j.*,*'^';!!''' Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M, BOARDIVIAN and ELLEN D, WILLIAMS Cornell University Library KF9219.H31 1880 Principles of criminal law. With addition 3 1924 020 159 517 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/cu31924020159517 PEIT^OIPLBS THE CRIMINAL LAW PRINCIPLES CEIMINAL LAW BY SEYMOUE F . HAE EIS, B.O.L., M.A. (Oxon.) BAEEISTEH-AT-13PW 8'f THE INNER TEMPLE, AND OF THE NORTHERN CIECTIIT; AUTHOR OF "A CONCISE DIGEST OP THE INSTITUTES OP GAIUS AND JUSTINIAN." WITH ADDITIONS AND NOTES, ADAPTING IT TO THE AMERICAN LAW, M. P. POECE, Professor of Equity and Criminal Law In the Cincinnati Law School. CINCINNATI: EOBEET CLAEKB & CO., 1880. copyeighted: EGBERT CLARKE & CO. 1880. PREFACE TO THE AMERICAN EDITION. Harris' Principles of Criminal Law meets a want that has been feltj of a concise and comprehensive statement of that branch of the law. A large part of the work, being an abridgment of recent English legislation, has been omitted, and its place supplied by matter setting forth the law as enacted and held in the United States. Additional English authorities have been cited on points which seemed to require a somewhat fuller exposition. M. F. F. Cincinnati, 1879. The following compilations and revisions are cited as "Rev. Stats.:" Revised Statutes of the United States, printed 1875 ; General Statutes of Kentucky, edited by Bullitt and Feland, 1877, and the authorized Code of Criminal Practice of Kentucky, prepared by H. Marshall Buford, published 1876 ; Revised Statutes of Indiana, with subsequent legislation, edited by E. A. Davis, published 1876; Revised Statutes of Illinois, compiled and edited by Harvey B. Hurd, 1877; the Code of Iowa, printed by authority, 1873; the Compiled Laws of Michigan, com- piled under act of 25th January, 1871, by James S. Dewey, and published 1872. (V) PREFACE TO THE ENGLISH EDITIOi;r. The appearance of a new work on the Criminal Law may demand a few words of explanation. Many treatises dealing with this subject are already in existence. Why another? A mere enumeration of the modern standard authors will disclose the want of a manual which neither confines itself to the historical and philosophical view of the'raatter, nor descends into the minute particulars of the practice of the -law. To mention those that are best known : — " Russell on Crimes" is contained in three bulky volumes, and has little concern with criminal procedure. Ai'chbold's and Roscoe's Criminal Practice, entering into every detail, are designed for the reference of the practi- tioner, when points actually present themselves. The modern commentaries founded on those of Blackstone stray into historical disquisitions which are apt to envelop the existing law in obscurity; and, besides, the Criminal Law is contained in one of four volumes. Sir James Fitz- james Stephen's "General View of Criminal Law" does not profess to be an exposition of the otfenses and criminal procedure of our country; it has quite another object. It seems, then, that there is scope for a comparatively small treatise concerning itself with the nature of crimes, the various ofi'enscs punished by the law, and the proceed- ings which are instituted to secure that punishment. Such a work is calculated to meet the requirements of the young practitioner, who, in the first instance, wants a general in- troduction to the subject. It is also designed for the use of students, especially those preparing for the final exam- ination of the Incorporated Law Society. To such, as well as to the general reader, it is hoped that the present un- dertaking will commend itself. We have referred above to certain well-known works on Criminal Law. These, the reports, the older text-books, and ' (vii) Vni PREFACE TO THE ENGLISH EDITION. other authorities have been made to contribute information as the occasion required. Special acknowledgment is due, and is hereby rendered, to the " General View " of Sir James Fitzjames Stephen, from which frequent quotations have been made and matter borrowed, to an extent suffi- cient to lead to further perusal of that work. It is hoped that, while nothing useless- and obsolete has been retained, there has not been any omission which will prevent the reader from obtaining a fair general view of the existing Criminal LaWi S. F. H. Liverpool^ Spring Assizes, 1877. An explanation must be given of the manner in which the punishments affixed to the various crimes are set forth in the body of the work. It was thought that much repe- tition might be avoided if attention were drawn to a few general rules. Only tKe maximum limit of penal servitude is noticed in the text, as, with very few exceptions which are specially pointed out, the minimum limit is tive years. Where penal servitude may be awarded, almost without exception (any exception being mentioned), the court has the alternative of sentencing to imprisonment for a term not exceeding two 'years ; therefore such imprisonment has not generally been specified. The rules as to hard labor, whipping, and solitary confinement are adverted to in the chapter on Punishment. CONTENTS. BOOK I. CHAP. PAQK Introductory Chapter. Crime, 1 II. Divisions of Crime 7 III. Essentials of a Crime, . 13 IV. Persons capable of Committing Crimes. . . .21 V. Principals and Accessories, 36 BOOK II. PAET I. OFFENSES OF A PUBLIC NATURE. I. Offenses against the Law of Nations 43 Piracy, 43 II. Offenses against the Government and Sovereign, ... 46 Treason, 46 Misprision of Treason 54 Sedition, 54 Offenses by Members of the Army and Navy, ... 57 Coinage Offenses 58 III. Offenses against Religion, ; 64 Apostasy, Blasphemy 64 Disturbing Public Worship, 65 Witchcraft, Sorcery, etc. 66 (ix) X CONTENTS. CHAP, PAGE IV. Offenses against Public Justice 68 Escape, 68 Breach of Prison, ........ 69 Being at large during term of Penal Servitude, . . 70 Rescue, ' . . . .70 Obstructing Lawful Arrest, etc 71 Perjury, 71 Subornation of Perjury, 76 Bribery, . . '. 77 Embracery, etc. 82 Common Barratry, 83 Maintenance, ........ 84 Champerty, . . 84 Compounding Offenses, ...... 85- Misprision of Felony, . . . . . . . 87 Extortion, etc. 87 Contempt of Court 88 V. Offenses against the Public Peace 92 Riot, 92 Affray. 94 Challenge to Fight, 95 Sending Threatening Letters, , 95 Libel and Indictable Slander, ' 96 Forcible Entry and Detainer, 103 VI. Offenses against Public Trade, 104 Smuggling, 104 Counterfeiting Trade-Marks, 105 Unlawful Interference with Trade by Combinations, etc. 106 Vll. Conspiracy, 109 VIII. Offenses against Public Morals, Health, and Grood Order, 113 Bigamy, 113 Indecent Conduct, . '. 115 Gaming and Gaming Houses, 115 Common or Public Nuisances 117 Wanton and Furious Driving, 120 IX. Offenses relating to Game 121 CONTENTS. XI PAET II. OFFENSES AGAINST INDIVIDUALS. TdEIE' PERSONS. CHAP. PAGE Introduction, 123 I. Homicide, 125 Suicide or Self-Murder 131 Murder, ...,..,... 132 Manslaughter, . 139 (Appendix,) 145 II. Eape, etc 147 Rape 147 Carnally Abusing Children. 149 Unnatural Crimes. 149 Attempts to Procure Abortion, 150 III. Assaults, -etc., . • . 151 Common Assault, 151 Actual and Grievous Bodily Harm, .... 158 Assault' with Intent to Commit a Felony, , . . 154 Administering- Poisons, etc. ; 154 Explosive or Corrosive Substances 154 Endangering Safety of Railway Passengers, . , 155 Assaialts on OfiBcers, 156 Assaults on those in a' Defenseless Position, . . 156 False Imprisonment, . . . 157 •PART III. • OFFEisrSES AGAINST INDIVIDUALS. THEIR PROPERTY. I. Larceny, ' .' 158 Receiving. Stolen Goods ■ 180 II. Embezzlement, 184 III. False Pretenses.' .- . . .■ . . . . 194 False Personation, 199 Cheating, •.•■•.■ 200 XU CONTENTS. CHAP. PAGE IV. Burglarly, etc 203 Housebreaking, 210 (Recapitulation,) 211 V. Forgery, 214 VI. Injuries to Property, 224 Arson, . . ' 224 Malieious-Injury, 230 BOOK III, CRIMIl^IAL PEOCEDUEE. CHAP. - PAGE 1. Prevention of Offenses, 233 II. Courts of a Criminal Jurisdiction, 239 Sketch of a Criminal Trial, 241 III.- Arrest 243 IV. Proceeding's before the Magistrate 253 V. Modes of Prosecution, 260 VI.- Place of Trial 282 VII. The Grand Jury 286 VIII. Process 291 IX. Certiorari 295 X. Time of Trial, etc 298 Arraignment 299 Confession, 302 XI. Pleas 304 XII. Demurrer, 316 XIII. The Petty Jury, 320 XIV. The Hearing, 331 XV. The Witnesses, 341 Credibility of Witnesses, 347 Number of Witnessgs, ., 350 CONTENTS. xiii CHAP. PAGE XVI. The Examination of Witnesses 353 XVII. Evidence 362 Circumstantial and Presumptive Evidence, . , . 374 Written Evidence, 377 XVIII. Verdict 382 XIX. Judgment 388 XX. Incidents of Trial 391 XXI. Punishment, . . ' 396 XXII. Proceedings after Trial 406 New Trial 406 Reversal of Judgment by Writ of Error, . . . 407 Court for Crown Cases Eeserved 410 XXin. Reprieve and Pardon, 416 XXIV. Execution 419 ABBEEVIATIONS, Editions of Text Books and Periods Comprised in Eeports. Addison, A. & E. . Aroh. . Arch. Q. S. Austin, Addison on Torts, 1873. Adolphus and Ellis's Reports, K. B., 1834-1841. Archbold's Pleading and Evidence in Criminal Gases, 1875. Archbold's Quarter Sessions, 1869. Lectures on Jurisprudence, 1869. Bac. Abr. Barn. K. B. . B. & Aid. B. & C. Best, Ev. . B. & S. Bing. Bing. N. C. . Bl. . Bl. W. Broom, C L. Bull. N. P. . Burn's, Burr. . Bacon's Abridgment. Barnardiston's Reps., K. B., 1724-1734. Barnewalland Alderson'.s Reps., K. B., ]818-162-_». Barnewall and Cresswell's Reps., K. B., 1 823-1830. Best on Evidence, 1870. Best and Smith's Reps., Q. B., 1861-1870. Bingham's Reps., C. P., 1822-1834. Bingham's Reps., New Cases, C. P., 1834-1840. Blackstone's Commentaries. Blackstone's (William) Reps., K. B., 1746-1749. Broom's Common Law, 1875. BuUer's Nisi Prius. Burn's Justice of the Peace, 1869. Burrow's Reps., K. B., 1756-1772. Camp. . . . Campbell's Reps., Nisi Prius, 1807-1816. C. & K. . . Carrington's and Kirwin's Reps., N. P., 1843-1 852. C. & M. . . . Carrington & Marshman's Reps.', N. P. 1842. C. & P. . . Carrington and Payne's Reps!, N. P., 1823-1841. Chitty, Cr. L. . . Chitty's Criminal Law. Chitty, St. . . Chitty's Statutes, 1865. CI. & Fin. . . Clark and Finnelly's Reps., H: of Lords, 1831-46. C. B. . . . Common Bench Reps., 1845-1857. C. B. (N.S.) . . Common Bench Reps., New Series, 1857-1865. Corner's Cr. Practice, Corner's Crown Practice. Cox, .... Cox's Criminal Cases, from 1843. C. M. & R. . , Crompton, Meeson, and Roscoe's Reps., Excli,, 1334-1836. (XV) XVI ABBREVIATIONS. Dalton, Den. . Doug. D. & R. Dowl. P. C. East, East, P. C, Ell. & Bl. Esp. Exch. . Fitz. St. . Post. . F. & F. . Dalton's Justice. Denison's Crown Cases, 1844. Douglas Reps., K. B., 1778-1785. Bowling and Ryland's Reps., K. B., 1822-1828. Dowling's Practice Cases, K. B., 1830-1841. East's Reps., K. B., 1801-1814. East's Pleas of the Crown. Ellis and Blackburn's Reps., Q. B., 1851-1858. Espinasse's Reps., N. P., 1793-1807. Exchequer Reps., 1847-1857. Stephen's General View of Criminal Law, 1863. Foster's Reps., Crown Law, 1743-1761. Foster and Finlason's Reps., N. P., 1858-1865. Hale, P. C. . . Hale's Pleas of the Crown. Hal. Sum. . . Hale's Summary. Hawk. . . Hawkins' Pleas of the Crown. How. St. Tp. . . Howell's State Trials. H. & C. . . Hurlstone and Coltman's Reps., Exch., 1862-67. Inst. . . . Coke's Institutes. Jur. Jur. (N.S.) Kel. . L. J. . . L. R. . L. T. (N.S.) , Leach, L. & C. . Lew. C. C. . Lord Raym. M. & S. May, Mood. C. C. . Moo. & M. M. & R. Oke, Mag. Form. Oke, Mag. Syn. Jurist Reps., 1837-1854. Jurist Reps., New Series, 1855-1865. Sir John Kelyng's Reps., K. B., 1673-1706. Law Journal Reps, in all the Courts, from 1831 (thus, L. J. (Q.B.), Queen's Bench Reps.; L. J. (M.C.), Magistrates' Cases). Law Reps, in all the Courts, from 1 865. Law Times Reps., New Series, from 1859. Leach's Crown Cases, 1730-1788. Leigh & Cave's Crown Cases, 1861-1865. Lewin's Crown Cases, 1822-1833. Lord Raymond's Reps., K. B., 1694-1734. Maule & Selwyn's Reps., K. B. 1813-1817. May's Parliamentary Practice, 1874. Moody's Crown Cases, 1824-1844. Moody & Malkin's Reps., N. P., 1826-1830. Moody & Robinson's Reps., N. P. 1830-1844. Oke's Magisterial Formulist, 186S. Oke's Magisterial Synopsis, 186& ABBREVIATIONS. XVU Paley, Sum. Con. . Paley's Summary Convictions, 1861. Peake, . . . Peake's Reps., N. P., 1790-1812. Ph. Ev. . . . Phillips' Evidence. Q. B. . ' . . Queen's Bench Reps. (Adolphus and Ellis), 1841-1852. Rose. . . . Roscoe's Evidence in Criminal Cases, 1874. Russ. . . . Russell on Crimes, by Greaves, 186.5. R. & R. . . . Russell and Ryan's Criminal Cases, 1799-1824. Ry. & M. . . Ryan & Moody's Reps., N. P., 1823-1826. Sm. L. C. . . Smith's Leading Cases, 1875. Stark. N. P. C. . Starkie's Reps., N. P., 1815-1823. St. Tr. . . . State Trials. St. Bl. . . . Stephen's Commentaries, 1874. Str Strange's Reps., K. B., 1716-1747. Tayl. Ev. . . Taylor's Evidence, 1872. T. R. ... Term Reps. (Dunford and East), 1785-1800 T. Raym. . . Sir Thomas Raymond's Reps., K. B., 1660-1684. Willes, . WiUes' Reps., C. P., 1734-1758. CASES CITED IN THIS EDITION. PAGE Able V. Commonwealth 39 Aitkin v. Mendenhall 360 Aldridge v. Press Printing Company „ 99 Allan V. State 333 Allen, R. v., L. B. 1 C. C. E. 876; 41 L. JT. (M.C.) 101 14 Allen V. State 226 Almond, R. v., 5 Burr. 2686.. 102 Ambrose y. State 57 Anonymous (2 Hayward) 267 Armstrong II. State 384 Arnold, R. v., 16 St. Tr. 764 23 Ashfprd V. Thornton, 1 B. & Aid. 405 19 Ashman, R. v., 1 F. & F. 88 54 Astley, R. v., 2 East^P. 0. 729 177 — , L. R.' 1 C. C. R. 301; 40 L. J. (M.C.) 85 195 Aston, R. v., 1 Russ. 407.. 23 Atkinson, R. v., 2 Mood. C. C. 278 185 Atkins V. State 328 Attorney-Cxeneral v. Radloff, 10 Exch. 84. 4 V. Sillem, 2 H. & C. 626 4 Aurora, City of, v. Cobb 359 Aveson II. Lord Kinnaird, 6 East, 198 372 Aylett, R. v., 1 T. R. 69 2 Badger, R. v., 12 L. J. (M.C) 66 257 Bailey, R. v., 12 Cox, 56 185 Bailey V. State 385 Bainbridge v. State 310 Baker u. State , 173 Barker, Omiohund v., Willes, 538 390 Barnard, R. v., 7 C. & P. 784 197 Barnes v. People 366 Barnett v. People 386 Barronet, in re, 22 L. J. (M.C.) 25 256 Barton, R. v., 3 Cox, 275 26 Bazeley's Case 184 Beals V. State 5, 176 Beardmoie, R. v., 7 C. & P. 497 298 Beck V. State 329 Beckham u. Nacke 15 (xix) XX TABLE OP CASES. PAGE Beezlen, E. v., 4 C. & P. 220 353 Bellingham, R. v., Coll. 636 23 Bell V. Prewitt 359 Bell u. State 333 Ben V. State 313 Bergin v. State , 363 Berry, R. v., 34 L. T. (N.S.) 590 301 Berryu. State 174 Bertrand, E. v., L. R. 1 Priv. Couno. 520 406 Best, E. v., 9 C. & P. 368 87 Biokley v. Commonwealth 91 Bird, R. v., 2 Den. 94, 98 310 Birmingham and Gloucester Ry. Co. v. E., 9 C. & P. 469; 2 Q. B. 47. 33 Black V. State 313 Blackburn v. State 24 Boardman v. Woodman 25, 26 Bolen V. State 339 Bond V. State 333 Bonfanti v. State 364 Bosvvell V. Commonwealth 363 Boulter, E. v., 21 L. J. (M.C.) 57; 5 Cox, 543 75 Bowden, R. v., 1 C. & K. 147 246 Bowen et al. v. Sullivan 173 Boyoe, R. v., 1 Mood. C. C. 29 154 Boyes, R. v., 30 L. J. (Q.B.) 301 349 Bradley, ex parte 385 Bradley w. State 363 Brawn, R. v., 1 C. & K. 144 115 Brioe, R. v., R. & R. 450 208 Bridges, ex parte 76 Briggs, R. v., 1 Mood. C. C. 318 153 Brighton Aquarium Co., Terry v., L. R. 10 Q. B. 306 67 Bromage v. Prosser, 4 B. & C. 247 229 Broom v. Eastern Counties Co., 6 Exch. 314 33 Brown, R. v., C. & Mar. 314 71 , 17 L. J. (M.C.) 145 '... 302 Brown v. Commonwealth 63 V. People 228 V. State, 18 Ohio St 39, 192, 273, 343 V. , 16 Ind 333 Brunson's Case 91 Bryan, E. v., 26 L. J. (M.C.) 84 196 Bull, E. v., 9 C. & P. 22 127 , 2 Leach, 841 171 Bull's Case 184 Bulmer, E. v., 33 L. J. (M.C.) 171 198 Bullock V. State... , 390 TABLE OF CASES. XXI PAGE Burdett, R. v., 4 B. & Aid. 95 55 Burns v. People 314 Butler w. Commonwealth 339 Cabbage, R. v., R. & R. 292 175 Cainw. State 267 Calebs. State 26 Campau v. Dewey , 360 Cancemi v. People 333 Carberry v. State 219 Carleton v. Commonwealth 390 Carroll w State 329 Cartwright's Case 91 Casey v. State 91 Castro, R. v 301 V. Murray, 32 L. T. (N.S.) 675 409 Cathcartw. State 268 Cattell V. Ireson, 27 L. J. (M.C.) 167 4 Chamberlain v. People 76 Chappie, R, v., 9 C. & P. 355 39 Chase V. People 363 Chinn v. Morris, 2 C. & P., 361 157 Chorley, R. v., 12 Q. B. 515 407 Choteau v. Pierre 328 Christian v. Commonwealth 112 Cincinnati Gazette Co. v. Timberlake 99 City Council iJ. Van Roven 32 City of Aurora v. Cobb 359 Clark, R. v., 1 Barn. K. B. 304 101 Clark V. State 301 Cleaveru. Senande, 1 Camp. 268, n 99 Clem V. State 313 Clifton V. State 383 Closs, R. v., 27 L. J. (M.C.) 54 218 Coal Consumers' Association, Rawlings v., 43 L. J. (M.C.) Ill 432 Codrington, R. v., 1 C. & P. 661 , 196 Cole V. State 301 Coleman v. Tennessee 57 Colley, R. v., Moo. & M. 329 353 CoUicott, R. v., R. & R. 212 218 Collins, R. v., 5 C. & P. 305 53 , 33 L. J. (M.C.) 177 19, 173 Commonwealths. Alderman 312 V. Austin .328 V. Bakeman 311 V. Barney 326 V. Barry 339 XXU TABLE OF CASES. PAGE Commonwealth v. Beaman 366 ■ V. Blackburn 112 V. Bond , 62 V. Bowden 311 V. Boynton 14 V. Bradford 82 V. Burdsall , 390 V. Butterick 193 V. Chapman 306 V. Dailey 332 V. Drum 139 V, Eddy , 363 — • — V. Emmons 15 V. Fairbanks 26 V. Farren 14 V. Flannagan 329 ■ V. Grady 196 V. Haggerty 417 V. Hawkins 136 V. Hills 390 V. Holden 176 V. Holley 267 V. Hope 390 V. Jackson, 11 Bush 114 v. , 2 Va. Cases 312 V. Kirby 390 V. Lannan 342, 358 V. Loon 266 V. Loud 312 V. Lyden 358 V. Magee, 12 Cox, 549 338 V. Mash 114 V. McDuffy 197 V. McKie 364 V. MoShane..... 312 V. MoPike 383 V. Morgan 358 V. Mosler 24 V. Mullen 343 V. Murphy 32 V. New Bedford Bridge 33 V. Newton 91 V. O'Malley 192 V. Parker 195 V. Peters 311 V. Pollard 350 y. Purchase , , 312 TABLE OF CASES. XXIU PAGE Commonwealth v. Eay , 219 V. Eoby 314 — — V. Rogers , 24 V. Shepard 193 V. Smith 383 V. Stephenson, 8 Pick 209 V. , 11 Cush 218 V. Tuckerman 193 V. Uprichard 176 V. Wade 329 V. Waite 14 ■ V. Webster 328 V. Wentworth 14 V. Wright 129 Cooley V. State 329 Cooper, in re 91 Cornelius v. Commonwealth 344 Corporation of London, E. v.] 27 L. J. (M.C.) 231 394 Cowen V. People .^. , 196 Crabb, E. v., 11 Cox, 85 195 Cross, E. v., 2 C, & P. 483 19 Cruse, E. v., 8 C. & P. 541 32 Crusen v. State 77, 350 CuUum, E. v., L. E. 2 C. C. E. 28; 42 L. J. (M.C.) 64 186 Dadson, E. v., 20 L. J. (M.C.) 57 127 Dammaree, E. v., 8 St. Tr. 218 50 Dana v. State..... 323 Darst V. People 332 Davis V. Brown 149 - — — V. Commonwealth 114 V. State 32 Dawson et al., Trial of, 13 How. St. Tr. 456 44 Deer, E. v., 32 L. J. (M.C.) 33 183 Delaney v. Jones, 4 Esp. 191 99 Delaney D. State 229 Denton, E. v., 21 L. J. (M.C.) 207 8 Dixon, E. I)., 3 M. & Sel. 15....... 17 Doan V. State 339 Dobbins u. State 312 Doering y. State 339 Donellyi). State 359 Donnally, E. v., 2 East P. C. 713 177 Dove «. State........! ^ 24, 363 Dowdy V. Commonwealth 329 Drohn v. Brewer 359 Duffy, E. v., 2 Cox, 45 55 XXiV TABLE 01" CASES. PAGE Duffy V. People 339- Dugdale, E. v., Corner's Cr. Prac. 167.... 391 Dunham v. State 91 Dunn, R. v., 1 Leach, 57 219 Dyson, R. v., K. & R. 523 132 Eastern Counties Co. v. Broom, 6 Exch. 314 33 Easton v. State 91 Eaton, R. i>., 2 T. R. 89 295 Bckells V. State 173 Eden v. Varick. 358 Edmonson c/. Stevenson, Bull. N. P. 8.... 99 Edsell V. Brooks 99 Edwards, R. v., 4 T. R. 440 257 , 3 Cox, 82 353 Egbert v. Egbert 3.59, 364 Eggington, R. v., 2 Leach, 913 167, 178 Elliott V. Commonwealth 169 Ellmaker v. Buckley 359 Elmore t;. St. Briavells 225 Elswick V. Commonwealth 339 Elsworth, R. v., 2 East P. C. 986 220 Brrington's Case............ 138 Erwin v. State 329 Espp, R. v., 7 C. & P. 456 30, 34 Estes!;. Carter 5, 149 Estes V. State ; 384 Evans, R. v., 1 Russ. 426 134 Faderman, R. v., 1 Den. 569; 3 C. & K. 353 316 Farler, R. v., 8 C. & P. 106 345 Farley v. State 343 Ferguson, R. v., 24 L. .1. (M.C.) 61 275 Ferrell v. Commonwealth 176 Fight V. State 62, 301 Finney u. State ; 114 Fisher v. Commonwealth 313 Fitzroy, Linford v., 18 L. J. (M.C.) 108 257 Flannagan, R. v., R. & R. 187 207 Flannigan v. People 24 Flower & Shaw, 2 C. .fe K 703 220 Foster, R. v., R. & R. 459 72 Fox V. Ohio 57 Fralich v. Presley 358 Frances, R. v., 4 Cox, 57 26 Francis. R. v.. L. R. 2 C. C. R. 128; 43 L. J. (M.C.) 97 198, 369 Friend, R. v., R. & R. 20 134 TABLE OP CASES. XXV PAGE Frost, R. v., 9 C. & P. 129 49 Fry V. Bennett 99 Fulton Bank v. Stafford Gaines w. Stites 338 Galloway v. State , 76, 350 Garden, White v., 10 C. B. 927 194 Gardner, R. v , 1 C. & P. 479 90 Garside, R. v., 2 A. & E. 266 295 Gates V. People 328 Gaylor, R. v., 1 Cox, 253 38, 142 Gerard v. People. 311 Gibbons, R. v., 12 Cox, 237 114 Giles, R. v., 34 L. J. (M.C.) 50 , 195 Gill, R. v., 2 B. & Aid. 204 110 Gillespie v. State, 9 Ind 139 V. , 8 Yerger 329 Glacken v. Commonwealth 195 Gohagen v. People 114 Goldsmith, R. v., L. R. 2 0. C. R. 74; 42 L. J. (M.C.) 94 317 Goodall V. State > 367 Gordon, R. v., Doug. 593..... , 49 V. State 82 Graham v. Commonwealth 363' , Solomon v., 5 Ell. & Bl. 320 294' Gravatt v. State 273 Greenhuff 's Case 6 Greenwood, R. v., 21 L. J. (M.C.) 127 31 Greer v. State 342 Griffith V. State 274 Griggs, R. 1/., T. Raym. 1 344 Gutch, R. v., Moo. & M. 433 102. Gutchins v. People 219' Habersham v. State 340' Hamilton w. State 176 Hardy, R. v., 1 East P. C. 60 49' , 24 How. St. Tr. 753 346, 357r Harvey, R. v., 1 Leach, 467 168 Helser o. McGrath 359 Hemmaker v. State 176 Henderson v. State 221 Hassell, R. v., 30 L. J. (M.C.) 175 169 Haynes, R. v., 1 F. & F. 666 „. 26 Hayward, R. v., 6 C. & P. 157 140 Hazleton, R. v., L. R. 2 C. C. R. 134; 44 L. J. (M.C.) 11 197 Heymannu. R., L. R. 8 Q. B. 102, 105 265,317 XXVI TABLE OF CASES. PAGE Hickey, ex parte 91 Hill V. People 333 , R. v., R. & R. 190 197 Hodgkins, R. v., 7 C. & P. 298 358 Hodgson, R. v., 3 C. & P. 422 186 , 1 Leach, 6 130 Holland, R. v., 2 M. & R. 351 124, 134 HoUingsworth v, Duane 91 Holman, R. v., 3 Jur. (N.S.) 722 335 Holmes, R. v., L. R. 1 C. C. R. 334; 41 L. J. (M.C.) 12 148 Hooker v. Commonwealth 225 V. State 3G6 Holt, R. v., 30 L. J. (M.C.) 11 198 Hopps v. People 24, 363 Hornby, Weld v., 7 East, 199 119 Houghton '0. Jones 359 Huffman v. State 338 Hughes' Case 209 , R. v., 1 Mood. C. C. 370 185 Huling V. State 167 Hunt V. Adams 220 V. Bennett 99 , R. v., 3 B. & Aid. 566 368 Hunter v. State 91 Hurley v. State 384 ■ , E. v., 2 M. & Rob. 473 221 Hurt V. State 386 I'anson v. Stuart, 1 T. R. 748 100 Ion, R. v., 21 L. J. (M.C) 166 222 Ireson, Cattell v., 27 L. -J. (M.C.) 167 4 Jackson, R. v., 3 Camp. 370 197 , 1 C. & K. 384 187 V. Feather River "Water Company 360 Jacobs, R. v., 1 Mood. C. C. 140 114 Jarrald, R. v., 32 L. J. (M.C.) 258 210 Jenkins, R, v., R. & R. 224 206 Johnson, R. v., 2 East P. C. 488 207 , R. v., 3 M. & Sel. 566 10 V. State 225 Jones, E. v., 8 C. & P. 288 187 , 2 C. & K. 236 175 , 11 Cox, 544 142 ■ V. State 386 , Delaney v., 4 Esp. 191 99 -. , Stanley v., 7 Bing, 369 85 TABLE OF CASES. XXVll PACE Jones, State v., 50 New Hamp. Rep. 369 26 Jordan, R. v., 9 C. & P. 118 ^ 335 Keedy v. People 384 Keir v. Leeman, 6 Q. B. 308; 9 Q. B. 371 86 Kelley u. Brooks 358 Kellogg V. State 169 Kenrick v. Reppard 329 Kerrains v. State 342 Kinnaird, Aveson v., 6 East, 198 414 Knill, R. v., 5 B. & Aid. 929, n 75 Knox, Miller v., 4 Bing. (N.C.) 574 98 Kriel v. Commonwealth 24, 363 Lake, R. v., 11 Cox, 333 199 Landingham v. State... 112 Langmead, R. v., L. & C. 427 183 Langtry v. State 114 Lapier, R. v., 1 Leach, 320 178 Lasure v. State 267 Leach, Money v., 1 Bl. "W. 555 307 League v. State 333 Lee, R. v., 9 Cox, 304 195 Leeman, Keir v., 6 Q. B. 308; 9 Q. B. 371 86 Legge u. Drake , 360 Lemons w. State j 267 Leobald w. State 14)6 Lewis, R. v., 1 Str. 70 72 Linford v. Fitzroy, 18 L. J. (M.C.) 188 257 Lister, R. v., 26 L. J. (M.C.) 26 185 Littlejohn v. Greeley ...,_ 99 Livingston's Case 385 Lockett, R. v., 1 Leach, 94 219 Loeffneru. State 24, 368 Long, R. v., 4 C. & P. 398 141 Lortonv. State 313 Lovell V. State 273 Lovett, R. v., 9 C. & P. 462 299 Lowe V. State 91 Lynch v. Commonwealth 363 Lynch v. State ^..... 339 McAllister v. State 24 McCarty v. State , 39 McCorkle v. State 301 Macdaniel, R. v., 1 Leach, 45 Ill , Fost. 131 133 XXVm TABLE OF CASES. PAGE Macdaniel, K. r., Fost. 121 178 McGrath, E. v., L. R. 1 C. C. R. 205; 39 L. J. (M.C.) 7 169 McGrowther, R. v., Fost. 13; 9 St. Tr. 566 31 McFarland's Case 363 MoGuire v. State 81 Molntyro v. Bean 136 McKenzie «. State 363 McLaughlin v. State 268 Maolead v. Wakeley, 3 C. & P. 311 98 McNaughten, R. v., 10 CI. & Fin. 200; 1 C. & K. 130 23, 26 McPherson v. Daniels 136 Magee, Commonwealth v., 12 Cox, 549 384 Mahon, R. v., 4 A. & E. 575 152 Manly'v. State 390 Manning, E.. v., 2 C. & K. 903 32 Mansell, R. v., 27 h. J. (M.C.) 4 325 March, E. v., 1 C. & K. 496 151 Martin, R. v., 5 C. & P. 130 134 , R. & E. 108 207 , L. E. 1 C. C. E. 378; 41 L. J. (M.C.) 113 392 Marts V. State 139 Mask V. State 360 Master v. Miller 220 Mead, E. v., 3 D. & E. 301 296 Meadows, E. v., 2 Jur. (N.S.) 718 335 Middleton, E. u.,sL. R. 2 C. C. R. 38; 42 L. J. (M.C.) 73 168 Miller & Gibson v. State 15 Miller v. Knox, 4 Ring. N. C. 574 90 Montgomery v. State 76 Moody V. Russell 358 Moore v. Illinois 57 , inre 91 , R. v., 3 C. & K. 319 28 Money w. Leach, 1 Bl. W. 555 248 Morman w. State 383 Morris, R. v., 9 C. & P. 349 IC6 , R. & R. 270 32 Morris, Chin v., 2 C. & P. 361 157 Mount V. State 311, 332 V. Commonwealth 311 Mulcahy v. E., L. E. 3 H. L. Ap. Ca. 306 109 Mullany, E. v., 34 L. J. (M.C.) Ill 74 Mullinix v. State 339 Murphy v. Commonwealth 332 Murray, Castro v., 32 L. T. (N.S.) 675 449 Myers v. Commonwealth „... 363 TABLE OF CASES. XJdX PAGE Nash, R. .;., 21 L. J. (M.C.) 147 221 Neales v. State 333 Negus, R. v., L. R. 2 C. C. E. 34; 42 L. J. (M.C.) 62 185 Neil, R. w., 2 0. & P. 485 119 Nettles u. State 81 Neville, R. v.. Peake, 91 119 Newman v. People 342 Nicholls V. Commonwealth .- 136 V. State 306 Nimms v. State 329, 339 Noakes, R. v., 4 F. & F. 921, n 131 Noland o. State 39 Noles V. State 208 Nomaqueu. People 301 Norman, R. v., C. & Mar. 501 187 Norris v. State 284 O'Brien v. People 328 O'Donnell v. Segar 360 Ogle V. State 329 Omiohund v. Barker, Willes, 538 346 O'Neil V. Commonwealth 114 Ortwein v. Commonwealth 24, 363 Osborn, R. v., 1 Barn. K. B. 138, 166 99 Partridge, R. v., 7 C. & P. 551 183 Patch, R. v., 1 Leach, 238 169 Pateman, R. w., R. & R. 455 218 Pater, ex parte, 5 B. & S. 299 89 Pearoe, R. v., Peake, 75 368 Pearson's Case, 2 Lew. C. C. 144 28 Pedley, R. v., I Leach, 327 73 People V. Bennett 339 V. Brigham 222 V. Brown 114 ■ V. Bruns 390 V. Burke 176 V. Casborus 312 V. Cooke 311 V. Cotteral 229 V. Craft 91 V Grarbutt 363 V. G-oodwin 311 V. Haggerty 229 V. Harris 82 V. Haynes 197 V. Hopson 273 XXX TABLE OF CASES. PAGE People V. Jenness ,, 273 V. Kelly, 6 Cal 76 V. , 38 Cal 267 V. Kohler 301 V. Lambert 114 — V. March 384 V. Miller.. 360 V. McCann 363 V. McDonnell 24, 364 V. McGeery 390 V. McGunnigill 343 V. Perkins 301 V. Potter 417 V. Eathburn 222 V. Shale 219 V. Shroyer 364 V. Simonson 91 V. Smith 333 V. Sprague 24 V. Stewart 328 V. Sweetman 76 V. Tyler 311 V. White 62 V. Williams 176 V. Wilson, 64 111 91 V , 49 Cal 364 Perdue v. State 221 Phillips V. People 57 Pigott, R. v., 11 Cox, 45 54 Pike, State v., 49 New Hamp. Eep. 399 27 Pinckney's Case..'. 201 Poitevin v. Morgan 136 Polk V. State 313 Price, R. v., 8 C. & P. 19 32 Prine v. Commonwealth 301 Pritchard, R. v., 7 C. & P. 303 301 Privett, R. v., 2 C. & K. 114 175 Prosser, Bromage v., 4 B. & C. 247 229 Queen v. Downes 14 Quinlan v. People , 32 Quinn v. State 28 RadlofF, Attorney-General v., 10 Exch. 84 4 Bcigc, R. v., 29 L. J. (M.C.) 86 195 Rawlings v. Coal Consumers' Association, 43 L. J. (M.C.) Ill 392 Reed, R. v., 23 L. J, (M.C.) 25 159 TABLE OF CASES. XXXI PAGE Eegina v. Bailey 338 V. Beard 221 V. Blenkinsop 220 V. Butt 14 V. Calhoun 170 V. Drake 366 V. Forbes 221 V. Gardner 196 V. Geaoh 221 V. Heane 306 V. Hook 77 V. Jessup 196 V. Madge 176 V. Mawgridge 135 V. Mycook 14 V. Ollifer 14 V. Prince 14 V. Seed 171 V. Bobbins 129 V. Thurburn 129 Eembert v. State 219 Eespublioa K Passmore 91 Eex V. Abrahat 171 V. Aldridge 366 V. Bailey 209 V. Beeoh 366 V. Beezley 358 V. Bodle 358 V. Brazier 171 V. Breeme 225 V. Bryan 201 V. Culkins 367 V. Deeley 367 V. Donnavan 225 V. Edwards 366 V. Foster 366 V. Gowan 226 V. Halloway 366 V. Harris 226 V. Harvey 136 V. Howell 170 V. Isaacs 229 V. Jones £01 V. Lara 201 V. Lewis 201 V. Madox 170 V. March 226 XXXU TABLE OF CASES. FAGB Eex i: Proberts 229 V. Roberts 209 V. Bush and Ford 209 V. Sheen 311 — —V. Simmons 358 V. Vincent 358 V. Wilkins 201 Rhodes, E. v., 2 Lord Raym. 886 74 Bice, R. v., 3 East, 581 95 Ridgvvay, E. v., 3 F. & F. 838 196 Biley, E. v., 22 L. J. (M.C.) 48 169 Eitson, E. v., L. E. 1 C. C. E. 200; 39 L. J. (M.C.) 10 219 Boberts, E. v., 25 L. J. (M.C.) 17 19 Eobinson, E. v., 2 Burr. 799 261 , 4 F. & F..43 181 Eobinson, in re, 23 L. J. (Q.B.) 286 256 Bobson, E. v., E. & E. 413 469 Bogers, E. v., 1 Leach, 89 207 Bomeyn v. Caplis 91 Boss u. Inniss , 192 Bowland, E. v., Ry. .. 330 TABLE OF CASES. XXXV PAGE State V. Lane... 266 V. Little ...'.:.. 312 V. Maine 333 V. Manning... 267 V. Magee 196 V. Mahala 312 V. Maher 313 V. Martin 386 -V. McPall 209 V. McCannon 339 V. McPherson 62 V. Merrick ~ 364 V. Mitchell 229 V. Molier 76 V. Morrill 91 V. Morris & Essex R. R. Co 34 : V. Multon 267 V. Nash , -339 V. Novell 311 V. Nutt : 313 — -V. O'Connell 227 V. O. & M. R. R. Co 5, 34 V. People 364 V. Pierce.. 221 V. Pike .....24, 25 . -v. Porter 364 V. Pulle 6 -v. Redman ,-,,,..,. 312 V. Reed 312 '—, — u. Reonnals 176 . V. Ross 386 — - V. Rowley , 280 V. Sayers 358 V. Seay 176 V. Sheeley 82 . V. Schricker 267 V. Sims.... 273 V. Slack 312 V. Small 310 V. Smith, 10 R. 1 15' V. , 8 Yerg .■ 219 V. , 22 Ver 273 V. ,53 Mo 3S9, 363 ■ '■ V. , 1 Bailey 417 . — ■- — V. Spencer 24 V. Stanton 385 V. Sticklev •••■ 363 XXXVl TABLE OF CASES. PAGB .State w. Stratton 220 V. Thacher 197 V. Thornburg 220 V. Underwood, 49 Maine: 176 V. , 6 Iredell 329 — V. Vermont Central R. E. Co 34 V. Washburn 62 V. Welch 57, 81 V. White, 8 Pick 76 V. White, 25 Wis 383 :v. Whittemore 76 V. Wiemers ■ 136 V. Williams 81 V. Wings ...i 364 V. Winthrop ..." 135 V. Wolfenberger 227 V. Wood 350 V. Woodson 339 V. Woodfin 91 Steadman, R. w.,Fost. 292 140 Steinwehr v. State 81 Stevenson, R. v., 2 Leach, 546 - 392 , Edmonson v., Bull. N. P. 8 99 Stevens v. Commonwealth 24 Steward, B. v., 2 East P. C. 702 178 Stewart v. State 76 Stookwell V. State 273 Stone, R. v., 4 C. & P. 379 86 Stoner v. State 329 Stopford, R. v., 11 Cox, 643.. 154 Stuart, I'Anson v., 1 T. R. 748 100 Stuman v. State 2S4 Sullivan, R. v., 11 Cox, 44 54, 5.5 Summons w. State 373 Sutton V. State 62 Swindall, R. v., 2 C. & K. 230 142 Sylvester, Scattergood v., 16 Q. B. 506 434 Taylor, R. v., 1 F. & F. 511 19 Terry v. Brighton Aquarium Co., L. R. 10 Q. B. 3C6 67 Thomas, R. v., 7 C. & P. 817 28 Thompson, R. v., 1 Mood. C. C. 78 173, 178 , 32 L. J. (M.C.) 53 .■ 171 , L. E. 1 C. C. R. 377; 41 L. .J. (M.C.) 112 • 344 Thompson v. Commonwealth, 8 Grattan v. 329 V. , 1 Mete, Ky 344 V. State, 9 Ohio St 219 TABLE OE CASES. XXXVU PAGE Thompsons. State, 25 Ala / 268 Thornton, Ashford r;., 1 B. & Aid. 405. 281, 319 Tliurborn, E. v., 11 L. J. (M.C.) 140; 2 C. & K. 831 172 Timmons v. State 208 Tite, R. v., 30 L. J. (M.C.) 142 .';.... 185 Tivnan, TOT«, 5 B. & S. 645 ;;., '. 44 Toakley, R. v., 10 Cox, 406 .', '335 'foHVeel R. v., 1 Mood. C. C. 243 172 Topham, K. v., 4 T. R. 126 ; 98 Torpey, R. v., 12 Cox, 45 32 Townley, R. v., L. R. 1 C. C. R. 315; 41 L. J. (M.O.) 144 160; 163 Treofield, R. v.,! F. & F. 43 .;. 221 , 13 East, 228 HI Trice V. State 219 Tully V. Commonwealth 39 Turley v. State ; 3fi6 Turner v. Commonwealth 91 Tweed V. People 390 Tyra v. State 332 Ulmer v. State... 39 Ulrich V, Commonwealth , 15 United States v. Amy 57 u. Anthony^... '..... 81, 3S8 V. Drew 28 ' V. Harding 385 V. Marigold 57, 62 V. Mayer ...., 77 - — V. McGlue , 24 V. McLean..... 384 V. Perez 311 V. Wayne , 91 V. Wood .....77, 350 Vamplew, R. v., 3.F. & F. 520 133 Vandercomb, R. u , 2 Leach, 708 309 Vane, R. v., ICel. 15 49 Vaughan, R. v., 4 Burr. 2494 78 Vincent, R. v., 9 C. & P. 91 92 Wagener v. Bill,.....- 32 Wagner v. People '..'. 363 Wakeley, Macleod v., 3 C. & P. 311 ;.. 98 Walker, R. v., 1 C. & P. 320 141 V. State, 40 Ala 328 V. , 37 Texas 339 XXXVm TABLE OF CASES. PAGE Wallace y. Taunton , , 358 Walton V. State... ....: 332 Ward, E. v., 5 L. J.'(K.B.) 221 4, 119 V. People.... , 107 Wareham v. State 130 Waterman u. People 218 Watkins, R. v,, 1 Leach, 520 : 194 Watson, R. v., 2 Starkie N. P. C. 128.. 353 V. State 170 Weaver w. State 364 Webb, R. v., 11 Cox, 133 341 Webstei- w.. Lee .....> 358 Weld y. Hornby,." East, 109 , 119 Wenborn, R. «., 6 Jur. 267 392 Westw. State 311 Westwood, R. v., R. & R. 495 207 Wheatley, R. w, 2 Burr. 1125 , 4 Wlieeler i;. State 339 White, R. J) , 1 Burr. 333 118 , 3 Camp. 97 336 White V. Garden, 10 C. B. 927 194 V. People 383 Whittem v. State 91 Wilhelmi v. Leonard 359 Wilkins, R. u., 1 Dowl. P. C. 536 392 , 1 Leach, 520... 169 Wilkinson, R. v., R. & R. 470 172 ■, V. State.....'...; '. 218 Williamson, R. u.,' ll'Cox, 328 195 Williams, R. v., 1 G. & K. 19"). i 178 , 8 C. & p!286 .' 147 Willi,im3 V. State, 14 Ohio 30, 147 ,, V. , 12 Ohio St. ......". 332, 333 Willis V. People 24 Wolf?;. State 268 Wolstenholme, R. v., 11 Cox, 313 187 Wood, R. v., 1 Mood. C. C. 278 153 , 10 Cox, 573 327 Woodgate; Wright u., 2 CM. & R. 573 99 Woodhall, R.V , 12 Cox, 240 180 Work V. State 332 Wright, R. V.., 2 F. & F. 320 266 , R. & R. 456........... 356 , 27 L. ,T..(M.C.) 65 186 Wright V. People 363 — ■ — V. State, 5 Ind. 527... 139 TABLE OP CASES. XXXIX rAGE Wright w. State, 5 Ind. 290 312 V. Woodgate, 2 C. M. & R. 573 9'J Wyman I'. Gould 20 Yevvin's Case, 2 Camp. 638 349 York's Case, Fost. 70 29 Young V. R., 3 T. R. 105 '. 275 \ PRINCIPLES OF THEE CRIMIN^A-L LA."W. BOOK I. mTRODIJCTORY CHAPTER. CRIME. The term " crime " admits of description rather than defi- nition. There are no certain and universal intrinsic quali- ties which at once stamp an act with the character of a crime. We term a flagitious act a crime rather on account of its consequences, than from regard to any such intrinsic characteristics. Thus, tiirning to one of the most satisfac- tory explanations of the term under consideration, we learn that it is " an act of disobedience to a law forbidden under pain of punishment." (a) The question at once presents itself, what are the distin- guishing marks of " punishments ? " This will, perhaps, be seen most clearly by a contrast. Sanctions (that is, evils in- curred by a person in consequence of disobedience to a com- mand, and thus enforcing that command) fall under two heads : 1. Those which consist in the wrong- doer being obliged to indemnify the injured party, either in the way of dam- ages or of specific performance. 2. Some sufferings experienced by the wrong-doer. (a) Fitz. St. 1. % CRIME. In the first case, the enforcement of the sanction is in the discretion of the injured party (or his representative), and its object is his advantage. In the second case, the sanction is imposed for the pub- lic benefit, and is enforced or remitted at the discretion of the sovereign body,(6) as the representative of the public ; such discretion being exercised according to law.(c) Here we arrive at the true ground of distinction (or rather difference, inasmuch as the two terms do not exclude each other, and therefore can not be distinguished {d) ) between crimes and civil injuries or torts. The diiference is not a difference between the tendencies of the two classes of wrongs, but a difference between the modes in which they are respectively pursued ; that is, whether as in the first or second of the cases mentioned above, (e) That there is nothing in the nature of a crime which, per se, determines that a particular wrongful act should be nec- essarily relegated to the category of crime, two considera- tions will sufl3[ce to show. First. In different countries, and at different eras in the history of the same country, the line between civil and criminal is, and has been, utterly different. For example, at Rome theft was regarded as a civil injury, for which pecuniary redress had to be made. And we have only to point back to the Anglo-Saxon system, to illustrate the narrowness of the domain of criminal law in rude so- cieties. The second consideration is, that the same wrong- ful act is regarded as a crime or a civil injury according as it is viewed, and proceedings are taken with reference to the one or the other sanction. In the English law, the best ex- amples of this are libels and assaults. The same writings, or {h) Sometimes the exercise of this discretion is deputed to some member of the sovereign body, e. g., in England, to the king or queen. (c) Fitz. St. 4; Austin, 518. {d) " To ask whether an act is a crime or a tort, is like asking whether a man is a husband or a brother." Fitz. St. 7. (e) Austin, 417. A good description of crimes having in view the true ground of difference, is given in 1 Bishop Ciim. L. § 43 : "Those wrongs which the government notices as injurious to the public, and punishes in what is called a criminal proceeding, in its own name." CRIME. 8 the same actions, may be made the subject of civil or of crim^ inal proceedings. If A. write of B. that he is a ' swindler, B. may either indict A. for the crime, or bring an action against him for the civil injury.(/) It may be well to interpose an explanation of the courses open to the injured person, when the same wrong is both a crime and a civil injury. He has not always the power of choosing in which way he will proceed. The rule is based on the distinction of crimes into felonies and misdemean- ors. (9) In the case of felonies, the crime must be prose- cuted before civil redress can be sought from the wrong- doer. In misdemeanors there is no such distinction ; either proceeding may be taken first, or both may be pursued con- currently. (A) (1) Before leaving the subject of the difference between crimes and civil injuries, two other false and groundless dis- tinctions may be adverted to. Pirstly. The distinction does not consist in this, that the mischief of crimes (as a class) is more extensive than that of civil injuries (as a class) ; nor, secondly, in this, that the end of the sanction in the case of crimes is prevention, in the case of civil injuries re- dress to the injured party.(i) How nearly the two classes are related, even when the act can not be regarded as common to both, an example will serve to show. A. knowingly, fraudulently, and with in- tent to deceive B., sells him a quantity of beer, short of the just measure. This was held to be only an inconvenience and injury to a private person, which might have been (/) Austin, 417, 518. (?) v. p. 9. {h) Addison on Torts, 31, 33. (2) Austin, 417, 520. (1) In England, it is the duty of the injured person to institute and direct the criminal prosecution. In the United States, the injured person may, and ought to, be instrumental in procuring the arrest of the offender; but it is neither his duty nor his right to take any fur- ther part in biinging the charge before the grand jury, or in conduct- ing the prosecution; the state's attorney has the sole control. Hence, generally, in the United States, the rule no longer exists, that a felony must be criminally prosecuted before reparation can be recovered from the wrong-doer in a civil action. The practice, however, is not uniform. Cases and statutes are cited in 1 Bishop Grim. L., Ed. 1868, g§ 556-562. 4 CRIME* guarded against with due ■caution. (/c) But if the defect in the amount had been owing to a false vessel, for measuring, A. would have been indictable. So was S., who delivered a quantity of coals, to his knowledge weighing 14 cwt., he falsely and fraudulently representing that the quantity he had delivered weighed 18 cwt., and thereby obtaining the price of 18 cwt.(^ It is often of the utmost importance to determine whether a particular proceeding is a criminal or a civil proceeding. Thus, the evidence of the defendant may be required ; and this is not allowed to be given in criminal, though of course it is in civil, trials. The question arose on an information for the recovery of penalties for smuggling, under a particular statute, (m) The true test is whether or not the infliction of punishment follows on the result being unfavorable to the defendant. If the end of the proceeding is that the de- fendant is required to pay a sum of money, the question will resolve itself into the form, whether the fine is a debt or a punishment. (n) The moral nature of an act is an element of no value in determining whether it is criminal or not. On the one hand, an act may be grossly immoral, and yet it may not bring its agent within the pale of the criminal law — as in the case of adultery. " Human laws are made, not to pun- ish sin, but to prevent crime and mischief." (o) On the other hand, an act perfectly innocent, from a moral point of view, may render the doer amenable to punishment as a criminal. To take an extreme example : "W". was convicted on an indictment for a common nuisance, for erecting an embankment, which, although it was, in some degree, a hindrance to navigation, was advantageous, in a greater de- gree, to the users of the port.(2') Here the motive, if not praiseworthy, was at least innocent. The fact that the mo- (/t) K. V. Wheatley, 2 Burr. 1125. (0 K. V. Sherwood, 26 L. J. (M. C.) 81. (m) Attorney-General v. Eadloff, 10 Exch. 84. (ji) Cattellw. Ireson, 27 L. J. (M. C.) 167. (o) Attorney-General v. Sillem, 2 H. & C. 526, (p) E. V. Ward, 5 L. J. (K. B.) 221. Crime. 5 tive of the defendant was positiviely pious and lauaable has not prevented a conviction. (5) This forces upon our notice a division of crimes into mala in se and mala quia prohihita ; a distinction which is of lit- tle practical importance in our English system, and which must necessarily vary with the standard of good and bad.(r) There will always be some crimes which naturally take their place in the one class or the other ; for example, no one will hesitate to say that murder is m,alum in se, or that the secret importation of articles liable to custom is merely malum quia prohibitum ; but between these offenses there are many acts which it is difficult to assign to their proper class. Some acts have been recognized as crimes in the English Law from time immemorial, though their, punishment and incidents may have been affected by legislation. Thus mur- der and rape are crimes at common law. In other cases, acts have been pronounced crimes by particular statutes, which have also provided for their punishment, e.^'., offenses under the bankruptcy laws. [There is no common law jurisdiction of crimes in Ohio. This was declared by the supreme court of the state, in Eey V. Vattier, 1 Ohio, 132, and in many subsequent cases. There is no crime, or punishment, or criminal procedure in Ohio other than what has been defined or prescribed by statute. Misprisions, attempts, conspiracy, and all acces- sorial offenses are substantive crimes, so far as they have ^een declared by statute ; and, in the absence of statute, are not punishable. The common law is used, however, to define words used in the statutes. The same rule prevails in Indiana ; (1) and in Iowa.(2) In Indiana and Iowa the rule is prescribed by statute. But the states generally hold that common law crimes are indictable, and common law punishments can be imposed by courts having general crim- (g) E. V. Sharpe, 26 L. J. (M. C.) 47. (r) Austin, 590. (1) Beals V. The State, 15 Ind. 378; State v. 0. & M. R. E. Co., 23 Ind. 362. (2) Bstes V. Carter, 10 Iowa, 400. 6 CRIME. in al jurisdiction, except so far as the common law has been repealed or modified by statute. Hence, an indictment for conspiracy is good in Minnesota, though there is no men- tion of conspiracy in the statutes. (1) In Scotland, the common law power of courts extends to declaring and punishing as crimes, acts not made criminal by statute, and which have never before been indicted. (2)] In treating of the criminal law, or the pleas of the cfown,(s) the subject naturally divides itself into two por- tions. The first, dealing with crimes generally, and the va- rious individual crimes, their constituents, their differences, appropriate punishments, and other incidents, may be termed The Law of Crim.es. The second, dealing with the machinery by means of which these crimes are prevented, or, if committed, by means of which they meet with their punishment, may be termed The Laio of Criminal Pro- cedure. (s) So called because the king is supposed by the law to be the per- son injured by every infraction of the public rights belonging to that community, and is, therefore, in all cases, the proper prosecutor for every public offense. 