMPEACHING WITNESS, practice as to, 667. IMPEACHING FINDING OF BILL. Grand juror may be examined as to what witness said, 378. cannot be admitted to impeach finding, 379. prosecuting officer inadmissible to impeach finding, 380. IMPEACHMENT OF JUDGE, 605. IMPEACHMENTS, not usually reached by pardon, 521. IMPRISONMENT, sentence for must be definite, 923. but may present alternatives, 924. day of sentence is first day of imprisonment, 925. expiration without endurance is not satisfaction, 925 a. prison need not at common law be specified, 926. in case of second trial of convict, prisoner may be brought up for second trial by habeas corpus, 931. a second imprisonment begins at the former's termination, 932. an escaped prisoner may be sentenced for escape in like manner (see Sen- tence), 933. may be imposed for contempt, 970. relief from by habeas corpus {see Habeas Corpus), 978 et seq. INCAPACITY of juror, when ground for new trial, 846. INCONSISTENT AVERMENTS cannot be joined, 256. INDECENT WRITING OR PICTURE, how to be pleaded, 177. INDICTMENT. Finding of, 352 et seq. Indictmemt as Distinguished from Information. Under federal Constitutiop trials of all capital or infamous crimes must be by indictment, 85. presentment is an information by grandsjury on which indictment may be based, 86. 843 INDEX. INDICTMENT— (conitnuerf). information is ex officio procedure by attorney-general, 87. is not usually permitted as to infamous crimes, 88. "infamous crimes" are such as involve disgrace or expose to penitentiary, 89. Statutes of Jeofails and Amendment. By statutes formal mistakes may be amended and formal averments made unnecessary, 90. Caption and Commencement. Caption is no part of indictment, being an explanatory prefix, 91. substantial accuracy only required, 92. caption may be amended, 93. commencement must aver ofiice and place of grand jurors and also their oath, 94. each count must contain averment of oath, 95. Name and Addition. — As to Defendant. Name of defendant should be specifically given, 96. omission of surname is fatal, 97. mistake as to either surname or Christian name may be met by abate- ment, 98. surname may be laid as alias, 99. inhabitants of parish and corporations may be indicted in corporate name, 100. middle names to be given when essential, 101. initials requisite when used by party, 102. party cannot dispute a name accepted by him, 103. unknown party may be approximately described, 104. at common law addition is necessary, 105- wrong addition to be met by plea in abatement, 106. defendant's residence must be given, 107. "Junior" must be alleged when party is known as such, 108. As to Parties injured and Third Parties. Name, only, of third person need be given, 109. corporate title must be special, 110. third person may be described as unknown, 111. but this allegation may be traversed, 112. the test is, whether the name was unknown to grand jury, 113. immaterial- misnomer may be rejected as surplusage, 114. sufficient if description be substantially correct, 115. variance in third party's name is fatal, 116. name may be given by initials, 117. reputative name is sufficient, 118. Idem sonans is sufficient, 119. Time. Time must be averred, but not generally material, 120. when "Sunday" is essence of offence, day must be specified, 121. videlicet may introduce a date tentatively, 122. 844 INDEX, mBICTMETST— (continued). blank as to date is fatal, 123. substantial accuracy is enough, 124. double or obscure dates are inadequate, 125. date cannot be laid between two distinct periods, 126. negligence should have time averred, 127. time may be designated by historical epochs, 128. recitals of time need not be accurate, 129. hour not necessary unless required by statute, 130. repetition may be by "then and there," 131. other terms are insufficient, 132. "then and there" cannot cure ambiguities, 133. repugnant, future, or impossible dates are bad, 134. record dates must be accurate, 135. , and so of dates of documents, 136. time should be within limitation, 137. in homicide death should be within a year and a day, 138. Place. Enough to lay venue within jurisdiction, 139. when act is by agent, principal to be charged as of place of act, 140. when county is divided, jurisdiction is to be laid in court of locus delicti, 141. when county includes several jurisdictions, jurisdiction must be specified, 142. name of State not necessary to indictment, 143. i sub-description in transitory offences immaterial, 144. but not in matters of local description, 145. "county aforesaid" is enough, 146. title, when changed by legislature, must be followed, 147. venue need not follow fine, 148. in larceny venue may be laid in place where goods are taken, 149. omission of venue is fatal, 150. Statement of Offence. Offence must be set forth with reasonable certainty, 151. omission of essential incidents is fatal, 152. terms must be technically exact, 153. not enough to charge conclusion of law, 154. excepting in cases of ' ' common barrators, " " common scolds, ' ' and certain nuisances, 155. matters unknown may be proximately described, 156. bill of particulars may be required, 157. surplusage need not be stated, and if stated may be disregarded, 158. videlicet is the pointing out of an averment as a probable specification, 158 a. assault may be sustained without specification of object, 159. act of one confederate may be averred as the act of the other, 159 a. 845 INDEX. INDICTMENT— (conitnuerf). descriptive averment must be proved, 160. alternative statements are inadmissible, 161. disjunctive offences in statute may be conjunctively stated, 162. otherwise as to distinct and substantive offences, 163. intent when necessary must be averred, 163 o. and so of guilty knowledge, 164. inducement and aggravation need not be detailed, 165. particularity is required for identification and protection, 166. Written Instruments. — Where, as in Forgery and Libel, Instruments must be set forth in full. When words of document are material, they should be set forth, 167. in such cases the indictment should purport to set forth the words, 168. "purport" means effect; "tenor" means contents, 169. " manner and form," " purport and effect, " " substance, " do not impart verbal accuracy, 1 70. attaching original paper is not adequate, 171. when exact copy is required, mere variance of a letter is immaterial, 173. unnecessary document need not be set forth, 174. quotation marks are not sufficient, 175. document lost or in defendant's hands need not be set forth, 176. and so of obscene libel, 177. prosecutor's negligence does not alter the case, 178. production of document alleged to have been destroyed is a fatal variance, 179. extraneous parts of document need not be set forth, 180. foreign or insensible document must be explained by averments, 181. innuendoes can explain but cannot enlarge, 181 a. Where, as in Larceny, general Designation is sufficient. Statutory designations must be followed, 182. though general designation be sufficient, yet if indictment purport to give words variance is fatal, 183. What general Designation will suffice. If designation is erroneous, variance is fatal, 184. "receipt" includes all signed admissions of payment, 185. "acquittance" includes discharge from duty, 186. " bill of exchange" is to be used in its technical sense, 187. " promissory note" is used in a large sense, 188. "bank note" includes notes issued by bank, 189. " treasury notes and federal currency," 189 a. " money" is convertible with currency, 190. "goods and chattels" include personalty exclusive of choses in action, 191. "warrant" is an instrument calling for payment or delivery, 192. "order" implies mandatory power, 193. "request" includes mere invitation, 194. 846 INDEX. mOlCTMElUT— (continued). terms may be used cumulatively, 195. defects may be explained by averments, 196. a "deed" must be a writing under seal passing a right, 197. "obligation" is a unilateral engagement, 198. and so is "undertaking," 199. a guarantee and an " I. O. U." are undertakings, 200. "property" is whatever may be appropriated, 201. " piece of paper" is subject of larceny, 202. "challenge to fight" need not be specially set forth, 202a. Words spoken. , Words spoken must be set forth exactly, though substantial proof is enough, 203. in treason it is enough to set forth substance, 204. Personal Chattels. — Indefinite, Insensible, or Lumping Descriptions. Personal chattels, when subjects of an offence, must be specifically de- scribed, 206. when notes are stolen in a bunch, denominations may be proximately given, 207. certainty must be such as to individuate offence, 208. ' ' dead' ' animals must be averred to be such ; ' ' living' ' must be specifi- cally described, 209. when only specified members of a class are subjects of offence, then speci- fications must be given, 210. minerals and vegetables must be averred to be severed from realty, 211. variance in number or value is immaterial, 212. Value. Value must be assigned when larceny is charged, 213. larceny of "piece of paper" may be prosecuted, 214. value essential to restitution, and also to mark grades, 215. legal currency need not be valued, 216. when there is lumping valuation, conviction cannot be had for stealing fraction, 217. Money and Coin. Money must be specifically described, 218. when money is given to change, and change is kept, indictment cannot aver stealing change, 219. Offences created by Statute. Usually sufficient and necessary to use words of statute, 220. otherwise when statute gives conclusion of law, 221. and so if indictment professes but fails to set forth statute, 222. special limitations are to be given, 223. private statute must be pleaded in full, 224. offence must be averred to be within statute, 225. section or title need not be stated, 226. where statute requires two defendants, one is not sufficient, 227. 847 INDEX. INDICTMENT— (conhnjted) . disjunctions in statute to be averred conjunctively, 228. at common law defects in statutory averment not cured by verdict, 229. statutes creating an offence are to be closely followed, 230. when common-law offence is made penal by title, details must be given, 231. when statute is cumulative, common law may still be pursued, 232. when statute assigns no penalty, punishment is at common law, 233. exhaustive statute absorbs common law, 234. statutory technical averments to be introduced, 235. but equivalent terms may be given, 236. where a statute describes a class of animals by a general term, it is enough to use this term for the whole class ; otherwise not, 237. provisos and exceptions, not part of definition, need not be negatived, 238. otherwise when proviso is in same clause, 239. exception in enacting clause to be negatived, 240. question in such case is whether the statute creates a general or a limited offence, 241. Duplicity. Joinder in one count of two offences is bad, 243. exception when larceny is included in burglary or embezzlement, 244. and so where fornication is included in major offence, 245. when major offence includes minor, conviction may be for either, 246. "assault" is included under "assault with intent," 247. on indictment for major there can be conviction of minor, 248. misdemeanor may be inclosed in felony, 249. but minor offence must be accurately stated, 250. not duplicity to couple alternate statutory phases, 261. several articles may be joined in larceny, 252. and so of double overt acts, 253. and so of double batteries, libels, or sales, 254. duplicity is usually cured by verdict, 255. Repugnancy. Where material averments are repugnant, indictment is bad, 256. Technical Averments. In treason "traitorously" must be used, 257. "malice aforethought" essential to murder, 258. "struck" essential to wound, 259. " feloniously" essential to felony, 260. "feloniously" can be rejected as surplusage, 261. in such cases conviction may be had for attempt, 262. "ravish" and "forcibly" are essential to rape, 263. "falsely" essential to perjury, 264. "burglariously" to burglary, 265. "take and carry away" to larceny, 266. 848 INDEX. INDICTMENT— (conitnuerf). "violently and against the will" to robbery, 267. "piratical" to piracy, 268. "unlawfully" and other aggravative terms not necessary, 269. " forcibly" and with a strong hand, essential to forcible entrj', 270. vi et armis not essential, 271. "knowingly" always prudent, 272. Clerical Errors. Verbal inaccuracies not affecting sense are not fatal, 273. numbers may be given by abbreviations, 274. omission of formal words may not be fatal, 275. signs cannot be substituted for words, 276. erasures and interlineations not fatal, 277. tearing and defacing not necessarily fatal. Lost indictment, 278. pencil writing may be sufficient, 278 a. Conclusion of Indictments. Conclusions must conform to Constitution, 279. where statute creates or modifies an offence, conclusion must be statutory, 280. otherwise when statute does not create or modify, 281. conclusion does not cure defects, 282. conclusion need not be in plural, 283. statutory conclusion may be rejected as surplusage, 284. Joinder of Offences. Counts for offences of same character and same mode of trial may be joined, 286. assaults on two persons may be joined, 286. conspiracy and constituent misdemeanor may be joined, and assault with assault with intent, 287. and so of common law and statutory offences, 288. and so of felony and misdemeanor, 289. cognate felonies may be joined, 290. and so of successive grades of offence, 291. joinder of different offences no ground for error, 292. election will not be compelled when offences are connected, 293. object of election is to reduce to a single issue, 294. election is at discretion of court, 295. may be at any time before verdict, 296. counts may be varied to suit case, 297. two counts precisely the same are bad, 298. one bad count cannot be aided by another, 299. counts may be transposed after verdict, 300. Joinder of Defendants. — Who may he joined. Joint offenders can be jointly indicted, 301. but not when offences are several, 302. so as to officers with separate duties, 303. 64 849 INDEX. INDICTMENT— (continued)- principals and accessaries can be joined, 304. in conspiracy at least two must be joined, 305. in riot three must be joined, 306. husband and wife may be joined, 306 a. misjoinder may be excepted to at any time, 307. death need not be suggested on the record, 308. Severance. Defendants may elect to sever, 309. severance should be granted when defences clash, 310. in conspiracy and riot no severance, 311. Verdict and Judgment. Joint defendants may be convicted of different grades, 312. defendants may be convicted severally, 313. sentence to be several, 314. offence must be joint to justify joint verdict, 315. Statutes of Limitations. Construction to be liberal to defendant, 316. statute need not be specially pleaded, 317. indictment should aver offence within statute or exclude exceptions, 318. statute, unless general, operates only on specified offences, 319. statute is retrospective, 320. statute begins to run from commission of crime, 321. indictment or information saves statute, 322. in some jurisdictions statute saved by warrant or presentment, 323. when flight suspends statute, it is not revived by temporary return, 324. failure of defective indictment does not revive statute, 325. courts look with disfavor on long delays in prosecution, 326. statute not suspended by fraud, 327. under statute indictment unduly delayed may be discharged, 328. statutes have no extra-territorial effects, 329. indorsement of prosecutor's name, 358. witnesses on, 358. indorsement of foreman's name on, 369. of prosecuting officer's name on, 354. furnishing copy of to defendant, 696. finding of (see Grand Jury). INDICTMENT, DEMURRER TO (see Demurrer), 400. INDICTMENT, QUASHING. -^ Indictment will be quashed when no judgment can be entered on it, 385. quashing refused except in clear case, 386. quashing usually matter of discretion, 387. extrinsic facts no ground for quashing, 388. defendants may be severed in quashing, 389. when two indictments are pending one may be quashed, 390. quashing ordered in vexatious cases, 391. 850 INDEX. INDICTMENT, QVASHmG— (continued}. bail may be demanded after quashing, 392. pending motion nolle prosequi may be entered, 393. one count may be quashed, 394. quashing may be on motion of prosecution, 395. time usually before plea, 396. motion should state grounds, 397. INDOKSEMENT, of witnesses on indictment, 357. of foreman's name, 369. of prosecuting officer's name, 354. of document when to be pleaded, 180. INDUCEMENT, need not be pleaded, 165. " INFAMOUS OFFENCE," meaning of, in federal Constitution, 85, 88, 89. INFAMY, when ground for challenge, 663. of juror, when ground for new trial, 846. what constitutes, 89. INFERIOR COURTS, power of as to contempts, 963. power as to habeas corpus, 981 et seq. INFLUENCE, subjection to, when disqualification of juror, 659. INFORMALITIES, when cured by verdict, 760. INFORMATIONS. Under federal Constitution trials of all capital or infamous crimes must be by indictment, 85. presentment is an information by grand jury on which indictment may be based, 86. information is ex officio proceeding by attorney-general, 87. is not usually permitted as to infamous crimes, 88. "infamous crimes" are such as preclude person convicted from being a witness, 89. INITIALS, when allowed in pleading, 102, 117. INJUNCTION, cannot be maintained against criminal proceedings, 770 a. INK, when requisite to indictment, 278 a. INNUENDOES, effect of in pleading, 181 a. INSANITY, a disqualification to juror, 671, 692, 846. plea of, when allowed by statute, 429 a. INSPECTION (see View). INSTRUCTIONS OF JUDGE (see Charge or Court), 708 et seq., 796 et seq. INSTRUMENT OF INJURY, averment of, 212 a. INTENT, when to be averred in indictment, 163 a. INTERLINEATIONS IN INDICTMENT, not fatal, 277. INTERNATIONAL LAW, as regulating extradition, 38. INTOXICATING LIQUORS, questions of autrefois acquit as to, 472. INTOXICATION OF JUROR, ground for challenge, 669. ground for setting aside verdict, 841. 851 INDEX. ■ " I. O. U.," averment of, 200. IRONS, when defendant may be placed in during trial, 540 a. IRRELIGION, when ground for challenge, 663. ISSUE, general plea of, 408. joinder in, 410. must be single, 419. JEOFAILS AND AMENDMENT. By statutes formal mistakes may be amended and formal averments made unnecessary, 90. JEOPARDY, nature of under Constitution : constitutional limitation taken from common law, 490. but in some courts held more extensive, 491. rule may extend to all infamous crimes, 492. in Pennsylvania any separation in capital cases, except from actual neces- sity, bars further proceedings, 493. so in Virginia, 494. and in North Carolina, 495. and in Tennessee, 496. and in Alabama, 497. and in California, 498. in the federal courts a discretionary discharge is no bar, 500. so in Massachusetts, 501. so in New York, 502. so in Maryland, 503. so in Mississippi and Louisiana, 504. so in Illinois, Ohio, Indiana, Michigan, Iowa, Nebraska, Nevada, Ar- kansas, and Texas, 505. so in Kentucky, Georgia, and Missouri, 506. so in South Carolina, 506 a. no jeopardy on defective indictment, 507. illness or death of juror is sufficient excuse for discharge, 508. discharge of jury from intermediately discovered incapacity no bar, 509. conviction no bar when set aside for defective ruling of judge, 510. and so of discharge from sickness or escape of defendant, 511. discharge from surprise a bar, 512. discharge from statutory close of court no bar, 513. and so from sickness of judge, 514. and so from death of judge, 515. but not from sickness or incapacity of witness, 516. until jury are "charged," jeopardy does not begin, 517. conflict of opinion as to whether defendant can waive his privilege in this respect, 518. in misdemeanors separation of jury permitted, 519. plea must be special ; record must specify facts, 520. JOINDER, IN ERROR, practice as to {see Error), 782. 852 INDEX. JOINDER IN ISSUE, 410. JOINDER OF DEFENDANTS. Who may he joined. Joint offenders can be jointly indicted, 301. no joinder when offences are several, 302. nor as to officers ■with separate duties, 303. principals and accessaries can be joined, 304. in conspiracy at least two must be joined, 305. in riot three must be joined, 306. husband and wife may be joined, 306 a. misjoinder may be excepted to at any time, 307. death need not be suggested on the record, 308. Severance. Defendants may elect to sever, 309. severance should be granted when defences clash, 310. in conspiracy and riot no severance, 311. Verdict and Judgment. Joint defendants may be convicted of different grades, 312. defendants may be convicted severally, 313, 755. sentence to be several, 314. offence must be joint to justify joint verdict, 315. JOINDER OF OFFENCES. Counts for offences of same character and same mode of trial may be joined, 285. assaults on two persons may be joined, 286. conspiracy and constituent misdemeanor may be joined, and assault with assault with intent, 287. and'so of common law and statutory offences, 288. and so of felony and misdemeanor, 289. cognate felonies may be joined, 290. and so of successive grades of offence, 291. joinder of different offences no ground for error, 292. election will not be compelled when offences are connected, 293. object of election is to reduce to a single issue, 294. election is at discretion of court, 295. may be at any time before verdict, 296. counts should be varied to suit case, 297. two counts precisely the same are bad, 298. one bad count cannot be aided by another, 299. counts may be transposed after verdict, 300. verdict when there are several counts, 737 et seq. sentence in such cases, 907 et seq. JUDGE, whether succeeding, may sentence, 898, 929. when open to challenge, 605. preadjudication by, when ground for new trial, 798 a. one not sitting on trial may sentence, 929. 