4 Bl. 2. (1) State V. Pulle, 12 Minn. 164. (2) Greenhuff 's case, 2 Swinton, 236, cited 1 Bishop Crim. L., Ed. 1868, 18. DIVISIONS OP CKIME. CHAPTEE n. DIVISIONS OF CEIME. Crime — Offense. — These terms are sometimes used synony- mously of the whole of illegal acts which entail punish- m.ent. Each of them, however, has sometimes a narrower signification ; and in this sense they are opposed to each other, and divide between them the whole field of acts which each in its wider sense covers. The latter use is that which confines the term " oifense " to acts which are not indictable, but which are punished on summary conviction ; while " crime" is restricted to those which are the subjects of indictment. [The state courts have general jurisdiction over crimes under the common law or under statutes of the state, com- mitted within the state. The federal courts have no com- mon law jurisdiction over crime, but, under acts of con- gress, have general jurisdiction over crime committed upon American vessels upon the high seas (such vessel being American territory, and yet not within the limits of any county), or committed within the District of Cohimbia, or any other place where the United States have exclusive jurisdiction. Murder, manslaughter, mayhem, rape, big- amy, arson, larceny, and receiving stolen goods, if com- mitted in any place over which the United States have ex- clusive jurisdiction, are prosecuted in the United States Circuit Courts. The federal courts have jurisdiction also over treason and other crimes against the general govern- ment ; crimes affecting the maritime and commercial juris- diction of the general government; perjury before a fed- eral tribunal, and other crimes affecting the administration of justice by the federal tribunals ; forgery of United States securities^ or of other papers issued by the government, or to be used in obtaining money from the United States ; crimes affecting coinage, mails, public revenue, bribery of 8 DIVISIONS OF CRIME. officers under the government, and other crimes against the operations of the government; criminal official misconduct of officers of the general government, and crimes under the constitution of the United States against the elective fran- chise or civil rights. Military and naval offisnses are pros- ecuted before courts martial, and crimes in the territories before territorial courts.] Indictable crimes. — All treasons, felonies, and misdemean- ors, misprisions of treason and felony, whether existing at common law or created by statute, are the subjects of in- dictment. So also are all attempts to commit any of these acts ;(m) and even an intention to commit high treason is indictable. Further, if a statute prohibits a matter of pub- lic grievance, or commands a matter of public convenience (such as the repairing of highways or the like), all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punish- able by indictment, if the statute does not manifestly seem to exclude this mode of proceeding. ((■) (1) But it is other- wise, if the rights which are regulated are merely private. If the statute, on which the indictment is framed, is re- pealed, no proceedings can be taken, provided at least the prisoner has not pleaded, (x) Misprision. — In general, this term signifies some neglect or contempt, especially when a person, without assenting thereto, knows of any treason or felony and conceals \t.{y) But it is also applied to every great misdemeanor which has no certain name given to it in the law ; for example, thei maladministration of public officers. The former kind is sometimes termed negative, the latter -positive, misprision. ' The main classification of indictable crimes is threefold — Treason, Felony, Misdemeanor — though "treason" is strictly included in the term " felony." ' Felony — Misdemeanor. — It will be remembered that, in contrasting crimes and civil injuries, we found that there (u) V. p. 19. (u) 2 Hawk. 25, §. 4. {x) R. V. Denton, 21 L. J. (M. C.) 207. -(y) v. pp. 54,87. (1) See p. 5, as to states where there is, no indictable crime but suck ,as is defined by statute. , - DIVISIONS OP GRIME. -9 were no intrinsic qualities the possession of which assigned an act to either class. In (Jistinguishing felony from misdemeanor, we shall also find that the diiference is only- one founded on the consequences of each. But the lat- ter classification is exhaustive, and not a cross-division, as in the case of crimes and civil injuries, inasmuch as the same act can not be both a felony and a misdemeanor. [In the United States, the distinction between felouy and misdemeanor has lost most of its significance. Felony no longer works forfeiture of either goods or lands ; bene- fit of the clergy does not exist ; where the crime of an ac- cessory is made by statute a substantive offense, as it is in most of the states, an accessory can be convicted before the principal is indicted; generally a civil action for damages can be brought before a criminal prosecution is instituted ; a person charged with misdemeanors, as wellasonechai'ged with felony, is brouglit before the court in the first instance by a capias ; in most of the states one indicted for felony can be found not guilty of the felony but guilty of an in- cluded misdemeanor ; and in cases of felony and misde- meanor alike, the accused is entitled to have a copy of the indictment, and to be defended by eounsel. In states where there is no crime but statutory crime, the distinction is lit- tle more than a classification of punishment. Generally, in the United States, felony means an offense punishable by death or by imprisonment in the penitentiary ; and mis- demeanor is a punishable offense which is* not a felony. In some states, as ISTew York, Kentucky, Ohio, Michigan, In- diana, Illinois, and Wisconsin, this classification is expressly made by statute. And in Iowa, where there is no capital punishment, any crime punished by imprisonment in the penitentiary is felony. It is essential to the validity of a trial for felony that the defendant be present in court. This is not essential in misdemeanors. Also an unofficial person may arrest where a felony has been committed ; but not in case of a misdemeanor.] It is a popular idea, which, to a certain extent, the law has cotinteiianced, that the distinction into felonies and mis- demeanors is one founded on the degree of enormity of the 10 DIVISIONS OF CRIME. crime. That this is not the case necessarily, will he seen when we consider what ofl'enses helong to the one class, and what to the other. No one will maintain that perjury, which is a misdemeanor, is of less gravity than simple lar- ceny, which is a felony. As a rule, however, the more se- rious crimes are felonies. "What, then, is the origin and force of this distinction, a distir.ction attended with important consequences ? To ob- tain an answer, we must look back to the period of feudal law. The term ^^ felony" is derived from two words,(2:) the one signifying a fief or feud, the other price or value. Thus the term was applied to those offenses which resulted in the tenant's forfeiture of his land to the lord of the fee ; though primarily it signified the penal consequences, i. e., the for- feiture, of these offenses. By another slight deflection, the term was extended to offenses which involved forfeiture of goods. Blackstone thus defines a felony to he " an offense which occasions a total forfeiture of either lauds or goods, or both, at the common law ; and to which capital or other punishment may be superadded according to the degree of guilt." (a) Capital punishment, associated in the popular mind with felony, was an usual, though not a necessary, in- cident. Petit larceny was a felony, but not capitally pun- ished ; standing mute at a trial was punished with death, though not a felony. Though the ground of distinction into felony and misdemeanor was the consequence of the crime, of cotu-se, originally, there must have been some reason for attaching the graver consequences to one act and not to another. This was furnished by a consideration of the gravity and commonness of the offense, a considera- tion not attended to in later periods. (6) It may be noticed that where a statute declares that an offender against its provisions shall be deemed to have fe- loniously committed the act, the offense is thereby made a felony, (c) ^'■Misdemeanor " is to be regarded as a negative expres- (z) Fee-Ion. For some conjectural derivations, v. 4 St. Bl. 7. (a) 4 Bl. 95. (4) Fitz. St. 67. (c) R. V. Johnson, 3 M. & Sel. 556. DIVISIONS OF CRIME. 11 eion ; being applied to indictable crimes not falling within the class of felonies. (/■./) In a wide and general sense, the term is also used synonymously with "crime." Kecently, the legislature struck at the root of the dis- tinction we have been treating of; but the terms "felony" and " misdemeanor," having become firmly attached to the various indictable offenses, still remain. It was provided, that no confession, verdict, inquest, conviction, or judgment of or for any treason, or felony, ovfelo cle se shall cause any attainder or corruption of blood, or any forfeiture or es- cheat, (e) In addition to the distinction as to forfeiture, which we have just seen to be a thing of the past, there are other points, some nominal, others real, which distinguish felonies from misdemeanors : i. As to arrest. — It will suffice here, to state generally that an arrest is justifiable in certain cases of supposed- fel- ony, where it would not be in cases of supposed misde- meanor. (/) ii. As to the trial. — Misdemeanors may be tried upon an indictment, inquisition, or information ; felonies upon the first two only. The right of peremptory challenge is confined to those charged with felony. The legislature requires that certain terms of penal servi- tude should be infiicted on those convicted of felony after a previous conciction for felony, or for certain misdemeanors:, whereas there is no such provision with regard to misde- meanors committed after a previous conviction. On minor points there is also a difference, e. g., the form (o?) " Their general name — misdemeanors — bad behavior — happily describes their general character. The principal offenses included under this head are libel, conspiracy, and nuisance. The connection between them may not, at first sight, be apparent ; but a comparison of their definitions will show that though, in some respects, they are dissimilar, the essence of all these offenses is the same. . . . Each of these offenses is based upon the notion of a normal state of repose and general order, which it is criminal to disturb either by writing, by any combination, or by any willful act or omission." — Fitz. St. 145. (e) 33 and 84 Vict. c. 23, g 1. (/) v. p. 243 et seq. 12 DIVISIONS OF CRIME. of oath taken by the jury,(5') the mode of swearing the jury ; again, in misdemeanors, the defendant is not given in charge to the jury. (A) [In the United States felonies are tried upon indictment. Misdemeanors are mostly tried upon indictment. There are, in the larger cities, courts for the trial of specified mis- demeanors, where there is, no grand jury, and where the trial is by the* judge unless the defendant demand a jury. Peremptory challenges are allowed in cases of mijde- meauor as well as felonies. The forms of oath administered to the jury in trials for felony, is, with slight variations, administered to the jury in all criminal prosecutions in the United States.] iii. As to the civil remedy. — As we have seen, (?) the fel- ony must be prosecuted before a civil action is commenced with reference to the same act ; in misdemeanor, there is no such necessity. (g) V. pp. 330, 333. (h) v. p. 334. (t) v. p. 3, n. ESSENTIALS OF A CRIME. 13 CHAPTER III. ESSENTIALS OF A CRIME. In order to ascertain wlio are and who are not capable of committing crimes, it will be necessary to examine cer- tain terms which are liable to confusion. In the hrst place we must deal with those elements which occnr in every case of crime; and the absence of either of which excludes the act from the category of crimes — viz., Will, Criminal Intention, or Malice. It will be more con- venient to treat of them in this order, though obviously the reverse of the actual sequence of events. (1) To loill an act is " to go thropgh that inward state which, as experience informs us, is always succeeded by mo- tion " (/c) ; that is, unless the body be physically incapable. And will is to be distinguished from those wishes which are not carried into execution; for example, excited by jealousy, I wish to kill B., but fear of the law prevents me from willing that act. If the act, be not willed, it is said to be involuntary, and of course does not render its doer amenable to the criminal law. (X-) Fitz. St. 77. (1) The text here will bear some qualification. It is, indeed, true, in general, that to constitute a crime there must be an act, and, con- temporaneous with it, a criminal intent. But this is not always true, using the words in their ordinary sense ; and in some cases, it is not true at all. It is not always true that there must be an act, using the word in its ordinary sense. To constitute a misprision, it is not necessary there should be an active concealment, but only an omission to inform. To have in possession is not an act, yet it is a crime to have counterfeit coin or forged bills, with a criminal intent. It is not always necessary that the defendant should intentionally or even consciously intend to do the act which forms the crime; for one engaged in committing one crime may, without being aware of it, do a different act, and be guilty of a wholly different crime. It is not always necessary that there should be a criminal intent. 14 ESSENTIALS OF A CRIME. Intention is the "fixing the mind upon the act, and It may indeed be said that as every person is presumed to know the law, whoever does an act prohibited by law intends to do an unlawful act. But it is undoubtedly competent for the legislature to make an act punishable at all events, without regard to the intent with which it is done. Under an English statute making it manslaughter for a parent willfully to neglect to provide adequate medical aid for his child, a parent was convicted, who, acting conscientiously as a member of a sect which prohibited medicine, but prescribed prayer only, not merely acted in ignorance of the law, but followed the course of treat- ment which he honestly believed was the best for the child's health. Queen v. Downes, L. R. of Q. E. Div. 25. And the Ohio statute ex- pressly makes it a crime to intentionally and without malice point or aim any firearm at or toward any person, unless in self-defense or in discharge of duty. 74 Ohio L. 245. While it is in general true that ignorance of the existence of facts which make the act a crime, is a defense against a prosecution for the crime, it is not held to be so universally. It is said in Stephens' Di- gest of Criminal Law, art. 34, p. 23 (American edition): "Where an offense is so defined by statute that the act of the offender is not a crim'e, unless some independent act co-exists with it, the court must decide whether it was the intention of the legislature that the jierson doing the forbidden act should do it at his peril, or that his ignorance of the independent fact, or his mistaken belief, in good faith and on reasonable grounds, that it did not exist, should excuse him." An article by John Wilder May, in the American Law Review, for April, 1878, collects the cases on this point. It has been held in Eng- land that, in a prosecution for the unlawful taking of an unmarried female under the age of sixteen out of the possession or against the will of the person having lawful charge of her, ignorance of the fact that the girl was under the specified age is no defense. Reg. v. Rob- bins, 1 Car. & K. 452; Reg. v. Ollifer, 10 Cox, 402; Reg. v. Mycock, 12 Cox, 28; Reg. v. Butt, 12 Cox, 231 ; Reg. v. Prince, L. R., 2 C. C. R. 151, In Massachusetts, it has been held that in a prosecution for selling liquor in violation of the statute, it is no defense that the defendant had no reason to suppose, and did not believe, the liquor sold to be intoxicating. Commonwealth v. Boynton, 2 Allen, 160. An analo- gous ruling was made in prosecutions for selling adulterated milk. Commonwealth v. Farren, 9 Allen, 489, and in Commonwealth v. Waite, 11 Allen, 264. And in a prosecution for selling naphtha under an assumed name. Commonwealth v. Wentworth, 118 Mass. 441. And in a prosecution for admitting a minor to a billiard-room, without the written consent of his parent or guardian, it was held no defense that the supposed minor was almost twenty years of age, fully grown, and did business independent of his parents, and that the defendant asked the alleged minor whether or not he was a minor, saying that ESSENTIALS OP A CRIME. 15 tMnking of it as of one which will be performed when the if he was he must not enter, and he replied he was of full age. Com- monwealth V. Emmons, 98 Mass. 6. The same rule was followed in States. Smith, 10 E. I. 258; Ulrick w. Commonwealth, 6 Bush, 400; State u. Ilerthel, 24 Wis. 00; and, in Missouri, in a qui tarn action, Beckham v. Nacke, 56 Mo. 546. The con- trary rule, however, was held in Miller & Gibson v. State, 3 Ohio St. 475. But, unless the statute is clear to the contrary, there is no crime unless there is a criminal intent. Sometimes a particular criminal in- tent is requisite. In some states, the statute makes an intent to kill an essential ingredient in the crime of murder ; an intent to commit a felony is necessary to constitute burglary; an intent to deprive the owner of goods of his property therein is necessary to make larceny ; and, in malicious assaults, the particular intent determines the class of the offense — as intent to kill, intent to maim, intent to wound. In many cases, only a general criminal intent, or malice, is requisite. Legal malice is a willful intent to do an unlawful injury. Where a person undertakes maliciously to do an unlawful act, and in the per- petration thereof does, unintentionally, another unlawful act, the un- intentional act is also held to be done maliciously; and, hence, where the malice is sufficient in degree, such unintentional act is also a crime. Where a person in perpetrating or attempting to perpetrate a felony, kills another unintentionally and unawares, such killing is murder at common law. If the act by which the unintended death is occasioned is a mere misdemeanor, such killing is manslaughter. An illustration given by Coke, and repeated in all the text-books since, and frequently given in charge to the jury in reported English cases, is this : If a man, shooting at a chicken, merely intending to destroy it, which is a misdemeanor, accidently kills another man, he is guilty of man- slaughter. But if he intended to shoot the chicken for the purpose of stealing it, which was a felony, then the accidental killing of the man, though wholly unawares, was murder. And where a particular intent is requisite to constitute a ci-ime, if a person, in attempting to perpetuate such crime, unintentionally does another act which if done with such particular intent, is a crime, he is guilty. As, where the intent to kill is requisite to constitute murder, if a person attempting to murder one should accidentally kill another, he is guilty of the murder of such other. The intent must be contemporaneous with the act. If a person breaks and enters a dwelling in the night merely for the purpose of gaining shelter, and subsequently forms the purpose to commit a fel- ony therein, he is not guilty of burglary. If a person wrongfully takes posses.sion of the goods of another, but without any intent to deprive the owner of his property therein, and subsequently forms such inten- tion, he is not guilty of larceny. 16 ESSENTIALS OE A CRIME. time comes,"(f) and when: tlie time comes (if it ever does) the act is willed. The willing may succeed the intention instantaneously, or years may intervene between the forr '■ mation of the intention and the exercise of the will. An example will explain the relation of the two terms njore , clearly. A. hates B. In consequence of this hatred, A., on meeting B., shoots him dead. Here A. makes up his mind to shoot B. when he meets him; up to this point, as long as the two are separated, A.'s intention only is formed. He meets B. in the road^ and carries out his design or in- tention by pulling the trigger, l^ow he wills the act;, that is, he wishes it in such a way as to cause the motion of his arm and finger, (m) In this example a third element appears. The motive of the act is the deadly hatred. Motive may be defined as " that which incites and stimulates to action." It may serve as a clue to the intention; but it is the intention which determines the quality, criminal or innocent, of the act.(n) So much for intention generally. But to make a person a criminal, the intention must be a state of mind forbidden by the law. I utter a forged note, not knowing it to be such, and therefore not intending to defraud. !N"o crime is committed. But if I have such intention, this criminal intention stamps the act with the character of crime. (o) The guilty state of mind, or criminal intention, is generally known by the term " Malice;" a term which is truly a legal enigma, on account of the many and confiicting senses in which it is used. As synonymous with criminal intention, it is thus necessary to the legal conception of crime. To secure a conviction, as a general rule, malice of this kind must be directly proved. But when the law expressly de-: clares an act to be criminal, the question of intention or (0 Fitz. St. 77. (m) " Though usually both intention and will are found in an act, either or both may be absent. Both are wanting when a man, in a convulsive fit, strikes and kills another. Intention is absent in the case of an infant." — v. Fitz. St. 78. (n) Broom, C. L, 851. (o) v. Fitz. St. 81. ESSENTIALS OP A CRIME. 17 malice need not be considered ; at least, except by the judge in estimating the amount of punishment.(23) Again, in some cases, this intention is presumed from a circum- stance, and it lies on the accused to show that his intention was innocent — e. g., in the case of possession of recently stolen goods. (5') This malice is found not only in cases — I. "Where the mind is actively or positively in fault, as where there is a deliberate design to defraud, but also — II. Where the mind is passively or negatively to blame — that is, whei'e there is culpable or criminal inattention or negligence. A common example of this is manslaughter by a surgeon who has shown gross incompetence in the treatment of the deceased. But here the criminality con- sists in the willfully incurring the risk of causing loss or suffering to others. (r) 80 that, in fact, the malice is only traced one stage further back. An extreme case of this negative malice is where there is merely the absence of a thought which ought to have been there, as in the non- repair of roads through forgetfulness. It is usual to lay down that malice is either — 1. Express, or in fact, as where a person with a deliberate mind and formed design kills another. 2. Implied, or in law, as where one willfully poisons an- other, though no particular enmity can be proved ; or where one gives a perfect stranger a blow likely to produce death. Here there is a willful doing of a wrongful act without lawful excuse; and the intention is an inference of law resulting from the doing the act.(s) The law in- fers that every man must contemplate the necessary con- sequences of his own act.(<) Here, and every-where in dealing with malice, there is great danger of deflection into malice with its moral sig- nification, as denoting ill-will or malevolence. In other words, of confounding motive with intention. Malice, forbear any idle inquiries of what would be the consequence if the king were to act thus and thus ; since the law deems so highly of his wisdom and virtue, as not even to presume it possible for him to do any thing inconsistent with his sta- tion and dignity ; and therefore has made no provision to remedy such a grievance."(?i) Inasmuch as it is presumed that he can do no wrong, although he commands an unlaw- ful act to be done, e. g., an unlawful arrest, the instriiment is not indemnified, but is punishable. Cor^ora^ions.^— Even corporations aggregate, such as rail- way companies, maybe indicted by their corporate names, for breaches of duty; whether such breaches consist of wrongful acts, e. g., obstructing highways; or wrongful omissions, e. g., neglecting to repair bridges(o). A corpo- ration may also be indicted by its corporate name and fined for an assault committed or a libel published by its order, (p) (1) (n) 4 Bl. 33. (0) R. V. Birmingliam and Grloucester Railway Co., 9 C. & P. 469; 2 Q. B. 47. (p) Eastern Counties Co. v. Broom, 6 Exch. 314. (1) It is now held in the United^States, contrary to the earlier opin- ion, that corporations are indictable at common law for misfeasance as well as non-feasance. Commonvvealth v. New Bedford Bridge, 2 3 34 PERSONS CAPABLE OF COMMITTISTG CRIMES. Aliens. — Foreigners who commit crimes in England are punishable exactly as if they were natural-born subjects. It is no defense on behalf of a foreigner that he did not know he was doing wrong, the act not being an offense in his own country. Though this is no defense, it may miti- gate the punishment.(5') Ambassadors. — Different views, materially conflicting with each other, have been held as to the criminal liability of ambassadors and their snites. Some writers maintain that for no offelise, whether it be against thie life, person, or property of an individual, is an ambassador amenable to the criminal law of the country to which he is sent.(r) Others assert that though he is not punishable for crimes made such by the laws of the particular country, he is so for any great crimes which must be such in any system. Or, as it is sometimes expressed, he is punishable for mala in se, but not for acts which are merely mala quia pro/iibita. Thus, an ambassador might be convicted for murder or rape, but not for smuggling. The more probable and rea- sonable course seems to be to request the recall of the offender by his own state, with or without an expression of opinion that the offender should be punished in his own country. If this be refused, the ambassador might be dis- missed, and pressure brought to bear on the other state to induce the latter to put him on his trial. There is one class of offenses which stand on a different footing, namely, offenses affecting the- existence and safety of the state. For a direct attempt against the life of the sovereign, it is said that the offender would be directly pun- Gray, 339; State v. Vermont Cent. R. R. Co., 27 Vt. 103; State v. Mor- ris and Essex R. R. Co., 23 N. J. Law (3 Zabriskie), 360. The word "person" includes corporations or artificial persons as well as natural persons. But in states where there is no common-law criminal juris- diction, and where the statutes have provided no process for bringing the defendant into court but capias, the word " person" is held not to include corporations. State v. Cin. Fertilizer Co., 24 Ohio St. 611; State V. 0. & M. R. R. Co., 23 Ind. 362. Corporations can now be indicted in Ohio. 74 Ohio L. 262. (?) R. v: Esop, 7 C. & P. 456. ()■) Phillimore's International Law, vol. 2, c. 7 PERSONS CAPABLE OF COMMITTINa CRIMES. 35 ishable by the state. (s) But, at any rate, in this and other offenses against the government, the state might demand the punishment of the offender by the foreign state ; and if this demand were not complied with, might treat him as a public enemy, and demand satisfaction from that foreign state. The matter would then pass from the province of law to that of politics. {s) 1 Hale, P. C. 96-99 ; Fost. 187, 188. 36 PRINCIPALS AND ACCESSORIES. GHAPTEE V. PEINCIPALS AND ACCESSORIES. Those who are implicated in the commission of crimes are either principals or accessories. This distinction is based on the consideration, whether the party was present or absent at the commission. It is recognized in felonies alone. Principals (z. e., those present) are either — Principals in the first degree, or principals in the sec- ond degree. Accessories are either — Accessories before the fact, or accessories after the fact. Of these, in their order : Principal in the first degree. — He who is the actor or actual perpetrator of the deed. It is not necessary that he should be actually present when the offense is consummated; thus, one who lays poison or a trap for another, is a princi- pal in the first degree. 'Eov need the deed be done by the principal's own hands ; for it will suffice if it is done through an innocent agent, as for instance, if one incites a child or a madman to murder. Principal in the second degree. — One who is present, aiding and abetting at the commission of the deed.(i) This pres- ence need not be actual; it may be constructive. That is, it will suffice if tlie party has the infention of giving assist- ance, and is sufficiently near to give the assistance ; as when one is watching outside, while others are committing a felony inside, the house. There must be both a participa- tion in the act and a community of purpose (which must be an unlawful one) at the time of the commission of the crime. So that, as to the first point, mere presence or mere (i) Principals in the second degree are frequently termed aiders and ahettors ; sometimes also accomplices. The latter term, however, may include all pariicipes criminis. PKINCIPALS AND ACCESSORIES. 37 neglect to endeavor to prevent a felony will not make a man a principal ; as to the second, acts done by one of the party, but not in pursuance of the arrangement, will not render the others liable. The distinction between principals of the first and of the second degree is not a practically material one, inas- much as the punishment of oft'enders of either class is gen- erally the same. Accessories are those who are not (a) the chief actors in the offense, nor (b) present at its performance, but are some way concerned therein, either before or after the fact committed. (it) Accessory before the fact. — One who, being absent at the time when the felony is committed, jet procures, counsels, commands, or abets another to commit a felony. (x) This may be done not only by direct command or counsel, but also by expressing assent or approbation of the felonious design of another. But the bare concealment of a felony about to be committed does not make an accessory. It is not necessary that there should be any direct communi- cation between the accused and the principal ; as if A. requests B. to procure the services of C. in order to mur- der D. The accessorywill be answerable for all that ensues Upon the execution of the unlawful act commanded, at least for all probable consequences; as, for instance, if A. commands B. to beat C, and he beats him so that he dies, A. is acces- sory to the murder. But if the principal intentionally commits a crime essentially different from that com- manded, the person commanding will not be answerable as accessory for what he did not command. Thus, if A. com- mands B. to break into C.'s house, and B. sets fire to the house, A. can not be convicted of the arson. But a mere dif- ference in the mode of effecting the deed, or in some other collateral matter, will not divest the commander of the character of accessory if the felony is the same in sub- stance. Thus, if A. commands B. to kill C. by poison, and (m) 4 Bl. 35. (a;) 1 Hale, P. C. 615. 38 PRINCIPALS AND ACCESSORIES. he kills him with a sword, A.'s command suffices to make him an accessory. With regard to manslaughter: As a rule the offense is sudden and unpremeditated, and this view of the nature of the crime having been taken, it has been said that there can be no accessory before the fact in manslaughter. But in many cases there is deliberation, though it is not accom- panied by an intention to take away life. It is easy to present a case in which there may be an accessory before the fact to manslaughter. A. counsels B. to mischievously give C. a dose of medicine merely to make him sick, and C. dies in consequence; A. is guilty as an accessory before the fact to raanslaughter.(2/) As to the trial of those who command, counsel, or pro- cure the commission of a felony : Until a recent date it was the rule that such a person could not be tried without his own consent, except at the same time with the princi- pal, or after the principal had been tried and found guilty. He was merely an accessory, and therefore he could not be tried before the fact of the crime was established. ISTow two courses are open to the prosecution ; either (a) to pro- ceed, as formerly, against the person who counsels, etc., as an accessory before tlie fact with the principal felon, or after his conviction ;. or (b) to indict the counsellor for a substantive felony (for to that his offense is declared by the statute to amount), and this may be done whether the principal has or has not been convicted, and although he is not amenable to justice. The punishment in either case is the same. If one of these two modes has been adopted, of course the offender can not be afterward prosecuted in the other.(2) It is also provided that an accessory be- fore the fact may be indicted, tried, convicted, and punished in all respects as if he were a principal felon. (a) To con- vict of the substantive felony tinder this act, it is still necessary to prove that the principal deed has actually been committed. Soliciting and exciting to the commis- (y) R. V. Gaylor, 7 Cox, 253. (z) 24 and 25 Vict., o. 94, § 2. (a) 24 and 25 Vict., c. 94, g 1. PRINCIPALS AND ACCESSORIES. 39 sion, if the deed is not committed, is only a misde- meanor. (1) Accessory after the fact. — One who, knowing a felony to have been committed by another, receives, relieves, com- forts, or assists the felon. (6) What is required to make a person an accessory after the fact? (a) There must have been some felony committed and completed ; (b) the party charged must have had notice, direct or implied, at the time he assists, etc., the felon, that he had committed the felony ; (c) he must have done some act to assist the felon personally. It will suffice if tliere has been any assistance given in order to hinder the felon's apprehension, trial, or punishment ; for example, concealing him in the house, supplying him with horse or money to facilitate his escape. But merely suffering the principal to escape will not make the party an accessory after the fact.(c) Receiving stolen goods, knowing them to have been stolen is generally treated as a separate offense ; the receiver being convicted of a felony, misdemeanor, or summary offense, according as the stealing of the pi-operty is a felony, misdemeanor, or offense punishable on summary conviction. (r:^ If, however the stealing, obtaining, etc., -is a felony, the receiver may be indicted either as an accessory after the fact, or for a substantive felony. (e) (1) In states where there is a common-law jurisdiction as to crimes, the accessory can be tried only jointly with the principal, or after the conviction of the principal. Able v. Commonwealth, 5 Bush, 698; TuUy V. Commonwealth, 11 Bush, 154. But in states where there are none but statutory crimes, the accessory, when guilty, is guilty of a substantive crime, and can therefore be tried, though the principal has not been indicted. Noland v. State, 19 Ohio, 131 ; Brown v. State, 18 Ohio St. 496; Ulmer v. State, 14 Ind. 52. But, in Indiana, an acces- sory can not be convicted after the alleged principal has been acquitted. McCarty v. State, 44 Ind. 214. In Michigan, the distinction between accessories before the fact and principals, in felony, is abolished, and all concerned in the commission of a felony, as in a misdemeanor, are made principals by statute. 2 Rev. Stat. (1872), 2173, § 7934. (b) 1 Hale, P. C. 618. (c) 1 Hale, P. C. 618, etc. ; E. v. Chappie, 9 C. & P. 355. Id) V. p. 218. (e) 24 and 25 Viot., c. 96, § 91. 40 PRINCIPALS AND ACCESSORIES. We' have noticed (/) that, as a rule, the wife is protected from criminal liability for acts committed in the presence of her husband. Much more, then, can she claim this im- munity when the ofi'ense with which she is charged is that of receiving and assisting her husband. There is no ejcemp- tion in respect of any other relation^ Even the husband may be convicted for assisting his wife. An accessory after the fact to a felony may be tried in the same manner as an accessory before the fact; that is, either as an accessory with the principal, or after his con- viction, or as for a substantive felony, independently of the principal. (^) He is, in general, punishable with imprison- ment for any term not exceeding two years (with or with- out hard labor), and may also be required to find security for keeping the peace, or, in default, to suffer additional imprisonment for a period not exceeding one year.(/() But as an accessory after the fact to murder, may receive sentence of penal servitude for life, or for any less term to five years, or imprisonment not exceeding two years. (z) A receiver of stolen goods is liable to a maximum punish- ment of penal servitude for fourteen years. (J) It has been observed that the distinction of principals and accessories is found only in the case of felonies. As to treason: Both every kind of incitement which in a felony would make a man an accessory before the fact, and every kind of assistance which would make him an accessory after the fact, in treason will make the offender a principal traitor. This rule is said to exist propter odium delicti. As to misdemeanors: Tho?e who aid or counsel the com- mission of the crime are dealt with as the principals; (/c) those who merely assist after the misdemeanor has been committed are not punishable, unless indeed the act amount (/) V. p. 32. {g) 24 and 25 Vict., c. 94, § 3. (/t) 24 and 25 Vict., c. 94, \ 4. (0 24 and 25 Vict., c. 100, § 67; 27 and 28 Vict., e. 47, § 2. O') 24 and 25 Vict., c. 96, g 91. (i) 24 and 25 Vict., c. 94, § 8. PKINCIPALS AND ACCESSORIES. 41 to the misdemeanor of rescue, obstructing the officer, or the like.(0 The following outline of the present state of the law on the subject of degrees of guilt may serve to place the mat- ter in a clearer light : There are no accessories in treason or misdemeanors, only in felonies. Piiucipals, whether of the first or second degree, are vir- tually dealt with in the same way. Accessories, whether before or after the fact, may be treated as such, or as charged with a substantive felony ; but if once tried in either of these capacities, the other may not be afterward resorted to. Accessories before the fact receive the same punishment as principals ; accessories after the fact generally imprison- ment not exceeding two years. In the following imaginaiy case examples of each of the four kinds of participation in a crime will be found. A. incites B.- and C. to murder a person. B. enters the house and cuts the man's throat, while C. waits outside to o-ive warning in case any one should approach. B. and C. flee to D. who, knowing that the murder has been completed, lends horses to facilitate their escape. Here B. is principal in the first degree, C. in the second degree, A. is accessory before the fact, D. after the fact. (0 R. V. Greenwood, 21 L. "Z. (M. C.) 127. BOOK II. Cleakly it will be advisable to adopt some logical plan in treating of the various offenses which come nnder the cognizance of tribunals of criminal jurisdiction. Though, of course, crimes which primarily affect the state or the public also affect the individuals who constitute that state or public ; and crimes which in their immediate effect wrong individuals indirectly or are productive of public evil, yet the division- of crimes into Offenses of a Public Na- ture and Offenses of a Private Nature or against Individuals, may be resorted to without ^fear of confusion. There are other possible modes of arrangement ; for example, ac- cording to the different tribunals before which, or the dif- ferent processes by which, the crimes are prosecuted (as in the French penal code), according to the punishments with which the crimes are visited, etc. Taking as the main division that indicated above, the gen- eral order will be determined, as far as possible, by the wideness of the province of the various crimes., thus com- mencing with offenses against the law of nations. (42) OFPBNSES AGAINST THE LAW OF NATIONS. 43 PART I. OFFENSES OF A PUBLIC NATUEE. CHAPTER L OFFENSES AGAINST THE LAW OF NATIONS Certain offenses are regarded as violating those unwritten laws which are admitted by nations in general, and which it is their duty to have enforced. It must not be assumed that any state is at liberty to take upon itself the punish- ment of an offense against the law of nations, if such offense is committed within the territories of a foreign jurisdiction. The most that it can do in such case is to demand that justice be done by the foreign state ; and if such state implicates itself in the offense by neglecting to proceed against the offender, then to put on jDressure to en- force its requirements. But the case is otherwise if the offense is committed in parts which are considered extra- territorial, such as the high seas. In these, all nations equally have an interest, and will proceed against individ- uals who are guilty of offenses against the law of nations. PIRACY. The term includes both the common-law offense, and also certain offenses which have been provided against by par- ticular statutes. Piracy at common law.(a) — The offense consists in com- mitting those acts of robbery and depredation upon the high seas, which, if committed upon land, would have (a) V. Phillimore, vol. 1, c. 20. 44 OFFENSES AGAINST TSB LAW OF NATIONS^ amounted to felony there. (6) Each state is entitled to visit the crime with the penalties which its own laws may determine. (c) In England, formerly the proper courts for the trial of piracy were the admiralty courts; but, later, the trial was by commissioners, nominated by the lord chancellor, in whose number were always found some com- mon-law jadges.(cZ) Now, the judges sitting at the cen- tral criminal court and at the assizes are empowered to try cases of pirac3^(e) The robbery must be proved as in ordinary cases of that crime committed on land. The taking must be without authority from any prince or state, for a nation can not be deemed guilt}- of piracy. If the subjects of the same state commit robbery upon each other it is piracy. If the iu- jiirer and the injured be of different states the nature of the act will depend on the relation of those states. If in amity it is piracy ; if at enmity it is not, for it is a general rule that enemies can never commit piracy on each other, their depre- dations being deemed mere acts of hostility. (/) The gist of the offense is the place where it is committed, viz., the high seas, and within the jurisdiction of the ad- miralty.(5') (J) 1 Kuss. 144 V. Trial of Joseph Dawson and others, 13 Howell's State Trials (1696), 456. (c) V. Manning's Law of Nations, by Amos, 121. Tlie crime has been thus defined by text writers on international law: " The offense of depredating on the seas without being authorized by any sovereign state, or with commissions from different sovereigns at war with each other." — (Lawrence's Wheaton's Elements of International law, 1863, p. 246.) The definition is framed to exclude depredations by lawfully authorized privateers, etc. (d) 28 Hen. 8, c. 15. (e) 4 and 5 Wm. 4, o. 36, § 22; 7 and 8 Vict., c. 2, § 1. (/) V. In re Tivnan, 5 B. & S. 645; 2 Sir L. Jenk. 790; 1 Sir L. Jenk. 94. It should be remembered that the declaration of Paris (1856) con- tained a provision that privateering should be abolished, binding on the countries parties to that declaration — Kussia, Turkey, England, France, Italy, Austria, and Prussia. (ff) As to the jurisdiction of the Admiralty, v. Archbold's Grim. Cases, 452. OFFENSES AGAINST THE LAW OF NATIONS. 