853 INDEX. JUDGE— (ronhnuerf) . duties of on trial (see Court), 793 et seq. determines order of business (see Counsel), 566 et seq. contempt to, punishable by attachment (see Contempt), 948. may charge as to fact, 711, 798. must charge as to law, 712. see Charge op Court. address of, to prisoner on sentence, 906, 915. discretion of, 779. JUDGMENT, ARREST OP. . At common law, most exceptions may be taken on motion in arrest, 759. informalities are cured by verdict, 760. misnomer no ground, 761. under statute rule is extended, 762. insensible verdict will be arrested, 763. pendency of prior indictment no ground for arrest, 764. otherwise as to statute of limitations, 765. but not irregularities of grand jury, 766. time for motion is limited, 767. sentencing defendant is equivalent to discharge of motion, 768. nature of, required to sustain autrefois acquit, 435. JUDICIAL DISCRETION, range of, 779. "JUNIOR," when description necessary in indictment, 108. JURISDICTION, averment of (see Place), 139 et seq. concurrent, 139. plea to, 422. indictment may be quashed for want of, 139. want of, may be examined on habeas corpus, 978, 994 et seq. JUROR, not admissible to impeach verdict, 847. JURORS, GRAND (see Grand Jurors), 332 et seq. JURY, power of over law, 805. irregularity in summoning, when ground for new trial, or arrest, or error, 886. challenge of (see Challenge). when trial by, may be waived, 733. Swearing of. Jury must appear to have been sworn, 716. Conduct during Trial ; Adjournment and Discharge. May separate in most jurisdictions before commitment, 815, 818. misconduct of jury is a contempt, 717. ignorance or inattention, 839. intoxication, 841. when misconduct ground for new trial (^sh^ New Trial), 814 et seq. misconduct of, or to, may be punished, 717, 956, 966. deliberations of, to be protected from intrusion, 727. ^ what evidence may be taken out by, 829. 854 ' INDEX. JURY — (continued). in England juries may be discharged at discretion of court, 718. in this country separations allowed in cases less than capital, 719, 815-8. otherwise as to capital cases, 720. tampering with jury to be punished, 721, 837 et seq. court can discharge jury in cases of surprise when gross injustice would otherwise be done, 722. adjournment of court is ground for discharge, 723. and so is sickness or eminent disqualification of juror, 724. in non-capital cases jury may be discharged at discretion of court, 725 (see 490 etseq.). conflict of opinion in capital cases, 726. order of speeches to, 560. Deliberations of. Jury must be secluded during deliberations, 725, 726, 727, 814, 821. misconduct during, 836 et seq. tampering with, 833 et seq. levity in action of, 833. Swearing Officer. Officer must be duly sworn, 728. Communications by Third Parties. Illegal communication with jury is indictable, 729. such communications ground for new trial, 730. Food and Drink. Food and drink may be supplied to jury, 731. intoxication of jurors, 841. Books to be examined by, 829. Casting Lots. May be ground for new trial, 732. Curing Irregularities by Consent. How far consent cures irregularities, 733. how far judges of law, 805, 806. Discharge of for disagreement, 436, 490, 500. JURY OP MATRONS, practice as to, 917. JUSTICE, fugitives from (see Extradition). JUSTICE OF THE PEACE, hearing before (see Arrest, Magistrate), 70. practice as to arrest and committal by (see Arrest), 1-60. when action of is reviewable by habeas corpus, 27, 991. when having power to commit for contempt, 963. KEEP THE PEACE, holding over to, as part of sentence, 82, 941. KIDNAPPING, when reviewable on habeas co/pus, 27, 996. KILLING (see Homicide). "KNOWINGLY," when necessary, 164, 272. KNOWLEDGE, guilty, when to be averred in indictment, 164. 855 INDEX. LANGUAGE OF INDICTMENT, rule as to, 273 et seq. LANGUAGE OF TRIAL, juror's ignorance of, 669, 839. LARCENY, pleadings of writings in, 182. technical terms in (see Receiving Stolen Goods), 266. averment of venue in, 440. several articles can be joined in, 252. search-warrants in case of, 18. averment of documents stolen, 182. attempts to commit, indictment for, 159. joinder of counts in, 285 et seq., 291. description of articles in, 206. averment of value in, 213. sequestration of things stolen, 60. may be inclosed in embezzlement, 244. and in burglary, 244. conviction of, not barring burglary, 471. LAW, jury bound to receive from court, 805. earlier doctrine in this respect to the contrary, 806. early cases no longer authoritative, 807. jury are at common law not judges of law, 810. court bound to hear counsel as to law, 811. court may direct acquittal or conviction, 812. misruling of, ground for new trial (see New Tkial), 793. right of counsel to argue, 578, 811. LEAD PENCIL, effect of in writing, 278 a. LEVYING WAR, requisites of indictment for, 257. LIBEL, indictment for must set out document, 167. joinder of defendants in, 301, 302. joinder of offences in, 301 et seq. disjunctive averments in, 161, 162, 251. innuendo in, 181 a. bill of particulars in, 157, 702. when oral, practice as to, 203. when obscene, rule as to, 177. LIBELS, pleading of (see Written Instruments), 167 et seq. LICENSE, existence of, when to be negatived, 238, 239, 2^0. LIMITATION, STATUTES OF. Construction to be liberal to defendant, 316. statute need not to be specially pleaded, 317. indictment should aver offence within statute or exclude exceptions, 318. statute, unless general, operates only on specified offences, 319. statute is retrospective, 320. statute begins to run from commission of crime, continuous offences, 821. indictment or information saves statute, 322. in some jurisdictions statute saved by warrant or presentment, 823. when flight suspends statute, it is revived by temporary return, 324. 856 INDEX. LIMITATION, STATUTES OF— (continued). failure of defective indictment does not revive statute, 325. courts look with disfavor on long delays in prosecution, 326. statute not suspended by fraud, 327. under statute indictment unduly delayed may be discharged, 328. "three term statutes," 328, 523. statutes have no extra-territorial effects, 329. may be applied on habeas corpus, 1006. foreign statutes may bar further proceedings, 450. LIQUOR, INTOXICATING, when juror may take, 841. LIQUOR PROSECUTIONS, plea of autrefois acquit in, 472. LIS PENDENS, not barring further proceedings, 452. LOCAL DESCRIPTION, how to be given (see Place), 145. LOCALITY, how averred, 145. LORD'S DAY (see Sunday). LOST DOCUMENT, how to be pleaded, 176, 178. LOST INDICTMENT, proceedings on, 278. LOT, resort to, when vitiating verdict, 842. LOTTERY, when indictment must specify, 167 et seq. when several tickets may be joined, 470. "LYING IN WAIT," when to be averred, 260. LUNACY (see Insanity). MAGISTRATE, practice as to arrest and committal (see Arrest), 1-60. relief from imprisonment by (see Habeas Corpus), 992. power of as to contempt, 963. hearing before, 70. MAJOR OFFENCE, effect of conviction or acquittal of, 245, 248, 742, 910. MALFEASANCE, averment of, 127, 151. "MALICE AFORETHOUGHT," when essential to homicide, 258. MALICE AND NEGLIGENCE, effect of concurrence of, 468. MALICIOUS MISCHIEF, statutory indictments for, 220 et seq. description of animals in, 237. "MALICIOUSLY," averment of, 258, 269. MANACLES, when prisoner is to be put in, 540 a. MANSLAUGHTER, indictment for murder contains, 246, 248. verdict for, 742. conviction of bars murder, 465. bail in cases of, 74 et seq., 1007. MARGIN OF INDICTMENT, averments in, 91 et seq. MARKS OF QUOTATION, when proper averment of tenor, 175. MARRIED WOMAN, may be indicted with her husband, 306 a. MARTIAL LAW, characteristics of, 979, note. effect of convictions by, 439. MATERIAL AVERMENTS, necessary to be made, 151. MATRONS, jury of, 917. 857 INDEX. MAYHEM, technical requisites for indictment, 260. may be convicted of assault under, 742. MEANS, when to be set out in indictment, 151-159. MEAT, how to be averred in indictment, 209. MERCY, recommendation to, effect of, 757. MERGER, operation of when felony and misdemeanor are part of one act, 464. MIDDLE NAME, when to be averred, 101. MILITARY COURTS, where judgment of is a bar, 439. when reviewable on habeas corpus^ 997. MILITARY JUDGMENTS, when reviewable on habeas corpus, 997. MILITARY LAW, characteristics of, 979, note. MILITARY OFFENCES, no extradition for (see Extradition), 44. MINERALS, averments of (see Peksonal Chattels), 211. MINOR OFFENCE may be inclosed in major, 245, 248, 742, 910. MISCHIEF (see Malicious Mischief). MISCONDUCT in court may be punished by attachment, 954 et seq, MISCONDUCT OF JURY, how to be punished, 717. MISDEMEANOR may be inclosed in felony, 249. conviction on trial for felony, 464, 742. bail in cases of, 74, 1007. when defendant must be present in trial of, 541. may be joined with other offences, 247, 285. election in such cases, 293. challenges in cases of, 608 et seq. MISDEMEANORS, right to arrest for (see Akrest), 8 et seq., 17. MISJOINDER of defendants, how excepted to (see Joinder), 307. MISNOMER, effect of, 96 et seq. plea of, 423. MISSPELLING, when fatal to pleading (see Clerical Errors), 273. MISTAKE, WHEN GROUND FOR NEW TRIAL. Mistake may be ground if there was due diligence, 876. mistake of law no ground, 877. nor is negligence of counsel, 878. otherwise as to blunder or confusion of witness, 879. mistake of jury as to punishment, 880. MONEY, averment of, 190, 218. MOTION FOR NEW TRIAL (see New Trial). MOTION IN ARREST (see Arrest of Judgment). MOTION TO QUASH (see Quashing). MOTIONS, when defendant must be present at argument of, 548. MUNICIPAL CONVICTION, when barring further prosecution, 440. MURDER, technical requisites in indictment for, 258, 260. verdict for (see Verdict), 742. sentence for (see Sentence), 914. barred by conviction of manslaughter, 465. MUTE, standing on arraignment, effect of, 417. 858 INDEX. NAME, abatement for error in, 423. NATIONAL COURTS (see Federal Courts). NAME AND ADDITION, PLEADING OF. As to Defendant. Name of defendant should be specifically given, 96. omission of surname is fatal, 97. mistake as to either surname or Christian name may be met by abate^ ment, 98. surname may be laid as alias, 99. inhabitants of parish and corporations may be indicted in corporate name, 100. middle names to be given when essential, 101. initials requisite when used by party, 102. party cannot dispute a name accepted by him, 103. unknown party may be approximately described, 104. at common law, addition is necessary, 105. wrong addition to be met by plea in abatement, 106. defendant's residence must be given, 107. "Junior" must be alleged when party is known as such, 108. error must be met by plea in abatement, 423. As to Parties injured and ITiird Parties. Name, only, of third person need be given, 109. corporate title must be special, 110. third person may be described as unknown. 111. but this allegation may be traversed, 112. the test is, whether the name was unknown to grand jury, 113. immaterial misnomer may be rejected as surplusage, 114, sufficient if description be substantially correct, 115. variance in third party's name is fatal, 116. name may be given by initials, 117. reputative name is sufficient, 118. idem sonans is sufficient, 119. NECESSITY, ground for discharging juror, 508, 723-4. NEGATIVES, averment of in indictment, 238-40. NEGLIGENCE, averments in indictments for, 127. concurrent with malice, when absorbed, 488. NEW TRIAL. In what New Trials consist. A new trial is an examination after verdict pf facts and law not of record, 784. In what Cases Courts have Authority to grant. — After Acquittal. No new trial after acquittal, 785. otherwise when verdict was fraudulent, 786. so in quasi civil cases, 787. motion for new trial only applicable to counts where there has been a con- viction, 788. 859 INDEX. NEW TRIAL— (coniinued). conviction of minor oflfence is acquittal of major, 789. After Conviction. Generally new trial can be granted at discretion of court, 790. For what. Reasons. — Misdirection of Court. Any material misruling ground for new trial, 793. and so as to mistaken ruling as to presumption of fact, 794. omission to charge cumulatively is no error, 795. judge not required to charge as to undisputed law, when no points are tendered, 796. otherwise when jury fall into error from lack of instruction, 796 a. abstract dissertations by judge are not required, 797. judge may give opinion as to weight of evidence, 798. preadjudication by, may be ground for new trial, 798 a. judge may give supplementary charge, but not in absence of defendant, 799. erroneous instruction on one count vitiates when there is general verdict, 800. Mistake as to Admission or Rejection of Eoidence. Such error ground for new trial, 801. usually court will not presume that illegal evidence had no effect, 802. when erroneous ruling is rescinded no ground for a new trial, 803. objection to avail must have been made at the time, 804. Verdict against Law. Jury bound to receive law from court, 805. earlier doctrine in this respect to the contrary, 806. early cases no longer authoritative, 807. jury are at common law not judges of law, 810. court bound to hear counsel as to law, 811. court may direct acquittal or conviction, 812. Verdict against Evidence. Verdict against evidence may be set aside, 813. Irregularity in Conduct of Jury. Mere inadvertent and innoxious separation not generally ground for new trial, 814. in some courts this view is not accepted, 815. separation before case is opened is always permissible, 816. in misdemeanors jury may separate during trial, 817. and so as to felonies less than capital, 818. but not generally as to capital felonies, 819. court in such cases may adjourn from day to day, 820. conflict of opinion as to whether separation after committal of case is per- missible, 821. courts holding such separation absolutely fatal, 822 . courts holding such separation only prima facie ground for new trial, 823. 860 INDEX. NEW TBI Ah— [continued). courts holding such separation fatal only when there has been proof of tampering, 824. ' the latter is the prevailing view as to misdemeanors, 825. prevailing view is that such irregularities may be cured by consent, 826. unsworn or improper officer in charge is ground for new trial ; intrusion of officer during deliberations, 827. and so of improper reception of materials of proof, 828. and so of irregular reception of books, 829. and so of reception of reports of trial, 829 a. and so of irregular communications of court, 830. and so of conversing with others as to ease, 831. and so of presence of party, 832. aud so of material testimony submitted by jury or others, 833. and so of visiting scene of offence, 834. but not accidental intrusion or necessary visit, 835. mere casual exhibition of evidence not fatal, 836. and so of the mere approach of strangers, and trivial conversation, 837. but presumption is against communications, 838. inattention of juror not ordinarily ground, 839. but otherwise as to disobedience to court resulting in injury, 840. intoxication ground for new trial, 841. so of casting lots by jurors, when decisive, 732, 842. otherwise as to mere collateral indecorum, 843. absolute preadjudication by juror ground for new trial when a surprise, 844. otherwise when party could have known of prejudice in time for challenge, 845. absolute incapacity of juror a ground, 846. juror inadmissible to impeach verdict, 847. and so are affidavits attacking jury, 848. Misconduct of Prevailing Party. Such misconduct ground for new trial, 849. and so of undue influence on jury, 850. and so of tampering with evidence, 851. and so of tricks when operative, 852. but not of remarks of opposite counsel unless objected to at time, 577, 853. After-discovered Evidence. Motion must be special, 855. must be supported by affidavits, 856. may be contested, 857. must be usually moved before judgment, 858. evidence must be newly discovered, 859. acquitted co-defendant as a witness is no ground, 860. nor is acquittal of defendant of a part of a charge on which he was excluded as a witness, 860 a. 861 INDEX. NEW TKl Ah— (continued). evidence discovered before verdict should be given to jury, 861. if evidence could have been secured at trial, ground fails, 862. and so of withholding papers -which due diligence could have secured, 863. otherwise in cases of surprise, 864. party disabled who neglects to obtain evidence on trial, 865. evidence must be material and not cumulative, 866. surprise is an exception, 867. and so when evidence is of a distinct class, 868. new trial not granted merely to discredit opposing witness, 869. subsequent indictment for perjury no ground, 870. evidence should be such as to change result on merits, 871. new defence must not be merely technical, 872. acquittal of co-defendant no ground, 873. otherwise as to refusal to sever defendants, 874. Absence of Defendant on Trial. Such absence may be ground for new trial, 875. Mistake in Conduct of Cause. Mistalce may be ground if there was due diligence, 876. mistake of law no ground, 877. nor is negligence of counsel, 878. otherwise as to blunder or confusion of witness, 879. but not mistake of jury as to punishment, 880. Surprise. Surprise, when genuine and productive of injustice, ground for new trial, 881. so of undue haste in hurrying on trial, 882. but absence of witness no ground when evidence is cumulative, 883. ordinary surprise at evidence no ground, 884. nor is unexpected bias of witness, 885. Irregularity in Summoning of .Jury. Ordinarily defects injury process no ground, 886. and so of irregularity in finding bill, 887. otherwise as to after discovery of incompetency of juror, 888. and so of prejudice of jury, and popular excitement, 889. At what Time Motion must he made. < Motion must be prompt, 890. when verdict is set aside new trial is at once ordered, 891. T'o -whom Motion applies. Any defendant may move, 892. defendant must be personally in court, 893. new trial may be granted as to one of several, 894. When Conviction is for only Part of Indictment. New trial goes only to convicted counts, 895. conviction of minor offence is acquittal of major, 896. 86:i INDEX. NEW TUT AL— (continued). By what Courts. • Appellate court may revise evidence from notes, 897. conflict of opinion as to whether successor of judge can hear motion, 898. In what Form. Rule to show cause first granted, 899. motion must state reasons, 900. Costs. Costs may await second trial, 901. Error. Error does not usually lie to action of court, 779, 902. NIGHT-TIME, averment of, 130. NIGHT WALKERS, arrest of, 80. NOLLE PROSEQUI, a prerogative of sovereign, 383. when to be granted, 384. not a bar to indictment, 447. NOLO CONTENDERE, effect of plea of, 418. NOTARIES, have no power to commit for contempt, 963. NOT GUI].TY, plea of (see Pleas), 408. NOVEL ASSIGNMENT, in criminal cases, inadmissible, 489. NUISANCE, general statement of is sufficient, 155. continuandos in indictments for, 125. NUISANCES, bill of particulars allowed in, 703. NUL TIEL RECORD, replication of, 487. NUMBER, how to be averred, 212. averments of divisible, 252. NUMERALS, when allowed in pleading, 124, 274. NUNC PRO TUNC, entry of sentence by, 913. OATH, of jury, form of, 716. to jury of matrons, 917. to grand jury, 343. to officer in charge of jury, 827. " OBLIGATION," averment of, 198. OBSCENE WORDS, indictment for, 203. OBSCENE WRITING OR PICTURE, how to be pleaded, 177. OFFENCE, STATEMENT OF IN INDICTMENT. Offence must be set forth with reasonable certainty, 151. omission of essential incidents is fatal, 152. terms must be technically exact, 153. not enough to charge conclusion of law, 154. excepting in cases of "common barrators," "common scolds," and cer- tain nuisances, 155. matters unknown may be proximately described, 156. bill of particulars may be required, 157. surplusage need not be stated, and if stated may be disregarded, 158. 863 INDEX. OFFENCE, STATEMENT OF, IN INDICTMENT— (con«i»«e pardon before sentence remits costs and penalties, 528. limited in impeachments, 529. and so as to contempts, 530. must be delivered and accepted, but cannot be revoked, 531. void when fraudulent, 532. conditional pardons are valid, 533. pardon does not reach second convictions, 534. pardon must recite conviction, 535. calling a witness as State's evidence is not pardon, 536. foreign pardons operative as to crimes within sovereign's jurisdiction, 537. held not to release in cases of contempt, 973. may be applied in cases of habeas corpus, 1006. PARISH, how to be described in indictment, 100. PARTICULARITY, why prescribed in indictment, 166. PARTICULARS, BILL OF, may be required when indictment is general, 702. affidavit should be made, 703. particulars may be ordered on general pleas, 704. action on particulars not usually subject of error, 705. may be required when proper, 157, 702. PEACE, binding over to, as part of sentence, 82, 941. PEACE OFFICER, practice as to arrest and committal by (.see Arrest), 1-60. PENALTIES, when cancelled by pardon, 528. PENCIL WRITING, when sufficient in pleading, 278 a. PEREMPTORY CHALLENGES (see Challenges), 612. Prosecution has no peremptory challenge, but may set aside juror, 612. practice is under direction of court, 613. defendant may peremptorily challenge at common law, 614. rule as to joint defendants, 614 a. on preliminary issues no challenge, 615. nor on collateral issues, 616. right ceases when panel is complete, 617. in misdemeanors no peremptory challenges at common law, 618. matured challenge cannot ordinarily be recalled, 619. right is to reject, not select, 620. PERJURY, technical terms in, 264. defendants cannot be joined in, 302. divisibility of assignments in, 158, 253, 254. 