45 [Piracy by Statute. — Every person who, on the high seas, commits the crime of piracy as defined by the law of na- tions; every seaman who lays violent hands npon his com- mander thereby to hinder and prevent his lighting in de- fense of his vessel or the goods intrusted to him ; every person who, npon tlie. high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river where the sea ebbs and flows, commits the crime of robbery upon any vessel npon any ship's company or lading; every per- son engaged in any piratical cruise or enterprise, or being of the crew of any piratical vessel, who lands from such vessel, and on shore commits robbery ; every person who commits on the high seas, or in any river, harbor, basin, or bay, Out of the jurisdiction of any particular state, mur- der or robbery, or any other ofi:'ense which, if committed within the body of a county, would be punished with death by the laws of the United States ; every citizen who com- mits any .murder or robbery, or any act of hostility against the United States, or against any citizen thereof on the high seas, under color of any commission from any foreign prince or state, or on pretense of authority from any per- son ; every subject or citizen of any foreign state, who is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to provisions of any treaty, when by such, treaty such acts are declared piracy, — is guilty of piracy, and shall sufl"er death. (1) Piracy is prosecuted in the circuit courts of the United States, or in a district court when no circuit court is held in the district of such court.] The punishment for piracy was formerly death. Now the offender is liable to penal servitude to the extent of life, or to imprisonment not exceeding three years. But piracy accompanied with an assault with intent to murder, or with wounding or endangering the life of any person on board of, or belonging to, the vessel, is still punishable with death. (m) (1) U. S. Rev. Stat., §§ 5368-5374, and § 563. (m) 7 Wm. 4, and 1 Vict., c. 88, gg 2. 3. 46 OFFENSES AGAINST IHE GOVEENMENT AND SOVEREIGK. CHAPTER II. OFFENSES AGAINST THE GOVEENMENT AND SOVEREIGN. We now have to deal with offenses committed by mem- bei's of the community in violation of their duties as sub- jects; these offenses for the most part also incidentally causing injury to individuals. The full treatment which the gravity of this class of ci'imes would demand is hap- pily in many cases rendered unnecessary by the rarity of their occurrence. This is especially true of the crime of treason. TIIEAS0N..(<) The ordinary popular conception of treason, or, what is the same thing, the offense of a traitor, is something of this sort, "armed resistance, justified on principle, to the estab- lished law of the land." (u) This is the most favorable view of the offense, the notion of "principle" obscuring its gravity. But the true conception of the crime includes acts which will be admitted on all hands to be highly morally heinous, far removed from justifiable and conscien- tious efforts for revolution. The crime comprises the three following classes of acts :(z) " 1. Execution or contrivance of acts of violence against the person of the sovereign. (t) Treason against the government was termed "high" treason to distinguish it from "petit" treason, which consisted in the murder of a superior by an inferior in natural, civil, or spiritual relation; " and therefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary ; these, being breaches of the lower allegiance of private and domestic faith, are denominated "petit treason." — (4 Bl. 75.) But every offense which would previously have amounted to petit treason, is now regarded simply as murder (9 Geo. 4, o. 31, § 2), therefore there is no longer any reason, for distin- guishing the graver offense by the epithet " high." (m) Fitz. St. 36. {x) Fitz. St. 113, OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 47 " 2. Acts of treachery against the state in favor of a for- eign enemy. " 3. Acts of violence against the internal government of the country." In addition to these branches, the law includes a few acts which are of the rarest occurrence, and at the present day hardly demand any notice. In order to ascertain what constitutes treason, it will be necessary to glance at the early history of the crime. For a long period there was great vagueness and uncertainty as to what acts were treasonable, the consequence being thnt any deed which appeared to infringe the royal rights or to interfere with the royal authority was construed into treason, though it lacked the essentials of that crime. Thus we are told(?/) that unlawfully taking the royal ven- ison, fish, or goods, had the effect of making the taker a traitor. To remedy this evil, and to provide certainty in a matter of so great moment, an act was passed in the reign of Edward 111.(2) It will be well to give the actual words of the statute, and then to consider individually the offenses with which it deals. : Treason is committed " when a man doth compass or imagine the death of our lord the king, or of our lady his queen, or of their eldest son and heir; or if a man do vio- late the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir; or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving them aid or comfort in our realm or elsewhere, and thereof be probably (or provably, ^ provablement ') attainted of open deed by people of their condition." (y) Mirror, c. 1, § 4. (z) 25 Edw. 3, st. 5, c. 2. " This statute is memorable, not only on account of its vast direct importance at many periods of our history, but also because it is almost the only instance which the statute book affords of a statutory definition of a crime, laid down in such a man- ner as to supersede the whole common law or unwritten doctrine on the subject."— Fitz. St. 36. 48 OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. So much Ibr the political oi' quasi-political offenses pro- vided against; the statute proceeds to define certain other acts of treason: "And if a man counterfeit the king's great or privy seal, or his money ; and if n man bring false money into this realm, counterfeit to the money of Eng- land, as the money called Lushburg, or other like to the said money of England, knowing the money to be false, to merchandise or make payment, in deceit of our said lord the king and his people; and if a man slea the cliancellor, treasurer, or the king's justices of the one bench, or the other justices in eyre, or justices of assize, and all other justices assigned to hear and determine being in their places, doing their offices." It is also provided that the judges shall not give judgment in any case which is sup^ posed to be treason till it has been de.termined by the king and parliament whether it ought to be treason or felony. As he glances through the acts hero enumerated, the reader will not fail to notice that treason was regarded as an ofiense rather against the person of the king than against the state. But in later times, with an altered state of cir- cumstances, when the person of the king comparatively had been lost sight of in the consideration of the interests of the public, though the. letter of the old law was pre- served, by liberal construction it had been adapted to the new state of. afltairs. For exiimple, levying war against the king was construed to include almost any act which was calculated to tend toward the subverting of the constitu- tion. (a.) Compassini) or imacjimng the death of the king, queen, or eldest son and heir. — Here the "king" is to be under- stood, to mean the king de facto, though he be not the king dejure. On the other hand, the person rightfully entitled to the crown, if not in possession, is not within the statute. The "queen" referred to is the queen consort, the queen regnant being included in the term "king." But against the husband of the queen regnant, treason can not be com- mitted. It is the designing that constitutes the offense. But this design must be evidenced by some overt act, so that if OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 49 there be wanting either the design, as in the case of killing the king by accident, or the overt act, as when the design has been formed, but laid aside before being put into exe- cution, there is no treason. What will constitute an overt act ? Any thing Avillfully done or attempted by which the sovereign's life may be endangered; for example, conspirators meeting to consult on the means of killing the sovereign, (a) or of usurping the powers of government ; (6) writings, if published, im- porting a compassing of the sovereign's death, and even Words advising what would be an overt act, will sujBice as evidence of the design ; but not so loose words which have no reference to any designed act.(c) (b.) Violating the. king's wife, the king's eldest daughter un- married, or the wife of the king's eldest son and heir. — By "violating" of course carnal knowledge is to be underT stood. The act is not divested of its treasonable character by the fact that the woman consents. In such a case both parties are guilty of treason. It has been sfiid that the reason for making the violation of these particular persons treason, was to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious.(fl!) But obviously this explanation is not supported by all the instances chosen. (e.) Levying war against the sovereign. — To constitute a levying there must be an insurrection ; there must be force accompanying that insurrection, and it mu^t be for an ob- ject of a general nature. (e) But there need not be actual fighting : nor is the number of persons taking part in the movement material. The levying is either direct or constructive. It is direct "when the war is levied directly against the queen or her forces, with intent to do some injury to her person, to im- prison her, or the like ;"(/) for example, a rebellion to de- pose her, delivering up the sovereign's castle to the enemy. (a) R. V. Vane, Kel. 15. (6) K. v. Hardy, 1 East, P. C. 60. (c) V. R. V. Gordon, Dong. 593. (d) 3 Inst. 9. (fi) E. V. Frost, 9 C. & P. 129. (/) 1 Hale, P. C. 131, 132. 4 •50 OFFENSES AGAINST THE GOVERNMENT AND SOVEKEIGN. Constructive treason is of a very different character, the end of the movement being rather the purification of the government than its overthrow. It is 'committed for the purpose of effecting innovations of a public and general nature by an armed force. Thus, it is treason to attempt by force to alter the religion of the state, or to obtain the repeal of its laws. So it is treason to throw down all in- closures, open all prisons; but not if the attempt be to bi'eak down a particular inclosure, or deliver a particular person from prison, because in these latter cases the design is particular and not general. (^) (d.) Adhering to the sovereign's enemies. — As in the three former cases, this offense must be evidenced by some overt act ; for example, to raise troops for the enemy, or to send them money, arms, or intelligence. By the "sovereign's enemies" are meant the subjects of foreign powers with which he is at war. It appears, therefore, that a British subject, though in open rebellion, can never be deemed an enemy of the sovereign, so as to make assistance rendered to him treason within this branch of the statute. (A) (e.) Slaying the chancellor, etc. — It will be observed that the statute applies only to tfie actual killing, not a mere attempt : to those judges only when actually acting in that capacity, and not at other times, and not to barons of the exchequer. Counterfeiting the great or privy seal is no longer treason, but simple felony.(i) It will be treated of under the title " !Forger3^" So, also, coining offenses are not now treason. (A) Thus was the common law of treason declared by the statute of Edward III. This statute, with certain qualifi- cations, is still in force ; in certain cases new statutes specially declaring that their provisions shall not affect any thing contained in the statute.(f). {g) E. V. Dammaree, 8 St. Tr. 218. \k) ] Hale, P. C. 159; 3 Inst. 11. \i) 24 and 25 Vict., c. 98, § 1. (Ic) 24 and 25 "Vict., c. 99, passim, v. p. 68. \l) V. 11 and 12 Vict., c. 12, § 6. OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 51 Subsequently, from time to time, parliament made other ofi'enses treason — notably several in the reign of Henry VIII., in the matter of religion. It also took upon itself the authority to declare certain acts, after they had been committed, to be treason (thus trespassing into the prov- ince of the judge) ;(m) as, for example, stealing cattle by Welshmen. All these new treasons, however, were abro- gated in the reign of Edward VI. and Mary. Then, again, the statute of Edward III. was restored to its place as the standard of treason ; but additions to the number of trea- sonable oiFenses have since been made by the legislature. The following still remain : i. Endeavoring (to be evidenced by some overt act) to prevent the person entitled under the act of settlement from succeeding to the crown. (n) ii. Maliciously, advisedly, and directly, by writing or printing, maintaining that any other person has auy right or title to the crown, otherwise than according to the act of settlement, or that the sovereign, with the authority of parliament, may not make laws and statutes to bind the crown and descent thereof.(o) iii. Compassing, imagining, inventing, devising, or in- tending death or destruction, or any harm tending to death or destruction, maim or wounding, imprisonment, or re- straint of the person of the sovereign. (^) [Every person owing allegiance to the [Jnited States, who levies war against them, or adheres to their enemies, giving them aid or comfort, within the United States or elsewhere, is guilty of treason against the United States. Rev. Stat. § 5331. Inciting or engaging in rebellion or insurrection against the United States ; holding criminal correspondence with a foreign government ; and conspiring to overthrow (m) Fitz. St. 36. (n) 1 Anne, st. 2, c. 17, § 3. (o) 6 Anne, o. 7. (p) 30 Geo. 3, c. 7, § 1, confirmed by 57 Geo. 3, c. 6, § 1. The former statute also denominated certain other acts treason ; but all these of- fenses, with the exception of those against the person of the sovereign noticed above, were converted into felonies by 11 and 12 Vict c. 12, §1- ^ 52 OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. the government of the United States, levy war against them, or oppose by force the authority thereof, or take pos- session of the property thereof; are punishable by fine and imprisonment. lb. §§ 5334-5336. Levying war against the state or the United States, or knowingly adhering to the enemies of either, giving them aid and comfort, is treason in Ohio. 74 Ohio L. 243. Levy- ing war against the government and people of the state is the same ; or being adherent to the enemies of the state, giving them aid, advice, and comfort, in the state or else- where, is treason in Illinois. Kev. Stat., 1877, 387. The provision in Indiana is : " Levying war against the state, or giving aid and comfort to its enemies." Rev. Stat., 1876, 423. The same in Iowa, Rev. Code of 1873, 599 ; and in Kentucky, Constitution, art. 8, § 2. In Michigan, the stat- utes do not define treason, only fix the punishment for it. 2 Compiled Laws of Michigan, 1871, 2069.] There are some points in connection with the procedure in prosecutions for treason which maybe noticed here more conveniently than in the second part. In the first place, no prosecution for treason can take place after three years from the commission of the oifense, if it be committed within the realm, iinless the treason con- sist of a designed assassination of the sovereign. (g') The prisoner indicted for treason (or misprision of treason) is entitled to have delivered to him, ten days b;'fore the trial, a copy of the indictment, and a list of the witnesses to be called, and of the petty jurors, to enable him the bet- ter to make his defense. (r) But the provision does not apply to cases of treason in compassing and imagining the death of the sovereign (or misprision of such treason) where the overt act is an act against the life or person of the sove- reign. In such cases, the prisoner is indicted, arraigned, and tried in the same manner and upon like evidence as if lie stood charged with mnrder, though, if he is found guilty, the consequences are those of treason. (s) (?) 7 and 8 Wm. 3, c. 3. (r) 7 Anne, c. 21, § 11 ; 4 Geo. 3, o. 50, g 62. (s) 39 and 40 Geo. 3, o. 93 ; 5 and 6 Vict., c. 51, § 1. OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 53 One overt act is sufficient to prove the treason, but any number may be mentioned in the indictment. To this overt act, or else to it and another of the same treason, there must be two witnesses, unless the accused confesses williugly.(/!) The prisoner may make his defense by counsel, not moi-e than two, to be named by him, and assigned by the court or judge, lie has the exceptional privilege of addressing the jury, notwithstanding that his counsel have delivered their speeches. (m) Formei'ly the punishment for treason was of a most bar- barous character. Males were drawn on a hurdle to the place of execution, and hanged, and cut down while alive; afterwai'd they were disemboweled, the head was severed from the body, the body quartered, and the quarters placed at the disposal of the sovereign. By a wholesome statute, this proceeding wus deprived of its more outrageous fea- tures, it being provided that beheading might be substituted by the sovereign, or the capital sentence might be altogether remitted. (x) By the same act the punishment of females, formerly burning alive, was changed to hanging. ISTow, by the felony act, 1870(?/), the only part of the sentence which is retained, in any case, is the hanging. Certain additional consequences of conviction and attain- der(2), viz., forfeiture of lands and goods, and corruption of blood, were abolished by the statute just mentioned(fl.), but certain incapacities were at the same time attached to con- victions for treason or felony.(^y) [The punishment of treason, under the laws of the United States, is death, or imprisonment at hard labor not less than five years, and fine not less than ten thousand dollars. In Ohio, imprisonment in the penitentiary for life ; in Illinois, the punishment is death ; in Indiana, death, or imprison- (t) 7 and 8 Wm. 3, c. 3, §g 2, 4; except in cases tried, as above, as for murder. («) E. V. Collins, 5 C. & P. 305. (x) 54 Geo. 3, c. 146. ly) 33 and 34 Vict., c. 23, § 31. (z) N.B. — A man is convicted vrhen found guilty; he was said to be attainted when judgment had been given. (a) 33 and 34 Vict., c. 23, § 1. ' (i) v. p. 404. 54 OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. ment for life, at the discretion of the juiy ; in Iowa, im- prisonment at hard labor for life ; in Michigan, death.] MISPRISION OF TREASON. Misprision of treason consists in the bare knowledge and concealment of treason, any degree of assent making the party a principal. At common law this mere concealment, being construed as aiding and abetting, was regarded as treason, inasmuch as, it will be remembered, there is no dis- tinction into principals and accessories in treason. (t-) It was specially enacted that a bare concealment of treason should be held a misprision oii\j.{d) The only punishment now is imprisonment. The party knowing of any treason must, as soon as possible, reveal it to some judge of assize, or jus- tice of the peace. [Misprision of treason, under the laws of the United States, is punished by tine and imprisonmeiat. Rev. Stat., § 5333. In Ohio, by imprisonment in the penitentiary, 74 Ohio L. 243 ; and the same in Illinois, Rev. Stat., 1877, 387; and Indiana, Rev. Stat., 1876, 423 ; in Iowa, fine and im- prisonment. Rev. Code, 1873, 599 ; same in Michigan, Com. Statutes, 1871, 2069.] SEDITION. Sedition is a comprehensive term, embracing all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the state, and lead ignorant persons to endeavor to subvert the government and the laws of the empire. The objects generally are to incite discontent or dissatisfaction, to stir up opposition to the government, and to bring the administration of justice into contempt. (,/) This description is somewhat vague; but in that respect it only resembles the oftense itself It is hard to lay down iiny decisive line, on one side of which acts are seditions, and on the other iijnocent. The term "sedition" is com- monly used in connection with words written or spoken. (c) V. p. 40. (^d) 1 and 2 Phil. & Mary, c. 10. U) R. V. Sullivan, R. v. Pigott, 11 Cox, 44, 45. OPFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 55 It includes, however, many other acts, some of which are treated of separately ; for example, training to arms, un- lawful secret societies or meetings, etc. "What is sufficient to constitute seditious libels or words? It may be answered generally — such political writings or words as do not amount to treason, (A) but which are not innocent. We have already seen what constitute treason. As to what are innocent : It is the right of a free subject to criticize and censure freely the conduct of the servants of the crown, whether ministerial or judicial, and the acts of the government and proceedings in courts of justice, so long as he does it not with malignity nor imputes corrupit or malicious motives.0 The test proposed by an eminent authority is the following : " Has the communication a plain tendency to produce publicmischief by perverting the mind of the subject and creating a general dissatisfaction toward government ?"(w) Proving the truth of a seditious libel is no excuse for the publishing it; nor will it extenuate the punishment, inas- much as the statute,(n) which allows the defendant charged with libel to plead the truth under certain conditions, does not apply to seditious libels. (o) The punishment for seditious libels or words is fine and imprisonment. Punishable in the same way are slander- ous words uttered to a magistrate OFFENSES AGAINST THE FOREIGN ENLISTMENT ACT. [Under the neutrality laws of the United States, it is a crime, punishable with fine and: imprisonment, for any citizen to accept, within the United States, a foreign com- mission to serve against people at peace with the United States ; for any person within the United States to enlist or hire another to go without the limits of the United States to enlist in the military or naval service of the (k) Though treason itself may be said to be a kind of sedition. (I) R. V. Sullivan, etc., supra. (to) v. 1 Russ. 339. (n) 6 and 7 Vict, c. 96, § 6. («) K. V. Duflfy, 2 Cox, 45; R. v. Burdett, 4 B. & Aid. 95. 66 OFFENSES AGAINST THE GOVEKKMENT AND S0TEEEI6N. United States ; for any person within the United States to be concerned in fitting out any vessel to be employed by any foreign state against' any people at peace with the United States ; for any citizen, without the limits of the United States, to be concerned in fitting out any privateer to commit hostilities upon citizens of the United States or their property.(l)] MUTINY AND INOITINS THERETO. [If any one of the crew of an American vessel on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, unlawfully, with force, fraud, or intimidation usurps the command of the vessel, or deprives the ofiiicer in command of authority and com- mand on board, or resists and prevents his free lawful exer- cise thereof, or transfers such authority and command to one not lawfully entitled thereto, he is guilty of revolt and mutiny, to be punished by fine and by imprisonment at hard labor not more than ten years. (2) If any one of the crew of any American vessel, anywhere within the admiralty and maritime jurisdiction of the United States, endeavors to make a mutiny on board such vessel, or conspires with any other person on board to make such mutiny, or stirs up any of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to neglect their proper duty on boai-d, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board, or unlawfully confines the commanding officer, he shall be punished by fine or imprisonment not more than five years or both. (3)] APPENDIX. OFFENSES BY MEMBERS OF THE ARMY AND NAVY. It will be convenient here to see on what footing the (1) U. S. Eev. Stat, §§ 6281-5284. (2) U. S. Key. Stat., g 5360. (3) U. S. Eev. Stat., g 5359. OFFENSES AGAINST THE GOVEKNMENT AND SOVEREIGN. 57 army and navy are with regard to proceedings and punish- ment for crime. As to the army: We have already noticed that mutiny acts are annually published for the government of the mil- itary forces. These acts are substantially the same from year to year, though, of course, they may vary in their de- tails and figures. Provision is made for the trial of mili- tary oifenders by court-martial. It is provided that every officer or private who shall incite or join any mutiny, or knowing of it, shall not give notice to the commanding officer, or shall desert, or enlist in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use in- solence to his superior officer, or disobey his lawful com- mands, shall suffer death or such other punishmeut as the court-martial may infliet. Other offenses are set forth and punishments prescribed. The court-martial may sentence any officer or soldier to death, penal servitude, imprison- ment, forfeiture of pay or pension, or any other punish- ment which shall accord with the usage of the service. No person acquitted or convicted by a civil magistrate or by a jnry is to be tried by court-martial for the same offense.(l) (1) One act may constitute several offenses. One act may constitute several crimes against different jurisdictions, as against a state and the United States, and the offender be liable to punishment from both ju- risdictions. Fox V. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560; Moore v. Illinois, 14 How. 13; United States v. Amy, 14 Md. 149, note, 152. Or as against a law of a state and against a city ordinance. Ambrose v. State, 6 Ind. 351; Phillips v. People, 55 ill. 429. One act may constitute two distinct offenses against the law of one state. One who votes twice at the same election, the second vote being oast in a district where he is not resident, perpetrates two crimes — voting twice, and voting without being qualified. State v. Welch, 21 Minn. 22. If one assault another in open court, he may be summarily punished for the contempt, and also indicted for the as- sault. So an act may be an offense against tlie statutes of a state or of the United States, and, at the same time, if done by one in the military service, be a violation of the articles of war, or military law, and subject the offender to dismissal or other military service. Cole- man V. State, by the Supreme Court of Tennessee, cited and approved in Coleman v. Tennessee, 97 U. S. 509, see p. 518. 58 OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN, The mutiuy act does not, however, exempt soldiers from being punishable by the ordinary criminal courts. It ex- pressly provides that nothing therein is to be construed to extend to exempt any officer or soldier from being pro- ceeded against by the ordinary courts of law, when accused of felony or misdemeanor, or of any crime or offense other than the misdemeanors and offenses mentioned in the act. As to the navy: The naval discipline act (1866)(o) makes similar provisions for the navy as to courts-martial, the trial of offenses, no exemption from ordinary criminal jurisdic- tion, etc. COINAGE OFFENSES. So decidedly were offenses relating to the coin regarded as offenses against the government, inasmuch as they not only infringed the royal prerogative, but also were calcu- lated to makes the public faith suspected, that in the stat- ute of Edward III. two of them were declared treason, viz., (a) the actual counterfeiting the gold and silver coin of the realm, and (b) the importation of such counterfeit money with intent to utter it, knowing it to be false.(^) These offenses were, however, made felonies by a later statute.(5') It may be noticed that at least one class of coinage of- fenses, viz., uttering counterfeit money, might be dealt with as a particular case of obtaining goods or money by false pretenses. (r) The law on the subject under consideration has been consolidated by a recent statute.(s) It will be our task to present its matter under several heads. A. Counterfeiting coin. — A distinction is made as to the kind of coin. Whosoever falsely makes or counterfeits any coin resembling, or apparently intended to resemble or pass for — (o) 29 and 30 Vict, c. 109. (p) v. p. 48. Iq) 2 Wm. 4, c. 34. (r) Fitz. St. 141. («) 24 and 25 Vict., c. 99. In the present division the quoting of a section must be understood to refer to this act. OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 59 i. The current gold or silver coin of this realm, com- monly called the queen's money,(i) ii. Foreign gold or silver coiu,(M) iii. The queen's current copper money,(a;) is guilty of felony, and is punishable, in the case of gold and silver coin of the realm, with penal servitude to the extent of life ; in the other cases, to the extent of seven years. Counterfeiting — iv. Foreign coin other than gold or silver coin is a mis- demeanor, punishable, for the first offense, with imprison- ment not exceeding one year ; for the second offense, with penal servitude to the extent of seven jears.{y) The offense is complete although the false coin has not been finished, or is not in a lit state to be uttered ;(2) much less is any attempt to utter necessary. Any one, not necessarily an officer from the mint, may, at the trial, prove the falseness.(a) In this offense is included that committed by persons lawfully engaged in coining, who make the coin lighter or of baser alloy. The counterfeiting can generally only be proved by circumstantial evidence ; for example, by proof of finding coining tools in working order, and pieces of the money, some in a finished, some in an unfinished state. B. Coloring coin. — Coloring, washing, etc., counterfeit coin, or any piece of metal with intent to make it pass for gold or silver coin ; or coloring, filing, or otherwise alter- ing genuine coin with intent to make it pass for coin of a higher degree, is a felony, punishable with penal servitude to the extent of life. (6) C. Impairing, etc., gold and silver coin. — Impairing, di- minishing, or lightening any of the queen's gold or silver coin, with the intent that it shall pass for gold or silver coin, is felony, punishable with penal servitude to the ex- tent of fourteen years, (c) Having in possession any filings, clippings, dust, etc., (0 § 2. (y) § 22. (4) § 3. («) § 18. {z) § 30. W§4. (x) § 14. {a) § 29. 60 OFFENSES AGAINST TUE GOVEKNMENT AND SOVBKEIGN. obtained by the above-mentioned process, is a felony, the limit of penal servitude for which is seven years.(d^) D. Defacing coin. — Defacing the queen's gold, silver, or copper coin, by stamping thereon any names or words, al- though the, coin be not thereby lightened, is a misde- meanor, punishable with imprisonment not exceeding one year.(e) It should be added that coin so defaced is not legal tender ; and by the permission of the attorney-general or lord advocate, any person who tenders or puts off coin so defaced may be brought before two magistrates, and on conviction be fined not exceeding forty shillings.(/) E. Buying or sdling, etc., counterfeit coin at lower value. — Any person, without lawful authority or excuse (the proof whereof lies on the accused), buying, selling, receiv- ing, or putting off" any counterfeit coin for a lower rate or value than it imports, is guilty of felony. If the counter- feit be of gold or silver, the extent of penal servitude is ]ife(^) ; if copper, the limit is seven years.(A) F. Importing and exporting counterfeit coin. — Importing or receiving into the United Kingdom from beyond the seas, without lawful authority, etc., counterfeit gold or silver coin, knowing the same to be false and counterfeit, is a felony, punishable with penal servitude to the extent of life.(i) It is said that importing the coin from the queen's dominions beyond the seas does not fall within this section, because the counterfeiting there is punishable by the laws of England. (j) Importing foreign counterfeit coin is a felony, the limit of the penal servitude for which is seven years. (/b) Exporting, or putting on board any vessel for the pur- pose of being exported from the United Kingdom any coin counterfeit of the queen's current coin, without lawful au- thority, etc., is a misdemeanor punishable with imprison- ment not exceeding two years.(2) G. Uttering counterfeit coin. — Tendering, uttering, or putting off counterfeit gold or silver coin, knowing the (rf) § 5- {g) § 6. (j) V. Avch. 788. {e) § 16. {h) § 14. m § 19. (/) § 17. (0 I 7. (0 § 8. OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 61 eame to be false and counterfeit, is a misdemeanor punish- able with imprisonment not exceeding one year.(m) If at the time of uttering, the oft'ender has any other counterfeit coin in his possession, or if he within ten days utters an- other coin, knowing it to be counterfeit, the punishment may extend to two years.(n) If the uttering is after a previous conviction for either of these offenses, or for hav- ing in possession three or more pieces of counterfeit, or for any felony relating to the coin, the utterer is guilty of fel- ony, and may be sentenced to penal servitude for life.(o) Uttering counterfeit coin meant to resemble a foreign gold or silver coin, is punishable for the first offense with imprisonment not exceeding six months ; for the second not exceeding two years. The third ofieuse is a felony punishable with penal servitude to the extent of life.(p) Uttering spurious coin, e. g., foreign coin, medals, pieces of metal, etc., as current gold or silver coin, with intent to defraud, is a misdemeanor punishable with imprisonment to the extent of one year.(g') H. Saving counterfeit coin in possession. — Having three or more counterfeit gold or silver coins in possession, knowing them to be counterfeit, and intending to utter or put off them, or any of them, is a misdemeanor punishable with penal servitude limited to five years (r) If after pre- vious conviction for either of the misdemeanors mentioned in sections 9 and 10, or any felony relating to the coin, the crime is a felony, and may be punished with penal servi- tude to the extent of life.(s) If the coin is the queen's copper coin, the limit of the punishment is imprisonment for one year.(i) Having in possession without lawful ex- cuse more than five pieces of foreign counterfeit coin ren- ders the possessor liable to a penalty on conviction before a justice.(w) I. 31aking, etc., coining tools. — Knowingly and without lawful authority, etc., making or mending, buying or sell- ing, or having in custody or possession any coining instru- (m) § 9. (p) §§ 20, 21. (.) g 12. (n) § 10. (?) § 13. (0 § 15. (o) § 12. (Ogll- (u) § 23. 62 OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. merit or apparatus adapted and intended to make any gold or silver coin or foreign coin, is a felony punishable with penal servitude for ]ife.(a:) If the instruments, etc., are designed for coining the queen's copper coin, the limit of the penal servitude is seven jear8.(y) [Congress is charged by the constitution of the United States with the regulation of the coinage of money. The national government therefore provides for the protection of the coinage.(l) It is therefore made felony by tbe laws of the United States to counterfeit coin made by the United States, or any gold or silver foreign coin made current by statute, or in use and circulation as money; or to deface or impair any such coin ; or to make or utter without author- ity of law any coin to be- used as current money.(2) Wherever coin is current as money, the government has the right to protect the people in its use. (3) It is there- fore made felony under the laws of the several states to countei'feit any gold or silver coin current in the state, or to utter the same, or to have the same in possession with intent to utter.(4) Whether the coin alleged to be counterfeited is current in the state or not, is a question for the jury. (5) A coin called a California five dollar piece, made in a state con- trary to the constitution of the United States, can not be called a coin current by usage, for usage can not be set up in violation of law. (G) "Knowingly having possession" means knowingly having possession with criminal in- tent.(7) Secreting within the county and having within (:.) § 24. (y) § 14. (1) United States v. Marigold, 9 How. 560. (2) U. S. Eev. Stat., §§ 5457-5462. (3) Sutton V. State, 9 Ohio, 133; Sizemore u. State, 3 Head, 26; State V. McPherson, 9 Iowa, 53. (4) Rev Stat., Ind. 1876, pp. 440,441; Eev. Stat., 111. 1877, p. 365; Eev. Stat., Mich. 1871, p. 2102; Eev. Stat., Iowa, 1873, p. 611. In Ohio, the statute embraces also copper coin, 74 Ohio L. 294; and, in Ken- tucky, "other coin," Eev. Stat., 1877, p. 330. (5) Fight u. State, 7 Ohio (pt. 1), 130. (6) Commonwealth v. Bond, 1 Gray, 564. (7) People V. White, 34 Cal. 183. OFFENSES AGAINST THE GOVERNMENT AND SOVEREIGN. 63 control is a possession. (1) Under the statute against hav- ing in possession ten similar pieces of gold or silver coin, it is sufficient if the offender have in possession ten pieces of either kind of coin, thoush not all of the same denomina- tion."(2)] (1) State V. Washburne, 11 Iowa, 245. (2) Brown v. Commonwealth, 8 Mass. 59. 64 OFFENSES AGAINST RELIGION. CHAPTER IIx. OFFENSES AGAINST EELIGION. On what grounds does the state arrogate to itself the right of punishing offenses against religion ? Certainly not as the minister of God. The state has observed that cer- tain acts or courses of conduct, which are forbidden by re- ligion, are also productive of disorder and mischief to the community. It has therefore provided for the punishment of those that ojftend, not in consequence of the breach of the law of God, but as the result of the breach of the law of the country. That the state does not consider itself under an obligation to enforce the law of morality, as such, is obvious from the fact that mere lying and other acts of immorality are not within the pale of the criminal law. This violation of human law is the true ground of interfer- ence, though iu some of the offenses we shall notice it is impossible to shut our eyes to the fact that in early times the legislators did to some extent consider themselves au- thorized to punish mere irreligion. APOSTACY — BLASPHEMY. Apostacy, or the total renunciation of Christianity, was for a long period punished by the ecclesiastical courts only, at one time the punishment they awarded being death. Later, however, the civil power thought it necessary to in- terfere, " by not admitting those miscreants to the privilege of society who maintained such principles as destroyed all moral obligations. "(/) It was provided that if any one educated i7i, or having made profession of tlie Christian re- ligion, by writing, printing, teaching, or advised speaking, maintains that there are more Gods than one, or denies the Christian religion to be true, or the Holy Scripture to be (/) 4 Bl. 44. OFFENSES AGAINST KELIGION. 65 of divine authority, for the second offense, besides heing incapable of bringing an action, or being guardian, execu- tor, legatee, or grantee, must suffer imprisonment for three years without bail. (9) There shall be no prosecution for such words spoken, unless information of such words be given on oath before a justice within four days after they are spoken, and the prosecution be within three months after such information. (A) The offender is to be discharged, if, within four months after his first conviction, he re- nounces his error.(;) Blasphemy is also punishable at common law by fine and imprisonment. Christianity, as it is said, is a part of the law of England, and a gross outrage against it is to be pun- ished by the state. The offenses include not only the blas- phemous libels by one who has been attached to the Chris- tian religion and has apostatized, as to which we have seen particular provisions have been made, but also deny- ing, whether orally or by writing, the being or providence of the Almighty, contumelious reproaches of our Lord and Savior Christ, profane scoffing at the Holy Scriptures, or exposing any part thereof to contempt or ridicule.(/;) But the disputes of learned men upon particular points of re- ligion are not punished as blasphemy.(Z) It remains merely to add that the law is rarely put in force, and then only be- cause the libel is of a most extravagant nature. DISTURBING PUBLIC WORSHIP. Any person willfully and maliciously or contemptuously disturbing any lawful meeting of persons assembled for public worship, or molesting the person officiating or any of those assembled, upon proof by two or more credible witnesses before a magistrate, must answer for such offense at the sessions, and upon conviction is fined forty pounds.(m) (g) 9 and 10 Wm. 3, c. 32, § 1 ; in the Rev. Stat., c. 35. (A) Ibid., § 2. (0 Ibid., § 3. (k) V. 1 Russ. 332, 333. (0 For cases v. Arch. 814. (m) 52 Geo. 3, c. 155, § 12. 66 OFFENSES AGAINST EELIGION. Riotous, violent, or indecent behavior is also punishable on summary conviction. (n) WITCHCRAFT, SORCERY, ETC. Punishment (generally death) for these supposed evil practices belonged to a state of society difterent from ours. It is only about a century and a half, however, since an act was passed to the effect that prosecutions for such practices should cease; at the same time making punishable by im- prisonment persons pretending to use witchcraft, tell for- tunes, or discover stolen goods by skill in any occult or crafty science. (o) By a later statute, persons using any subtle craft, moans, or device, by palmistry, or otherwise to deceive her majesty's subjects, are dealt with in their true character, namely, as rogues and vagabonds, and are pun- ishable by imprisonment.(p) Under this head may be noticed the case of religious impostors, who are punishable by line and imprisonment. Two offenses dealt with by the magistrates may be no- ticed here briefly : Profane sivearing is punishable on summary conviction by fine.((7) Profanation of the Sabbath is an offense which has been brought into prominence through recent prosecutions. The statute of Charles II. provides that no person may do any work of his ordinary calling upon the Lord's day, works of necessity and charity only excepted, under penalty of five shillings. Nor may any one expose to sale any wares, on penalty of forfeiting his goods; nor may drovers, etc., travel, under a penalty of forty shillings.(?') But no prosecution for such offense may be commenced without the consent of the chief ofiicer of the district, or of two justices, or of a stipendiary magistrate. (s) Places of amusement, debate, etc., opeu on Sunday, ad- mission to which is paid for, are to be deemed disorderly in) V. 23 and 24 Vict., c. 32, § 2. (o) 9 Geo. 2, c. 5. (p) 5 Geo. 4, c, 83, § 4. {q) v. 19 Geo. 2, o. 21. (r) 29 Car. 2, c. 7. {s) 34 and 35 Vict., c. 87, continued by subsequent statutes. OFFENSES AGAINST RELIGION. 67 houses, and as such may be suppressed, and the keeper fined or imprisoned. (i) Tlie crown has, however, recenlly been empowered to remit the penalties. (m) Certain practices, which were at one time criminally pun- ishable, are now no longer so. Heresy, which consists not in a total denial of Christianity, but in an open denial of some of its principal doctrines, as held by the church, has been again subjected only to ecclesiastical correction, -pro sa- lute animcE.(x) Offenses against the national church, which are either negative, that is, non-conformity, or positive, by re- viling its ordinances, etc.,{y) though nominallj' liable to legal penalties, are never practically made the subjects of prosecution.(2) (t) 21 Geo. 3, c. 49; v. p. 119. (u) 38 and 39 Vict., o. 80; v. Terry v. Brighton Aquarium Co., L. R. 10, Q. B. 306. {x) 29 Car. 2, c. 9'; 4 Bl. 49. (y) v. I Edw. 6, c. 1 ; 1 Eliz., c. 2. (z) As to Simony, v. 4 St. Bl. 212. OFFENSES AGAINST PUBLIC JUSTICE. CHAPTER IV. OFFENSES AGAINST PUBLIC JUSTICE. In the first place, we shall treat of that class of oflEenses against public justice which consist in avoiding oneself, or assisting another to avoid, the punishments awarded by a «ourt of justice. , Escape; Breach of Prison ; Being at large during a term of Penal Servitude; Rescue; Obstructiug Lawful Arrest. ESCAPE. The distinction between the first two and fourth offenses has been thus put: Where the liberation of the party is effected either by himself or others, without force, it is more properly caHed an esca-pe; where it is effected by the party himself, wiA force, it is called 'prison breaking ; where it is effected by others, with force, it is commonly termed a rescue.{a) We have to consider the cases of delinquents in three positions — the prisoner who escapes; the person who aids him; those in whose custody he is, whether of- ficers of the law or private individuals. If a prisoner escapes out of the custody of the consta- ble, before he is imprisoned, be is punishable with fine and imprisonment. Oflacei's who, after an arrest, negligently allow a prisoner to escape are punishable with fine; if they volunlarily per- mit it, they are deemed guilty of the same offense, and are liable to the same punishment, as the prisoner who escapes from their custody ; and this whether the latter has been committed to jail, or is only under bare arrest. But the officer can not be thus punished for a felony, until after the original offender has been convicted. Before the convic- tion, however, he may be fined and imprisoned as for a (a) V. ] Euss. 581 ; 1 Hale, P. C. 590. OFFENSES AGAINST PUBLIC JUSTICE. 69 misdemeanor. The allowing the escape is punishable criminally only if the original imprisonment were for some criminal matter. Private individuals, having persons lawfully in their ens- tody, who negligently allow an escape, are punishable by fine or imprisonment, or both ; if voluntarily , they are pun- ishable as an officer would be tinder the same circum- stances. Of course, at any time, they may deliver the per- son in charge over to an officer. Aiding in the escape of a prisoner from a prison, other than a convict, military, or naval prison, (6) or, with intent so to aid, conveying to him a mask, disguise, instrument, or any other thing, is a felony, punishable with imprison- ment to the extent of two years. (c) Aiding a prisoner in custody for treason or felony to make his escape from the constable or officer conveying him under a warrant to prison is a felony punishable with penal servitude to the extent of seven years. (cZ) Aiding a prisoner of war to es- cape is a felony punishable with penal servitude for life.(e) BREACH OF PRISON. The consequences of breach of prison vary according to the crime for which the pi'isoner is in custody. If he is in custody for treason or felony, the breach is also felony, and punishable by penal servitude to the extent of seven years; and, in the case of a man, also by whipping once, twice, or thrice. (/) If he is in custody for any other offense, the breach is a misdemeanor, and punishable by fine and im- prisonment. There seems also to be this difirerence be- tween the two cases — in the first, it must be proved that the prisoner escaped ; in the second, this is not necessar3^ To constitute this offense, there must be an actual break- ing, though it need not be intentional. Merely getting over the wall and the like is an escape only. It will be a sufficient defense to prove that the prisoner has been in- (J) As to these, see the statutes quoted in Arch. 838-9. (c) 28 and 29 Vict., c. 126, § 37. (rf) 16 Geo. 2, c. 31, g 3. («) 52 Geo. 3, c. 156. (/) 1 Edw. 2, St. 2, c. 1, in Rev. Stat., 23 Edw. 1. Stat, defrang. pris. 70 OFFENSES AGAINST PUBLIC JUSTICE. clictcd for the original ofiense and acqiiitted ; otherwise, it is not material whether the accu&cd was guilty of the orig- inal oflfense or not. " Prison " here includes any place where one is lawfully imprisoned, whether upon accusation or after conviction ; foj- example, in the jail or constable's house. BEING AT LARGE DURING TERM OF PENAL SERVITUDE. Penal servitude was substituted for transportation in the year ISbl ;{g) but the incidents of the latter attach to the iormer. For a convict to bo at large, without lawful authority, which it lies on him to prove, before the expiration of the term of transportation or penal servitude to which he was sentenced, is a felony punishable by penal servitude, even to the extent of life, and previous imprisonment not ex- ceeding four years; or else by imprisonment not exceeding two years. (A) RESCUE. Rescue is the forcibly and knowingly freeing another from arrest or imprisonment. If the original ofiender is convicted, the rescuer is guilty of the same offense as such original, whether it be treason, felony, or misdemeanor. If the rescuer is thus convicted of, felonj', the punishment is penal servitude to the extent of seven years, or impris- onment from one to three years ;.(i) if of misdemeanor, tine or imprisonment, or both. If the original is not convicted, nevertheless the rescuer may be punisht'd by fine and im- prisonment as for a mi8demeanor.(j) Rescuing or attempting to rescue a person convicted of murder, whilst proceeding to execution ; or rescuing out of prison a person committed for or convicted of murder, is a felony punishable with penal servitude to extent of life, or imprisonment not exceeding three j"ears.(/:) {g) 20 and 21 Vict., c. 3. (h) 5 Geo. 4, c. 84, § 22; 4 and 5 Wm. 4, c. 67. (i) 1 and 2 Geo. 4, c. 8^, § 1. (j) 2 Hawk., c. 2!, § 8. (k) 25 Geo. 2, c. 37, g 9 ; 7 Wm. 4, and 1 Vict., c. 91, § 1. OFFENSES AGAINST PUBLIC JUSTICE, 71 Rescuing or attempting to rescue an oft'ender sentenced to penal servitude from a person charged with his removal, is a felony punishable in the same way as if the party had been in jail.(0 Another offense, somewhat of the same character, cattle instead of persons being rescued from the custody of the law, is poundbreach. To rescue cattle distrained for rent or for damage feasant is a misdemeanor at common law, pun- ishable by fine and imprisonment or both, OBSTRUCTING LAWFUL ARREST, ETC, To prevent the execution of lawful process is at all times an offense, but more especially so when the object is to prevent the arrest of a criminal. It has been held that the party opposing such an arrest becomes thereby particeps criminis ; that is, an accessor}' in felony, otherwise a prin- cipal. (???) The statutes abolishing so-called sanctuaries or privileged places make opposition in those places a felony. An assault upon, resistance to, or willful obstruction of a peace officer in the execution of his duty, or any person acting in his aid ; or an assault upon any person with in- tent to resist or prevent the lawful apprehension or detainer of himself or of anj' other pei'son for any offense, is a mis- demeanor, punishable with imprisonment to the extent of two years. (?i) Wounding, doing grievous bodilj' harm to, shooting at, or attempting to shoot at, any person with such intent, is punishable with penal servitude to the ex- tent of life.(o) l^ot only positively obstructing an oflicer, but also re- fusing to aid him in the execution of his duty in order to preserve the peace, is a crime. The latter offense is a mis- demeanor at common law.(25) PERJURY. The crime committed by one who, when a lawful oath is (J.) 5 Geo. 4, c. 84, § 22. (m) 2 Hawk., c. 17, § 1. («) 24 and 25 Vict., c. 100, § 38. (o) Ibid., g 18. (/)) V. R. V. Brown, C. & M. 314. 72 OFFENSES AGAINST PUBLIC JUSTICE. administered to him in some proceeding in a court of jus- tice of competent jurisdiction, swears loillfuUy, absolutely, and falsely in a matter material to the issue or point in ques- tion. (5) Such is the definition of perjury at common law. The qualification with which it must be taken will appear he- low. Certain other false oaths are attended by the pun- ishments of perjury, though they are not kuown by that name. And whenever an act of parliament requires an oath to be taken, but does not make it perjury to take a false oath, though not perjury, the taking such oath is a misdemeanor ;(r) for example, the oath required to be taken before a surrogate in order to obtain a marriage license. (s) It may be necessary to remind the reader that the false affirmation of a Quaker, Moravian, Separatist, or of any other person who is by law authorized to make an affirma- tion or declaration in lieu of an oath, is on the same foot- ing, and visited with the same consequences, as perjury. The nature of the oath must first be considered : a law- ful oath taken in a judicial proceeding, administered within the authority of the tribunal, etc., administering. As a rule it must be taken in a court of justice, but there are ap- parent exceptions ; for example, it has been held perjury for a clergyman to take a false oath against simony at the time of his institution. (<) It is immaterial whether the oath be taken in the face of the court, or out of it by a per- son authorized to examine matters depending in it, as in the case of affidavits ; or whether it be taken in relation to the merits of the cause, or in a collateral matter, for ex- ample, on inquiring into the sufficiency of bail.(«) The oath must be taken before a person who has jurisdic- tion of the cause, and lawful authority to administer the oath. Thus, in the case of a trial taking place where the court has no jurisdiction, a witness can not be indicted for perjury thereat. JSTor if the court, etc., has authority to ad- minister some oath, but not that which is the foundation (?) 3 Inst. 164; v. R. v. Aylett, 1 T. E. 69. (r) Fitz. St. 277. (s) R. v. Foster, R. & B. 459. (t) E. V. Lewis, 1 Str. 70. (m) 3 Euss. 3. OFFENSES AGAINST PUBLIC JUSTICE. 73 of the charge. Every court, judge, justice, officer, com- missioner, arbitrator, or other pers(Mi now or hereafter hav- ing, by law or by consent of parties, authority to hear, re- ceive, and examine evidence, is empowered to administer an oath to all witnesses legally called.(x) The oath must be taken falsely, iviUfully, and absolutely; " falsely " refers to the taking of the oath, not to the truth of what is sworn. It is immaterial whether the fact which is sworn to be in itself true or false. The question is : Did the defendant believe what ho said to be true ? If, not, he is guilty of perjury. It is not nccessarj' that he should know that it was untrue ; for he will be guilty if he swears to the truth, not knowing any thing about the matter; much more if he swears to the truth, thinking what he swears is uutrne. In other words, he is guilty if his inten- tion can be proved to be to deceive. Thus he will not be innocent, though he swears that he only believes such and such to be the case, if he knows it to be not so. Of course it will be more difficult in such cases to establish the guilt of the defendant. (2/) As we have just seen, the answer must be given intentionallj' or willfully ; it must also be given with some degree of deliberation. Mere inadvertence or mistake will not support the charge, as, if the witness is bewildered on cross-examination. Of course prevarication, though the actual words used are true, will not shield the defendant ; as when a witness assured the court that a man could not live for two hours longer if he went on as he (the witness) left him; the fact being that at the time he was very well, but had got a bottle of gin to his mouth. (2) The matter sworn to must be material to the cause de- pending in the court. If the matter is wholly foreign to the purpose, or altogether immaterial, and neither anyway pertinent to the matter in question, nor tending to aggra- vate or extenuate the damages, nor likely to induce the jury to give a readier credit to the substantial part of the evidence, it can not be perjury. (a) Thus, if on a trial to determine whether a person is sane or not a witness intro- (a:) 14 and 15 Vict., c. 99, § 16. (1/) E. v. Pedley, 1 Leach, 327.. (z) Loft's Gilb. Ev. 662. (a) 1 Hawk., c. 69, § 8. 74 OFFENSES AGAINST PUBLIC JUSTICE. duces his evidence by giving an account of a journej' which he took to see the party, and sweurs falsely in relation to some of the circumstances of the journey, this would not be sufficient to support an indictment for perjury.(i) It is not necessary to constitute perjury that the false oath be believed, or that any person be damaged by it ; for the prosecution is grounded, not on the damage to the party, but on the abuse of public justice. A false verdict is not regarded as perjury, because it is said the jurors do not swear to depose the truth, but only to judge of the de- positions of others. So the breaking of their oaths by in- terpreters, officers in charge of the jury, etc., does not amount to perjury, inasmuch as it is an essential of perjury that the accused has been sworn to depose to the truth. Upon an indictment for perjury, it is sufficient if any one of the assignments of perjury be proved. (e) Perjury is one of the offenses included under the vexatious (L) It is suggested that there is no solid ground for this rule as to materiality; that it originated in a misapprehension. The authorities on which it is based " appear to be cases in which the witness misun- derstood the gist of the question, and so was rather mistaken than perjured. If this were so, the inference drawn from the cases ought to be, not that the circumstances must be material, but that the wit- ness must understand that the court requires him to answer specific- ally upon these points. It is obviously a very different thing to give an answer ciroumstantially incorrect under a misapprehension of the point of the question asked, and willfully to swear falsely on some circumstance collateral to the principal point at issue. It clearly ought to be the duty of the witness to give true answers to every ques- tion asked by the court. To allow him to answer immaterial questions falsely, is to extend an arbitrary impunity to a certain number of per- juries, for it can not be supposed that any witness knows at the time of swearing whether the question which he answers is material or not."— Fitz. St. 279. The groundlessness of this rule was adverted to by Erie, C. J., in the following terms : " Whenever the question arises whether a person may not be guilty of perjury, who, with intent to mislead the court, willfully swears falsely on u matter which, in the opinion of the judge, is of doubtful admissibility, or immaterial to the inquiry, it will be one well worthy of the careful consideration of all the judges." — U. v. Mullany, 34 L, .7. (M. C.) 111. (c) B. V. Rhodes, 2 Lord Raym. 886. OFFENSES AGAINST PUBLIC JUSTICE. 75 indictments act ; and, therefore, no bill of indictment can be presented to, or found by, the grand jury unless one of the preliminary steps indicated in the act has been taken. (d) Any judge(e) may direct the prosecution of a person who appears to have been guilty of perjury in his evidence given before him, and may commit the accused to jail, un- less he gives sufficient security for his appearance at the assizes. (/) It is a well-known rule that the testimony of a single witness is not sufficient to convict on a charge of perjury. Two witnesses at least must contradict what the accused has sworn ; or, at any rate, one must so contradict, and other evidence must materially corroborate that contradic- tion. (17) But this rule does not apply when the perjury con- sists in the defendant's having contradicted what he swore on a former occasion ; in this case, the testimony of a single witness in support of the defendant's own original state- ment will suffice. (/*) The reason usually assigned for the rule is, that if one witness were allowed to suffice to prove perjury, it would only be oath against oath. But other con- siderations, such as the great necessity for the protection of witnesses, also have weight, (z) Perjury is a misdemeanor. At one time it was punished with death ; afterward with fine and imprisonment. Now the punishment is again more severe, namely penal servi- tu.de to the extent of seven years, or imprisonment to the same extent.(/i:) ' [Perjury is felony throughout the United States. It is (d) V. p. 288. («) As to who are. comprised in this term, see the act. (/) 14 and 15 Vict., c. 100, § 19. (g) V. E. V. Boulter, 21 L. J. (M. C.) 57; 5 Cox, 543. (h) R. V. Knill, 5 B. & Aid. 929, n. (i) V. Best, Bv. 751. This rule seems to be a second instance (v. p. 24) of the law's interference with the province of the jury. It should always be a part of their duty to estimate the credibility of witnesses. (k) 2 Geo. 2, c. 25, g 2. In cases where another's life is willfully " sworn away" by a perjurer, it is hard to see why the latter should not be regarded as guilty of murder. The punishment for the crime is by no means excessive. 76 OFFENSES AGAINST PUBLIC JUSTICE. perjury under the United States laws for a person willfully, etc., to swear to " any material matter wliich lie does not believe to be true." Eev. Stat. § 5392. The statutes of Michigan do not define perjury, but only prescribe its pun- ishment. Eev. Stat., 1872, 2105. In the statutes of Ken- tucky, one section prescribes the punishment for " perjury," without defining it, and another section prescribes punish- ment for " willfully, knowingly, etc., swearing, etc., that which is false." Eev. Stat., 1877, 328, 329. In Indiana, Illinois, and Iowa, it is perjury to willfully and corruptly swear, or aflHim falsely. 2 Eev. Stat. Ind., 1876, 443; Eev. Stat. 111., 1877, 383; Iowa Code, 1873, § 3936, p. 613. In Ohio, the statute expressly requires that the statement sworn to must be false. 74 Ohio L. 258. A state court has no jurisdiction of an act of perjury committed in proceedings under an act of congress. (1.) In New York, it was held that perjury in a proceeding for naturalization in a state court is an ofiense against the gen- eral government, and is punishable by proceeding in the courts of the United States, and not in the state court.s.(2) Perjury may be assigned in Ohio upon an oath and depo- sition, taken before a notary public in Ohio, in a suit pend- ing in a court in Indiana. (3) Perjury can not be committed in a case of which the court has not jurisdiction. (4) But the testimony of an in- competent witness may be material, and be the occasion of parjury.(5) It is not the law anywhere in the United States that per- jury can not be proved except by two witnesses. One wit- ness, and corroborating circumstances, are sufficient to con- vict.(6) The corroborative evidence need not be equivalent -^ ^ . (1) State V. Adams, 4 Blackf. 146; People v. Kelly, 38 Cal. 145; Ea ■parte Bridges, 2 Woods, 428. (2) People v. Sweetman, 3 Parker C. C. 358 ; contra. Rump v. Com- monwealth, 30 Pa. St. 475; State v. Whittemore, 50 N. H. 245. (3) Stewart v. State, 22 Ohio St. 477. (4) State V. Furlong, 26 Maine, 69 ; State v. White, 8 Pick. 453. (5) Chamberlain v. People, 23 N. Y. 85; Montgomery v. State, 10 Ohio, 220. (6) Galloway v. State, 29 Ind. 442 ; State v. Molier, 1 Dev. Law, 263. OFFEKSES AGAINST PUBLIC JUSTICE. 77 to the positive testimony of another witness ; it is sufficient if the evidence together is sufficient to satisfy the jury be- yond a reasonable doubt.(l) The fact that the accused has made two contradictory affidavits is not sufficient to convict him of perjury in either.(2) But he can be convicted upon mere proof of his confessions that his testimony was per- jured.(3) It is not necessary to produce a living witness to testify to the falsity of the sworn statement; if the jury believe that the written evidence contained in the defend- ant's letters, recognized by him as genuine, proves he made a false, corrupt oath, he may be convicted. (4) SOBORNATION OF PEKJUKY. The procuring another to take such a false oath as con- stitutes perjury in the principal. (i) The offense does not amount to subornation if that other does not actually take the false oath ; but it is nevertheless punishable. The punishment for subornation is the same as for per- jury itself; and the same course has to be taken under the vexatious indictments act.(?n) BKIBERY. The corrupt treatment of one intrusted with a public charge, to influence him in the discharge of his duty in that character. , The offense, which may be thus generally defined, com- prises acts differing considerably from each other. They may be divided into two classes : 1. "Where some person concerned in the administration of public justicc(r') is approached by one bringing him a reward, in order to influence his conduct in his office. (1) Crusen v. State, 10 Ohio St. 258 ; State v. Heed, 57 Mo. 252. (2) United States v. Mayer, Deady (Circuit of Oregon and California), 127. (3) Regina v. Hook, Dearsley & Bell C. C. 606; 8 Cox C. C. 5. (4) United States v. Wood, 14 Pet. 430. (0 4B1. 138. (ni) For a list of statutes applicable to perjury, etc., v. Arch. 866. (r) V. infra, as to ministerial oiEcers. 78 OFFENSES AGAINST PUBLIC JUSTICE. 2. Where some person having it in his power to procure, or aid in procuring, for another a public place or appoint- ment, is so approached.(s) 1. The offense of offering to, or receiving by, an officer, judicial or ministerial(<), an undue reward to influence his behavior in his office, is a misdemeanor punishable by tine and imprisonment. Both the giver and the taker are guilty. And though the reward be refused, the officer is equally punishable for the attempt. The offense is not re- stricted to the case of influencing the higher officers, such as judges or members of the government; but extends to those in a subordinate position ; for example, constables, as if one bribe a constable to refrain from executing a Avar- rant. A particular species of bribery, viz., corruptly in- fluencing jurymen will be treated of hereafter under the title " Embracery."(M) i. When the place or appointment is in the gift of some public officer, ii. When it is determined by public election. i. This offense may also be regarded as following under the first class, inasmuch as the presentation to the place by the public officer is one of the duties of his office. The offense is a mis^demeanor. Even the attempt to procure an appointment by offering a sum of money to a cabinet min- ister was punished as a misdemeanor. (x) By particular statutes it has also been provided that per- sons selling public offices shall lose all right to the appoint- ment, and the buyers shall not only be ejected, but also be disabled from ever holding such office.(y/) Those buying or selling, or receiving or paying money or rewards for of- fices, are guilty of a misdemeanor. (z) So also are persons who do not thus directly buy or sell, but who pay money {s) V. 1 Hawk., c. 67, §§ 1-3. {t) The text books, in general, confine the offense of bribery to a bribery of judicial officers; but this definition of the offense seems too narrow. Arch. 870. (m) v. p. 82. {x) R. V. Vaughn, 4 Burr. 2494. (?/) 5 and 6 Edw. 6, c. 16, g 2; 49 Geo. 3, c. 12S, § 1. (z) 49 Geo. 3, c. 126, § 3. OFFENSES AGAINST PUBLIC JUSTICE. 79 for soliciting or obtaining offices, or any negotiations or pretended negotiations I'elating thereto. («) Certain other offenses in connection with the traffic in offices(6) are dealt with, and certain exceptions are made; for' example, the sale of commissions in the army.(c) ii. Offenses against suffrage. [As free and fair elections are the basis upon which the entire administration of public affairs in this country must rest, tiie statutes, both of the national government and of the states, are quite full in the prohibition of acts that in- terfere therewith. There is a substantial conformity in these acts. The requisites of suffrage are defined — which include citizenship, full age, residence for a designated length of time (ordinarily for a longer time in the state, and for a shorter time in the county, city, ward, or district), and, in some states, the ownership of property, the pay- ment of a tax, or the ability to read. With few exceptions, the right to vote is confined to men. The Ohio statute,(l) to take the law of one state for example, prohibits bribery; corrupting or intimi- dating electors ; voting without having the requisite qualifications ; voting more than once at the same election ; ^ voting without being restored to citizenship, after having been disqualified by conviction of crime ; counseling or ad- vising another' to vote illegally; procuring, aiding, or ad- vising another to come or go into any county, for the pur- pose of voting therein, knowing such person is not quali- fied to vote in such county; deceiving an elector who can not read, thereby preventing such elector from voting for such candidate as he intended ; fraudulently putting a bal- lot into the ballot-box whether before or after the opening of the polls ; also prohibits a. judge of any election, after (a) 49 Geo. 3, c. 126, § 4. (b) As to what offices are within the statute, v, 1 Russ. 216 ; 3 Chitty, St. 465. (c) It is almost needless to remind the reader that the force of this exception was taken away by the royal warrant of July, 1871, abolish- ing purchase, v. 34 and 35 Vict., c. 86. (1) 74 Ohio L. 284-286. 80 OFFENSES A6AIKST PUBLIC JUSTICE. the counting of votes commences, as required by law, from postponing the counting, or adjourning, or removing the ballot-box from the place of voting or from the custody and presence of all the judges of such election ; from knowingly permitting any biillot fraudulently placed in the box, if the same can be designated, to be counted ; from knowingly receiving or sanctioning the reception of the vote of a person not qualified, or the vote of a person who refuses to be sworn or to answer as required by law ; from refusing, or sanctioning the refusal of any other judge of the same board, to administer any oath required by the election law ; or from refusing to receive or sanctioning the rejection of a ballot from a person, knowing him to be qualified ; also prohibiting any judge or clerk of election from willfully neglecting any duty imposed upon him by the election laws, or from being guilty of any corrupt con- duct in the execution of the same ; prohibiting any person from unlawfully obtaining, or attempting to obtain, pos- session of any ballot-box, or any ballots therein deposited, before the same are duly taken out and enumerated by the judges of election; prohibiting any person from unlaw- fully destroying, or attempting to destroy, any ballot-box used, any vote deposited, or any poll-book kept at any elec- tion ; prohibiting any person from willfully, and with fraudulent intent, writing, or causing to be written, on any poll-book, tally-sheet, or list, lawfully kept, or any paper purporting to be such, or upon any election returns, or any book or paper containing the same, the name of any person not entitled to vote or not voting, or any fictitious name, with intent to prevent a fair expression of the will of the people ; prohibiting any person from having in his posses- sion any false or altered poll-book, tally-sheet, list, or re- turn, knowing them to be such, with the same intent as above; and prohibiting any one from making or using marked ballots, to ascertain how another votes, or from distributing or knowingly voting any ballot not made in accordance with the provisions of law. Of the above prohibited acts, the following are misde- meanors : Bribery; corrupting or intimidating electors; OFFENSES AGAINST PUBLIC JUSTICE. 81 voting without being a resident of the state one year, or without being a resident in the precinct twenty days, or being knowingly under twenty-one years of age, or being knowingly not a citizen of the United States, or being dis- qualified by conviction of crime and not restored ; advising another to vote, knowing he is disqualified; the various acts prohibited to a jvidge or clerk of election, except the act of a judge knowingly permitting a fraudulent vote to be counted, and the use of marked ballots or ballots printed or written contrary to the provisions of law. The other prohibited acts are made felonies. Miiltifarious as are the acts made criminal by these stat- utes, prosecutions do not appear to be frequent, and re- ported adjudications under them are not numerous. It has been decided that if the voter, at the proper place, delivers his vote to the proper officer, and is registered as having voted, he has voted, though the officer should, for safe- keeping, retain possession of the ballot till the polls close, instead of depositing it in the box.(l) If the election is determined to be void, there can be no criminal liability for having cast an illegal vote thereat. (2) Voting out of his ward is not illegal, under an act simply prohibiting voting out of the county, city, or town of his residence. (3) De- fendant may be properly convicted of voting more than once at the same election, though one vote was cast in an election district where he did not reside. (4) Where a wo- man voted, supposing the amendments to the constitution of the United States gave her the right, that mistake of law was no defense to the indictment. (5) Ignorance of the law does not excuse ; but, to convict a defendant of know- ingly voting, while not being a qualified voter, it must be proved that he had knowledge of a state of facts that would disqualify him. (6) A minor can not be convicted of illegal (1) Steinwehr v. State, 5 Sneed, 586. (2) State D. Williams, 25 Maine, 561. 3) Nettles v. State, 49 Ala. 35. (4) State v. "Welch, 21 Minn. 22. (5) United States v. Anthony, 11 Blatch. 200. (6) McGuire v. State, 7 Humph. 54. 6 82 OFFENSES AGAINST PUBLIC JUSTICE. voting, if he voted under honest behef, induced by infoiTua- tion from parents, relatives, or friends, that he had attained majority.(l) The Supreme Court of California held that a person who casts a second vote at an election, while so in- toxicated that he has no knowledge he has voted before, has not the guilty intent to constitute a crime, and can not be convicted of the felony of voting twice at the same elec- tion. (2) C. J. Shaw, speaking for the Supreme Court of Massachusetts, held that, as domicile is often a complicated question, evidence that the defendant, in good faith and honest purpose to ascertain the right, makes a true state- ment of the case to a person capable of giving correct ad- vice, together with evidence of the facts so stated, is com- petent, as bearing upon the question whether the defendant knew he had no right to vote. (3) On the other hand, it has been held that it is no defense against an indictment for willfully voting, when not a citizen, that the defendant took advice before voting. (4) An indictment for illegal voting must state wherein the illegality consisted. (5) An indictment on the ground of not being a qualified elector must state what qualification the defendant lacked.](6) EMBRACERY, ETC. Embracery is an attempt to influence a jury corruptly to give a verdict in favor of one side or party, by promises, persuasions, entreaties, money, entertainments, and the like. Thus it appears to be a particular kind of bribery. A juryman himself may be guilty of this offense by cor- ruptly endeavoring to bring over his fellows to his view. The offense is a misdemeanor, both in the person making the offense, and also in those of the jury who consent. The punishment, both at common law and by statute, is fine and imprisonment, (n) (1) Gordon v. State, 52 Ala. 308. (2) People v. Harris, 29 Cal. 678. (3) Commonwealth v. Bradford, 9 Mete. 208. (4) State V. Boyett, 10 111. 336 ; State v. Sheeley, 15 Iowa, 404. (5) Gordon v. State, 52 Ala. 308. (6) Quinn v. State, 35 Ind. 485. (ji) 6 Geo. 3, c. 50, § 61. OFFENSES AGAINST PUBLIC JUSTICE. 83 There are certain other acts interfering with the free ad- ministration of justice at a trial, which are considered as high misprisions and contempts, and are punishable by fine and imprisonment. Such are the following : Intimidating the parties or witnesses. Endeavoring to dissuade a witness from giving evidence, though it be without success. Advising a prisoner to stand mute. Assaulting or threatening an opponent for suing him ; a counsel or attorney for being employed against him ; a juror for his verdict ; a jailer or other ministerial officer for what he does in the discharge of his duty. For one of the grand jury to disclose to the prisoner the evidence against him. There are three offenses, somewhat liable to confusion, which consist in an unlawful interference in another's suit, or stirring up such suits : Common barratry ; maintenance ; champerty. COMMON BAKKATEY. The oifense of frequently inciting and stirring up suits and quarrels between her majesty's subjects, either at law or otherwise.(o) It is insufficient to prove a single act, in- asmuch as it is of the essence of the offense that the of- fender should be a common barrator. Of course it is no crime for a man frequently to bring actions in his own right, though he be unsuccessful, unless they are purely groundless and vexatious. The offense is a misdemeanor, punishable by fine and imprisonment. If the offender is connected with the legal profession, he is disabled from practicing for the future. If, having been convicted of this offense, he afterward pi-actices, the court may inquire into the matter in a sum- mary way ; and on the subsequent practicing being proved, the offender may be sentenced to penal servitude to the ex- tent of seven years. Qj) (o) 4 Bl. 134. (p) 12 Geo. 1, c. 29, § 4, made perpetual. 84 OFFENSES AGAINST PUBLIC JUSTICE. ' Another offense of a like nature may be noticed, namely, suing in the name of a fictitious plaintiff". If committed in the superior courts, it is a high contempt, punishable at their discretion. If in the inferior courts, it is punished by imprisonment for six months, and treble damages to the person injured. (g) MAINTENANCE. The officious intermeddling in a suit that in no way be- longs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it.(r) It is a misdemeanor punishable by fine and imprisonment. (s) It has been declared to be maintenance to bear the whole or part of the expenses of the suit for another, or to retain a solicitor or counsel for him. But acts of this kind are justifiable in respect of an interest in the thing in variance, as that of a reversioner ; of kindred or affinity ; of other relations, e.g., landlord and tenant, master and servant; of charity, e. f uisances." As to gaming houses. — Houses of this description are re- garded as so detrimental to public morality and good order, that they are classed among public nuisances. As such, the keepers are guilty of a common-law misdemeanor, and liable to tine or imprisonment, or both. The chief steps taken by the legislature to suppress the evils of gaming houses are the following : An early statute prohibited the keeping of any common house for dice, cards,, or other unlawful games, under a penalty of forty shillings for every day, and six and eight pence for every time of playing.(f) Subsequent statutes included other games under heavier penalties. (m) By a later statute (n) the statute of Henry VIII. is repealed, as far as it prohib- ited bowling, tennis, or other games of mere skill. Further provision was also made by the act of this reign against those who own or keep common gaming houses. The owner or keeper, and every person having the care and management of such house, and also every banker, erouper, and other person in any manner conducting the business of (h) 8 and 9 Vict., c. 109, § 17. (k) 36 and 37 Vict., c. 38, g 3. ([) 33 Hen. 8, c. 9, § 11. (m) V. 9 Anne, c. 14; 12 Geo. 2, c. 28; 13 Geo. 2, c. 19; 18 Geo. 2, c. 34. (n) 8 and 9 Vict, c. 109, amended by 17 and 18 Vict., c. 38. HEALTH, AND GOOD ORDER. 117 the house, is liable, on conviction before two justices, to a penalty not exceeding £500, in addition to the penalty under 33 Hen. 8; or may be committed to prison for a period not exceeding six monthB.(o) If any person who has been concerned in the unlawful gaming, on his examination as witness, makes ti-ne disclo- sure to the best of his knowledge, he is entitled to receive a certificate, and is free from all consequences of his un- lawful act up to that time.(p) Betting houses, rooms, offices, or places, are deemed gaming houses within this statute. Persons receiving de- posits on bets in such house incur a penalty of £30, or im- prisonment for three months. Exhibiting placards or handbills, or otherwise advertising betting house, is pun- ished by a penalty of £30, or imprisonment for two months. (g) The fact that the entrance of a peace officer is obstructed or delayed, or that the place is found provided with means of gaming, or of concealing instruments of gaming, is evi- dence that the house is a common gaming house. Penal- ties are imposed for such obstructions and for certain other offen8es.{?') COMMON OR PUBLIC NUISANCES. Another offense of wide and vaguely-defined limits is now to be considered. In its definition its extent is in- definite ; but in practice it is confined to certain classes of acts which interfere with the normal state of order and comfort. Common nuisances are such annoyances as are liable to affect all persons who come within the range of their operation. They consist of acts either of commission or of omission ; that is, causing something to be done which an- noys the community generally, or neglecting to do some- thing which the common good requires. Public nuisances are opposed to private nuisances, which annoy particular individuals only ; that is, to which all persons are not lia- (o) 8 and 9 Vict., o. 109, § 4. (p) Ibid., § 9. (?) 16 and 17 Vict., c. 119. {r) 17 and 18 Vict., c. 38. 118 OFFENSES AGAINST PUBLIC MORALS, ble to be exposed. The distinction is one based on the extent of the operation of the evil, and not one relating to the class of evil ; inasmuch as all kinds of nuisances vi^hich, when injurious to private persons, are actionable as private nuisances, when detrimental to the public welfare, are pun- ishable on prosecution as public nuisances. It is for the jury to determine whether a sufficiently large number of persons are or may be aflected so as to make the nuisance " common " or " public."(s) Common nuisances are indictable as misdemeanors. They do not give rise to civil action by every one who is subjected to the common annoyance. But if any one can prove special damage ; that is, that he is aflfected, in some respect, in a way in which the public generally are not, he may pur- sue his civil remedy and obtain damages. Another course of proceeding is sometimes available in nuisances, namely, abatement or removal of the nuisance by the party's own act. In private nuisances this is commonly allowed to be done by the party aggrieved ; but in public nuisances the right is more confined. They may be abated by boards of health and other public bodies specially author- ized under various public acts;(i) but private individuals can not resort to this course if the abatement involves a breach of the peace ; and, in any case, they can only in- terfere so far as is necessary to exercise the right of pas- sing, etc. The principal classes of public nuisances will be briefly noticed : i. ISTuisances to highways, bridges, and public rivers. — These annoyances may be either positive, by actual obstruc- tion ; or negative, by want of reparation. In the latter case, only those persons are liable whose duty it is to keep the road, etc., in repair. The former class consists of a variety of offenses; for example, laying rubbish on the road, digging trenches in it, diverting part of a public river, etc. ii. Carrying on offensive or dangerous trades or manufac- tures. — Manufactures which are injurious to the health or (s) K. V. White, 1 Burr. 333. (<) v. 38 and 39 Viet., c. 55. HEALTH, AND GOOD OEDER. 119 merely offensive to the senses as nuisances; and it is no de- fense that the public benefit outweighs the public annoy- ance. (m) But if a noxious trade is already established in a place remote from habitations and public roads, and per- sons come and build near, or a new road is made, the trade may be continued. (x) The presence of other nuisances will not justify any one of them ; but a person can not be in- dicted for setting up a noxious manufacture in the neigh- hood in which other offensive pursuits have long been borne with, unless the inconvenience to the public is greatly in- creased. (y) No length of time will legitimate this or other kinds of nuisances, but the consideration of time may some- times concur with other circumstances to prevent the char- acter of nuisance from attaching. (2:) Nuisances which affect the public health are dealt with In the numerous statutes which treat of that subject. iii. Houses, etc., which interfere with public order and de- cency. — The following places are nuisances, and, upon in- dictment, may be suppressed, and their owners, keepers, or ostensible managers punished by fine or imprisonment, or both. Disorderly inns (a) or alehouses; bawdy houses; gaming and betting houses; (6) unlicensed or improperly conducted playhouses, booths, stages for dancers, and the like. Prosecutions for keeping a bawdy house or gaming house fall within the provisions of the vexatious indict- ments act.(c) iv. Lotteries. — All lotteries were declared by statute (d) public nuisances. State lotteries were, however, author- ized by successive acts of parliament until 1824, when they were discontinued, the state being thus enabled, without in- consistency, to enforce the already-existing law against other lotteries. (u) R. V. Ward, 5 L. J. (K. B.) 221. (x) R. v. Cross, 2 C. & P. 483. (!/) R. V. Neil, 2 C. & P. 485 ; v. R. v. Neville, Peake, 91. (z) Weld V. Hornby, 7 East, 199. (a) If a traveler is refused entertainment without sufficient cause, the inn is liable to be treated as a disorderly inn. (4) V. p. 116. (c) V. p. 288. Id) 10 and 11 Wm. 3, o. 17. 120 OFFENSES AGAINST PUBLIC MORALS, ETC. V. A vast number of other acts, etc., have been declared public nuisances; for example, exposing in a public thor- oughfare persons afflicted with infectious disease ; allowing mischievous dogs to go abroad unmuzzled, provided that, if they were not of a description to be generally danger- ous, the owner was aware of their nature ; keeping fierce animals in places open to the public ; keeping hogs near a public street ; keeping a corpse unburied ; making great noises in the street at night; eaves-dropping, that is, " lis- tening under walls or windows, or the eaves of a house, to hearken after discourse, and therebj' to frame slanderous and mischievous tales;" common scolds; and, in general, any thing which is an appreciable grievance to the public at large. There are two cases, at least, where there might be a doubt as to the person who is criminally responsible for a nuisance. The landlord is liable if he erects a building which is a nuisance, or the occupation of which is likely to produce a nuisance. The master or employer is liable for a nuisance caused by the acts of his servants if done in the course of their employment. WANTON AND FURIOUS DRIVING. Any one having the charge of any carriage or vehicle, who, by wanton or furious driving or racing, or by willful misconduct, or by willful neglect, does or causes to be done any bodily harm to another, is guilty of a misdemeanor, and is liable to imprisonment not exceeding two years, or fine, or both.(A:) (k) 24 and 25 Vict., c. 100, § 35. OFFENSES RELATING TO SAME. 121 CHAPTEE IX. OFFENSES RELATING TO GAME. [The English game laws are made for the protection of laud-owuers having parks, preserves, or vrarrens. They are made to give security to a species of property. They prohibit the unlavs^ful taking or destroying game at certain places, at all seasons of the year ; that is, the taking or de- stroying by unprivileged persons. The laws passed in the various states of this country, are to prevent the extirpa- tion of game, and, in general, prohibit the killing or snar- ing of specified birds and animals, except within specified limits of time. The limits vary with the habits of the dif- ferent species of game named. The killing of certain in- sectivorous birds, and of certain birds of special beauty or song, as well as the robbing of their nests, is absolutely prohibited at all times. (1) The prohibited killing of game is a misdemeanor. It is also a misdemeanor to sell, or have in possession for sale, any game during the period when the killing thereof is prohibited. (2)] (1) 74 OhioL. 371; Rev. Stat, Kentucky, 187T, p. 921; Rev. Stat., Indiana, 1876, p. 488; Rev. Stat., Illinois, 1877, p. 527; Rev. Stat., Mich., 1871, p. 680. (2) The same acts as above, and Rev. Stat., Iowa, 1873, p. 632. OFFENSES AGAINST INDIYIDUALS. Offenses which immediately affect individuals, are re- garded as crimes, and not merely as violations of private rights, on several grounds. First, because they are con- sidered as contempts of public justice and the crown ; sec- ondly, because they almost alwaj's include in them a breach of the public peace ; thirdly, because, by their example and evil tendency, they threaten and endanger the subversion of all civil society. (i) Offenses against individuals may be divided into two classes : those — Against their persons. Against their property. (0 4 Bl. 176. (122) OFFENSES AGAINST INDIVIDUALS. 