55 865 INDEX. PER JURY— (con tinued) . lies for false oath before grand jury, 358 a, 378. •vsrhen ground for new trial, 870. how oath and record to be set out in, 167, 173 e« seq. before grand jurj-, 378'. PERSON, how to be named in indictment (see Name), 96 et seq. PERSONAL CHATTELS, DESCRIPTION OP. Indejinite, Insensible, or Lumping Descriptions. Personal chattels, when subjects of an offence, must be specifically de- scribed, 206. when notes are stolen in a bunch, denominations may be proximately given, 207. certainty must be such as to individuate offence, 208. "dead" animals must be averred to be such; "living" must be specifi- cally described, 209. when only specified members of a class are subjects of offence, then speci- fications must be given, 210. minerals must be averred to be severed from realty, 211. variance in number or value is immaterial, 212. Value. Value must be assigned when larceny is charged, 213. larceny of "piece of paper" may be prosecuted, 214. value essential to restitution, and also to mark grades, 215. legal currency need not be valued, 216. when there is lumping valuation, conviction cannot be had for stealing fraction, 217. Money and Coin. Money must be specifically described, 218. when money is given to change, and change is kept, indictment cannot aver stealing change, 219. PETIT JURY (see Challekges, Jury). " PIECE OF PAPER," averment of, 202. PLACE, statement of in indictment, 139. enough to lay venue within jurisdiction, 139. when act is by agent, principal to be charged as of place of act, 140. when county is divided, jurisdiction is to be laid in court of locus delicti, 141. when county includes several jurisdictions, jurisdiction must be specified, 142. name of State not necessary to indictment, 143. sub-description in transitory offences immaterial, 144. but not in matters of local description, 145. "county aforesaid" is enough, 146. title, when changed by legislature, must be followed, 147. venue must follow fine, 148. in larceny venue may be laid in place where goods are taken, 149. omission of venue is fatal, 150. 866 INDEX. PLEA. Guilty or not Guilty. Plea of not guilty is general issue, 408. plea is essential to issue, 409. omission of similiter not fatal, 410. in felonies pleas must be in person, 411. pleas must be several, 412. plea of guilty reserves motion in arrest and error, 413. may at discretion be withdrawn, 414. mistakes in may be, corrected, 415. after plea degree of oiFence may be ascertained by witnesses, 416. plea of not guilty may be entered by order of court, 417. plea of nolo contendere equivalent to guilty, 418. Special Pleas. Repugnant pleas cannot be pleaded simultaneously, 419. in practice special plea is tried first, 420. judgment against defendant on special plea is respondeat ouster, 421. Plea to the Jurisdiction, Jurisdiction may be excepted to by plea, 422. Plea in abatement. error as to defendant's name may be met by plea in abatement, 423. and so of error in addition, 424. judgment for defendant no bar to indictment in right name, 425. after not guilty plea in abatement is too late, 426. plea to be construed strictly, 427. defendant may plead over, 428. Other Special Pleas. Plea of non-identity only allowed in cases of escape, 429. Plea of insanity allowed under special statute, 429 a. plea to constitution of grand jury must be sustained in fact, 430. pendency of other indictment no bar, 431. plea of pregnancy, 917. plea of law is for court, 432. ruling for prosecution on special plea is equivalent to judgment on de- murrer, 433. Autrefois Acquit or Convict. — As to Nature nf Judgment. Acquittal without judgment a bar, but not always conviction, 435. arbitrary discharge may operate as an acquittal, 436. record of former judgment must have been produced, 437. court must havehad jurisdiction, 438. judgment by court-martial no bar, 439. and so of police and municipal conviction, 440. of courts with concurrent jurisdiction, the court first acting has control, 441. oifence having distinct aspects successive governments may prosecute, 442. proceedings for contempt no bar, 444. 867 INDEX. PLE A — [con tinned) . nor proceedings for habeas corpus, 445. Ignoramus and quastiing no bar, 446. nor is nolle prosequi or dismissal, 447. after verdict nolle prosequi a bar, 448. discharge for want of prosecution not a bar, 449. foreign statutes of limitation a bar, 450. fraudulent prior judgment no bar, 451. nor is pendency of prior indictment, 452. nor is pendency of civil proceedings, 453. new trial after conviction of minor is bar to major, 455. As to Form of Indictment. If former indictment could have sustained a verdict, judgment is a bar, 456. judgment on defective indictment is no bar, 457. same test applies to acquittal of principal or accessary, 458. acquittal on one count does not affect other counts ; but otherwise as to conviction, 459. acquittal from misnomer or misdescription no bar, 460. nor is acquittal from variance as to intent, 461. otherwise as to variance as to time, 462. acquittal on joint indictment a bar if defendant could have been legally convicted, 463. acquittal from merger no bar, 464. where an indictment contains a minor offence inclosed, in a major, a con- viction or acquittal of minor bars major, 465. conviction of major offence bars minor when on first trial defendant could have been convicted of minor, 466. prosecutor may bar himself by selecting a special grade, 467. As to Nature of Offence. When one unlawful act operates on separate objects, conviction as to one object does not extinguish prosecution as to other ; e. g., when two per- sons are simultaneously killed, 468. otherwise as to two batteries at one blow, 469. so where several articles are simultaneously stolen, 470. when one act has two or more indictable aspects, if the defendant could have been convicted of either under the first indictment, he cannot be convicted of the two successively, 471. so in liquor cases, 472. severance of identity by place, 473. severance of identity by time, 474. but continuous maintenance of nuisances can be successively indicted, 475. conviction of assault no bar (after death of assaulted party) to indictment for murder, 476. Practice under Plea. Plea must be special, 477. must be pleaded before not guilty, 478. 868 INDEX. PLEA — (continued) . verdict must go to plea, 479. identity of offender and offence to be established, 480. identity may be proved by parol, 481. plea, if not identical, may be demurred to, 482. burden of proof is on defendant, 483. when replication is nul tiel record issue is for court, 484. replication of fraud is good on demurrer, 485. on judgment against defendant he is usually allowed to plead over, 486. prosecution may rejoin on its demurrer being overruled, 487. issue of fact is for jury, 488. novel assignment not admissible, 489. Once in Jeopardy. Constitutional limitation taken from common law, 490. but in some courts held more extensive, 491. rule may extend to all infamous crimes, 492. in Pennsylvania, any separation in capital cases except from actual neces- sity bars further proceedings, 493. so in Virginia, 494. and in North Carolina, 495. and in Tennessee, 496. . and in Alabama, 497. and in California, 498. in the federal courts a discretionary discharge is no bar, 500. so in Massachusetts, 501. so in New York, 502. so in Maryland, 503. so in Mississippi and Louisiana, 504. so in Illinois, Ohio, Indiana, Michigan, Iowa, Nebraska, Nevada, Arkan- sas, and Texas, 505. so in Kentucky, Georgia, and Missouri, 506. so in South Carolina, 506 o. no jeopardy on defective indictment, 507. illness or death of juror is sufficient excuse for discharge, 508. discharge of jury from intermediately discovered incapacity no bar, 509. conviction no bar when set aside for defective ruling of judge, 510. and so of discharge from sickness of defendant, 511. discharge from surprise a bar, 512. discharge from statutory close of court no bar, 513. and so from sickness of judge, 514. and so from death of judge, 515. but not from sickness or incapacity of witness, 516. until jury are " charged" jeopardy does not begin, 517. waiver by motion for arrest, new trial, or writ of error, 518. in misdemeanors separation of jury permitted, 519. plea must be special ; record must specify facts, 520. INDEX. PLEA OF PARDON. Pardon is a relief from the legal consequences of crime, 521. pardon before conviction to be rigidly construed, 522. pardon after conviction more indulgently construed, 523. rehabilitation is restoration to status, 524. amnesty is addressed to class of people, and is in nature of compact, 525. executive pardon must be specially pleaded, otherwise amnesty, 526. pardons cannot be prospective, 527. pardon before sentence remits costs and penalties, 528. limited in impeachments, 529. so as to contempts, 530. must be delivered, 531. void when fraudulent, 532. conditional pardons are valid, 533. pardon does not reach second conviction, 534. pardon must recite conviction, 535. calling a witness as State's evidence is not pardon, 536. foreign pardons operative as to crimes within sovereign's jurisdiction, 537. PLEADING, waivers in, 759. See 733. PLEADING OVER, practice as to, 404-7. POLICE CONVICTIONS, when reviewable by habeas corpus, 998. POLICE JUDGMENT, when a bar to further proceedings, 440. POLICE OFFICER, arrest by (see Arrest), 1-62. revision of arrest by habeas corpus, 922. POLITICAL OFFENCES, no extradition for (see Extradition), 42. POLLING JURY, when a right, 750. POLLS, challenges to (see Challenges), 612 et seq. POSTPONEMENT (see Continuance). PREAMBLE OF STATUTE, effect of, 222-238. PREGNANCY, ground for respite in capital cases, 917. PREJUDICE, when ground for challenge (see Challenge). preadjudication of case is ground for challenge, 622. but opinions thrown out as jest, or as vague, loose talk, do not ordinarily disqualify, 623. nor does a general bias against crime, 624. views held in particular jurisdictions, 625-52. opinion must go to whole case, 653. juror must answer questions, though not to inculpate himself, 654. must first be sworn on voir dire, 655. court may ask questions, 656. only party prejudiced may challenge, 657. juror may be examined as to details, 658. bias must go to immediate issue, 659. relationship a cause for challenge, 660. and so of prior connection with case, 661. and so of participation in cognate offence, 661 a. 870 INDEX. PREJUDICE— (conimued)- and so of pecuniary interest in result, 662. and so of irreligion and infamy, 663. and so of conscientious scruples as to capital, punishment, 664. and so of other conscientious scruples, 665. and so of belief that statute is unconstitutional, 666. membership of specific "vigilance" associations, or proscriptive organi- zations, may disqualify, but not of general association to put down crime, 668. when ground for new trial, 844. popular, when ground for new trial, 889. PREMISES, description of, 145. view of, when granted, 707. PRESENCE OF DEFENDANT IN COURT. Defendant's appearance must be in person, 540. in felonies must be in custody, 540 a. right may be waived in misdemeanors of nature of civil process, 541. in such cases waiver may be by attorney, 542. removal of defendant for turbulent conduct does not militate against rule, 543. involuntary illness not a waiver, 544. presence essential at arraignment and empanelling, 545. also at reception of testimony, 546. also at charge of court, 547. at view of premises, 707. but not at making and arguing of motions, 548. presence essential at reception of verdict, 549. and at sentence, 550. presence presumed to be continuous, 651. PRESENTMENT, by grand jury, 86. PRESIDENT, power of as to habeas corpus, 979. power of as to pardon (see Pardon). PRESUMPTION, erroneous charging, 794. as to ground for new trial, 794. PREVENTION, an incidental object of punishment, 943 et seq. PRINCIPAL chargeable with agent's act, 159 a. PRINCIPAL AND ACCESSARY, when joined in indictment, 304. PRISON, mode of sentence, 918 et seq. PRISONER (see Defendant). PRIVATE PERSONS, POWER TO ARREST. Peace officers may require aid from private persons, 10. officers may have special assistants, 11. pursuers of felon are protected, 12. private persons may arrest with probable cause, 13. may use force necessary to prevent felony, 14. may arrest felon after escape, 15. 