123 PART II. OFFENSES AGAINST INDIVIDUALS. THEIR PERSONS. It is needless to remark that offenses against the person vary considerably in their enormity and in their conse- quences. In this department especially anomalies occur, which are apparently productive of great inequality. It is here, perhaps more than elsewhere, that the interference of what may be termed " extraneous circumstances " de- termines the character and gravity of the offense. We have seen that the intent is the index to the quality of the act; and if the intent could always be correctly arrived at, of course such circumstances would be left out of consid- eration. And even as it is, it is difficult to see why certain contingencies, entirely out of the control of the accused, should affect his position in the most vital manner. For example, the same intent may result in murder, or wound- ing with intent to murder, according to the skillfulness of the surgeon who treats the wounded man. It is, however, obviously expedient, with our defective means of guagiug the intent, to punish more serioiisly the completed crime, so that, in cases where this consideration would have any effect, the criminal may be induced to stop short or to re- sort to the less serious deed. Again, it is the law that a person can not be convicted of murder if the death does not ensue within a year and a day from the date of the blow or wound. It seems hard to explain why there should still be an arbitrary line thus 124 OFFENSES AGAINST INDIVIDUALS. drawn; and why it should not be left to the jury to de- cide whether the death was the direct result of the wound. This seems to he another case of interference with the province of the jury. Again, it is plain that a surgeon's skill has very much to do with the recovery of the iujui'ed person. (/t) (A) V. R. V. Holland, 2 M. & R. 351. HOMICIDE. 125 CHAPTER I. HOMICIDE. Homicide — the destroying of the life of a human being — includes acts varying from those which imply no guilt at all to those which constitute the greatest crime and meet with the extreme punishment of the law. Three kinds of homicide are usually distinguished, each class admitting of subdivi- sions : Justifiable : Excusable : Felonious. It may be stated, at the outset, that if the mere fact of the homicide is proved, the law presumes the malice which is necessary to make it felonious ; and, therefore, it lies on the accused to show that it was justifiable or excusable. Justifiable homicide, that is, where no guilt, nor even fault attaches to the slayer. For one species of homicide the term "justifiable" seems almost too weak, inasmuch as not only is the deed justifiable, but also obligatory. Three cases of justifiable homicide are recognized : i. Where the proper officer executes a criminal in strict conformity with his legal sentence. A person other than the proper ofiacer (i. e., the sheriff or his deputy), who per- forms the part of an executioner, is guilty of murder. The criminal must have been found guilty by a competent tribunal; so that it would be murder otherwise to kill the greatest of malefactors. The sentence must have been legally given ; that is, by a court or judge who has author- ity to deal with the crime. If judgment of death is given by a judge who has not authority, and the accused is exe- cuted, the judge is guilty of murder. The sentence must be strictly carried out by the officer (i. e., the sentence as it stands after the remission of any part which the sovereign thinks fit), so that if he beheads a criminal whose sentence is hanging or vice versa, he is guilty of murder. Though 126 HOMICIDE. the sovereign luay remit a part of the sentence, he may not change it. The two following instances of justifiable homicide are permitted by the law as necessary ; and the first, at least, as for the advancement of public justice. ii. When an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. Homicide is justifiable, on this ground, in the following cases : (l) (a) When a peace officer, oi his assistant, in the due execution of his office, whether in a civil or a criminal case, kills one who is resisting his arrest or attempt to ar- rest, (b) When the prisoners in jail, or going to jail, as- sault the jailer or officer, and he, in his defense, to prevent an escape, kills any of them, (c) When an officer, or pri- vate person, having legal authority to arrest, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of the arrest must be either a felony, or the infliction of a dangerous wound.(l) (d) When an officer, in endeavoring to disperse the mob in a riot or rebellious assembly, kills one or moi-e of them, he not being able otherwise to suppress the riot. In this case the homicide is justifiable both at common law and by the riot act.(m) In all these case, however, it must be shown that the killing was apparently a necessity. But it is not difficult to instance cases in which the officer would be guilty (a) of murder, for example, if the killinsr in pursuit, as above, were in case of one charged with a misdemeanor only, or of one required merely in a civil ij) V. 4 Bl. 179. (m) 1 Geo. 1, st. 2, c. 5. (1) "If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest." 2 Revised Stats. Indiana (1876), 379. "When the arrest is being made by an officer, under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flee or forcibly resist, the officer may use all necessary means to effect the arrest." Rev. Stats. Iowa (1873), 606, HOMICIDE. 127 suit; (n) (b) of manslaughter, for example, if the killing, in case of one charged with a misdemeanor, were occa- sioned by means not likely to kill, as by tripping up the fugitive's heels. iii. When the homicide is committed in -prevention of a forcible and atrocious crime. Such crimes, it is said, are the following : Attempting to rob or murder another in or near the highway, or in a dwelling-house ; or attempting burglariously to break a dwelling-house in the night-time. In such cases, not only the owner, his servants, and mem- bers of his family, but also any strangers present are justi- fied in killing the assailant. But this justification does not apply to felonies without force, e. g., pocket-picking; nor to misdemeanors of any kind. A woman is justified in killing one who attempts to rav- ish her; and so, too, the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent. And even if the adultery is by the consent of the wife, the husband, taking the oft'ender in the act and kill- ing him, is guilty of manslaughter only. It is said that the party whose person or property is at- tacked is not obliged to retreat, as in other cases of self- defense, but he may even pursue the assailant until he finds himself or his property out of dauger.(o) But this will not justify a person firing ujion every one who forcibly enters his house, even at night. He ought not to pro- ceed to the last extremity until he has taken all other possible steps. In fact, the conduct of the other must be such as to render it necessary, on the part of the one kill- ing, to do the act in self-defense.(23) This brings us very near to the line which separates jutisfiable from excusable homicide; in fact it is difiicult to distinguish between this and excusable homicide se defendendo. It may be ques- tioned whether the distinction between justifiable and ex- cusable is a substantial one ; whether the cases under the former are not extreme cases of se defendendo. Excusable homicide. — We have just intimated that there (n) V. R. V. Dadson, 20 L. J. (M. C.) 57. (o) Fost. 273 ; 1 Hawk., c. 28, §§ 21, 24. (p) R. v. Bull, 9 C. & P. 22. 128 HOMICIDE. is little if any ground for the distinction between justifia- ble and excusable homicide. Perhaps there may be some- thing in this, that in the former case the killer is engaged in an act which the law enjoins or allows ^positively, while in the latter he is about something which the law negatively does not prohibit.(g') In neither case is there the malice which is an essential of a crime. In former times, a very substantial dift'ereuce was made between the two kinds of homicide. That styled "excusable" did not imply that the party was altogether excused; so much so that Coke says(r) that the penalty was death. But the earliest in- formation which the records supply shows that the defend- ant was entitled to a complete pardon, and the restitution of his goods ; but he had to pay a sum of money to pro- cure this award. !N^ow it is expressly declared by statute(s) that no forfeiture or punishment shall be incurred by any person who kills another by misfortune or in self-defeuse, or in any other manner without felony. The two kinds of so-called excusable homicide are homi- cide in self-defense ; homicide by accident or misfortune. i. Se defendendo, upon sudden affray. — We have noticed above the case of a man killing another when the latter is engaged in the performance of some forcible crime. What we have now to deal with is a kind of self-defense, the oc- casion of which is more uncertain in its origin, and in which it seems natural to impute some moral blame to both parties. It happens when a man kills another, upon a sud- den affray, in his own defense, or in defense of his wife, child, parent, or servant, and not from any vindictive feel- {q) The reason usually given is that in both the forms of excusable homicide there may be some degree of blame attributable. In the first case, i. e., self-defense, inasmuch as in quarrels usually both parties are to some extent in fault ; in the second, i. e., accident, the party may not have used sufficient caution. But to visit the act under all circumstances with the punishments due to what may have happened is obviously unjust. (r) 2 Inst. 148, 315. (i) 24 and 25 Vict., c. 100, § 7, re-enacting 9 G-eo. 4, c. 31, § 10. HOMICIDE. 129 ing. Tliis is one species of what is called chance (casual) or chaiid (ill heat) medley.{t^ To bring the killing within this excuse, the accused must show that he endeavored to avoid any further struggle, and retreated as far as he could, until no possible, or at least probable, means of escaping remained ; that then, and not until then, he killed the other in order to escape destruc- tion. It matters not that the defendant gave the first blow, if he has tei-minated his connection with the afiray by de- clining further struggle, before the mortal wound is given. Of course, the defense must be made by the person as- saulted, while the danger is imminent ; for if the struggle is over, or the other is running away, this is revenge, and not self-defense. Nor will a retreat of the nature indicated avail, if the blow is the result of a concerted design, as in the case of a duel, where the two parties have agreed to meet each other, and one, having retreated as far as he can, kills the other in protection of himself. Nor will it avail, if there has been a blow from malice prepense, and the striker has retreated and then killed the other in his own defense.(l) As the definition shows, the killing in defense of those standing in the relation of husband and wife, parent and child, master and servant, is excused ; the act of such per- son who interferes being construed as the act of the party himself. (t) The term is sometimes applied to the killing of a person by one engaged in the commission of an unlawful act, without any deliberate intention of doing any mischief; also to any manner of homicide by misadventure. (1) " I take the rule to be settled, that the killing of one who is an assailant must be under a reasonable apprehension of loss of life or great bodily harm ; and the danger must appear so imminent, at the moment of the assault, as to present no alternative of escaping its con- sequences, but by resistance. Then, the killing may be excusable, even if it turn out afterward that there was no actual danger." Logue V. Commonwealth, 2 Wright (Penn.), 265. " The guilt of the accused must depend on the circumstances as they appear to him." Regina v. Thurborn, 1 Den. C. C. 387. 9 130 HOMICIDE. The distinction between this kind of homicide and the crime known as manslaughter is sometimes very subtle. It may be stated in this form : That, in the former, the slayer could not otherwise escape, if he would; in manslaughter, he would not escape if he could. In other words, in the former case, the accused has done all that he can to avoid the struggle or its continuation ; iu the latrer, the killing is done in the actual combat.(M) ii. Per infortunium, by misadventure. — When a person doing a lawful act, without any intention of hurt, by acci- dent kills another; as, for example, a man is at work with a hatchet, the head flies off by accident, and kills a by- stander. To bring the slaying within the protection of the excuse, the act about which the slayer is engaged must be (a) a law- ful one. For, if the slaying happen in the performance of an illegal act, it is manslaughter, at least — and murder, if such act is a felony. (y). It must also (b) be done in a proper manner. Thus, it is a lawful act for a parent to chastise his child, and, therefore, if the parent happen to occasion the death of the other, if the punishment be moderate, the parent will be innocent, as per infortunium.. But if the correction exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of the punishment, and death ensues, it is manslaughter, at the least, and, in some cases, murder. Thus, it will, as a rule, be murder, if the instrument used is one likely to cause death; manslaughter, if the instrument is not of such a character, though an improper one. The act must also (c) be done with due caution to pre- vent danger; and therefore with more caution by those («) The books notice one species of homicide se defendendo, in which it is said that the party slain and tlie party slaying are equally inno- cent, though the act is deliberately done, and there is no actual com- bat. The instance usually given is that of two shipwrecked persons clinging to a plank which is capable of holding one only. One thrusts the other off, causing him to be drowned. This is justifiable, or, at least, excusable, homicide. (u) V. R. V. Hodgson, 1 Leach, 6. HOMICIDE. 131 using dangerous instruments or articles. Due caution is guch as to make it improbable that any danger or injury should arise from the act to others. Thus, throwing stones from a house, whereby the death of some one is caused, may be murder, manslaughter, or homicide by misadven- ture ; murder, if the thrower knew that people were pass- ing, and gave no notice ; manslaughter, if a time when it was not likely that any people were passing ; excusable homicide, if in a retired place, where persons were not in the habit of passing, or not likely to pass.(a:) It has been said that, to be criminal, the negligence must be so gross as to be reck]ess,(?/) but it is impossible to define culpable or criminal negligence. Felonious homicide, or homicide coupled with a felonious intention, is capable only of a negative desci'iptioa — the killing of a human creature of any age or sex, without justification or excuse. The human creature killed may be either one's self or another. SUICIDE OR SELF-MURDER. Suicide is the felony of murder, inasmuch as it is the murder of one of the sovereign's subjects. To be such of- fense, the act must be committed deliberately, and by one who has arrived at years of discretion, and is in his right mind. The supposed absence of the last requisite is often taken advantage of by a jury guilty of " an amiable per- jury," in order to save the reputation of the deceased. In fact, sometimes their verdicts show they deem the very act of suicide evidence of insanity. Not only is he guilty of suicide, who, in pursuance of a fixed intention, takes away his life, but also he who, ma- liciously attempting to kill another, occasions his own death ; as where a man shoots at another, and, the gun bursting, he kills himself. But if a man is killed at his own request, by the hand of another, the former is not deemed in law a felo de se, though the latter is a murderer. If one persuades another to kill himself, and he does so, (x) Fost. 262. (y) K. v. Noakes, 4 F.& F. 921, n. 132 HOMICIDE. tbe adviser is guilty of murder. So, also, if two persons agree to commit suicide together, if one escapes and the other dies, the survivor is guilty of murder, (e) though it is extremely doubtful whether he would be executed. Formerly, the punishment for this crime was an igno- minious burial in the highway, without Christian rites, with a stake driven through the body ; and the vicarious punishment of his friends by the forfeiture of all his goods and chattels to the crown. But now the only consequence is the denial of Christian burial, the felo cle se being buried in the churchyard or other burying- ground, within twenty- four hours after the inquest, between the hours of nine and twelve at uight.(a) The forfeiture has been done away with in this as well as in other kinds of felony. (6) An attempt to commit suicide is not an attempt to com- mit murder within the offenses against the person act,(c) but still remains a common law misdemeanor. The felonious killing of another is either murder or man- slaughter. In dealing with the crime of murder, we shall anticipate, to some extent, the law of manslaughter, a great --part of the law on the subject consisting in a distinction of the two crimes. MUEDBR. Murder is popularly regarded as the gravest crime known to the law. As a rule it would occupy the same position, regarded both from a moral and from a legal point of view. But that this is not always the case, an example will serve to show. Both of the following acts are murder, and punish- able by death. A man, having received a slight insult from (z) E. V. Dyson, R. & E. 523. (a) 4 Geo. 4, c. 52, § 1. {b) 33 and 34 Vict., c. 23. " Suicide may be wicked, and is certainly injurious to society, but it is so in a much less degree than murder. The injury to the person killed can neither be estimated nor taken into account. The injury to survivors is generally small. It is a crime which produces no alarm, and which can not be repeated. It would, therefore be better to cease altogether to regard it as a crime, and to provide that any one who attempted to kill himself, or who assisted any other person to do so, should be liable to secondary punishment." — Fitz. St. 121. (c) 24 and 25 Vict., c. 100, § 15. HOMICIDE. 133 another, dogs liis path for six months, and, with all circum- stances of aggravation, kills him in cold blood. A man car- rying a gun sees a hen, and resolves to shoot and then ap- propriate it ; he shoots, and by accident wounds a person who has come upon the scene ; the wounded man dies nine months afterward, though his life might have been saved if he had submitted to an operation, or if the physician had been more skillful. But, on the other hand, there is one mode of depriving of life which is at least equally culpa- ble, viewing the matter morally, but which is not regarded as murder, namely, taking away a man's life by perjury. ((i) "We may adopt Coke's definition of murder for the pur- pose of explaining the crime : " When a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the king's peace with malice aforethought, either express or implied."(c) (a.) The offender must be of sound memory and, discretion. — Thus are excluded all idiots, lunatics, and infants, in ac- cordance with the rules as to capability of committing crimes which have already been set forth. (/) To which we may add, that a person would be guilty of manslaughter at the most if he were not conscious that the act done was one which would be likely to cause death. (5') Of course the person procuring an idiot to commit murder, or, indeed, any crime, is guilty himself of the crime. (b.) Unlawfully killeth; that is, kills without justificatioti or excuse. — As we have seen, the presumption is against the accused, and it is for him to purge the act of its feloni- ous character by proving such justification or excuse. It is perfectly immaterial what may be the particular form of death, whether poisoning, striking, starving, drowning, or any other.(/i) Any act, the probable conse- quence of which may be, and eventually is, death, is mur- der, though no stroke be struck, and, what is more notice- able, though the killing be not primarily intended ; for ex- ample, when a mother hid her child in a pig-stye, where it (d) R. V. Macdaniel, Fost. 131. («) 3 Inst. 47. (/) V. p. 21. (17) E- V. Vamplew, 3 F. & F. 520. (/j) As to swearing away a man's life, v. p. 75, n. 134 HOMICIDE. was devoiirecl.(i) So if one, under a well-grounded appre- hension of personal violence, does an act whicli causes his death, as for instance, jumps out of a window, he who threatens is answerable for a consequences.(/i:) A person may also be guilty through mere non-feasance ; as if it was his duty nnd in his power to supply food to a child unable to provide for itself, and the child died because no food was supplied. (/) It is no defense to show that the deceased was in ill- health and likely to die when the wound was given. (???) Nor is it a defense that the immediate cause of death was neglect on the part of the doctor, or the refusal of the party to submit to an operation ; though it would be other- wise if the death were caused by improper applications to the wound, and not the wound itself.(n) To make the kill- ing murder, the death must follow within a year and a day after the stroke or other cause ; for if the death is deferred for that length of time, the law will presume that it arose from some other cause. If a person is indicted for one species of killing, e. g., poisoning, he can not be convicted by evidence of a totally different species of death, e. g., starving. But if the differ- ence consists only in a detail, e. g., whether the instrument was a sword or an ax, this is immaterial. As a general rule, proof is required of the finding of the body of the deceased. But this rule is not inflexible, as where the direct evidence brought before the jury is suffi- ciently strong to satisfy them that a murder has really been committed. (c.) Any reasonable creature in being and under the king's 'peace. — Therefore killing a child in its mother's womb is no murder,(o), but it is otherwise if the child is born alive and dies from wounds or drugs received in the womb. [An in- fant is not the subject of murder until its connection with the mother is severed and an independent circulation has been established.. Prior to that time, the life of the child, (z) 1 Hale, P. C. 433. {V) R. v. Evans; 1 Euss. 426. \i) E. V. Friend, E. & E. 20. (m) E. v. Martin, 5 C. & P. 130. (n) E. V. Holland, 2 M. & E. 351. (o) But v. p. 150. HOMICIDE. 135 even after it is born, is substantially fcetal, wbicb the law distinguishes from independent ]ife.(l) ] " Under the king's peace" excludes only alien enemies who are actually en- gaged in the exercise of war.(p) (d.) With malice aforethought. — The term " malice " is a most difficult one. It is used in various and conflicting senses, and the mind is apt to slide from the one to the other. The simple etymological signification of " wicked- ness" may generally be disregarded. In another sense, as we have seen,(g') malice, taken as equal to criminal inten- tion, is of the essence of every crime. Therefore this view of the word will not serve to distinguish one crime from another. The murder-malice is usually described as " afore- thought " or " prepense," but this addition, in itself, will not help us to any better understanding of the state of mind required to constitute murder, (r) That this malice aforethought is not what its name seems to imply — malevolence or ill-will toward the deceased — is manifest, when we consider that perhaps the majority of murders are committed with a view to i-obbery; or, again, when we remember that murder can be committed, though the murderer has not the slightest wish to injure, or has not the slightest knowledge of the deceased, as in the case mentioned above of shooting at the fowl ; nay, more, we can conceive of the case of a person being convicted of the murder of his dearest friend or relative. What, then, is this superior degree of malice ? It may be said to be a feloni- ous design or intention in general.(2.) This intention may (p) 1 Hale, P. C. 433. [q) v. p. 13. ()•) " The word ' aforethought ' is unfortunate ; ' willful and mali- cious ' homicide would be better. The word ' aforethought ' counten- ances the popular error that a deliberate premeditated intent to kill is required in order to constitute the guilt of murder, whereas it is only one out of several states of mind which have that effect. It is, more- over, an unmeaning word, for the thought, the state of mind, what- ever it is, must 'precede the act ; and it precedes it equally, whether the interval is a second, or twenty years." — Fitz. St. 118. (1) State V. Winthrop, 43 Iowa, 519. (2) Malice is "a settled intention to harm.'' Star Chamber Oases, A. D. 1630, p. 5. It was resolved by the judges, in Eegina v. Maw- 136 HOMICIDE. be sometimes regarded as unfixed or floating (as in the fowl case). The deed causing death is done, and at the same gridge, Kelyng, 119, see p. 127, that " malice is a design formed of do- ing mischief to another." " Malice, in its legal sense, denotes a wrongful act done intentionally •without just cause or excuse." Lit- tledale, J., in McPherson v. Daniels, 10 B. & C. 272. Malice " means any wicked or mischievous intention of the mind." Best, J., in Hex V. Ilarvey, 2 B. & C. 268. "A wrongful act done intentionally and witliout just cause, denotes malice, i. e., furnishes evidence of malice.'' Nichols V. Commonwealth, 11 Bush, 496. "Malice is the intentional doing of a wrongful act without just cause or excuse.'L State v. Wie- mers, 66 Mo. 13. The definition given by Littledale, J., is adopted by the courts in Canada. Mclntyre v. McBean, 13 U. C, Q B. 542; Poi- tevin V. Morgan, 10 L. C. J 97. Malice in general seems to be a willful intention to do unlawful in- jury ; and the malice requisite to constitute murder, to be either an intention to commit a felony, or to do grievous bodily harm. In many of the United States, the malice required by statute to constitute mur- der, is either an intention to kill, or an intention to commit one of the four great felonies, rape, arson, robbery, or burglary. And in some states, by statute, there can be no murder without an intention to kill. But the intention to kill required by statute, is intention to kill a per- son, not any particular person; so that it is murder though the death of one person was intended, and the blow, missing its aim, killed an- other person. Wareham v. State, 25 Ohio St. 601. There are certain presumptions of fact, or disputable presumptions of law, in prosecutions for homicide. The mere fact of killing being established, malice is presumed; hence, if the killing be jjroved, and no circumstances of extenuation be shown, the accused must be held by presurnption guilty of murder at common law. When there are two degrees of murder, he is, in such case, presumed guilty of murder in the second degree. Where intent to kill is essential to constitute murder, proof of killing by a weapon or implement calculated to pro- duce death, in the absence of proof of other circumstances, raises the presumption of murder, and in the second degree. But it can seldom happen, that an abstract killing or killing with a deadly weapon, is proved without proof of some attendant circumstances. And where attendant circumstances are proved, they must " be taken into con- sideration. And if, the homicide'being conceded, no excuse or justi- fication is shown, it is either murder or manslaughter ; and, if the jury, uijon all the circumstances, are satisfied, beyond a reasonable doubt, that it was done with malice, they will return a verdict of murder; otherwise, they will find the defendant guilty of manslaughter." Com- monwealth V. Hawkins, 3 Gray, 463. "As an abstract proposition, where the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly HOMICIDE. 137 time to it is attached this movable quality. It must be no- ticed that this murder-malice is not a motive. The motive is to get the gold, hatred, etc. It is a difficult matter to give a description of malice which will apply to all cases of murder, of so various character are they, and so built up on individual decisions. At the risk of confusing our idea of this essential of mui'der, we must mention the ordinary distinction between express and implied malice. But here it will be no easy matter to suppress the tendency to revert to the moral view of malice, which is always lurking about ready to make its appearance. The true ground of distinction, if it is necessary to make one, seems to have been apprehended in the Indian penal code.(s) Express malice may be said to be the positive possession of an intention: i. Of causing death. ii. Of causing such bodily injury as the offender knows is likely to cause death, e. g., beating with an iron bar. iii. Of causing bodily injui-y, and the bodily injury in- tended to be inflicted is sufficient, in the ordinary course of nature, to cause death. (it)(l) weapon, we do not deny that the jury may, from such fact alone, infer both malice and a purpose to kill. But where the attending circum- stances are shown in detail, some of which tend to disprove the pres- ence of malice or purpose to kill, it is misleading and erroneous to charge a, jury that in such case the law raises a presumption of malice and intent to kill from the isolated fact that the death was caused by the use of a deadly weapon. In such case, the presence of malice or intent to kill must be determined from all the circumstances proven, including, of course, the character of the weapon." Erwin v. The State, 29 Ohio St. 191. {s) Article 300. {i) Express malice is generally described as that " when one with a sedate and deliberate mind, and formed design, doth kill another; which formed design is evidenced by external circumstances discover- ing that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm." — I Hale, P. C. 451. But this does not at all square with the legal idea of malice. (1) The deceased, being in liquor, had gone at night into a glass- 138 HOMICIDE. Implied malice may be said to be the possession of a gen- eral intention of such a nature, iwplied from the acts of the offender, or a wanton running of a risk by a person com- mitting an act, who knows that it will probably cause death, or bodily injury which may cause death, without anj excuse for incurring such risk.(M). As to the punishment of murder, nothing further need be said here than that the sentence is death ; (x) with re- gard to which, and its execution, particulars will be given in a later chapter. Accessories after the fact to murder are liable to penal servitude to the extent of life.(i/) On an indictment for murder, tlie jury may convict the prisoner of manslaughter, or, of course, of an attempt to murder; but not of an assault.(0) [Where the common-law rule prevails, that tliero can be no conviction of a misdemeanor under an indictment for a felony, there can be no conviction of assault and battei-y under an indictment for murder. But under a statute pro- viding that if, upon an indictment for felony, the jury ac- quit the accused of part of the charge, and convict him of the residue, he shall be sentenced for any crime substan- tially charged in such residue, there may be a conviction of assault and battery under an indictment for manslaugh- house, and laid himself down on a chest; and while he was there asleep, the prisoners, workmen in the glass-house, covered and surrounded him with straw, and threw a shovel-full of hot cinders upon his belly, the consequence of which was, the straw ignited and he burned to death. Patterson, J., charged the jury, " if they be- lieved the prisoners really intended to do any serious injury to the de- ceased, although not to kill him, it was murder ; but if they believed their iptention to have been only to frighten him in sport, it was man- slaughter." Errington's Case, 2 Lewin, 217. (it) The example usually given of implied malice, namely, that of a man willfully poisoning another, seems, indeed, to be a case of express malice, as there most certainly is an evil intention present. The truth is, that in this example also, there is a i-ecurrence to the motive view of malice; in fact, the authority (1 Hale, P. C. 455) proceeds, " In such a deliberate act the law presumes malice, though no particular enmity can be proved." (.r) 24 and 25 Vict., c. 100, § 1. (y) Ibid., § 67. (z) As to conspiracy to murder, v. p. 110. HOMICIDE. 139 ter. Commonwealth v. Drum, 19 Pick. 479. A conviction of assault and battery, under an indictment for murder, was held valid in State v. Kennedy, 7 Blackf. 233, which case was overruled in "Wright v. State, 5 Ind. 527, and this over- ruling was confirmed in Gillespie v. State, 9 Ind. 380. Where it was held, in Ohio, that the jury may, if justified by the evidence, find the defendant guilty of assault and battery only, under an indictment for murder, the court say, " It is true, that if death resulted from the unlawful assault and battery, the assailant was guilty of manslaugh- ter; but the jury migbt have found that it resulted from some other cause. Had the court charged the jury, that if they found that the death resulted from the assault and battery, they could not properly find him guilty of assault and battery only— the charge would have been right." Marts V. State. 26 Ohio St. 162.] MANSLAUGHTER. The unlawful killing of another without malice, either express or implied. The malice referred to here is the murder-malice, at the meaning of which we have been en- deavoring to arrive. In this crime, again, we shall find acts varying to the ut- most in their moral gravity and oiFensiveness. Perhaps on no other charge do persons more often appear in the dock and leave it without a stain on their characters. To take one class of examples : it constantly happens, after an ac- cident in a mine or on a railway, that some of those en- gaged in the management of the one or the other are required to meet a charge of manslaughter which is pre- ferred against them. Two kinds of manslaughter are distinguished — i. Upon a sudden heat (termed voluntary). ii. In the commission of an unlawful act (termed irivol- untary).{a) (a) The objeotionableness of the terms "voluntary" and "involun- tary," as opposed to each other, to denote varieties of the same crime, is obvious. There is no such thing as an involuntary crime. If the 140 HOMICIDE. i. Voluntary (so-called). — The distinguishing mark of this sort of manslaughter is the provocation giving rise to sudden anger, during which the deed causing death is done. If upon a sudden quarrel two persons fight, and one of them kills the other, the former will be guilty of manslaughter only, unless there are special circumstances which indicate evil design. But the act will be viewed in the less serious light of manslaughter only as long as the outburst of passion continues; not that the struggle need take place on the spot, for if the two at once adjourn to another place to fight, it will still be only manslaughter. So, also, in other cases of grave provocation, as if one man pulls another's nose, or is taken in adultery with another's wife. But here again, on the same grounds, to reduce the homicide to manslaughter, the cause of death must be in- flicted at once, whilst the provocation is still exercising full influence. Otherwise the slaying will be regarded as a deliberate act of revenge.(6) It is needless to add that the plea' of provocation will not avail if the provocation was sought for and induced by the slayer. The instrument used when the person is acting under provocation is also a material consideration. It may be said that the provocation must be of the gravest nature to render guilty of manslaughter only one who uses a deadly weapon, or otherwise shows an intention to do the deceased grievous bodily harm. But a slighter provocation will suflice if the instrument used is one not likely to cause death, as a stick, or a blow with the fist. In fact the mode of resentment must bear a reasonable proportion to the provocation to reduce the offense to manslaughter.(c) Manslaughter is to be distinguished from homicide in self-defense on sudden affray. In the latter, the ground for the blow, etc., is the necessity to take such a step for self-preservation ; in the former, this necessity does not ex- ist, but its place is taken by a sudden accession of ill-will. action be not a voluntary one it is not criminal, (v. p. 16.) What seems to be meant is that in the one case death is anticipated, in the other it is not. (i) B. V. Hayward, 6 C. & P. 157. (c) R. v. Steadman, Post. 292. HOMICrDB. 141 ii. Involuntary (so-called) when the death, not being in- tended, is caused in the comniission of an unlawful act. By this is meant that the unlawfulness of the act in which the accused is engaged is the ground of the homicide being- regarded as manslaughter, and nothomicide by misadventure merely. In the cases meniioned above under A^oluntary manslaughter, the death is caused by an unlawful act, but there that is not the distinguishing mark of the man- slaughter. By " unlawful " here must be understood what is malum in se, and not what is merely malum quia prohib- itum. Thus, then, if a man shooting at game by accident kills another, it is homicide by misadventure only, even al- though the party is not qualified. (rf) Here, again, we may observe that it is immaterial whether the unlawfulness is in the act itself or (that which comes to the same thing) in the mode in which it is carried out. It must also be borne in mind that if the unlawful act is a felony, the homicide amounts to murder. An instance of manslaughter in the commission of an unlawful act is fur- nished when one person kills another while the two are playing at an unlawful game ; of manslaughter in doing a lawful act in an unlawful manner — when a workman throws down stones into a street where j)ersons may but are not likely to be passing. > One form of doing an act in an unlawful manner is neg- ligence. This consideration very frequently presents itself in manslaughter. It may be said, generally, that whatever constitutes murder, when done by fixed design, constitutes manslaughter, when it arises from culpable negligence; for example, when a near-sighted man drives at a rapid rate, sitting at the bottom of his cart, and thereby causes the death of a foot passenger.(e) A large class of cases is that in which the death ensues from the treatment of dis- ease. The man, whether a medical practitioner or not, is not indictable, unless his conduct is marked by gross igno- rance or gross inattention. (/) With regard to negligence, there is a great difference between criminal and civil pro- (d) Fost. 259. (e) v. R. v. Walker, 1 C. & P. 320. (/) E. V. Long, 4 C. & P. 398. 142 HOMICIDE. ceedings. The criminal law does not recognize the defense of contributory negligence in manslaughter.(^) It is commonly said that in manslaughter there can be no accessories before the fact, because the act causing death is done without premeditation. But though this may be true in cases the gist of which is the sudden heat, it is easy to imagine cases in which this principle could not be main- tained. (A) Manslaughter is a felony, punishable by penal servitude to the extent of life — or in lieu of, or in addition to, the penal servitude or imprisonment, a fine may be imposed.(i) Cases of mere careies-sness, etc., legally amounting to man- slaughter, are often more appropriately punished by pecu- niary fine than by the indignity of imprisonment. [In many of the United States, murder is distinguished into two grades, the first and the second degree. In New York, there are degrees of manslaughter. The statutes of Kentucky do not define murder or man- slaughter, but make the punishment of "willful murder" death or confinement in the penitentiary for life, at the dis- ci'etiou of the jury, and of "voluntary manslaughter" con- finement in the penitentiary for not less than two nor more than twenty-one years. Rev. Stat. (1877), 322. In Ohio, " whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in per- petrating, or attempting to perpetrate, any I'ape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree." It was held in Fouts v. State, 8 Ohio St. 98, and affirmed in subsequent cases, that the intent to kill is essential, and that an indictment for murder is bad on demurrer, which omits to charge such intent. These de- cisions were upon the definition in the act of 1831, and were criticised. The definition in the code of 1877, given (^) R. V. Swindall, 2 C. & K. 230; R. v. Jones, 11 Cox, 544. For other classes of acts which amount to manslaughter, the reader is referred to the classification of intents given below. (/i) V. R. V. Gaylor, cited above, p. 38. (0 24 and 25 Vict., c. 100, § 5. HOMICIDE. 143 above, by inserting the word " either," makes the statute explicit and prevents cavil. Maliciously placing an obstruction on a railroad, or dis- placing or injuring any thing appertaining thereto, with intent to endanger the passage of any locomotive or car, and thereby occasioning death, is also murder in the tirst degree. Purposely and maliciously killing, except as pro- vided in the above two sections, is murder in the. second degree. Unlawfully killing, except as in the above three sections, is manslaughter. The punishment of murder in the first degree is death ; in the second degree, is imprison- ment in the penitentiary for life; and of manslaughter, is imprisonment in the penitentiary for not more than twenty years nor less than one year. 74 Ohio L. 244. In Indiana: § 2. "If any person of sound mind shall purposely and with premeditated malice, or in the perpe- tration, or attempt to perpetrate, any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill any human being, such person shall be deemed guilty of murder in the first degree." § 3. " If either pkrty to a duel be killed, the survivor shall be deemed guilty of murder in the first degree." So, § 5. If, by pre- vious appointment made within the state, any person shall fight a duel without the state, and therein infiict a mortal wound, whereof the injured person shall die within the state. § 7. To kill purposely and maliciously, but without premeditation, is murder in the second degree. § 8. To kill unlawfully, without malice express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is manslaughter. The punishment of murder in the first degree is death or imprisonment in the penitentiary for life ; of murder in the second degree, such imprisonment for life ; of manslaugh- ter, such imprisonment for not more than twenty-one nor less than two years. Eev. Stat. (1876), 423-426. In In- diana, intent to kill is not essential to constitute murder in the first degree. Stocking v. State, 7 lud. 326. In Illinois : " Murder is the unlawful killing of a human being, in the peace of the people, with malice aforethought, 144 FOMICIDE. eithei express or implied. Express malice is that deliber- ate iutention unlawfully to take away the life of a fellow- creature, which is manifested by external circumstances capable of i:)roof. Malice shall be implied when no consid- erable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." Rev. Stats. (1877), § 140, p. 370. If the death of the mother results from an attempt to cause abortion or miscarriage, the person so attempting is guilty of murder. § 3, p. 349. If the life of any person be lost in, consequence of an arson, the person guilty of such arson is guilty of murder. § 13, p. 851. Whoever willfully and maliciously obstructs or injures a railway or rolling-stock, or places a false signal- light thereon, with intent to obstruct the use of the road or injure pei'sons or property passing thereon, by reason whereof any person is killed, the person so offending is guilty of murdex'. § 186, p. 376. Whoever, by willful and corrupt perjury, or subornation of perjury, procures the conviction and execution of any innocent person, is guilty of murder. § 226, p. 383. Manslaughter is the unlawful killing, without malice express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion, caused by a provocation ap- parently sufficient to make the passion irresistible, or in- voluntary, in the commission of an unlawful act, or a law- ful act, without due caution or circumspection. § 143, p. 370. The punishment of murder is death or imprisonment in the penitentiary for life, or for a term not less than four- teen years ; of manslaughter, such imprisonment for life or for any term of years, the punishment to be determined by the jury, if a trial — by the court, upon a plea of guilty. §§ 142, 146. In Michigan, murder is not defined by statute ; but all murder perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, is declared murder in the first degree ; and all other kinds of murder, the second degree. Murder by reason of a duel is the same HOMICIDE. 