871 INDEX. PRIVATE PERSONS, POWER TO ARREST— (continued). may interefere to prevent riot, 16. and so as to other offences, 17. PRIVATE STATUTES, how to be pleaded, 224. PRIVILEGE OF JUROR, when he may assert in order to release, 692. PROBABLE CAUSE, sufficient to justify binding over, 73. sufficient to justify finding bill, 360-1. sufficient on habeas corpus, 1001. PROCESS may be enforced by attachment («ee Contempt), 949. PROFANE LANGUAGE, indictment for, 203. "PROMISSORY NOTE," averment of, 188. PROOF, what requisite in habeas corpus (see Habeas Corpus), 1000. what requisite before committing magistrate, 71-2. "PROPERTY," averment of, 201. seizure of, 23. attachment of, to collect fine, 922. PROSECUTING ATTORNEY (see Attorney-General, Counsel). when allowance necessary to writ of error, 774. may employ associates, 555. PROSECUTION, usually begins with oath before magistrate, 1. officer may be described by office, 2. to arrest, corporal control and notice are essential, 3. but notice may be by implication, 4. institution of (see Grand Jury). conflict of opinion as to power of grand jury to originate prosecutions, 332. theory that such power belongs to grand jury, 334. theory that grand juries are limited to case? of notoriety, or in their own knowledge, or given to them by court or prosecuting officers, 335. theory that grand juries are restricted to cases returned by magistrates and prosecuting officers, 339. power of grand juries limited to court summoning them, 340. PROSECUTOR, when name must be on bill, 358. to be notified of habeas corpus, 985. PROVISOS, how to be pleaded, 238. PUBLICATIONS reflecting on court may be a contempt, 959. PUBLIC EXCITEMENT, when ground to continue case, 698. when ground for change of venue, 602. when ground for new trial, 889. PUBLIC OFFICER (see Officer). PUNISHMENT (see Sentence). Distribution as to Counts. On general verdict superfluous counts may be got rid of by nolle prosequi, 907. and so even as to bad count, 908. conflict as to general sentence when some counts are bad, 909. a verdict and judgment as to one count disposes of the others, 909 a. 872 INDEX. PUNISHMENT— (conhnued). successive punishments may be given on successive counts, 910. but only ■where counts are for distinctive offences, 911. practice as to designating in verdict, 752. PUNISHMENT, CAPITAL, 914. PUNISHMENT, CORPORAL. Limits to be determined by statute. Discretion of court, 918. fine and imprisonment are the usual common law penalties, 919. "cruel and unusual" punishments unlawful, 920. "whipping" not cruel and unusual, 921. PUNISHMENTS, assignment of, 942. courts have usually large discretion, 942. primary object is retribution ; but example and reform to be incidental, 943. evidence may be received in aggravation or mitigation of guilt, 945. "PURPORT," meaning of term, 169. PURSUERS, right of, to arrest, 10-13. QUASHING BILL, not a bar to indictment, 446. QUASHING INDICTMENTS. Indictment will be quashed when no judgment can be entered on it, 385. quashing refused except in clear case, 386. quashing usually matter of discretion, 387. extrinsic facts usually no ground for quashing, 388. defendants may be severed in quashing, 389. when two indictments are pending one may be quashefi, 390. quashing ordered in vexatious cases, 391. so when bill is defectively found, 344. bail may be demanded after quashing, 392. pending motion nolle prosequi may be entered, 393. one count may be quashed, 394. quashing may be on motion of prosecution, 395. time usually before plea, 396. motion should state grounds, 397. "QUEUES OF CHINESE," cutting off as a penal discipline, 920. QUOTATION MARKS, effect of in indictment, 175. effect of in pleading, 175. RAPE, technical averments in, 263. " RAVISH," essential to rape, 263. " RECEIPT," meaning of term, 185. RECEIVERS, interference with a, contempt, 951. RECEIVING STOLEN GOODS, 291. joinder with larceny, 291. scienter in, 164. RECOGNIZANCES {see Bail). RECOMMENDATION TO MERCY, effect of, 757. 873 INDEX, RECORD, revision of, on errors (see Error), 777. must show appearance in court, 540 et seq. must show grounds of discharge of jury, 520. may be brought up by certiorari as well as writ of error, 770-1003. may be amended during term, 93, 913. mode of pleading, 135, 417. RECORD DATES, how to be averred in indictment, 135. REFORM, an incidental object of punishment, 943 et seq. REFRESHMENTS, what may go to jury, 731. REGULARITY, presumption of, 779 a. REHABILITATION, eflect of in pardon, 525 et seq. RELATIONSHIP, when a cause for challenge, 660. REMOVAL OF CASES to federal courts, 783 a. REMOVAL OF DEFENDANT from one federal district to another, 37 6. REPLICATION to autrefois acquit, 484. ' REPLY, in argument, practice as to, 576. REPUGNANCY. Where material averments are repugnant, indictment is bad, 256. and so as to general verdict when counts are repugnant, 738. REPUGNANT PLEAS, effect of, 419. "REQUEST," averment of, 194. REQUISITION, in extradition (see Extradition), 31. RESIDENCE, of defendant, when to be averred, 107. RESPITE OF SENTENCE, practice as to, 913, 917. RESPONDEAT OUSTER, judgment of, 421. RESTITUTION OF GOODS, judgment of, 918. RETRIBUTION, primary object of punishment, 943. RETROSPECTIVE PUNISHMENT, when applicable, 946. RIGHTS, WAIVER OF, how far permitted (see Waiver), 733. RIOT, number of 4efendants necessary to, 306. verdict as to, 755. severance as to, 309. right of private persons to suppress, 16. not barred by prosecution for assault, 471. when inclosing assault, 742. ROBBERY, technical averments in, 267. when including minor offence, 244-6, 465. averment of goods in, 206 et seq. SABBATH, how to be averred, 21. "SAID," effect of in indictment, 146, 298. SALE, averment of in indictment for illegal selling, 220 et seq. distinctions as to on plea of autrefois acquit, 472. negation of license, 238. bill of particulars, 702. " SAME," effect of averment in indictment, 298. SCANDALOUS WORDS, how averred, 203. 874 INDEX. SCIENTER, when to be averred in indictment, 164, 272. " SCOLD, COMMON," may be indicted as such, 155. SEAL, when necessary to warrant, 6. when to be described in indictment, 180. SEALED VERDICT, practice as to (see Verdict), 749. SEARCH-WARRANTS, right to execute («ee Arrest), 22. SECOND OFFENCES, practice as to, dSi et seg. SECRECY, how far required in grand jury (see Grand Jury). SECURITY, for good behavior, 79. in other cases, 74 et seq., 941. SEIZING GOODS, power of, under warrant, 22, 60. SENTENCE. Defendant to be asked if he has anything to say. In felonies this is essential, 906. Distribution of Punishment as to Counts. On general verdict superfluous counts maybe got rid of by nolle prosequi, 907. and so even as to bad count, 908. conflict as to general sentence when some counts are bad, 909. a verdict and judgment as to one count disposes of the others, 909 a. successive punishments may be given on suc(!essive counts, 910. but only where counts are not for distinct offences, 911. Defendant's Presence Essential, 912. Amendment or Stay. Court may amend or stay during terra, 913. When Reviewable by habeas corpus, 994, 995, 996. Capital Punishment. ' On verdict of guilty on indictment for murder court will sentence for second degree, 914. defendant to be asked as to sentence, and may reply, 915. as to form of sentence, practice varies, 916. pregnancy is ground for respite, 917. Corporal Punishment. Limits to be determined by statute. Discretion of court. Reversal for sentence below limit. Restitution, 918. fine and imprisonment are the usual common law penalties, 919. "cruel and unusual" punishments unlawful, 920. "whipping" not cruel and unusual, 921. Fines and Abatement. Fines may be collected by execution, 922. abatement a form of execution, 922 a. Form of Sentence. Must be definite, 923. but may present alternatives, 924. day of sentence is first day of imprisonment, 925. endurance of fuU sentence necessary to satisfaction, 925 a. 875 INDEX. SENTENCE— (co7i(inuerf). defects of not ordinarily reviewable on Tmheas corpus, 995. prison need not at common law be specified, 926. Sentence by Appellate Court. Appellate court may sentence or may reverse for error, 927. in capital and other cases record remanded to court below for execution, 928. Sentence hy succeeding Judge. Such sentence may be regular, 929. Successive Imprisonments. Prisoner may be brought up for second trial by habeas corpus, 231. a second imprisonment begins at the former's termination, 932. an escaped prisoner may be sentenced'for escape in like manner, 933. When Severer Punishment is assigned to Second Offence. Such statutes constitutional, 934. Under statutes to this effect, prior conviction should be averred, 935. prior conviction must be legal. Foreign conviction not adequate, 936. conviction to be proved by record and identification, 937. prosecution may waive first conviction, 937 a. prior conviction not to be put in evidence until main issue is found against defendant, 938. Disfranchisement and incapacitation. Conviction a prerequisite to disfranchisement, 939. and so of forfeiture of ofiace, 939 a. and so of incapacitation as witness, 939 b. Joint Sentences. Joint defendants may each be punished to full amount, 940. Bindings to keep the Peace. Defendant after verdict may be bound over to keep the peace, 94 1 . Considerations in adjusting Sentence. Courts have usually large discretion, 942. primary object is retribution ; but example and reform to be incidental, 943. evidence may be received in aggravation or mitigation of guilt, 945. defendant must be present at, 550. when reviewable on habeas corpus, 994. Ex post facto Penalties. How far constitutional, 946. SEPARATE TRIALS, right to (see Severance), 309. SEPARATION OF JURIES IN TRIAL, summary of law as to (see Trial), 821; SEPARATION OF "WITNESSES, when ordered, 569. SETTING ASIDE JURORS, 612. SEVERANCE OF DEFENDANTS, when allowed on trial, 309. in verdicts, 755. SEVERANCE OF IDENTITY OF OFFENCE, by time or place, 470 et seq. 87& INDEX. SHACKLES, -when defendant must be in during trial, 640 a. SHERIFF, arrest by (see Aeeest), 1-62. return by on habeas corpus, 989. SHOOTING, permissible as a mode of capital execution, 921. indictment for an attempt, 159. SICKNESS, of defendant during trial, effect of, 644. of juror, when ground for discharge, 512, 724. when ground for excuse, 692, 724. SIGNS, how averred in indictment, 276. SIMILITER, when required in pleading, 410. SIMULTANEOUS OFFENCES, merger of, 468 et seq. SLANDEROUS WORDS, how to be averred, 203. SODOMY, technical averments in, 263. SOLICITATIONS, indictments for, 159. SOLICITOR (see Attoenky-General). SPECIAL DEMURRER, characteristics of, 40V. SPECIAL PLEAS. Repugnant pleas cannot be pleaded simultaneously, 419. in practice special plea is tried first, 420. judgment against defendant on special plea is respondeat ouster, 421. plea of non-identity only allowed in cases of escape, 429. plea to constitution of grand jury must be sustained in fact, 430. pendency of other indictment no bar, 431. plea of law is for court, 432. ruling for Commonwealth on special plea is equivalent to judgment on demurrer, 433. SPECIAL VERDICT, practice as to, 746-6. SPEECHES OF COUNSEL, practice as to, 570 et seq. SPELLING, defective, effect of, 119, 273. SPIRITUOUS LIQUOR, when to be permitted to jury, 731, 821, 841. selling {see Sale). SPLITTING OFFENCES, in several prosecutions, objections to, 910. STATE, duty of as to extradition (see Extradition), 28 et seq. jurisdiction of, how averred, 94, 139. power of as to federal arrests, 980. right to challenge, 612. STATE COURTS, removal of cases to federal courts, 783 a. cannot discharge from federal arrests, 980. STATEMENT, right of defendant to make to jury, 579. STATUTE, effect of in defining crime (see Statutoky Offences), 220. relations of to common law, 232. when prescribing form of indictment, 90. what conformity to is required, 220 et seq. when changing venue, 602. effect of exceptions and provisos, 238. when absorbing common law, 232-4. 877 INDEX. STATUTE OF JEOFAILS, operation of, 90. STATUTES OF LIMITATION (see Limitation), 316. STATUTORY OFFENCES, pleading of, 220. usually sufficient and necessary to use words of statute, 220. otherwise when statute gives conclusion of law, 221. and so if indictment professes but fails to set forth statute, 222. special limitations are to be given, 223. private statute must be pleaded in full, 224. ofl'ence must be averred to be within statute, 225. section or title need not be stated, 226. where statute requires two defendants, one is not sufficient, 227. when object of statute is in plural, it may be pleaded in singular, 227 a. disjunctions in statute to be averred conjunctively, 228. at common law defects in statutory averment not cured by verdict, 229. statutes creating an offence are to be closely followed, 230. when common-law offence is made penal by title, details must be given, 231 . when statute is cumulative, common law may be still pursued, 232. when statute assigns no penalty, punishment is at common law, 233. exhaustive statute absorbs common law, 234. statutory technical averments to be introduced, 235. but equivalent terms may be given, 236. where a statute describes a class of animals by a general term, it is enough to use this term for the whole class ; otherwise not, 237. provisos and exceptions not part of definition need not be negatived, 238. otherwise when proviso is in same clause, 239. exception in enacting clause to be negatived, 240. question in such case is whether the statute creates a general or a limited offence, 241. STAY OF SENTENCE, practice as to, 913. under writ of error, 783. on removal of case from state to federal jurisdiction, 783 a. on commutation of punishment, 533. as to form of sentence practice varies, 916. pregnancy is ground for respite, (see Sentence), 917. " STEAL," averment of in larceny, 266. STREET-WALKEES, when to be held to bail, 80. " STRUCK," essential to wound, 259. SUBSTANTIAL AVERMENTS, necessary to be made, 151. SUCCESSIVE PENALTIES, when permissible on successive counts, 910. SUMMARY CONVICTIONS, when permitted, 80, 440, 998. when reviewable on habeas corpus, 998. in contempt, 948 et seq. SUMMINGS UP, of counsel, 976. of judge, 708. " SUNDAY," how to be averred in indictment, 121. rendering of verdict on, 758. 87& INDEX. SUPERIOR COURTS. Jurisdiction in contempt, 948 et seq. in habeas corpus, 978. distinctive powers as to autrefois acquit, 438. SUPERSEDEAS, practice as to (see Error), 783. SUPREME COURT OF THE UNITED STATES (see Federal Courts). SURETIES, when required to keep the peace, 80. when required generally (see Bail). when authorized to arrest principal, 62. when allowable on habeas corpus, 1007. • when respondents in habeas corpus, 984. " SURNAME," pleading of (see Name and Addition), 98 et seq. SURPLUSAGE, need not be stated in indictment, 158, 473, 474. may be rejected, 158. SURPRISE, as ground for new trial, 881. when genuine and productive of injustice ground for new trial, 881. so of undue haste in hurrying on trial, 882. but absence of witness no ground when evidence is cumulative, 883. ordinary surprise at evidence no ground, 884. nor is unexpected bias of witness, 885. SURRENDER, of principal by bail, 6.2. SUSPICION, what justifies arrest, 9, 21. "TAKE AND CARRY AWAY," essential to larceny, 266. TAMPERING WITH JURY, how to be punished, 328, 729. TECHNICAL AVERMENTS. In treason, " traitorously" must be used, 257. "malice aforethought" essential to murder, 258. " struck" essential to wound, 259. "feloniously" essential to felony, 260. "feloniously" can be rejected as surplusage, 261. in such case conviction may be had for attempt, 262. "ravish" and "forcibly" are essential to rape, 263. "falsely" essential to perjury, 264. "burglariously" to burgjary, 265. "take and carry away" to larceny, 266. " violently and against the will" to robbery, 267. "piratical" to piracy, 268. "unlawfully" and other aggravative terms not necessary, 269. " forcibly" and with a strong hand, essential to forcible entry, 270. vi et armis not essential, 271. "knowingly" always prudent, 272. "TENOR," meaning of term, 169. TERM, close of, whether verdict can be given after, 513. whether sentence can be amended after, 973. m9 INDEX. "THEN AND THERE," effect of averment of, 131, 146. "THERE SITUATE," meaning of allegation, 144-6. THIEVES, COMMON, when to be held to bail, 80. THINGS, description of (see Personal Chattels), 206 et seq. "THREE TERM STATUTES," limiting time of trial, 328, 523.. TIME IN INDICTMENT. Time must be averred, but not generally material, 120. when " Sunday" is essence of offence, day must be specified, 121. Videlicet may introduce a date tentatively, 122. blank as to date is fatal, 123. • substantial accuracy is enough, 1 24. double or obscure dates are inadequate, 125. date cannot be laid between two distinct periods, 126. negligence should have time averred, 127. time may be designated by historical epochs, 128. recitals of time need not be accurate, 129. hour not necessary unless required by statute, 1 30. repetition may be by " then and there," 131. other terms are insufficient, 132. "then and there" cannot cure ambiguities, 133. repugnant, future, or impossible dates, are bad, 134. record dates must be accurate, 135. and so of dates of documents, 136. time should be within limitation, 137. in homicide death should be within a year and a day, 138. TIME, effect in weakening case of prosecution (see Limitation), 316, 326 et seq. TITLE TO OFFICE, not reviewable on habeas corpus, 996. how averred, 159, 165. TOWN, averment of as venue, 139 et seq. TRAMPS, when to be held to bail, 80. TRANSITORY OFFENCES, averment of place in, 144. TRANSLATION, how to be averred, 181. TRANSPOSING COUNTS, 300. TREASON, technical averments in, 257. TREASURY NOTES, averments of, 189 a. TREATY, extradition by (see Extradition), 38 et seq. TRIAL, INCIDENTS OF. When must be by jury, 733. # continuance (see Continuance), 533 el seq. change of venue, 602. Furnishing copy of indictment, 696. Concurrent Trial of Separate Indictments, 697. Severance of Defendants on Trial, 698. Arraignment. Defendant usually required to hold up the hand, 699 880 INDEX. TRIAL, INCIDENTS OF— {continued). failure to arraign may be fatal, 700. defendant may waive right, 701. defendant must be present at, 540. Bill of Particulars. May be required when indictment is general, 702. affidavit should be made, 703. particulars may be ordered on general pleas, 704. action on particulars not usually subject of error, 705. Demurrer to Evidence. Demurrer to evidence brings up whole case, 706. View of Premises. such view may be directed when conducive to justice, 707. Examination of witnesses, 564, 565, 566. who are to be called, 565. when to be excluded from count, 569. Charge of Court. Questions of law are for court, 708. defendant has a right to full statement of law, 709. misdirection a cause for new trial, 710. judge may give his opinion on evidence, 711. must, if required, give distinct answer as to law, 712. error to exclude point from jury unless there be no evidence, 713. charge must be in open court and before parties, 714. challenges of jurors (see Challenges), 608 et seq. Swearing. Jury must appear to have been sworn, 716. Conduct during Trial ; Adjournment and Discharge. Misconduct of jury is a contempt, 717. in England juries may be discharged at discretion of court, 718. in this country separations allowed in cases less than capital, 719. otherwise as to capital cases, 720. tampering with jury to be punished, 721. court can discharge jury in cases of surprise when gross injustice would otherwise be done, 722. adjournment of court is ground for discharge, 723. and so in sickness or eminent disqualification of juror, 724. in non-capital cases jury may be discharged at discretion of court, 725. conflict of opinion in capital cases, 726. Deliberations of Jury. Jury must be secluded during deliberations, 727. Swearing Officer. Officer must be duly sworn, 728. Communications by l^hird Parties. Illegal communication with jury is indictable, 729. such communications ground for new trial, 730. 