145 as in Indiana. Manslangliter is not defined. The punish- ment of murder in the first degree is solitary confinement at hard labor in the penitentiai'y for life ; of murder iu the second degree, imprisonment in penitentiary for life or such term of years as the coiirt may determine ; of manslaugh- ter, imprisonment for not more than fifteen years, or fine not exceeding one thousand dollars or both. Rev. Stat. (1872), 2270-2272. In Iowa, murder is killing any human being, with malice aforethought, either express or implied. The degrees are defined as in Michigan. Fighting a duel with deadly weapons, and inflicting a mortal wound on the antagonist, whereof death ensues, is murder in the first degree. Man- slaughter is not defined. The punishment of murder in the first degree is imprisonment for life at hard labor in the penitentiary ; in the second degree, imprisonment for life or for a term not less than ten years ; of manslaughter, im- prisonment for not more than eight years and fine not ex- ceeding one thousand dollars.] APPENDIX. The importance of a clear apprehension of the state of the law as to what acts are murder, manslaughter, and non- felonious homicide respectively, makes it not impertinent to insert the following compilation of distinctions judicially laid down on the subject, made by Sir James Stephen (Gen. View of Crim. Law, 116) : — " The following states of mind have been specifically de- termined to be wicked or malicious in the degree necessary to constitute murder: " (a.) An intent to kill whether directed against the per- son killed or not, or against any specific person or not. " (b.) An intent to commit felony. " (c.) An intent illegally to do great bodily harm. " (d.) Wanton iudift'erence to life in the performance of an act likely to cause death, whether lawful or not. 10 146 HOMICIDE. " (e.) A deliberate intent to fight with deadly weapons. " (f.) An intent to resist a lawful apprehension by any person legally authorized to apprehend. " The following states of mind have been determined to constitute that lighter degree of malice which is necessary to the crime of manslaughter: " (a.) An intent to kill under the recent provocation, either of considerable personal violence inflicted on the prisoner by the deceased, or of the sight of the act of adultery committed by the deceased with the prisoner's wife. " (b.) An intent to inflict bodily injury, not likely to cause death, under a slight provocation; as when a man striking a trespasser with a slight stick, kills him. " (c.) A deliberate intent to fight in a manner not likely to cause death, or an intent to use a deadly weapon in a fight begun without the intention to use it. " (d.) An intent to resist an unlawful apprehension, or an apprehension of the lawfulness of which the prisoner had no notice. " (e.) An intent to apprehend, or otherwise to execute, legal process executed with unnecessary violence. " (f.) JSTegligence in doing a lawful act, or an unlawful act not amounting to felony. " The following states of mind have been held not to be malicious or wicked at all, and when any of them exist at the time when death is caused, no crime is committed : " (a.) An intent to execute sentence of death. " (b.) An intent to defend person, habitation, or property against one who manifestly intends, or endeavors by vio- lence or surprise, to commit a known (i. e., apparent) felony, such as rape, robbery, arson, burglary, etc. " (c.) An intent lawfully to apprehend or keep in custody a felon who can not otherwise be apprehended or kept in custody, or to keep the peace if it can not otherwise be kept. " (d.) Absence of all unlawful and malicious intents or states of mind. (This is the case of accident.) " KAPE, ETC. 147 CHAPTER II. RAPE, ETC. RAPE. The offense of having carnal knowledge of a woman by #orce against her will. Certain persons can not be convicted of this crime. An infant under the age of fourteen is deemed in law to be in- capable of committing this otiense, on account of his pre- sumed physical incapacit}'. And this is a presumption which can not be rebutted by evidence of capacity in the particular case.(l) I^either can a husband be guilty of a rape upon his wife. But both a husband and a boy under fourteen may be convicted is principals in the second de- gree, and may be punished for being present aiding and abetting. To constitute the offense, the act must be committed by force, and without the consent of the female. If, how- ever, she yielded through fear of death or duress, it is never- theless rape; for here the consent is at most imperfect. But the crime is not committed if she is beguiled into consent by some fraud or artifice ; for example, under the representation that the offender was her husband. In such case the proper course is to indict the offender for an as- sault.(s) It is equally rape though the female is a common prostitute or the concubine of the prisoner; but circum- stances of this nature will probably operate with the jury in their, consideration as to whether there was consent. It is necessary to prove penetration, but not any thing fur- (s) R. V. Williams, 8 C. & P. 286. (1) This presumption can be rebutted in Ohio, by proof of actual puberty. Williams v. State, 14 Ohio, 222. 148 ther.(i)(l)- If the prosecution fail to prove this, the pris- oner may nevertheless be convicted of the attempt. At almost every trial for this crime the words of Sir Matthew Hale are recalled : " It is an accusation easy to he made and hard to be proved, but harder to be defended by the party accused, though innocent." It will be well to es- timate the decree of credibility of the testimony of the woman, for of course she is a competent witness. On this point we can not do better than remember the words of Blackstone.(w) The credibility of her testimony, and how far she is to be believed, must be left to the jury upon th| circumstances of fact that concur in that testimony. For instance, if the witness be of good fame ; if she presently discovered the offense and made search for the offender ; if the party accused fled for it ; these and the like are con- curring circumstances, which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by the testimony of others ; if she concealed the injury for any considerable time after she had opportunity to complain ; if the place where the fact was alleged to have been committed was where it was pos- sible she might have been heard, and she made no outcry ; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned. The prisoner may cal] evidence to her generally bad character for want of chastity or indecency, and of her having had connection with him previously, but not of her having had connection with others. As to the last point she may be asked the question, but is not compelled to an- swer it ; if she denies it, the person referred to can not be called to contradict her.(a;) The punishment for this crime, which is a felony, is penal servitude to the extent of life.(i!/) (t) 24 and 25 Vict., c. 100, g 63. («) 4 Bl. 213. Ix) R. V. Holmes, L. R., 1 C. C. R. 334; 41 L, J. (M. C.) 12. (y) 24 and 25 Vict., c. 100, g 48. (1) It was otherwise before the statute. Penetration is made suf- ficient by statute in Indiana, Rev. Stat. 1876, p. 430; Illinois, Rev. Stat. 1877, p. 384; Michigan, Rev. Stat. 1871, p. 2073; and Iowa, Rev. Stat. 1873, p. 9 ; 74 Ohio L. 349. RAPE, ETC, 149 I CARNALLY ABUSING CHILDREN. To unlawfully and carnally know and abuse any girl, if she is under the age of twelve years, is a felony, punisha- ble by penal servitude to the extent of life ; if between twelve and thirteen, it is a misdemeanor, punishable by im- prisonment not exceeding two ■years.(z) In this offense it is immaterial whether the act were done with or without the consent of the child. She may be a witness on her oath if she appears sufficiently to understand the nature and obligation of an oath. Another offense may be noticed here : By false pretenses, false representations, or other fraudulent means, to pro- cure any female under the age of twenty-one years to have illicit carnal connection with any man is a misdemeanor, punishable by imprisonment not exceeding two years. (a) To commit an indecent assault upon a female, or to at- tempt to have carnal knowledge of a girl under twelve years of age, is a misdemeanor, punishable by penal servitude not exceeding two years. (6) UNNATURAL CRIMES. To commit the crime against nature, with mankind or with any animal, is a felony, punishable by penal servitude ; the penal servitude may extend to life, but may not be less than ten years. (c) The evidence is the same as in rape, with two exceptions : (a) It is not necessary to prove the offense to have been committed without the consent of the person upon whom it was perpetrated, (b) Both parties, if consenting, are equally guilty ; but if one of the parties is a boy under the age of fourteen years, it is felony in the other only. [There is no such crime in Ohio,(l) Indiana, or Iowa. (2)] To attempt to commit the said crime, or to make an as- sault with intent to commit the same, or to make an inde- (z) 38 and 39 Vict., c. 94. (a) 24 and 25 Vict., c. 100, § 49. {b) Ibid., § 52. (c) Ibid., § 61. (1) Davis V. BrowD, 27 Ohio St. 326. (2) Estes V. Carter, 10 Iowa, 400. 150 EAPK, ETC. cent assault upon a male person, is a misdemeanor, punish- able by penal servitude to the extent of ten years.(ci) ATTEMPTS TO PROCUKE ABORTION. Three classes of persons may be guilty of crimes under this heading. The woman herself — the person who pro- cures or supplies the drug, etc. — some other person. For a woman being with child, with intent to procure her own miscarriage, to administer to herself any poison or other noxious drug, or to use any instrument or other means ; or, For any person to do the same with intent to procure the miscarriage of any woman, whether she be Avith child or not, is a felony, punishable by penal servitude to the extent of life.(e) For any person to procure or supply poison or other noxious thing, or any instrument or thing, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of a woman, is a misdemeanor, punishable by penal servitude to the extent of five year8.(/) (d) 24 and 25 Vict., c. 100, § 62. As to obtaining money by threat- ening to accuse of this crime, v. p. 104. (e) Ibid., § 58. (/) Ibid., § 59. ASSAULTS, ETC. 151 CHAPTER in. ASSAULTS, ETC. Under this head we shall consider all the remaining of- fenses against the person. COMMON ASSAULT. An assault is an attempt or offer to commit a forcible crime against the person of another ; for example, present- ing a loaded gun at a person. It will be noticed that there need not be an actual touching of the person assaulted. But mere words never amount to an assault, (i) The unlimited character of this crime makes it a conve- nient means of punishing a variety of crimes, which do not at first sight seem to be assaults, at least not in the popular signification of the term ; for example, putting a child into a bag, hanging it on some palings, and there leav- ing it.(M) A battery is not necessarily a forcible striking with the hand or stick or the like, but includes every touching or laying hold (however trifling) of another person, or his clothes, in an angry, revengeful, rude, insolent, or hostile manner; for example, jostling another out of the way. Thus, if a man strikes at another with a cane or fist, or throws a bottle at him, if he miss, it is an assault ; if he hit, it is a battery. As a rule, consent on the part of the complainant de- prives the act of the character of an assault, unless, indeed, non-resistance has been brought about by fraud. But the fact of consent will in general be immaterial when an actual battery or breach of the peace has been committed. (a;) A common assault is also the subject of a civil action for (0 1 Hawk., c. 62, § 1. (k) E. v. March, 1 C. & K. 496. Ix) Broom, 917. 152 ASSAULTS, ETC. damages ; and the party injured may either prosecute or bring his action first. The court will not, however, pass judgment during the pendency of a civil action for the same assaulf,(2/) the reason obviously being that otherwise the issue of the civil action might be prejudiced. A common assault, that is, a mere assault which may or may not have proceeded to a battery, is a misdemeanor, punishable by imprisonment not exceeding one jear.(z) But the justice of the case is often more adequately met by compensation to the person injured. Therefore, with the assent of the prosecution, if the circumstances appear to warrant that course, the court may allow the defendant to plead guilty, and inflict upon him a merely nominal fine, on the understanding that he shall make a compensation to the prosecutor.(a) Common assaults are usually disposed of by the magis- trates assembled at petty sessions. The limit of punishment in ordinary cases of such summary conviction is a fine of £5 or imprisonment not exceeding two months ; but in some more serious cases of assault upon females or boys whose age does not exceed fourteen years, the limits are £20 and six mouths. (6) The magistrates have not power to hear and determine any assault involving a question of title to lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. And if the assault is accompanied by an attempt to commit a felony, or, in the opinion of the magistrates, is a fit subject for prosecution by indictment, they may ab- stain from any adjudication and leave the case to be prose- cuted by indictment.(c) As to the evidence on the part of the accused, it may be stated generally that the same facts which would I'educe a homicide to misadventure are a good defense upon an in- dictment for a battery. (t]() Other defenses are, that it was committed merely in self-defense, or in the proper adminis- (y) R. V. Mahon, 4 A. .{x) c. Fish, etc. — To unlawfully and willfully take or destroy any fish in any water adjoining or belonging to the dwell- ing-house of the owner of such water is a misdemeanor; in water not so situated, but which is private property, or in which there is any private right of fishery, is punisha- ble, on summary conviction, by a penalty not exceeding £5 above the value of the fish.(2y) To steal any oysters, or oyster brood, layer, or fishery, being the property of any other person, and sufficiently marked out, or known as such, is a felony, punishable as in the case of simple larceny. To use any net, instrument, etc., for taking oysters, or to drag upon the ground of such fishery, is a misdemeanor, punishable by imprisonment not 'exceeding three month8.(2) d. Dogs. — Stealing a dog is punishable, on summary con- viction, by imprisonment not exceeding six months, or with a penalty not exceeding £20 above the value of the dog. A second offense is a misdemeanor, punishable by impris- onment not exceeding eighteen months.(a) The same con- sequences, without the alternative of imprisonment for the first offense, attend the unlawful having possession of a stolen dog or its skin, knowing it to have been stolen.(6) To corruptly take money for aiding any person to recover a dog stolen, or in the possession of any person not the owner thereof, is a misdemeanor, punishable by imprisonment not exceeding eighteen months.(c) (u) § 15. {x) § 17. {y) I 24. (z) I 16 ; see also 31 and 32 Vict., c. 45, pt. 3, g§ 28, 42, 43, 51, 52, 55. (a) § 18. (J) § 19; see also § 22. (c) § 20. LARCENY. 165 e. Horses, cows, sheep, etc. — One reason for increasing the severity of the punishment is the ease with which the crime can be committed, so that the deterrent effect of the conse- quences may be proportioned to the inducements to commit it. On this account the punishment imposed by statute for stealing any of these animals exceeds that for simple lar- ceny at common law. To steal a horse, mare, gelding, colt, filly; bull, cow, ox, heifer, calf; ram, ewe, sheep, or lamb, is a felony, punisha- ble by penal servitude to the extent of fourteen years. (d) To willfully kill any animal, with intent to steal the car- case, skin, or any part, is a felony, punishable as if the offender had been convicted of felouiously stealing the same, provided the offense of stealing the animal so killed would have been felony.(e) [In Ohio, it is larceny to steal " any thing of value,"(l) and the phrase " any thing of value" includes every thing that has heretofore been made subject to larceny, including things which savor of realty, though there be no interval of time between the severing and the taking away, " and every thing of any value whatever."(2) In Illinois, larceny " embraces every theft which deprives another of his money or other personal property, or those means and muniments by which the right or title to property, real or personal, may be ascertained — and any bond, bill, note, receipt, or any instrument of writing of value to the owner."(3) The statutes of the states generally state, with great detail, the ehoses in action, and the other writings, that are made subjects of larceny, and make horse-stealing a special and aggravated offense.] Further, with regard to the goods : As a rule, the value of the thing stolen is no longer of any moment in larceny. Except, indeed, where some amount is specially mentioned in the statute as of the essence of the crime, for example, in the case of trees ; (/) or where the value of the thing {d) § 10. (e) 1 11. (/) g§ 32, 33; V. supra. (1) 74 Ohio L. 252. (2) 74 Ohio L. 241. (3) Rev. Stat., 1877, p. 373. 166 LARCENY. deteriQines whether the case may be dealt with in a sum- mary way.((/) And, of course, if it appear at the trial that the theft was of considerable extent, this will be one ele- ment which will make the offense more serious, and will therefore influence the court in its judgment. But now, in ordinary cases, no statement of value or price is necessary in the indictment.(A) Formerly it was otherwise. There was a division into grand and petty ]3i.rceny : the former comprising eases of larceny of goods of the value of twelve pence and upward; such offenses being attended with more serious punishment than petty larcenies, which comprised cases of theft- where the value did not reach that sum. But now the distinction is abolished, and every simple lar- ceny is of the same nature and subject to the same inci- dents as grand larceny was formerly. (z) Though to make a thing the subject of an indictment for larceny it must be of some value, and siated to be so in the indictment, yet it need not be of the value of some coin known to the law, that is to say, of a farthing at the least.(A:) [In Ohio, grand larceny is the stealing of the value of thirty-five dollars or more ; petit larceny, less than that sum. 74 Ohio L. 252. In Kentucky, if the value stolen is four dollars, or more, it is grand, otherwise, it is petty larceny. Eev. Stat. 1877, p. 333. In Indiana, if the value stolen is five dollars or upward, it is grand, otherwise, it is petty larceny. Rev. Stat. 1876, p. 432. In Illinois, the distinction is between value exceeding, and value not ex- ceeding, fifteen dollars. Rev. Stat. 1877, p. 373. In Mich- igan, the distinction is between value exceeding, and value not exceeding, twenty-five dollars. Rev. Stat. 1871, pp. 2081, 2082. In Iowa, it is exceeding, or not exceeding, twenty dollars. Grand larceny is a felony ; petty larceny a misdemeanor. But in Michigan the punishment for grand larceny is im- prisonment in the penitentiary not more than five years, (g) V. 18 and 19 Vict., c. 126, § 1. (h) 14 and 15 Vict., c. 100, § 24. (i) 7 and S Geo. 4, c. 29, § 2, re-enacted by 24 and 25 Vict., c. 96, § 2. {k) R. V. Morris, 9 C. & P. 349. LARCENY. 167 or fine not exceeding five hundred dollars, and imprison- ment in the county jail not more than one year. J As to the description of the ownership of the goods. — The name of the owner must be given in the indictment, unless it be one of those cases in vphich the statute expressly declares this to be unnecessary, e. (/., of wills. (Z) In other than these exceptional cases it must be proved that the goods stolen are the absolute or special property of the person named in the indictment.(m) [If goods are stolen from the possession of the owner, the ownership must be laid to him ; if from any other person who has possession of them, the ownership may be laid in the actual owner or iij the person from whom they were taken.(l) If goods are stolen from a thief who had previously stolen them, ownership may be laid either in such thief or in the owner.(2)] , ii. The willfully icrongful taking possession. The object of inserting " willfully" before the " wrong- ful taking" is to distinguish the wrongful taking which constitutes larceny fiom the wrongful taking which merely affords ground for a civil action. Thus a person, imagin- ing that he has the right, taking the goods of another under an illegal distress, is liable to civil but not to criminal proceedings. In any case, if the taking is under color of right, though the supposed right be without foundation, there is no larceny.(?i) The taking is either actual or constructive —rActual, when the thief directly takes the goods out of the posses- sion of the owner or his bailee, invito domino,(o) by force or by stealth, or the like : Constructive, when the owner de- livers the goods, but either does not thereby divest himself (0 § 29. (to) As to the person in whom the ownership must be laid, v. p. 263. (n) V. p. 174. (0) A slight apparent exception to the rule that the taking must be invito domino, occurs in the case of the owner receiving intimation of the proposed theft, and resolving to allow it to be carried out in order to convict the thief. R. v. Eggington, 2 Leach, 913. (1) Huling V. State, 17 Ohio St. 583. (2) Stanley v. State, 24 Ohio St. 166 ; Ward v. People, 3 Hill, 395. 168 LAKdHNT. of the legal possession, or the possession of the goods has been obtained from him by fraud and in pursuance of a a previous intent to steal them.{p) The law on constructive taking may be considered under the following heads : — (a.) Where, by the delivery, the owner of the goods passes not only the possession, but the right of property also. (b.) Where the possession has been obtained animo fa- randi. (c.) Where the possession was originally obtained bona fide, and without a felonious intent. (d.) Where the delivery does not alter the possession in law. (a.) Where the right of froferty as well as the -possession is farted with by the delivery, there can be no larceny, however fraudulent are the means by which the delivery of the goods is procured. Of course, the person who committed the fraud is open to a charge for another offense, namely, obtaining goods by false pretenses. If the property has once passed, no subsequent act by the person in whom the right of property has vested can be construed into larceny, whatever the intent of that person may be. Thus A. bnys a horse from B., mounts it, says he will return immediately and pay. B. says, " Very well." A. rides away and never returns. There is no larceny, because the property as well as the possession is parted with.(^) So in all cases of selling on credit ; intrusting with mOney to get change, etc. It is the same if the property is passed by the servant of the owner, provided that the servant has authority to part with the property; but not if he has authority to part merely with the possession. Thus, if the servant of B. is authorized only to let out horses on hire, and he, in the case given above, parts with the property in the animal to A., it is larceny in A.(r) {p) Arch. 353. From this work is also taken the immediately fol- lowing classification of oases. (?) R. V. Harvey, 1 Leach, 467. (r) V. R. V. Middleton, L. E., 2 C. C. R. 38; 42 L. J. (M. C.) 73. LARCENY. 169 (b.) Where the possession of goods is obtained animo fu- randi,(s) by the ofi'ender employing some device, the owner not intending to part with the property in the goods, though he does with the temporary possession. This is larceny though there be a delivery in fact.(l) Thus, A. goes to B.'s shop, and says that C. wants some shawls to look at. B. gives A. some shawls for C. to select from. A. converts them to her own use. This is larceny in A., because, until the selection is made, only the possession and not the property is parted with. It is larceny, if the de- sign of so converting to the accused's own use is present when possession is obtained; but it is not larceny, if such design is conceived only subsequently to the rightfully ob- taining possession. (<) An example of larceny of this class is the practice of ring-dropping. The prisoner pretends to find a ring wrapped in paper appearing to be a jeweler's i-eceipt for a "rich, brilliant diamond ring." He, with his accomplices, offers to leave the ring with the victim, if the latter will deposit his watch or some money as security for the return of the ring. The watch or money is taken away by the prisoner's party, and the victim finds that the value of the ring is much below that of tlie goods he has parted with.(M) The fact that there is an actual delivery of goods does not divest the deed of the character of larceny, if the defend- ant, having the ariimus furandi, obtains them by frighten- ing or threatening the owner, as, for example, in mock auctions.(x) Some of the cases under this head, which have been de- cided to be larceny, show how very narrow the line is be- tween larceny and non-larceny or false pretenses. Thus, when A. obtained from B. a sum of money, under the false color of winning a bet, it was held to be larceny, because, at the time the defendant obtained the money from the («) As to what constitutes animus furandi, or felonious intent, v. p. 174. \t) E. V. Savage, 5 C. & P. 143. {u) R. v. Patch, 1 Leach, 238. (.r) R. V. M'Grath, L. E., 1 C. C. E. 205; 39 L. J. (M. C.) 7. (1 ) Elliott V. Commonwealth, 12 Bush, 1 76 ; Kellogg v. State, 26 Ohio St. 15. 170 LARCENY. prosecutor, he parted with the possession only, and the property was to pass eventually only if the other party, really won the wager.(!/) (c.) Where the possession of the goods is obtained laiofully and bona fide, without any fraudulent intention in the first in- stance. — Though the person thus obtaining possession after- ward fraudulently appropriated the goods to his own use, he would not be guilty of larceny at common law. How- ever, it would be otherwise, if the possession was obtained by trespass, and then there was a subsequent fraudulent appropriation, though there was no fraudulent intention at first. (2) In accordance with the above rule, in no case of bail- ment, where the possession was at first obtained innocently, could the bailee be found guilty of larceny. [That is, where he takes an entire thing or a package bailed. But, if a common carrier breaks bulk — that is, breaks open a package and takes part of the contents — he commits lar- ceny at common law.(l)] But the legislature has inter- fered, and enacted that the fraudulent taking or converting any chattel, money, or valuable security, by the bailee of such property, to his own use, or to the use of some other person than the owner, although he do not break bulk or otherwise determine the bailment, is larceny.(a). But a person can not be convicted of larceny as a bailee, unless the bailment be to re-deliver the very same chattel or money.(6) As we shall see, the larceny act deals specifically with the cases of certain persons who are intrusted with money or goods, e. g., banker, broker, etc. The crime of embezzle- ment is also concerned with appropriations by those to whom property has been delivered, though not by the per- son who is wrongfully deprived. (d.) Where the delivery does not alter the possession in law: ()/) R. V. Robson, R. & R. 413; v. R. v. Wilkins, 1 Leach, 520. {z) R. V. Riley, 22 L. .J. (M. C.) 48. (a) § 3. {h) R. V. Hassell, 30 L. J. (M. C.) 175. (1) Rex V. Madox, R. & R. 92 ; Rex v. Brazier, R. & R. 337; Regina V. Calhoun, 2 Crawf. '& Dix, C. C. 57 ; Rex v. Howell, 7 0. & P. 325. LAECENT. 171 in other words, where, although there is a delivery of the goods by the owner, yet the possession in law remains in him, the goods may be stolen by the person to whom they are thus delivered. Thus, it is larceny at common law for a servant who has merely the care and oversight of the goods of his master, as the butler of the plate, to appro- priate those goods. And here the felonious intention need not exist at the time of the delivery, inasmuch as the de- livery is merely for custody, the possession legally remain- ing in the master. The master must have been in posses- sion ; for if the goods are delivered to the servant for the master's use, and the servant does not deliver, but converts them to his own use, this is not larceny, but embezzle- ment ; as if a shopman receives money from one of his master's customers, and, instead of putting it into the till, secretes it.{d) [But if a servant, going for coal for his master, take his master's cart along, the coal, on being put into the cart, is in the master's possession ; and if the servant should con- vert any of such coal, even before returning home, he com- mits larceny. Eegina v. Reed, Dears, 257 ; 24 Eng. L, & E. 562. And where a corn factor purchases an entire cargo of corn, which purchase transfers ownership, and operates as a delivery, if he send his servant to bring a portion of such cargo, and the servant takes some of it directly from the ship, with felonious intent, he commits larceny. Eex V. Abrahat, 2 Leach, 824.] There are other cases in which the possession, though physically parted with, still remains unmoved in the eye of the law. For example, when the owner is present all the time the goods are in the physical possession of the ac- cused, and has no intention of relinquishing his dominion, as when a lady handed a sovereign to the prisoner, asking him to procui-e her a ticket, and he ran otf with it, he was convicted of larceny. (e) So, a bare use of the goods of another does not divest (d) R. V. Bull, 2 Leach, 841. (e) R. V. Thompson, 32 L. J. (M. C.) 53. 172 LARCENY. the owner of his possession in law. Thus, it is larceny for a person to fraudulently convert to his own use the plate which he is using at an inn.( /) The taking must be of another's goods. Therefore a person can not steal his own goods, if they are in his own possession, though he defraud his creditors by the removal ; but, otherwise, if they are in the hands of a bailee, and the taking of them has the eftect of charging the bailee.((/) So, also, if one of several joint tenants or tenants in common of personal goods disposed of them, it was not larceny at common law, for the disposer was already in possession. (A) But it has been enacted that if any member of a copartnership, or one of two or more beneficial own- ers of property, steals any such property, he is liable to be dealt with as if he had not been in such position.(i) Husband and wife being one in law, they can not steal each other's goods. And if the goods of the husband are taken with the consent or privity of the wife, it is not lar- ceny, unless the taker be the avowterer of the woman. (A) When does the appropriation of things /oM?i(^ amount to an unlawful and felonious taking? The true rule was laid down in R. v. Thurborn.(/.) "If a man find goods that have been actually lost, and appropriate them, with intent to take the entire dominion over them, really believing when he takes them that the owner can not be found, it is not larceny. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably be- lieving that the owner can be found, it is larceny." Thus, to make finding larceny, there must be on the part of the finder both this belief and this intention at the time of the finding. [For if he takes them with intent to keep them (/) A reference to the explanation of the term "possession'' (p. 159) will show that in the above cases the owner, in strictness, has not parted with the possession. (g) V. II. V. Wilkinson, R. & li. 470. (A) This does not apply to corporations, because there individual members have not the right of possession or property. (0 31 and 32 Vict., e. 116, § J. (/;) B. v. Tolfree, 1 Mood. C. C. 243. (0 IS L. J. (M. C.) 140; 2 C. ublic or charitable purpose, or (b) to otherwise dis- pose of or destroy the property, is a misdemeanor, punish- able by penal servitude to the extent of seven years. But no criminal proceedings may be taken without the sanc- tion of the attorney-general. And, if civil proceedings have been taken against the trustee, the person who has taken such proceedings may not commence any prosecu- tion under this section without the sanction of the court or judge of such civil proceedings. (e) Embezzlement by directors, officers, and members of public companies and corporate bodies. The following offenses are misdemeanors, punishable by penal servitude to the extent of seven years : {d) 24 and 25 Vict., c. 96, g 78. (e) Ibid, § 80. 190 EMBEZZLEMENT. For a director, member, or public officer of a body cor- porate or public company, to fraudulently take or apply to his own use, or any use or purpose other than the uses or purposes of such body or company, any of the property of the body or company.(/) For a director, public officer, or manager of such body or company, to receive or possess himself of any of the property of the company, etc., otherwise than in payment of a just debt or demand, and, with intent to defraud, to omit to make or have made a full and true entry thereof iu the books and accounts of the company.(5') For a director, manager, public officer, or member, with intent to defraud, to destroy, alter, mutilate, or i'alsiCy any book, paper, writing, or valuable security, belonging to the body or company; or (b) to make or concur in making any false entry, or to omit or concur in omitting any ma- terial particular in any book of account or other docu- ment, (/i) For a director, manager, or public officer to make, circu- late, or publish, or concur in making, etc., any written statement or account which he knows to be false in any material particular, with intent to deceive or defraud any member, share-holder, or creditor of such body or com- pany, or with intent to induce any person to become a share-holder or partner therein, or to intrust or advance any property to such body or company, or to enter into any security for the benefit thereof.(i) With regard to these cases of embezzlement by bankers, merchants, attorneys, agents, or factors, trustees, directors, officers, or members of bodies corporate or public compa- nies, the pi'ovisions as to which are contained in §§ 75-84 of the larceny act, it is enacted that no person shall be convicted of any of these misdemeanors, if he shall, at any time previously to his being charged with such misde- meanor, have disclosed the act on oath, in consequence of any action which shall have been ionr? j^cZe instituted by (/) 24 and 25 Vict., c. 96, § 81. (ff) Ibid., § 82. (A) Ibid., § 83, (0 Ibid., g 84. EMBEZZLEMENT. 191 any party aggrieved; or if he shall have first disclosed the same in any compulsory examination or deposition before any court upon the hearing of any matter in bankruptcy or insolvency. (A) For a director, officer, or contributory of a company wound up under the companies act, 1862, to destroy, muti- late, alter, or falsify any books, papers, writings, or securi- ties, or to make or be privy to making any false or fraudu- lent entry in any book or other document of the company, with intent to defraud or deceive any person, is a misde- meanor, punishable by imprisonment not exceeding two years.(/) For an officer of a savings bank to receive any deposit and not pay over the same is a misdemeanor, punishable by fine or imprisonment or both.(m) [In Ohio, the general provision is, " an officer, agent, cleric, servant, or employe of any person (except appren- tices and persons under the age of eighteen years), who em- bezzles or converts to his own use, or fraudulently takes, or makes away with, or secretes, with intent to embezzle or convert to his own use, any thing of value which shall come into his possession by virtue of his employment; and an officer elected or appointed to an office of public trustor profit in this state, and an agent, clerk, servant, or employe of such officer, or of a board of such officers, who embez- zles or converts to his own use, or conceals with such in- tent, any thing of value that shall come into his possession by virtue of his office or employment, is guilty of embez- zlement, and shall be punished as for larceny of the thing embezzled." 74 Ohio L. 249, § 11. The word person in- (k) 24 and 25 Vict., c. 96, § 85. And also nothing in these sections shall entitle any person to refuse to answer a question in a civil pro- ceeding, on the ground that it tends to criminate himself. — § 85. The criminal proceeding is not to deprive any party of his civil remedy, but the conviction is not to be evidence in such civil suit. — § 86. (0 25 and 26 Vict., c. 89, § 166. (m) 26 and 27 Vict., c. 87, § 9. False statements, returns, etc., by railway companies, v. 29 and 30 Vict., c. 108, §§ 15-17; 31 and 32 Vict., c. 119, § 5 ; 34 and 35 Vict., c. 78, § 10. 192 EMBEZZLEMENT. eludes corporations. Ibid. 241. Thing of value in this section includes negotiable instruments, negotiable by de- livery, not yet delivered or issued as a valid instrument. Ibid. 250. Carriers and innkeepers who convert fraudu- lently any thing of value intrusted to them in the course of their vocation, are guilty of embezzlement; also a carrier, warehouseman, factor, storage, or commission merchant who, with intent to defraud, sells or converts any bill of lading, permit, or receipt, or any property, or proceeds thereof ; any mvmicipal officer who knowingly' diverts, ap- propriates, or applies any public funds ; any person in- trusted with any public property of the state, a county, township or municipal corporation, who disposes of the same for his own use with intent to defraud, is guilty of embezzlement. Ibid. 250. In Michigan, apprentices and other persons under the age of sixteen years are excepted from the statute. Eev. Stat. (1872), 2084. Proof of a continuous series of conversions of money by an officer to the use of another, in pui'suance of a con- spiracy between them, will support a verdict of the jury iinding the aggregate sum as the amount of a single em- bezzlement. Brown p. State, 18 Ohio St. 496. Unless there is such relation of employment as the stat- ute describes, there can be no embezzlement. Hence, where a woman allowed a man to take bank bills for the purpose of counting them in her presence, and taking therefrom a small sum, which she consented to lend him, and, instead of returning any portion, he walked away with the whole, there was no embezzlement. Commonwealth v. O'Malley, 97 Mass. 584. There must be a fraudulent intent. Hence, where a clerk, whose business it was to receive, keep, and disburse the money of a firm, being about to leave, took from the money in his hands the amount due him for his salary, without the knowledge or consent of the firm, and charged the same to himself on the books, there was no embezzlement. Ross V. Innis, 35 111. 487. There must be a fraudulent in- tent contemporaneous with a conversion. Hence, where ■EMBEZZLEMENT. 193 an oflScer of a bank took money from a depositor, without any fraudulent intent to convert it to his own use, and en- tered it properly in the books of the bank, and he five days afterward altered the entries to conceal the fact that he had received this sum, in order thereby to cover up some pre- vious deficit occasioned by former fraudulent acts, there was no embezzlement of such deposit. Commonwealth v. Shep- ai-d, 1 Allen, 575. But if the treasurer of a railroad com- pany draws from bank by his check, as treasurer, money which he has on deposit in that capacity, and fraudulently converts to his own use the money so drawn, he is guilty of embezzlement, although he did not intend to convert the money at the time he drew it, and although, at the time he converted it, he intended to make it good, and had the means of doing so. Commonwealth v. Tuckerman, 10 Gray, 173. For if, an act of embezzlement is commit- ted, it is not purged by a subsequent restitution of the money or property appropriated. Hence, a person who received a note for the purpose of getting it discounted for another at a bank, and sent it with other notes of his own to the bank to be discounted on his own account, and had the proceeds entered to his own credit, he was guilty of embezzlement as soon as the note was delivered to the cashier to be thus misused ; and a subsequent payment of the money on account of the owner of the note did not purge the crime. Commonwealth v. Butterick, 100 Mass. 1.] 13 194 FALSE PRETENSES. CHAPTER III. FALSE PRETENSES. It is difficult to correctly define tte offense of obtaining property by false pretenses. In some cases, on the one hand, there seems little to distinguish it from larceny ; and in others, to distinguish it from a mere non-criminal lie. The most intelligible distinction between false pretenses and larceny has been thus set forth :(??) " In larceny, the owner of the thing stolen has no intention to part with his property therein to the person taking it, although he may intend to part with the possession ; in false pretenses, the owner does intend to part with his property in the money or chattel, but it is obtained from him by fraud." [A person who by fraud obtains a loan of money, there being no un- derstanding that he is to return the same bills or coins, is guilty, not of larceny, but of false pretenses.(l)] The line between the two crimes is very narrow. Thus, A. intrusts B. with a parcel to carry to C. D. meets B. and alleges that he is C, whereupon B. gives him the parcel. It will be larceny if B. had not authority to pass the property ; false pretenses if he had.(o) The difficulty of discriminating arises chiefly where there has been a constructive taking only, where the owner delivers the property, though the possession is obtained by fraud. The evil which might arise from this state of things is to some extent obviated by a provision that if upon an indictment for false pretenses it is proved that the defendant obtained the property in such manner as to amount in law to larceny, he is not on that account to be acquitted. (p) Therefore, in cases of doubt, it is better to indict for false pretenses. (n) Arch. 362; v. White v. Garden, 10 C. B. 927. (0) V. R. V. Watkins, 1 Leach, 520. (p) 24 and 25 Vict., c. 96, g 88. (1) Kellogg V. State, 26 Ohio St. 15. FALSE PRETENSES. 19o The points to be proved on an indictment for false pre- tenses are the following : i. The pretense and its falsity. ii. That the property or some part thereof was obtained by means of the pretense. iii. The intent to defraud. i. The pretense must be wholly or in part of an existivg fact ;{q) for example, a false statement of one's name and circumstances in a begging letter. But a mere exagger- ation will not suffice, as if a person actually in business pretends that he is doing a very good business ;()') other- wise, if he were not doing any business at all.(s) The fact must be an existing fact ; therefore it is not within the act for a person to pretend that he will do something which he does not mean to do.(<) But a promise to do a thing may involve a false pretense that the promisor has the power to do that thing; and fur this an indictment will lie.(M) [One who obtains goods by falsely and fraudulently promising that if the same be delivered to him he will sell them and pay over the proceeds, and whofails, after selling, to pay over the proceeds, is not guilty of obtaining goods under false pretenses. (1) But where the proprietor of an intelligence office agreed to procure a place for an appli- cant in consideration of two dollars paid in advance, and falsely stated that he had a situation in view, he was guilty of obtaining money under false pretenses. (2)] Obtaining additional money by stating that a larger amount of goods is delivered than is known to be the case, is within the statute.(x) But of course not every breach of (?) " It may be laid down as a general rule of interpretation of the statute, that wherever a person fraudulently represents, as an existing /act, that which is not an existing fact, and so gets money, etc., that is an offense within the act." — Arch. 497. (r) R. V. Williamson, 11 Cox, 328. (s) E. v. Crabb, 11 Cox, 85. (0 R. V. Lee, 9 Cox, 304. (u) R. V. Giles. 34 L. J. (M. C.) 50. (cc) R. V. Ragg, 29 L. J. (M. C.) 86. (1) Glacken v. Commonwealth, 3 Mete. (Ky.) 233. (2) Commonwealth v. Parker, T haoh. Crim. Cas. 124. 196 FALSE PRETENSES. warranty or false assertion at the time of a bargain will be treated as a false pretense ;(?/) for example, if, in selling an article for a lump sum, the vendor makes a false repre- sentation as to the weight in order to induce the purchaser to conclude the bargain. (2;) However, it seems clear that a false repi-esentation respecting an alleged matter of defi- nite fact knowingly made is a false pretense within the stat- ute ; even although the representation is merely as to tlie quality of the goods sold ; as when the prosecutor was in- duced to purchase a chain on the representation that it was fifteen carat gold, whereas it was only six carat.(a) But if the representation is only what is matter of opinion, and amounts merely to exaggerated praise, the party is not criminally liable ; as where the defendant said his spoons were equal to Elkington's.(6) [It has been held that the pretenses must be such that a person of ordinary caution would give credit to them. State V. Magee, 11 Ind. 154; Leoboldu. State, 33 Ind.484; Com- monwealth V. Grafly, 13 Bush, 285; State v. Evers, 49 Mo. 542. But some regard must be had to the capacity of the person defrauded, as the capacity of a blind man to judge of a false pretense as to color. Cowen v. People, 14 111. 348. And to the circumstances of the case. It was held in England that a man who handed for change a bank-note for one pound, pretending it was a five pound note, could be convicted of obtaining money under false pretenses, though the person to whom it was handed could read. Regina v. Jessop, 7 Cox Crim. Cas. 399. And Mr. Bishop doubts the correctness of the rule altogether. 2 Bish. Crim. L. § 416. Under the rule that the pretense must have induced the parting with the goods, it is well held in England that where a person by false pretenses obtained an agreement to furnish lodging and board, and under that agreement obtained articles of food, he could not be convicted of ob- (y) E. V. Codrington, 1 C. & P. 661. (z) E. V. Eidgeway, 3 F. & F. 838. (a) E. V. Astley, L. E., 1 C. C. R. 301 ; 40 L. J. (M. C.) 85. (4) E. V. Bryan, 26 L. J. (M. C.) 84. FALSE PRETENSES. 197 taining those articles of food by false pretenses. Eegina v. Gardner, 7 Cox Crim. Cas. 136. If the goods would not have been, obtained but for the false pretenses, though other circumstances contributed to induce the owner to part with them, the person making such pretenses can be convicted. People v. Haynes, 14 Wend. 546 ; State v. Thacher, 35 N. J. Law, 445. Obtaining merely what is his own, or what is justly due, though by false pretense, does not come within the crime. Commonwealth i\ McDufty, Supreme Court Mass., Jan. '79, and cases cited; Centra! Law J., 16th May, '79.] The false pretense need not be expressed in words ; it will suffice if the pretense is signified in the conduct and acts of the party; for example, by obtaining goods upon giving in payment a check upon a banker with whom the defendant has no account, he believing that it would be paid on pre- sentation ;(c) or by a person, who was not a member of the university, obtaining goods fraudulently at Oxford through wearing a commoner's cap and gown.((i) A false pretense made through an innocent agent is, of course, the same as if made by the defendant himself. If the goods are obtained by means of a forged order, note, or other document, the party should be indicted for forgery, seeing that the punishment for that offense is much more severe. But the prisoner will not be acquitted for the false pretense on the ground that he might have been indicted for forgery. (f) It will suffice if the falsity of the substance of the pre- tense is proved, although every particular is not estab- lished.(/) ii. The intent to defraud. As in other cases, the intent is generally to be gathered from the facts of the case. It is sufficient to allege in the indictment, and to prove at the trial, an intent to defraxid (c) R. V. Jackson, 3 Camp. 370; v. R. v. Hazelton, L. R., 2 C. C. E. 134; 44 L. J. (M. C.) 11. (d) R. V. Barnard, 7 C. & P. 784. («) 14 and 15 Vict., c. 100, § 12. (/) E. V. Hill, R. & R. 190. 198 FALSE PRETENSES. generally, without alleging or proving an intent to defraud any particular per?on.(9) It has been held that, to support the evidence of intent to defraud, proof that the defendant has subsequently ob- tained other property from some other person by the same pretense is not admissible ;(^) but that evidence of similar false pretense on a prior occasion is admissible. (/) Obtaining property by false pretenses is a misdemeanor, punishable by penal servitude to the extent of five year^.(/i:) It is subject to the provisions of the vexatious indictments act.{l) As we have seen, the defendant is not entitled to be acquitted for the misdemeanor because the facts show that the oifense amounts to larceny ; but no person tried for such misdemeanor is liable to be afterward prosecuted for larceny upon the same facts. (m) [This crime is a felony in Kentucky. Rev. Stat. (1877), 338. And Indiana. Eev. Stat. (1876), 436. In Ohio, if the value of the goods obtained is thirty-five dollars or more, the offense is felony; otherwise, it is a misdemeanor. 74 Ohio L. 289. It is punishable, in Iowa, by imprison- ment in the penitentiary not exceeding seven years, or in the county jail not exceeding one year. Kev. Stat. (1873), 636. And, in Michigan, by imprisonment in the peniten- tiary not exceeding ten years, or in the county jail not more than one year. Rev. Stat. (1871), 2087.] Winning at play by fraud is punishable as for obtaining money by false pretenses. (w) Closely allied to the ofi'ense of false pretenses is that of inducing persons by fraud to execute valuable securities. For any person, with intent to defraud or injure another, by any false pretense to fraudulently cause or induce any person to execute, make, accept, indorse, or destroy the whole or any part of any valuable security; or (b) to write, impress, or or affix his name, or tlie name of any other person, or of (g) 24 and 25 Vict., c. 96, § 88. (A) E. v. Holt, 30 L. J. (M. C.) 11. (i) B. V. Francis, L. R., 2 0. C. R. 128; 43 L. J. (M. C.) 97. (k) 24 and 25 Vict., c. 96, § 88. {I) v. p. 288. (m) 24 and 25 Vict., c. 96, g 88 ; v. E. v. Bulmer, 33 L. J. (M. C.) 171. («) 8 and 9 Vict., c, 109, g 17. FALSE PRETENSES. 199 any company, firm, or copartnership, or the seal of any body corporate, company, or society, upon any paper or parchment, in order that the same may be afterward made, or converted into, or used, or dealt with as a valuable se- curity, is a misdemeanor, punishable as obtaining by false pretenses, (o) FALSE PERSONATION. The obtaining goods, money, or other advantage, by false personation, is a crime similar to false pretenses. At com- mon law, false personation is punishable as a cheat or fraud ; but certain particular cases are dealt with by statute. This crime is also closely connected with forgery; and many statutes providing against forgery at the same time provide against false personation. Oi seamen, soldiers, etc. — For a person, in order to receive any pay, wages, prize-money, etc., payable, or supposed to be payable, or any effects or money in charge, or supposed to be in charge, of the admiralty, falsely and deceitfully to personate any person entitled, or supposed to be entitled, to receive the same, is a misdemeanor, punishable by penal servitude to the extent of five years, or, on summary con- viction, by imprisonment not exceeding six months. (7)) To knowingly and willfully personate, or falsely assume the name or character of, or to procure others to personate, etc., a soldier or other person who shall have really served, or be supposed to have served, in her majesty's army or in any other military service, or his representatives, in order to receive his wages, prize-money, etc., due or payable, or supposed to be due or payable, for service performed, or supposed to be performed, is a felony, punishable by penal servitude to the extent of life.(g') It is no defense to an in- dictment, under section 49, that the person was authorized to personate the soldier; or that he had bought from him the prize-money to which the latter was eutitled.(r) (0) 24 and 25 Vict., c. 96, § 90. (p) 28 and 29 Vict., c. 124, § 8 ; v. g 9. (y) 2 and 3 Wm. 4, c. 53, § 49; 7 Geo. 4, c. 16, § 38. (r) R. V. Lake, 11 Cox, 333. 200 FALSK PRETENSES. Owners of stock, etc. — To falsely and deceitfully personate the owner of any share or interest in any stock, annuity, or public fund, which is transferable at the bank of Eng- land or Bank of Ireland ; or (b) the owner of any share or interest in any capital stock of any body corporate, com- pany, or society established by charter or act of parlia- ment ; or (c) the owner of any dividend or money payable in respect of any such share or interest, and thereby to transfer, or endeavor to transfer, any such share or inter- est, or receive, or endeavor to receive, any money so due, as if the oft'ender were the true and lawful owner, is a felony, punishable by penal servitude to the extent of life.(s) To obtain properly in general. — By the false personation act, 1874, it is provided that, for any person to falsely and deceitfully personate any person, or the heir, executor, or administrator, wife, widow, next of kin, or relation of auy person, with intent fraudulently to obtain auy land, chat- tel, money, valuable security, or propertj', is a felony, pun- ishable by penal servitude to the extent of life.(i) Bail. — Without lawful authority or excuse (which it lies on the accused to prove), in the name of another person to acknowledge any recognizance or bail, or any cognovit action.em, or judgment, or any deed or other instrument, before any court, judge, or other person lawfully authorized in that behalf, is a felony, punishable by penal servitude to the extent of seven years. (m) CHEATING. Cheating is a comprehensive term, including, in its wider signification, false pretenses, false personation, and other crimes which are specially provided for. A cheat, at coni- (s) 24 and 25 Vict., c. 98, § 3 : v. also national debt act, 1870 (33 and 34 Viofc., c. 58, §4); India stock (26 and 27 Vict., c. 73, g 14); com- panies act, 1857 (30 and 31 Vict., c. 131, g 35). (0 37 and 38 Vict., c. 36, g 1 ; v. also § 2. {u) 24 and 25 Vict., c. 98, g 34. Voters at elections, parliamentary , and municipal, 35 and 36 Vict., cc. 33, 60; 5 and 6 Wm. 4, c. 76; 6 and 7 Vict., c. 18. FALSE PRETENSES. 201 mon law, is the fradulent obtaining the property of another by any deceitful and illegal practice or token wliich affects or may affect the pubUc.{z) Thus, the leading characteristic of such a cheat is the publicity of its effects. Therefore, a cheat or fraud effected by an unfair dealing and imposi- tion on an individual is not the subject of an indictment at common law. Of course many acts of cheating are not punishable at all by the criminal law; the person wronged being left to his remedy by civil action. The chief classes of offenses regarded as cheats at common law are the following : Against public justice, e. g., counterfeiting a discharge. Against public health, e. g., selling unwholesome pro- visions. Against public economy, e. g., by using false weights or measures. There must be a plausible contrivance, as in the last in- stance, against which common prudence could not have guarded. Thus, though selling by false weights or meas- ures is a misdemeanor, selling under weight is merely ac- tionable. [Cheats indictable at common law were effected by the use of false weights or measures, by false personation, .by mixing deleterious ingredients with food for public sale, or other visible false token or device. A cheat by a mere false alErmation, whether oral or written, was not indictable at common law. Pinckney's case, 2 East. P. C, c. 18, § 2; E.ex V. Lewis, Sayer, 205 (also reported in 3 Burr. 1697) ; Regina v. Jones, 1 Salk. 379 ; Rex v. Bryan, 2 Str. 866. And a fictitious order for the payment of money was held to be a mere false affirmation. Rex v. Lara, 6 T. R. 565. As was marking on a cask a false statement of the number of gallons contained in it. Rex v. Wilkers, cited, 2 Burr. 1128. The crime of false pretense, obtaining goods by a mere false affirmation, oral or written, was created in 1757 by statute (30 Geo. 2, c. 24), and has been more fully de- fined by subsequent English and American statutes.] {x) V. 2 Russ. 604. 202 FALSE PRETEKSES. Apart from the common-law crime, a great multitude of statutes are designed to restrain and punish particular de- ceits, or deceits in particular trades. Amongst the more general we may notice the laws preventing cheating by : Counterfeit trade-marks. (2/) Fraudulent conveyances. (z) The general punishment for this misdemeanor is fine or imprisonment, or both. {y) V. p. 105. (z) 13 Eliz., c. 5; 27 Eliz., c. 4. For other common law cheats, v. 2 Euss. 604, et seq. BURGLARY, ETC. 203 CHAPTER IV. BURGLARY, ETC. The offense of burglary (in the strict signification of the term) is thus defined at common law : The breaking and entering of the dwelling or mansion-house of another in the night time, with intent to commit a fe]on3'.(a) The limits of burglary proper have been extended; and the .punishment of other crimes closely connected with bnrg- lary has been also separately provided for by statute. The crime is thus described in the larceny act : ''Whosoever shall enter the dwelling-house of another, with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein, and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burj2:lary."(6) [The statutes of Kentucky do not define burglary, but only declare the punishment. Hence the common-law defi- nition prevails. The statute of Ohio, with the interpreta- tion given by the courts to its words, includes not merely dwelling-house, but almost every sort of erection, as well as watercraft and railroad cars. 74 Ohio L. 248. " Barn " includes a building erected and used on a farm for drying and storing tobacco, liatekin v. State, 26 Ohio St. 420. "Factory " includes an inclosed building used for deposit- ing ashes therein and converting the same into potash. (a) 3 Inst. 63. {b) 24 and 25 Vict., c. 96, § 51. " This is an excellent instance of the way in which, by the combined operation of common and statute law, definitions are made, as it were, to stand on their heads. The com- mon law being a very rude system, involving great severity of punish- ment, affixed special names to complications of crimes. The statute law took up the complicated definition as the starting point, and in- serted minor offenses to fill up the gap left by the common law." — Fitz. St. 139. 204 BURGLARY, ETC. Blackford v. State, 11 Ohio St. 327. "Store-house" in- cludes a room occupied as a news depot. Barr v. State, 25 Ohio St. 70. The name by which the structure must be described in the indictment is not the original designation of the structure when it was erected, or by which it may still be known, but must denote its substantial character as fixed b}' the use to which it is appropriated at the time of the breaking and entering. Thalls v. State, 21 Ohio St. 233. It is a felony to maliciously and forcibly break and enter in the night, with intent to commit a felony, or to steal any value, or to maliciously enter either day or night, with in- tent to commit a felony. The Indiana statute names "mansion-house, store-house, manufactory, office, shop, out-house, or boat." 2 Eev. Stat. (1876), 431. The Illinois statute includes all build- ings, railroad cars, watercraft, or wharf-boats ; and also in- cludes " willfully and maliciously, without force (the doors or windows being open), entering, etc. Eev. Stat. (1877), 354. In Michigan, it is a felony, with various degi'ees of punishment, (1) to break and enter a dwelling-house in the night time, with intent to commit a felony therein, or hav- ing entered with such intent, to then break such dwelling- house, any person being lawfully therein, the oftender being armed with a dangerous weapon, or so arming himself in such house, or making an actual assault on any person law- fully therein ; (2) to so break and enter, the offender not being so armed, nor so arming himself, nor making such assault ; (3) to break and enter in the night time, with such intent, any office, shop, store, railroad depot, warehouse, mill, school-house, or factory, not adjoining or occupied with a dwelling, or any vessel within the hodj of a county ; (4) to enter in the night time, without breaking, or to break and enter in the day-time, with such intent, any structure, etc., named in the preceding sections, the owner or other person lawfully therein being put in fear ; and (5) if the act be as described in (4), except that no person lawfully therein is put in fear, it may be punished as a felony, or as a misdemeanor. Rev. Stat. (1871), 2080, 2081. 205 In Iowa, it is burglary to break and enter a dwelling-bouse in the nigbt time, witb intent to commit a public offense; or having so entered, with such intent, to break such dwell- ing in the night. It is an aggravation of the crime if the offender be armed, or arm himself with a dangerous weapon, or actually assault a person lawfully therein, or have any confederate present, aiding and abetting. It is also felony to, with intent to commit any public offense, break and enter in the day-time, or enter without breaking in the night time, any dwelling-house, or at any time to break and entei- any office, shop, store, warehouse, railroad car, boat, or vessel, or any buildings in which any goods, merchandise, or valuable things are kept for use, sale or deposit. Rev. Stat. (1873), 605. In Ohio, it is a misdemeanor to maliciously break and enter in the day time, with intent to steal ; or, in the night .season, to unlawfully break open and enter any house or watercraft in which any person resides or dwells, and com- mits or attempts to commit personal violence, or is so armed with a dangerous weapon as to indicate such inten- tion ; or in the day-time to unlawfully break open and en- ter any such dwelling, and commit or attempt to commit any personal abuse. 74 Ohio L. 249.] Four points present themselves for consideration : the time, place, manner, and intent. i. Time. — Formerly great uncertainty existed as to what constituted night — whether it was the interval between sun- set and sunrise, whether it included twilight, etc. The mat- ter has been settled by statute. As far as regards burglary and other offenses treated of in the larceny act, the night is deemed to commence at nine o'clock in the evening, and to conclude at six o'clock on the following morning. (c) Both the breaking and the entering must take place at night. If either be in tlie day-time, it is not burglary. But the breaking may take place on one night, and the enter- ing on another, provided that the breaking is with intent (c) 24 and 25 Vict., c. 96, g 1. 206 BURGLARY, ETC. to enter, and the entering is with intent to commit a fel- onj.{d) ["For the purpose of thjs distinction, the night, in very tmcient times, was deemed to begin with the setting and end with the rising of the sun ; but the common-law rule now is, and for a long lime has been, that those portions of the morning and evening in which, while the sun is below the horizon, sufficient of his light is above for the features of a man to be reasonably discerned, belong to the day. Light reflected from the moon is not to be taken into account ; therefore, it is not always day when one's face may be seen. The law recognizes no middle space between day and night; but, when one begins, the other ends." 1 Bishop Crim. Law, § 293, where the authorities are cited. The same statement is given by Gabbett. 1 Crim. Law, 169.] ii. Place. — It must be the dwelling-house of another. To constitute a dwelling-house, for the purposes of the stat- . ute dealing with burglary and similar offenses (the larceny act), the house must be either the place where one is in the habit of residing, or some building between which and the dwelling-house there is a communication, either immediate or by means of a covered and inclosed passage leading from the one to the other; the two buildings being occupied in the same right.(e) It must be the house of another ; there- fore, a person can not be indicted for a burglary in his own house, though he breaks and enters the room of his lodger, and steals his goods. The decisions as to what places satisfy the requirements of burglary have been numerous, and, to some extent, con- flicting. We may gather the following facts : The building must be of a permanent character ; there- fore, a tent or booth will not suffice, although the owner lodge there. The tenement need not be a distinct build- ing ; thus, chambers in a college or inn of court, will suf- fice. As to the nature of the residence which is necessary.— (rf) R. V. Smith, R. & R. 417. (e) R. V. Jenkins, R. & R. 224; 24 and 25 Vict., c. 98, g 53. BtJRGLART, ETC. 207 The temporary absence of the tenant is not material, if he has an intention of returning, thougli no one be in during the interval. It will suffice if any of the family reside in the house, evens, servant,(/) unless the servant is there merely for the purpose of protecting the premise. ((7) It seems that sleeping is necessary to constitute residence. (/;) In the case of hiring a part of a house, the part let off" may be considered as the dwelling-house of the hirer, if the owner does not himself dwell in the house, or if he and the hirer enter by different doors ; that, is, of course, pro- vided that the hirer satisfies the other requirements of resi- dence given above. If he does not, the place can not be the subject of burglary at all; it is not the dwelling-house of the lodger or tenant, because there is no residence; nor of the owner, because it is severed by the letting.(i) But, if the owner himself, or any of his family, lie in the house, and there is only one outward door at which they and the lodger enter, the lodger is regarded as an inmate, and, therefore, the house must be described as that of the owner, (/i;) At common law, a church might be the subject of bur- glary ; but this «ase is now specially provided for by stat- ute.0 iii. Manner. — There must be both a breaking and an en- tering. As to the breaking. — It must be of part of the house ; therefore, it will not suffice, if only a gate admitting into the yard is broken. But the breaking is not restricted to the breaking of the outer walls, or doors, or windows ; if the thief gains admission by the outer door or window be- ing open, and afterward breaks or unlocks an inner door, for the purpose of plundering one of the rooms, it is bur- glary.(w) This will apply especially to the case of servants, lodgers, etc., who are lawfully in the house. Breaking ( /■) n.v. Westwood, R. & R. 495. Ig) E V. Flannagan, R. & R. 187. (A) R. v. Martin, R. & R. 108. (i) V. Arch. 5'23, 52t, and cases quoted there. (h) V. R. V. Rogers, 1 Leach. 89. (0 v. p. 211. (m) R. V. Johnson, 2 East, P. C. 488. 208 BURGLARY, ETC. chests or cupboards does not satisfy the requirements of burglary. The breaking is either actual or constructive. Actual, when the offender, for the purpose of getting admission for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in the wall of a house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting the latch, or unlooses any other fastenings to doors or win- dows which the owner has provided. (n) It is not burglary if the entry is made through an open window or door, or through an aperture (other than a chimney), pro- vided that the thief does not break any inner door. ISTor is raising a window which is already partly open ; but it has been decided that the lifting the flap of a cellar which was kept down by its own weight was burglary.(o) [To push open a close but unfastened transom, over the top of an outer door, is a breaking, although the transom has a but- ton or catch for the purpose of fastening it.(l)] The breaking is constructive, where admission is gained by some device, there being no actual breaking. As, for example, to knock at the door and then rush in under pre- tense of taking lodgings, and fall on and rob the landlord; 01" to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house. These are breaches sufficient to constitute burglary, for the law will not suffer itself to be trifled with by such evasions. (p) So for servants to conspire with a robber, and let him into the house at night, is a burglary in both. To obtain admission to a house by coming down the chimney is sufficient, for the chimney is as much closed as the nature of things will admit ; but getting through a hole in the roof left to admit light is not.(g') As to the entry. — The least degree of entry with any part of the body, or with any instrument held in the hand, will (n) 3 Inst. 64 ; 1 Hale, P. C. 552. (0) R. V. Russell, 1 Mood. C. C. 377. (p) 4 Bl. 226. (?) R. V. Brioe, R. & R. 450. (1) Timmons v. State, 34 Ohio St. 426. BURGLARY, ETC, 209 suffice; for example, stepping over the threshold, putting a finger or hook in at the open window in order to abstract goods. [But it must be an instrument used for effecting the ulterior felony ; for if the instrument used merely to effect the breaking should in that act penetrate tlirough tlae door or window so as to project within, that would not be an entry. Hughes's case, 1 Hale, 555 ; Rex v. Rush & Ford Russ. & Ry. C. C. 341 ; Rex. v. Roberts, Car. Crlm. L. (.3d ed.) 293. To break the glass window and thrust the hand through it for the purpose of opening the inner shutter, is an entry. Rex v. Bailey, Russ. & Ry. C. C. 341. But to break an outside sliutter and insert the hand through it to open the closed window, is not an entry. State v. McCall' 4 Ala. 643. The glass window in both cases was held to be the barrier. But if the glass window were open and the outside shutters or blinds were closed, then they would be the barrier. Commonwealth v. Stephenson, 8 Pick. 354.] Though formerly there were doubts on the subject, it is now provided by statute that it is burglary for a person who has entered the dwelling-house of another with intent to commit a felony thei'ein, or for a person who in such dwelling-house (e. g., a servant) has committed a felony therein, to break out.(r) When the breaking with intent to commit a felony is proved, but there is no i>roof of entry, the jury may con- vict the prisoner of an attempt to commit burglary.(.s) iv. The intent. — To constitute a burglary, there must be an intent to commit some felony in the dwelling-house, otherwise the breaking and entry will only amount to a trespass. (if) It must be either proved from' evidence of the actual commission of the felony, or implied from some overt act if the felony is not actually carried out. For it is none the less burglary because the felony which is in- tended is not perpetrated. [Recent, unexplained possession of goods stolen at the time of the burglary is competent evidence to be submitted to the jury for the purpose of ()■) 24 and 25 Vict., c. 96, § 51. {s) B. v. Spanner, 12 Cox, 561. (0 1 Hale, P. C. 561. 14 210 BURGLARY, ETC. raising a presumption of fact that the person having such possession is guilty of burglary. Methard v. The State, 19 Ohio St. 363 ; Prince v. State, 44 Texas, 480.] Burglary is a felony, punishable by penal ser\'itude to the extent of life.(u) Two or three crimes connected with the subject of bur- glary remain to be considered : Entering a dwelling-house in the night, with, intent to com- mit a felony — the offense differing from burglary, inasmuch as there is no breaking — is a felony, punishable by penal servitude to the extent of seven years.(2;) Being found by night armed with any dangerous or offen- sive weapon or instrument, with intent to break or enter into any dwelling-house, or other building whatsoever, and to commit a felony therein (N. B. An intent either to break or to enter will suffice, also that the offense is not confined to dwelling-houses. Proof must be given of an in- tent to break into or euter a particular building; proof of a general intent will not suffice) ; (y) or, being found by night in possession, without lawful excuse, of auy house- breaking implement, or being found with the face blackened or otherwise disfigured, with intent to commit a felony ; or, being found by night in any dwelling-house or other build- ing with intent to commit a felony therein, is a misde- meanor, punishable by penal servitude to the extent of five jears.{z) If any of the above misdemeanors be committed after a previous conviction for felony, the penal servitude is from seven to ten years ; if after a previous conviction for one of such misdemeanors, the penal sertitude is from five to ten years, (a) HOUSE-BREAKING. The chief distinction between this crime and burglary is that the former may be committed by day, the latter by (u) 24 and 25 Vict., c. 96, g 52. (x) Ibid., § 54. (y) R. V. Jarrald, 32 L. J. (M. C.) 258. (z) 24 and 25 Vict., o. 96, § 58. (a) Ibid. § 59; 27 and 28 Vict., o. 47, § 2. BtTRGLAEY, ETC. 211 night only. There is also a difference to be noticed as to the structure which may he the subject of the crimes. ■House-breaking extends to school-houses, shops, ware- houses, and counting-houses, as well as dwelling-houses, also any building within the curtilage of a dwelling-house and occupied therewith, but not being part thereof, accord- ing to the provision of section 53, noticed above. (6) This crime consists in the breaking and entering any such house with the intention of committing a crime therein, or in the case of one being in such house, committing a felony therein, and breaking out of the same. The breaking and entering will be proved, as in burglary. RECAPITULATION. Inasmuch as there is great danger of confusion and con- siderable intricacy in the definitions, it will be well to re- capitulate the distinctions between certain crimes partaking of the general character of fraud. A few general remarks on the class, as a whole, will be added. First, as to larceny and embezzlement. The gist of the lat- ter offense is that, in the case of appropriation by a servant or clerk of money or chattels received by him for his mas- ter or employer, such money or chattels are not, at the time of appropriation, in the actual or constructive posses- sion of the }Tiaster or employer; or, in other words, the prisoner intercepts the property on its way to the possession of the master or employer. In more than one direction does this crime very closely border on larceny. Thus diffi- cult points may arise on the questions — whether the appro- priator were a servant; whether the master was in posses- sion of the property, etc. [Goods in the hands of a bailee are not in the possession of the owner, but are in possession of the bailee. Hence, a conversion of such goods by the bailee, he having originally obtained possession in good faith, can not be larceny, but may be embezzlement. But {b) 24 and 25 Viot., c. 96, § 55; v. p. 206. 212 goods of the master, while in the hands of the servant, are in the possession of the master, and only in the custody of the servant. Hence a conversion of such goods, by the servant is larceny, not embezzlement. But goods which have not yet been in the possession of the master, are, when delivered to his servant, in the possession of the servant ; and if the servant convert them before completion of the transit to the master's possession, such conversion is lar- ceny, and not embezzlement.] Between larceny and false pretenses the main distinction is, that in the former the jiroperty is not passed by the owner to the thief (and generally the possession is not in- tended to be passed); while in. the latter, the property is passed to the defendant, but this is brought about by fraud. Here, again, subtle questions arise as to the authority to pass the property, etc. [The occasion for a distinction exists only between false pretenses, and larceny by fraud. If by false pretense the owner is induced to part with his property in the goods, as well as his possession of them, the oft'ense is obtaining goods by false pretenses. But if he is induced to part with possession only, but with the intent, on the part of him who makes the false pretense, of usurping the property in the goods also, the crime is larceny.] The distinction of robbery from other kinds of larceny is, tliat in the former case there must have been a felonious taking from the person, or in tiie presence of another, ac- companied either by violence or a putting to fear. In burglary there is a limitation in certain respects not necessary in simple larceny: as to the iin).e, viz., at night; as to the place, viz., a dwelling-house ; as to the manner, viz., the breaking and entering, or breaking out. In one point burglary is wider in its scope — there need not be an actual larceny; it will suffice if there is an intent to com- mit a felony. Between burglary and house-breaking the distinction is that the former must be committed at night, and is more lim- ited with respect to the buildings which are its subjects. Between house-breaking and larceny in a dwelling-house BURGLARY, ETC. 213 there is the distinction as to the breaking, and also as to the building, as to which the latter crime is on the same footing as burglary. Sir James Stephen(o) proposes a comprehensive definiticm of theft, to inclnde not only all that usually now goes by the name of larceny, but also embezzlement, obtaining by false pretenses, and other " illegal and malicious transfers of any of the advantages, derived from property, from the person entitled to them to some other person ;" thereby abolishing " five or six useless and intricate distinctions between cognate crimes," and doing away with "all the technicalities about the kinds of property which are the eubjects of larceny, and with those which arise out of the obscure doctrine of possession." The definition is : " To steal is unlawfully, and with in- tent to defraud, by taking, by embezzlement, by obtaining by false pretenses, or in any other manner whatever to ap- propriate to the use of any person any property whatever, real or personal, in possession or in action, so as to deprive any other person of the advantage of any beneficial inter- est at law, or in equity, wijich he may -have therein." This definition " would include a great variety of fraud- ulent breaches of trust, many of which are now unpun- ished, or are punished, if at all, by special enactments, the construction of' which is doubtful." The chief points in which it differs from the existing law are two : (a) " It takes, as the test of criminality, an intention to defraud at the time of appropriation of the property, and not at the time of its asportation." It is obvious that the moment of appropriation is the really critical time, (b) " It views, as the subject-matter of larceny, the beneficial interest of the proprietor, and not his specific right of possessing a spe- cific thing." Thus the temporary use of an article would be as much the subject of larceny, if obtained with the in- tent to defraud, as the absolute permanent deprivation. (o) Gen. View of Grim. Law, 129. 214 FORGERY. CHAPTEE Y. FORGERY. roRGEHY may be described, in general terms, as the false making (or alteration) of an instrument (or pai't thereof) which purports on tbe face of it to be good and valid for the purposes for which it was created, with a design to de- fraud, (p) The statute law on this subject is chiefly contained in one of tbe consolidated acts of 1861 — the forgery and false personation act.(g) These laws are not careful to bring themselves within the compass of any definition ; and they frequently deal with oft'onses which do not strictly fall under the principal heading. Thus, in the forgery act, we shall find noticed many ofi'enses which, " though not amounting to forgery, facilitate, or are steps toward, the commission of that crime, or are of a somewhat similar nature." It may be premised that forgery is very closely allied to obtaining by false pretenses. (r) Indeed, " if there were no special provisions on the subject, many cases of forgery would be punishable as cases of obtaining money by false pretenses." (s) It is needless to say that forgery is treated as a much more serious crime than false pretenses. We shall, in the first place, notice with what instruments the statute deals, and what are left to the punishment at common law; and then examine the nature of the crimes which may be committed with regard to these instruments. The statute is a model of excessive and needless intri- cacy. It consists of fifty-six sections, of which about half are merely enumerations of particular classes of instruments (p) V. 2 East, P. C. 991 ; 4 Bl. 247. (q) 24 and 2J Vict., c. 98. When merely a section is quoted in this chapter it must be understood to be a section of this statute, (r) V. p. 197. (s) Fitz. St. 141. FORGERY. 215 which it is felony to forge. Inasmuch, as in almost every case the punishment is the same, " the greater part of the law is perfectly needless, and might be condensed into one section, as follows : ' Whosoever maliciously, and for the purpose of fraud or deceit, shall forge any thing written, printed, or otherwise made capable of being read, or utter any such forged thing, knowing the same to be forged, shall, upon conviction, be sentenced to penal servitude for life, or for any term not less than three(t) years, or to im- prisonment, with, or without hard labor, for any term not exceeding two years.' "(u) [In Ohio, it is felony to, with intent to defraud, falsely make, alter, forge, counterfeit, print, or photograph any of a numerous list including perhaps every vmting that can be basis or evidence of an enforcible right, or any draft or survey of land ; or knowingly utter or publish such when so made ; or use or attempt to use in any way any paper purporting to be of an ofEeial character and to be signed by the governor by stamp or press. It is a misdemeanor to counterfeit, forge, or alter, etc., any ticket, coupon, or pass, whether printed, written, litho- graphed, or engraved for passage on any railroad or toll bridge, or knowingly to have such in possession or to utter the same ; also to obliterate the punch marks or other can- cellation of any such ticket or pass that has been canceled with intent to dispose of the same or to defraud, or know- ingly utter any such having the cancellation obliterated; or for a conductor or toll-keeper to fail to cancel tickets, etc., after taking them up; or to maliciously alter, deface, mutilate, destroy, abstract or conceal any public record, or to forge or counterfeit any wrapper, label or trade-mark. 74 Ohio L. 290-294. In Kentucky, besides special provisions making it felony to forge or counterfeit, any public security, the otlicial seal of the United States or of any of the States, or of any pub- lic officer of any of them, or the stamp, brand, or certifi- cate of any inspecting officer, or any of a list of private (0 Now five. (m) Fitz. St. 142. 216 FORGERY. writings, there is a general provision making it felony to forge or counterfeit any writing whatever, whereby fraud- ulently to obtain the possession of or to deprive another of, any money or property, or canse him to be injui'ed in his estate or lawful rights, or to utter and publish such instru- ment, knowing it to be forged and counterfeited. Rev. Stat. (1877), 330-332. In Indiana, forgery is a felony, and embraces the forging of any of an enumerated list of wiitings public and pri- vate, " or any other instrument in writing, or any lawful brand on a tobacco, beef, bacon or pork cask, or lard keg or barrel, salt barrel or hay-bale," or knowingly uttering or publishing the same with intent to defraud any person or any body politic or corporate, or forging or counterfeit- ing any gold or silver coin current in the state, or uttering such counterfeit coin or any forged or counterfeit bank- note, bill, or other treasury note with intent to defraud any person ; also for any justice of the peace to affix his name to any blank form of affidavit or certificate of acknowledg- ment, deliver the same to be filled up and used, and for any person to fill and use the same. 2 Rev. Stat. (1876), 439- 442. And it is a misdemeanor to forge or counterfeit any wrapper or label or stamp used by a mechanic or man- ufacturer to his products, with intent to defraud either a purchaser, or the manuf icturer or mechanic. lb. 486. In Illinois, it is felony to forge or counterfeit any of a long list of enumerated writings, instruments, tickets, and passes, public and private, or any other written instrument of another, or purporting to be such, by which any pecu- niary demand or obligation, or any right in any property, is, or purports to be, created, increased, conveyed, trans- ferred, diminished, or destroj^ed ; or to counterfeit the handwriting of such another, with intent to defraud any person, body politic or corporate, whether resident in the state or elsewhere; or to make, forge, or counterfeit, or utter, or receive or have in possession to utter, when so forged or counterfeited, any public security issued, or pur- porting to be issued, by the United States, or by any state or territory or bank ; or to utter, or have in possession with FORGERY. 217 intent to utter, any fictitious bill, note, or clieck; or to fraudulently connect together diflferent parts of several genuine instruments, so as to produce one additional note or instrument, with intent to pass all as gemiine. Eev. Stats. (1877), 364, 365. In Iowa, the crime is substantially the same as in Illi- nois, except that the intent is, in general, "to defraud," as in Ohio. Eev. Stat. (1873), 609-612. It is also forgery to counterfeit the brand or mark of a public inspector of shingles or lumber. lb. 377. This is in addition to the general provision (p. 612), making it forgery to counterfeit any stamp or brand authorized by law. The statute of Michigan has no general clause, "or any other instrument or writing;" and, the act being passed in 1846, and amended in 1849, the list of instruments which may be the subject of forgery does not specify the treasury notes or other obligations of the United States, or of any .« state otherthan Michigan. It does specify, " any bank bill or promissory note, paj'able to the bearer thereof, or to the order of any person, issued by any incorporated banking company in this state, or in any of the British Provinces of North America, or in any other state or country, or pay- able therein, at the office of any banking company incor- porated by any law of the United States or of any other state." Fraudulently affixing a fictitious signature to an instrument purporting to be made by a corporation, with intent to pass it as true, though no such person may have ever been officer or agent of such corporation, or have ever existed ; also, connecting together fragments of several gen- uine instruments, so as to produce an additional instrument, with intent to pass them all as genuine, is forgery. It is sufficient, in an indictment, to allege, in general, an intent to defraud, without naming any person ; and it shall be sufficient to prove an intent to defraud the United States, or any state, county, city, or township, or any public officer, or copartnership, or person. Forging, or knowingly uttering what is forged, or know- ingly having in possession, with intent to utter, two or more similar false or counterfeit notes or bills, is punished' 218 FORGERY. either by confinement in the state prison or in the county jail.] So much for forgeries provided against by particular statutes. Forgery at common law is a misdemeanor, pun- ishable by fine or imprisonment, or both. It is only in virtue of the particular statute that any foi-gery is made a felony; the facility with which certain forgeries can be perpetrated, and the dangerousuess of their tendency, ne- cessitating this course. Cases of forgery which have not been specially dealt with by statute are nevertheless crimes, and left to their punishment at common law; for example, forging a testimonial to character in order to obtain an ap- pointment, (e) In viewing the crime generally, we shall have to treat of two classes of acts, each entailing the same consequences, and both usually appearing in different counts of the same indictment. i. The actual forgery. ii. The knowingly uttering the forged instrument. i. The forgery. — As to the insirwrneni itself. It must have some apparent validity, that is, it must purport on the fiice of it to be good and valid for the purpose for which it is created. So that a bill of exchange which, for want of sig- nature, is incomplete, can not be the subject of forgery, be- cause the defect is on the face of the instrument.(/) But there need not be an exact resemblance ; it will be suffi- cient if it is capable of deceiving persons of ordinary ob- servation. (^) The forgery must be of some document or writing; therefore the painting an artist's name in the corner of a picture, in order to pass it ofi^' as an original picture by that artist, is not forgery. (A) [It is not indictable to forge a letter of introduction " to any railroad superin- tendent," bespeaking courtesies to the bearer,(l) or a will (e) E. V. Sharman, 23 L. J. (M. C.) 51. (/) B. V. Pateman, R. & E. 455. (ff) R. V. Collioott, R. & R. 212 ; [Commonwealth v. Stephenson, 11 Cush. 4S1 ; Wilkinson v. State, 10 Ind. 372.] (A) R. V. Closs, 27 L. J. (M. C.) 54. (1) Waterman v. People, 67 111. 