56 881 INDEX. TRIAL, INCIDENTS OF— (continued). Food and Drink. Food and drink may be supplied to jury, 731. Casting Lots May be ground for new trial, 732. Curing Irregularities by Consent. Consent may cure minor irregularities, 733. Duties of Counsel. Defendants entitled to counsel by Constitution, 557. counsel, if necessary, may be assigned by court, 658. such counsel may sue county for their fees, 559. order and length of speeches at discretion of court, 560. prosecuting attorney not to open confessions or matter of doubtful admis- sibility, 561. counsel on both sides should be candid in opening, 562. opefiing speeches not to sum up, 563. examination of witnesses at discretion of court, 564. prosecution should call all the witnesses to the guilty act, 565. order of testimony discretionary with court, 566. impeaching testimony may be restricted, 567. witness to see writings before cross-examination, 568. witnesses may be secluded from court-room, 569. defendant's opening to be restricted to admissible evidence, 570. reading books is at discretion of court, 571. counsel may exhibit mechanical evidence in proof, 572. if defendant offers no evidence his counsel closes, 573. otherwise when he offers evidence, 674. defendants may sever, 575. priority of speeches to be determined by court, 576. misstatements not ground for new trial if not objected to at time, 577. ordinarily counsel are not to argue law to jury, 578. party may make statement to jury, 679. defendant's presence essential to, 540. Separation of Jury, 814. Mere inadvertent separation not ground for new trial, 814. in some courts this view is not accepted, 815. separation before case is opened is always permissible, 816. in misdemeanors jury may separate during trial, 817. and so as to felonies less than capital, 818. but not generally as to capital felonies, 819. court in such cases may adjourn from day to day, 820. conflict of opinion as to whether separation after committal of case is per- missible, 821. courts holding such separation absolutely fatal, 822. courts holding such separation only prima facie ground for new trial, 823. 882 INDEX. TRIAL, INCIDENTS OF— (continued) . courts holding such separation fatal only where there has been proof of tampering, 824. the latter is the prevailing view as to misdemeanors, 825. Irregularity in Conduct of Jury, 826. Unsworn or improper officer in charge is ground for new trial ; intrusion of officer during deliberations, 827. and so of improper reception of materials of proof, 828. and so of irregular reception of books, 829. and so of receptions of reports of trial, 829 u. and so of irregular communications of court, 830. and so of conversing with others as to case, 831. and so of presence of party, 832. and so of material testimony submitted by jury or others, 833. and so of visiting scene of offence, 834. but not accidental intrusion of stranger, 835. mere casual exhibition of evidence not fatal, 836. and so of the mere approach of strangers, and trivial conversation, 837. but presumption is against communications, 839. inattention of juror not ordinarily ground, 838. but otherwise as to disobedience to court, resulting in injury, 840. intoxication ground for new trial, 841. so of casting lots by jurors, when decisive, 842. otherwise as to mere collateral levity, 843. absolute preadjudication by juror or judge ground for new trial when a surprise, 844. otherwise when party knew of prejudice in time to challenge, 845. subsequent discovery of alienage or irreligion is no ground, but otherwise as to absolute incapacities, 846. juror inadmissible to impeach verdict, 847. and so are affidavits attacking jury, 848. TRIAL BY JURY, when it may be waived, 733. TRICK, when operating to vitiate verdict, 851. TRIERS, duties of, in respect to challenges, 686. "TRUE BILL," indorsement of, 369. TWO OFFENCES cannot be joined in one count (see Duplicity), 243. but may be joined in successive counts, 285. TWO TERM LAW, discharge under, 328. "UNDERTAKING," averment of, 200. UNITED STATES, extradition statutes of (see Extradition), 28 et seq. jurisdiction of, as determining venue, 139. UNITED STATES COURTS, removal of cases to, 783 a, revisory power of, by habeas corpus, 980 et ^eq. UNKNOWN PERSONS, how to be dpscribed, 104, 111, UNKNOWN THINGS may be proximately described, 156, 883 INDEX, "UNLAWFULLY," when necessary in Indictment, 269. "UNTIL," meaning of averment, 125-6. VAGRANTS, when to be held to bail, 80. VALUATION OF PROPERTY, when requisite in verdict, 753. VALUE, how and when to be averred, 213. VARIANCE, in averment of writing, 173. in names, 96, 109, 116. in averring instrument of injury, 212 a. in description of goods, 206. in ownership, 116. acquittal from, no bar to amended indictment, 460. VEGETABLES, how averred, 211. VENIRE, as to grand jury, 344. as to petit jury, 603. VENUE, how to be laid (see Place), 139 et seq. change of, practice as to, 602. VERBAL INACCURACIES. When fatal to pleading (see Clekicai, Eekoks), 273. VERDICT. Where there are several Counts. Prosecution may withdraw superfluous or bad counts, 737. general verdict when there is one bad count, or counts are repugnant, 738. new trial may be on single count, 739. verdict of guilty on one count equivalent to not guilty on others, 740. (informalities cured by verdict, 760.) Defendant must be present, 741. Double or Divisible Count. Verdict may go to part of divisible count, 742. Adjournment of Court Prior to. Court may adjourn during deliberations of jury, 744. Special Verdict. Jury may find special verdict, 745. such verdict must be full and exact, 746. How Verdict is rendered. General verdict is by word of mouth, 747. verdict must be recorded, 748. Sealed Verdict. In misdemeanors sealed verdict may be rendered, 749. Polling Jury. Jury may be polled at common law, 750. Amending Verdict. Verdict may be amended before discharge of jury, 751. Designation of Degree or of Punishment. Such designation must be specific, 752. 884 INDEX. YEBBICT— (continued). Valuation of Property. Jury may find a special valuation, 753. When Court may refuse to receive Verdict. Palpably wrong verdict may be rejected by court, 754. When there are several Defendants. Defendants may be severed in finding, 318, 755. Defective Verdict. May be inoperative, 756. Recommendation to Mercy. Such recommendation not obligatory, 757. Collateral Points. •when bail may be taken after, 82. defendant must be present at, 549. rendering on Sunday or legal holiday, 758. formal defects cured by, 760. "VIDELICET," meaning of, in indictment, 122, 158 a. "VI ET ARMIS," not essential, 271. VIEW OF PREMISES. Such view may be directed when conducive to justice, 707. " VIOLENTLY," when essential to robbery, 267. WAIVER, general considerations relating to, 733-4. WAIVER BY DEFENDANT, of preliminary examination or process, 70 et seq. of arraignment, 541. of grand jury, 733. of formal defects by pleading over, 760. of technical objections to jurors, 845, 886. of objections to evidence, 802-4. of presence in court, 541 . of jeopardy by motion for new trial, 518, 733. of irregularities in conduct of jury, 733. of twelve jurymen, 733. of trial by jury, 733. of separation of jury, 518, 733. WAR, effect of, in authorizing military conviction, 439. in establishing martial law, 979, note. "WARRANT," averment of, 192. WARRANT IN EXTRADITION (see Extradition). WARRANT OF ARREST, practice as to («ee Arrest), 1-62. WARRANT, SEARCH, practice as to, 18. WEIGHT OF EVIDENCE, on primary hearing, 71. before grand jury, 361. on habeas corpus, 1001. on trial, 813. 885 INDEX. WEAPON, variance as to, 212 a. duplicity as to, 253. WHIPPING, not forbidden by Constitution, 921. WIFE, may be joined with husband in indictment, 306 a. " WILFULLY," averment of, 267, 269. WITHDRAWAL OF JUROR, practice as to, 722. WITNESS, ignorance of, when ground for continuance, 599. absence of, ground for continuance (see Contikuancb), 585. after-discovered, when ground for new trial (see New Tkial), 855. practice as to examining, 566 et seq. when jurors may be, 833. practice as to before magistrate, 71. practice as to before grand jury, 358 a. practice as to on habeas corpus, 1001. incompetency of through infamy, 939 b. when to be excluded from court, 569. ruling as to when ground for new trial, 801. all present at litigated act should be called, 565. when notice must be given by prosecution, 565. indorsement of name of on indictment, 358. WORDS SPOKEN. Words spoken must be set forth exactly, though substantial proof is enough, 203. in treason it is enough to set forth substance, 204. WRIT OF CERTIORARI (see Certiokaei). WRIT OF ERROR (see Errok). WRIT OF HABEAS CORPUS (see Habeas Corpus). WRITTEN INSTRUMENTS, PLEADING OF. Where, as in Forgery and Libel, Instrument must be set forth in full. When words of document are material they should be set forth, 167. in such cases the indictment should purport to set forth the words, 168. "purport" means effect ; "tenor" means contents, 169. " manner and form," " purport and effect," " substance," do not import verbal accuracy, 170. attaching original paper is not adequate, 171. when exact copy is required, mere variance of a letter is immaterial, 173. unnecessary document need not be set forth, 174. quotation-marks are not sufficient, 175. document lost or in defendant's hands need not be set forth, 176. and so of obscene libel, 177. prosecutor's negligence does not alter the case, 178. production of document alleged to be destroyed is a fatal variance, 179. extraneous parts of document need not be set forth, 180. foreign or insensible document must be explained by averments, 181. innuendoes can explain, but cannot enlarge, 181 a. 886 INDEX. WRITTEN INSTRUMENTS, PLEADING OF— (continued). Where, as in Larceny, general Designation is sufficient. Statutory designations must be followed, 182. though general designation be sufficient, yet if indictment purport to give words, variance is fatal, 183. What general Designation will suffice. If designation is erroneous, variance is fatal, 184. "receipt" includes all signed admissions of payment, 185. " acquittance" includes discharge from duty, 186. " bill of exchange" is to be used in its technical sense, 187. " promissory note" is used in a large sense, 188. "bank notes" includes notes issued by bank, 189. "treasury notes and federal currency," 189 a. "money" is convertible with currency, 190. "goods and chattels" include personalty exclusive of choses inaction, 191. " warrant" is an instrument calling for payment or delivery, 192. " order" implies mandatory power, 193. "request" includes mere invitation, 194. terms may be used cumulatively, 1 95. defects may be explained by averments, 196. a " deed" must be a writing under seal passing a right, 197. " obligation" is a unilateral engagement, 198. and so is "undertaking," 199. a guarantee and an " I. O. U." are undertakings, 200. " property" is whatever may be appropriated, 201. "piece of paper" is subject of larceny, 202. " challenge to fight" need not be specially set forth, 202 a. 887 ;;:^";=-r:n:3B .1