91. FORGERY. 219 attested by a less number of persons than the law requires. (1) But the mere prohibition of the circulation of foreign bank bills does not prevent the counterfeiting them from being forgery. (2) But where such circulating of them is made a crime, then the counterfeiting of them is not forgery.(3) It is forgery to falsely make bank bills of a denomination which the bank has never issued, if the bank has authority to issue such.(4) A paper that does not show on its face that it has validity may be shown by innuendo, or aver- ment of extrinsic circumstances, to have validity. Eut in such case, if the extrinsic circumstances are not averred in the indictment, there is no sufHcient charge of a forgery, and judgment would be arrested after verdict against the defendant. (5) J As to what fabrication will constitute a forgery. — It need not be of the whole instrument. Very frequently the only false statement is the use of a name to which the defendant is not entitled. It does not matter whether the name wrongly applied be a real or a fictitious one.(/) And a per- son may be guilty of .forgery by making a false deed in his own name, as when a person has made a conveyance in fee of land to A., and afterward makes a lease for 999 years of the same land to B. of a date prior to that of the convey- ance to A., for the purpose of defrauding A., the latter deed is a forgery.(^) Even to make a mark ill the name of an- other person, with intent to defraud that person, is ibrgei'y.(?) Of course, the forgery need not be in the name : it may equally- be in some other part of the instrument. For ex- ample, it is forgery to fill in without atithority a form of check already signed, with blanks left for the insertion of (i) E. V. Lockett, 1 Leach, 94. (k) R. V. Hitson, L. E., 1 C. C. E. 200; 39 L. J. (M. C.) 10. (0 E. V. Dunn, 1 Leach, 57. (1) States. Smith, 8 Yerg. 150. (2) Thompson v. State, 9 Ohio St. 354. (3) Guchins v. People, 21 111. C42. (4) State V. Fitzsimmons, 30 Mo. 236 ; Trice v. State, 2 Head, 591. (5) Commonwealth v. Eay; 3 Gray, 441 ; People v. Shall, 9 Cow. 778; Carberry «. State, II Ohio St. 410; State v. Humphreys, 10 Humph. 442; Eembertv. State, 53 Ala. 467. 220 FOKGEEY. the sum.(m) [Or to alter the date of an accepted bill, so as to show an earlier day of payment ;(1) or to put an address to the name of a drawee of a bill of exchange with intent to make the acceptance appear to be that of a different per- son ;(2) or to tear off a condition whereby a non-negotiable instrument is made negotiable. (3) But the alteration must be material. Hence it is not forgei'y to falsely affix the name of a witness to a paper which the law does not re- quire to be attested ;(4) nor to add to an instrument words \\hich the law would supply. (5) J ISTot only a fabrication, but even an alteration, however slight, if material, will constitute a forgery ; for example, making a lease of the manor of Dale appear to be a lease of the manor of Sale by changing the D to S ;(«) making a bill of exchange for £8 appear to be for £80 by adding a cipher. (o) [But the destruction of an entire instrument is not a forgery. Hence the obliteration of a release indorsed on a bond was held not to be a forgery. (6)] It must be proved that the alleged forgery was intended to represent the handwriting of the person whose hand- writing it appears to be and is proved not to be, or that of a person who never existed. How is it to be proved that it is not the handwriting of the person of whom it purports to be? The most natural evidence is the denial of such person on his being produced as a witness. Even before the change in the law, which made interested parties com- petent witnesses, it was allowable to call as a witness the party whose writing had been forgcd.(^) "Whether he be or be not called as a witness, the handwriting may be proved not to be his by any person acquainted with his handwriting, either from having seen him write, or from being in the habit of corresponding with him.(g) It (m) Flower v. Shaw, 2 C. & K. 703. (n) ] Hawk., o. 70, § 2. (0) R. V. Elsworth, 2 East, P. C. 986. {p) 9 Geo. 4, c. 32. (7) V. p. S81. (1) Master v. Miller, 4 D. & E. 320. (2) Beg. V. Blenkiiisop, 2 Car. k K. 531. (3) State V. Stratton, 27 Iowa, 420. (4) State v. Gherkin, 7 Ire. 206. (5) Hunt V. Adams, 6 Mass. 519. (6) State V. Thornbury, 6 Ire. 79. FOK&ERY. 221 is also proved by statute that comparison of a dis- puted writing with avy writing proved to tlie satisfaction of the judge to he genuine, may he made by witnesses; and that such writings and the evidence of witnesses con- cerning the same may be submitted to the court and jury as evidence pf ihe genuineness, or otherwise,- of the writ- ing in dispute (r) It appears not to be settled whether an expert may give evidence as to whether the writing is in a feigned hand from its appearance. (.s) It is sufficient to dis- prove the handwriting of a person, and he need not be called to disprove an authority to others to use his name ; circumstances showing guilty l^nowledge are enough. (i) As to the ivtent to defraud. — It is not necessary to prove an intent to defraud any particular person ; it will suffice to prove generally an intent to defraud. (m) So it need not appear that the prisoner had any intention ultimately to defraud the person whose signature ho had forged, ho hav- ing defrauded the person to whom he uttered the instru- ment.(x) But it is not necessary that any person should be actually defrauded, or that any person should be in a situ- ation to be defrauded by the act.(ii) [The intent to defraud, is an intent that the false instrument shall be talcen as gen- uine. Hence the criminal intent exists, though he who ut- ters a false note or bill intends himself to protect it or take it up at maturity ;(1) or although he agrees, while uttering the paper, to take it back if it proves not to be genuine ;(2) or in case of manufacturing a deposition, he believes the statements therein to be substantially true, and he be- lieves he should obtain the judgment sought. (3) Unless statute otherwise provides, the indictment must aver an in- tent to defraud some designated person.] (r) 28 Vict., c. 18, § 8. (s) See cases in Arch. 593; Kosc. 175. (t) R. V. Hurley, 2 M. & Rob. 473. (u) § 44. (x) R. V. Trenfield, 1 F. & F. 43. 0/) R. V. Nash, 21 L. J. (M. C.) 147; [State v. Pierce, 8 Iowa, 231; Henderson v. State, 14 Texas, 503.] (1) Reg. V. Forbes, 7 C. & P. 224; Reg. v. Beard, 8 0. & P. 143; Reg. V. Geach, 9 C. & P. 499. (2) Perdue •!;. State, 2 Humph. 494. (3) State V. Kimball, 50 Maine, 409. 222 PORGERT. ii. The uttering. — In an indictment for forgery it is usual to add a second count, charging the prisoner with know- ingly uttering the forged instrument. So that if the prose- cution fail to prove the actual forgery, the prisoner maybe convicted of the uttering. The words of the consolidation act, which deals with all instruments in ordinary use, are, " olHfer, utter, dispose of, and put off." Therefore, in cases falling- within that stat- ute, it will suffice if there be a tender, or attempt to pass off the instrument; there need not be an acceptance by the other. "Where such acceptance is requisite in order to con- stitute the crime, there must be other words describing the offense, such as "pay, and put oQ'."{z) It is an uttering if the forged instrument is used in any way so as to get money or credit by it, or by means of it, though it is produced to the other party, not for his accept- ance, but for some other purpose ; for example, for inspec- tion, as where the prisoner placed a forged receipt for poor rates in the hands of the prosecution, for the purpose of in- spection only, in order, by representing himself as a person •who had paid his poor rates, fraudulently to induce the other to advance money to a third person. (a) It is imma- terial that the uttering was only conditional. [At common law, in the absence of statute, it was an indictable offense to receive forged paper with intent to fraudulently utter it ; but merely to have possession of such paper with such intent, was not indictable. The offense of uttering is not complete till the false writing passes into the hands or pos- session of some person other than the wrong-doer, his agent or servant.(l) But it need not be accepted as gen- uine ; hence the uttering was complete where a forged draft was presented for payment, and payment was refused and the draft returned to the presentor.(2) The indictment must set out exactly the forged instrument and must aver that the instrument is so set out. It is sufficient if the indict- ment avers that the indictment is " of the following," or (z) V. Arch. 598. (a) R. v. Ion, 21 L. J. (M. C.) 166. (1) People V. Rathburn, 21 Wend. 509. (2) People V. Brigham, 2 Mich. 550. FORGERY. 223 " in the following words and figures ;" but the indictment will be bad on demurrer if it only aver the instrument is of " the purport following."(l)' But by statute in Ohio, it is sufficient to set out the purport, 74 Ohio L. 335. Where the forged note as set out by its tenor in the indictment is his signed Otha X Carr, it would be error to admit in evidence mark his a note signed Oatha X Carr. (2)] mark Of course the forged character of the instrunnent, and the intent to defraud, must be proved, as on the first count for the forgery. It will be also necessary to prove that the de- fendant knew the instrument to be forged. This point is not capable of direct proof, but will be presumed from the facts of the case; for example, on its appearing that the prisoner had in his possession other forged notes of the same kind. To prove the scienter or guilty knowledge, evidence may be given that the defendant has passed other forged notes, etc. ; and it has been decided that evidence may be given of a subsequent uttering, even though that subsequent uttering be made the subject of a distinct in- dictment.(6) (6) K. V. Aston, 1 Euss. 407. (1) Dana v. Stale, 2 Ohio St. 91. (2) Brown v. People, 66 111. 344. 224 INJURIES TO PROPERTY. CHAPTER Vl. INJURIES TO PROPERTY. One of the criminal consolidation acts, 1861,(2/) "ieals ■with arson and malicious injuries to property.(2) Of these ofi'enses the present chapter will treat. ARSON. Arson is the malicious and willful setting fire to any building. The term does not strictly comprise cases of set- ting fire to other things, such as corn, ships, etc.; hut it will be convenient to treat here of them also. The statute in different sections deals with setting fire to : Churches, chapels, and other places of divine worship (§ !)• Dwelling-house, any person being therein (§ 2). House, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, storeliouse, granary, hovel, shed, or farm, or any farm building, or any building or erection used in farming land, or in carrying on any trade or manufacture; with intent thereby to injure or de- fraud any person (§ 3). Station, warehouse, or other building belonging to any railway, port, dock, or harboi', or any canal or other navi- gation (§ 4). Public building, as described in the act (§ 5). All these cases of arson are felonies, punishable by penal servitude to the extent of life. Arson in the case of any other building is punishable by penal servitude to the ex- tent of fourteen years(.a) Besides these enactments with regard to. setting fire to (t/) 24 and 25 Vict., c. 97. (2) When merely a section is quoted in this chapter it must be under- stood to refer to that statute, (a) § 6. INJURIES TO PEOPERTr. 225 buildings, there are others dealing with the burning of other kinds of property. [Arson at common law was an offense against the secu- rity of habitation. It was the willful and malicious burn- ing of the house of another. House is a dwelling, and in- cludes not only the mansion proper, but also the structures appurtenant to it. And the burning of a barn, though it be no part of a mansion, if it had hay and corn in it, was arson at common law.(l) In a civil case it was held that a building intended for and constructed as a dwelling- house, but which had straw and agricultural implements deposited in it, was neither a house nor a barn. (2) But where the entrance to a jail was through the dwelling- house of the jailer, and prisoners were sometimes suffered to lie in the dwelling, it was held the dwelling was part of the prison and the entire structure was a house.(3) The house of another was not a house owned by another, but a house which was another's to occupy. If one burned the house which he owned and occupied, he did not com- mit arson ; nor did a tenant, who burned the house which he rented and occupied. One who was in possession under an agreement for a short lease did not commit arson by burning such house.(4) But where the overseers of the poor put a pauper and his family as sole occupants into a house and let them stay there without paying rent, it was held the occupant had no interest in the house, that his possession was the possession of the overseers, and it was arson for him to burn it.(5) If the owner and occupant is temporarily absent, leaving his effects in it, the burning of it is arson. (6) But if the house be vacated without an in- tention to return, the burning is not arson. (7) A landlord (1) Sampson v. Watson, Watts & Ser. 385. (2) Elmore v. St. Briavell's, 8 B. & Ores. 461. (3) Eex V. Donnavan, 2 W. Black. 683 ; State v. McGowan, 20 Conn. 245. (4) Eex V. Breeme, 1 Leach, 220. (5) Bast, P. C. 1027. (6) .Johnson v. State, 48 Ga. 116. (7) Commonwealth v. Barney, 10 Gush. 478 ; Hooker v. Common- wealth, 13Grattan, 763. 15 226 INJUEIES TO PROPERTY. who burns the house occupied by Ms tenant, commits ar- son. (1) Where a statute makes it arson to burn a house "the property of another," a tenant in possession may be convicted for burning the house which he occupies.(2) "Where husband and wife occupy together a house belong- ing to the wife, it is not arson for him to burn it.(3) ]!Jor for the wife to burn her husband's hou8e.(4) But a servant has no possession, and he is guilty of the oft'ense if he burns the house.(5) Arson in Ohio is extended, by statute to cover any pri- vate building, the property of another, of the value of fifty dollars, any public building, any watercraft of the value of fifty dollars, any toll-bridge, any other bridge of the value of fifty dollars, and setting fire to or attempting to set fire to any thing in or near such, with intent to burn the same. It is made an equal offense to maliciously burn or set fire to any building of the value of fifty dollars, any goods or chat- tels of the value of fifty dollars, or any watercraft, the same being insured, with intent to prejudice the insurer. To maliciously set fire to or burn any stack, grain, crib, fence, boards, etc., rails, tan-bark, or timber, is felony, if the property is worth thirty-five dollars or more, and a misde- meanor, if worth less. It is also a misdemeanor maliciously or negligently to set fire to woods, prairies, or grounds, not his own, or maliciously permit fire to pass from his own, to the destruction of property of another. 74 Ohio L. 247, 248. The Kentucky statute prescribes the punishment for arson, leaving arson to be defined by the common law ; and makes it felony to willfully burn any public building, or the office or depot of any railroad or canal, gas or telegraph com- pany, any warehouse, storehouse, or any other house what- ever, or any stack, rick, or shock of grain, or any timber or wood prepared for any purpose of use or sale, or any tan- bark, bridge or causeway, any kind of mill or factory, any (1) Rex V. Harris, Foster Or. L. 113. (2) Allen v. State, 10 Ohio St. 287. (3) Snyder v. People, 26 Mich. 106. (4) Rex V. March, 1 Moody, 182. (5) Rex V. Gowen; note to 2 East P. C. 1027; and note to Pedley's case, 1 Leach Cr. Law, 246, INJURIES TO PKOPERTY. 227 railroad car, engine, wagon, buggy, carriage, threshing ma- chine, etc., or any watercraft, or to attempt to commit any above offense. If any person willfully and maliciously burn any house within the walls of the penitentiary, or any part of such house, or if any person willfully, maliciously, and imlawfully burn any occupied dwelling-house, or any char- itable institution, and death ensue from the burning of such dwelling or institution, the punishment shall be death or confinement for life in the penitentiary, at the discretion of the jury. Eev. Stat. (1877), 327, 328. In Indiana, it is arson to willfully and maliciously set fire to a dwelling-house, out-house, barn, stable, boat, water- craft, mill, distillery, manufactory, artificer's shop, store- house, room occupied as a shop or ofiice for professional business, or building of any kind, or printing office of an- other, or any public bridge, court-house, jail, market-house, church, seminary, or college or building belonging thereto, or piled cord-wood, ricks or shocks, or growing grain, or fence, of the value of twenty dollars, or any public build- ing connected with any railroad, or any bridge, or any part of the structure of a railroad ; or, with intent to defraud the insurer, to set fire to any building or structure what- ever, finished or unfinished, whatever, or any goods, wares, merchandise, or other chattels, which shall be insured against loss by fire ; and if the life of any person be lost thereby, the offender is guilty of murder in the first degree; Eev. Stat. (1876), 437, 438. Under the statute, before the amendment of 1867, it was held that an indictment for burning " a certain building called a saloon," was insufficient, for not showing for what purpose the building was occupied.(l) And that it is not arson to burn an unfinished dwelling, not yet occupied, that was not insured. (2) The statute of Illinois is nearly the same as that of Ohio, and also provides that if the life be lost in consequence of an arson, the offender shall be deemed guilty of murder, and provides that if an owner, lessee, or occupant sets fire to, or attempts to set fire to, his own premises, with intent to burn (1) State V. O'Connell, 26 Ind. 266. (2) State V. Wolfenberger, 20 Ind. 242. 228 INJURIES TO PROPEKTT. the buildiug or property of another, he shall be deemed guilty as if he burned, or attempted to burn, the building or property of another. Eev. Stat. (1877), 351. The statute of Iowa is nearly the same as that of Ohio, but has many discriminations as to the degree of punish- ment, depending upon the fact, whether the structure is in- habited or not, and whether the burning is in the night or day. It provides, also, that the statute applies to a married woman who commits any of the offenses described, though the property set fire to or burnt may belong wholly or partly to her husband. Eev. Stat. (1873), 603, 604. The statute of Michigan is, except as to the particular terms of imprisonment prescribed, substantially the same as that of Iowa. Kev. Stat. (1871), 2078-2080.] It appears to still remain a felouj'^, punishable with death, to set fire to any of her majesty's ships of war,(m) or works or vessels in the docks of the port of London ;(?i) but sentence may be recorded instead of being given openly. In viewing the crime, generally, we may notice : i. The character, moral and physical, of the setting fire, ii. The intent to defraud or injure (when that is an es- sential of the crime). i. The act must be done unlawfully and maliciously. — Therefore, no mere negligence or mischance will amount thereto. But it is not necessary that the offense should be committed from malice(o) conceived against the owner of the property.(p) For example, if the accused, intending to set fire to the house of A., accidentally sets fire to the house (m) 12 Geo. 3, c. 24, § 1. (n) 39 Geo. 3, c. 69, § 1. See also naval discipline act, 29 and 30 Vict., c. 109, § 34. (o) Here again the signification of malice as a motive, equivalent to ill-will, seems to have been present to the minds of the legislators. On the other hand, " maliciously " is to be taken in the technical sense of " with criminal intention." (p) § 58. This section applies to all offenses coming within the arson and malicious injuries act. INJURIES TO PROPERTY. 229 of B., it is equally arson, l^or is it necessary that he should have had any intention of setting fire to any one's house; he will be guilty of arson, if, intending to commit some felony of an entirely different nature, he accidentally sets fire to another's house.(^) So, also, will he be guilty, if, by willfully setting fire to his own house, he burns that of his neighbor. If the act is proved to have been done willfully, it may be inferred to have been done maliciously, unless the contrary be proved, (r) [But the wrongful act, which accidentally results in the burning of another's house, must be of a serious nature; otherwise, there will not be sufficient malice to constitute arson. Such wrongful act need not be felony.(l) But, if the act is a mere civil trespass, it is not sufficient.(2) And it has been held in the United States several times, that burning a hole in the floor of a jail, with the intent merely to effect an escape, is not arson. (3)] As to the "setting fire," from a physical point of view, there must be an actual burning of some part, however trifling, of the house, etc. To support an indictment for setting fire to a house, it will not suffice merely to prove that something in the house was burnt.(s) [If the floor is charred- in a single spot, so that the fiber of the wood is there destroyed, the arson is com- plete.(4)] ii. The intent to ivjure or defraud. — "When it is necessary to allege this, there is no need to allege an intent to injure or defraud any particular person. (i) When a person willfully sets fire to the house of an- other, the intent to injure that person is inferred from the (?) V. p. 18. (r) Bromage v. Prosser, 4 B. & C. 247. (s) R. V. Eussell, 0. & Mar. 541. (0 § 60. This section also applies to the act generally. (1) Rex V. Roberts, 2 East, P. C. 1030; Rex v. Isaacs, Ibid. 1031. (2) 2 East, P. C. 1019. (3) People V. Cotteral, 18 Johns. 115; State v. Mitchell, 5 Ire. 350; Delaney v. State, 41 Texas, 601. (4) People V. Haggerty, 46 Cal. 354. 230 INJURIES TO PROPERTY'. act. But if the setting fire is the result of accident, though the accused be engaged in the commission of some other felony, there can be no intent to defraud. It is specially declared in the arson and malicious in- juries act that its pi'ovisions apply to every person who, with intent to injure or defraud any other person, does any of the acts made penal, although the offender be in posses- sion of the property in respect of which such act is done.(M) MALICIOUS INJURY. Having noticed one of the most dangerous forms of ma- licious injury — arson — it remains to consider others which are dealt with in the same act.(x) It will be remembered that here "malicious" is to be taken in its technical sig- nification. To bring them within the pale of the crimi- nal law, all the acts which we shall notice must be done maliciously and willfully. [It was doubted whether, at common law, the misde- meanor called malicious mischief applied to injuries to real estate. The statutes which now describe in detail the acts that are indictable, include willful and malicious injury to realty as well as to animals and personal property gener- ally. And some acts, generally depending upon the pecu- niary amount of injury done, are made felonies. As these statutes are among the most frequently amended, and are in great detail, it is not needful to do more than to make this general reference. It has been held that the malice which is an ingredient of this ofi'ense, is malice against the owner of the property, not malice against the animal or other property injured. Ordinarily, the willful injuring of another's property is sufficient evidence of malice against the owner. But if it does not appear that the injury was wanton or excessive pun- ishment, or if it was done under the belief that the defendant had a right to commit it, and not from malice against the owner, it has been held that the offense was not com- («) g 59. (x) 24 and 25 Vict., c. 97. INJURIES TO PROPERTY. 231 initted.(l) Accordingly, in the English statute of 9 G-eo. 4, it was expressly provided that the offense was complete, whether the malice was against the owner or otherwise. And, in some of the states, as in Massachusetts, New York, and Ohio, cruelty to animals, whether hy overloading, or cruelly beating, or tormenting, or privation of sustenance, is made a specific misdemeanor.] (1) Rexu. Pierce, 2 East, P. C. 1072; State v. Robinson, 3 Dev. & Bat. 130; State v. Newby, 64 N. C. 23 ; Hill v. State, 43 Ala. 335 ; Hob- son V. State, 44 Ala. 381; State v. Wilcox, 3 Yerg. 278; Goforth v. State, 8 Humph. 37; State v. Enslow, 10 Iowa, 115. BOOK III. Having considered the essentials of crime in general, and examined the character of particular crimes, a second por- tion of the matter with which the Criminal Law is concerned now presents itself to our notice, namely, the proceedings, which have for their object the conviction of the guilty and the discharge of the innocent. But before entering upon the subject of Criminal Procedure, it will be well to inquire what measures the law has adopted in order to render those proceedings as far as possible unnecessary ; in other words, to treat of the Prevention of Offenses. (232) PREVENTION OF OFFENSES. 233 CHAPTEE I. PREVENTION OF OFFENSES. Under this head fall two classes of measures, differing considerably in their nature. The first is applicable chiefly in the case of those who have to some extent erred, but whom it is not deemed advisable to visit with punishment in the strict sense of the term. The second consists of gen- eral measures and provisions for the prevention of the com- mission or repetition of offenses. A. The first mode of preventing offenses may be gener- ally said to consist in. obliging those persons, whom there is probable ground to suspect of future misbehavior, to stipu- late with and give full assurance to the public that the offenses which are apprehended shall not happen. This is effected by their finding pledges or securities, which are of two kinds : i. For keeping the peace, ii. For good behavior. But in the first place we shall go over the ground which is com- mon to both. Of what does this "giving security" consist? The per- son of whose conduct the law is apprehensive is bound, with or without one or more securities, in a recognizance or obligation to the crown. This is taken by some court or by some judicial officer. The recognizance is of the nature following: The person bound acknowledges himself to be indebted to the crown in the sum specially ordered, with a condition that it shall be void if he appear in court(a) on such a day, and in the meantime keep the peace either gener- ally toward the sovereign and his people, or particularly also with regard to the person who seeks the security. Or, as is more usual, the recognizance m.ay be to keep the peace for a certain period, an appearance in court not be. ing required. If it be for good behavior — then no condi- (a) V. Arch. Q. S. 269. 234 PREVENTION OF OFFENSES. tioii that he demean and behave himself well, either gen- erally or specially, for the time therein limited, as for one or more years, or for life. If the condition of the recogni- zance is broken, in the one case by any breach of the peace, in the other by any misbehavior, the recognizance becomes forfeited or absolute. It is estreated, or extracted from the other records, and sent up to the exchequer ; the party and his sureties becoming the crown's absolute debtors for the the sums in which they are respectively bound. (6) By wboLa may these securities be demanded ? By any justice of the peace, and also by certain others who are re- garded as conservators of the peace ; for example, the judges of the queen's bench division, the coronor, sheriff, etc. They may demand the security at their own discre- tion, or at the request of a subject, upon his showing due cause. If the magistrate is unwilling to grant it, it may be obtained by a mandatory writ, called a supplicavit, which will compel him to act as a ministerial and not as a judicial officer. But this writ is seldom used ; for when application is made to the superior courts, they usually take the re- cognizance there as they are empowered to do by statute.(':-) Any person under the degree of nobility may be bound over by a justice or at the quarter sessions. Wives may demand security against their husbands, and vice versa. In- fants may demand security, and may be compelled to find security by their next friend. The proceedings are the following in case of securities granted (a) by a justice out of sessions ; (b) at the sessions. (a.) If no sessions are sitting, the person requiring imme- diate security goes before a justice, and on oath makes his complaint, which is usuallj^, though not necessarily, in writing. If the person complained of is present, he may be required at once to enter into the required recognizance ; but if not present, the magistrate issues a warrant to bring him before himself or some other magistrate. The warrant is executed by the person to whom it is directed. If the delinquent refuses to go before the magistrate, he may be put into prison without any further warrant. When he (A) 4 El. 252. (c) V. 21 Jac. 1, c. 8. PREVENTION OF OFFENSES. 235 comes before the magistrate, he must offer sureties, or else he may be committed to prison for a term not sxceediiig twelve months. (^ The form of the recognizance m chiefly in the discretion of the magistrate, both as to the number and the sufficiency of the sureties, the largeness of the sum, and the time for which the party shall be bound. (b.) By the sessions. Application may be made by tlie party requiring security at once to the sessions. And this is the more usual course. It should be made upon articles verified on oath, showing the facts to warrant it. If the person refuses, or is not prepared to enter into the recogni- zance, he may be committed. So far the two kinds of security are on the same footing. They must now be considered separately. i. For the peace. — This may be granted (a) generally on public grounds. Any justice may demand securities from the following : those who in his presence make an affray, or threaten to kill or beat one another ; or who contend to- gether with hot and angry words ; or go about with un- usual weapons or attendance to the terror of the people; also common barrators ;(f) and those who, having been bound to the peace, have forfeited their recognizance by breaking it.(/) (b) Specially, by demand of a private per- son (" swearing the peace " against another). This security may be demanded by a person when he fears that another will kill him, his wife or child, or do him other corporal injury; or will burn his house; or will procure others so to do. The fear must arise from a threat, though that threat need not be expressed in words. The magistrate is required to grant the security if the applicant swears that he is in fear of death or bodily harm, and shows that there is ground for his fear ; and swears that he is not acting out of malice or for mere vexation.(^) The recognizance is forfeited (a) if general, by any un- lawful action which is or tends to a breach of the peace; (b) if special, by any actual violence, or even terror or {d) 16 and 17 Vict, o. 30, § k (e) v. p. 83. (/) 4 Bl. 254. {g) 4 Bl. 255, 236 PREVENTION OE OFEENSES. menace, to the person of the complainant, whether it he committed directly or indirectly by the person bound ; (c) by default of appearance at the proper time, unless there be a valid excuse.(A) A mere civil trespass, or words of anger not amountiug to a challenge to fight, will not cause a forfeiture. ii. For good behavior or abearance. — This includes a surety for keeping the peace and something more. A magis- trate may biud over to good behavior all those that be not of good fame. This general term includes not only those who act contra pacem, but also those who act contra bonos mores. It will comprise the following, among others :(«) rioters, barrators ; those maintaining or constantly resort- ing to barrators ; suspected persons who can not give good account of themselves ; those who are likely to commit any crime; drunkards; cheats; vagabonds, etc.(/i;) This kind of recognizance may be forfeited for the same reasons as the former, and for others also, as by committing any of those acts of misbehavior which the recognizance was intended to prevent, though there be no actual breach of the peace; but not by barely giving fresh cause of sus- picion. Securitymay be required in two classes of cases: (a) Where no actual crime has been committed; (b) where the party of whom security is taken has been convicted of some crime. In the latter case, if punishment is awarded, the court of summary jurisdiction may order the offender, at the ex- piration of his term of punishment, or if the punishment consists of a fine, at once to enter into a recognizance to keep the peace, or for good behavior. Or again, instead of awarding any punishment, the court may order the defend- ant to enter into such recognizance. In certain cases where the defendant has been convicted of an indictable offense, namely, of an indictable offense punishable under one of the criminal consolidation acts, 1861, he may be required to enter into his own recognizances and find sureties. In each of these acts there is inserted a clause to the following {h) V. 16 and 17 Vict., o. 30, g 2. (i) v. Burn's, 759. {k) Dalton, c. 124. PREVENTION OF OFFENSES. , 237 effect : On conviction of an indictable misdemeanor punish- able under one of those acts, the court may, if it think tit, in addition to, or in lieu of, any of the punishments au- thorized in the act, fine the offender, and reqiiire him to enter into his own recognizances and to find sureties, both or either, for keeping the peace and being of good behavior. And in case of any felovy punishable under one of those acts, the court may require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to any punishment author- ized by the act. But no person is to be imprisoned under this clause for not finding sureties for any period exceed- ing one year.(Q [In Ohio, Kentucky, Indiana, and Iowa, the person ap- prehending injury makes written afiidavit before a magis- trate, who thereupon issues a warrant for the person com- plained of. When the accused is brought before the magistrate, the complaint is heard. If it does not appear that there is just cause for the complaint, the accused is discharged and recovers judgment for costs against the complainant. If it does appear that there is just cause, the accused is required to enter into recognizance for his ap- pearance at the first day of the next term of the court hav- ing criminal jurisdiction, and meanwhile to keep the peace geuei'ally and especially tow^ard the complainant. In Ohio and Indiana, the amount of the recognizance must be not less than fifty nor more than five hundred dollars. If the recognizance be not given, the accused is committed to prison, there to remain until discharged by due course of law. The court, upon the appearance of the parties, after hearing witnesses, may either discharge the accused and give judgment for costs against the complainant, or may render judgment for costs against the accused, and require him to give such further security to keep the peace and for such time as may be just; in default of giving such secu- rity, the accused is committed to jail until he complies with (0 24 and 25 Vict., c. 96, § 117; c. 97, § 73; c. 98, §51; c. 99, g 38; c. 100, § 71. 238 PREVENTION OP OFFENSES. the order or is discliarged by due course of law. In Ken- tucky, the complaint may be made in the first place before a circuit, county, or police court, which may bind the ac- cused to ke'ep the peace for oue year or less. In Illinois and Michigan, when the complaint is made, the magistrate in the first place inquires if there is probable cause, and for this purpose examines witnesses if necessary. If the magistrate is satisfied that there is danger that the oftense complained of will be committed, the warrant of arrest is issued. When the accused is brought before the magistrate, if the charge is controverted, witnesses are heard. If it appear that there is no just reason to fear, the defendant is discharged. If there is just reason to fear, the defendant is required to give recognizance with sufficient surety, in such sum as the magistrate may direct, to keep the peace generally and especially toward the complainant, for a time to be fixed, but not to exceed twelve months. From this oi'der the defendant may appeal to the court of criminal jurisdiction. Wben a person in the presence of a magistrate makes an affray or threatens to commit an offense against the person or property of another, it is not necessary to issue a warrant, or bear witnesses. The magistrate may forth- with require the oflender to enter into recognizance, and on failure so to do, to commit him to jail. This summary proceeding is not provided for in Indiana. And the sec- tion of the Ohio criminal code of 1877 which provides for it (§ 10, ch. 1) is inoperative by reason of an error in the number of a section referred to in it.j COURTS OP A CRIMINAL JURISDICTION. 239 CHAPTER II. COURTS OF A CRIMINAL JURISDICTION. [In the courts of the United States, the district court has jurisdiction of all crimes and offenses cognizable under the authority of the United States, committed within their re- spective districts, or upon the high seas, the punishment of which is not capital. Also of all cases arising under any act for the punishment of piracy, when no circuit court is held in the district of such court. (1) The circuit court has jurisdiction of all suits and pro- ceedings arising under § 5344, title " crimes," for the pun- ishment of oflacers and owners of vessels, through whose negligence or misconduct the life of any person is destroyed. Also exclusive cognizance of all crimes and offenses cog- nizable under the authority of the United States, except where it is or may be otherwise provided by law and concur- rent jurisdiction with the district courts, of crimes and of- fenses cognizable therein. (2) In the organization of courts of criminal jurisdiction in the various states, there is a general conformity, with many differences in detail. The ordinary jurisdiction of justices of the peace is, to issue warrants for the arrest of persons charged with crime ; and, on the appearance of the accused, to hear the ' com- plaint, and then either discharge the accused or bind him over to appear before the court having jurisdiction of the crime charged, and transmit to the court a transcript of his proceedings. In some states, justices of the peace have a hmited jurisdiction to hear and determine prosecutions for misdemeanors. In Ohio, the justice has final jurisdiction in cases under the act for the prevention of cruelty to animals; (3) and (1) Rev. Stats., § 563. (2 Rev. Stats., § 629. (3) 72 Ohio L. 133. 240 COURTS OF A CRIMINAL JURISDICTION. when a person accused of a misdemeanor is brought before a magistrate, on complaint of the party injured, and pleads guilty to the charge, the magistrate may, at his discretion,' sentence him to such punishment as he may deem proper, within the limits of the provision defining the offense, and order payment of costs, or bind him over to appear before the proper court.(l) In Indiana, justices of the peace have exclusive jurisdic- tion in all cases where the fine assessed can not exceed three dollars, and concurrent jurisdiction with the court of com- mon pleas [now circuit court] to try and determine all eases punishable by fine only, or by fine with discretion to im- prison ; but the justice can not impose a fine exceeding twenty-five dollars, and impose sentence of imprisonment, except to stand committed until the fine and costs be paid.(2) In Illinois, they have original jurisdiction in all cases of misdemeanor, when the punishment is by fine only, and the fine does not exceed $200, and also in all cases of assault, assault and battery, and afirays, and in cases of vagrancy. (3) In Iowa, they have jurisdiction to hear, try, and deter- mine all public offenses, less thati felony, in which the pun- ishment prescribed by law does not exceed a fine of one hundred dollars or imprisonment for thirty days.(4) In Michigan, thej'- have jurisdiction in general to hear and determine prosecutions for offenses punishable by fine ]iot exceeding one hundred dollars, or punishable by im- prisonment in the county jail not exceeding three months, or punishable by both said fine and imprisonm6nt.(5) In cities, there is ordinarily some court, called mayor's court, or police court, or some other name, which has juris- diction over violations of the ordinances of the cit}'-, to which is often added a more or less extended jurisdiction over misdemeanors. In most states there are some local courts with special criminal jurisdiction, as the Criminal (1) 74 Ohio L. 320. (2) Rev. Stat. (1876), vol. 2, pp. 669, 673. (3) Kev. Stat. (1877), p. 400. (4) Rev. Stat. (1873), p. 715. (o) Rev. Stat. (1871), p. 1622. COURTS OF A CRIMINAL JURISDICTION. 241 Court of Cook county, Illinois ; the probate court, in cer- tain counties in Ohio ; and the county courts in Illinois. In the stptes generally there is a court of plenary juiisdic- tion, civil and criminal, in which all prosecutions under the laws of the state may be tried. This court is called, in Massachusetts, the superior court ; in 'New York, the su- preme court; in Ohio, the court of common pleas; in Iowa, the district court ; in Kentucky, Indiana, Illinois, and Michi- gan, the circuit court. In Massachusetts, the supremo court, which is there the court of ultimate resort, has exclusive original jurisdiction in capital cases.] SKETCH OF A CRIMINAL TRIAL. We propose now to discuss, in their proper order, the various steps taken to secure the punishment of a criminal who is guilty of a felony or misdemeanor, in other words, to examine the proceedings in an}'^ ordinary criminal case.(2/) But before doing this, it will be well to sketch a rough outline or map of the whole ground to be traversed before the offender suii'ers his punishment. The first thing to be done is to lay hold of the prisoner or to arrest him. When he is arrested and bi-ought before the magistrates, if they think the case ought to be sent on to trial, he is committed for trial ; the magistrates either at once committing him to pi'ison to await the trial, or allow- ing him to remain at large on his finding sufficient bail to insure his appearance when he is wanted. . What particu- lar mode of prosecution is to be adopted must be considered, as there are sevei'al ways of formal accusation. In most eases the prisoner will now be forthcoming to take his trial ; but either on account of his having avoided the war- rant of arrest, or because he has been admitted to bail and does not surrender, process must issue to bring him into (y) That is, a case which is not dealt with summarily before the magistrates, or specially before some exceptional tribunal, as the House of Lords. 16 242 COURTS OF A CRIMINAL JURISDICTION. court. For some good reason it may be desirable to re- move the trial to the supreme crimiual court by a writ of certiorari. The day of trial having arrived, the prisoner is arraigned, or called to the bar of the court to auswcr the charge against Ijim. If he does not confess, or stands mute, he will then show in what way he proposes to meet the charge [whether by moving to quash the information or indictment on the ground of some fatal irregularity'], by demurring to the sufficiency, in point of law, of the charge ; or by pleading some particular obstacle to his be- ing convicted ; or, generally, that he is not guilty. Issue is then joined, and the trial of the question in point takes place. The prisoner is said to be convicted on the jury finding a verdict of guilty; and judgment, and the other consequences of this couviction, follow. The effects of this j udgment will, however, be avoided by its being reversed, or by the prisoner being reprieved or pardoned. Lastly, if the prisoner has been convicted of a capital crime, he must sufler execution. AKRBST. 243 CHAPTER III. AREEST. The apprehending ox- restraining of a man's person, in order to insure his being forthcoming to answer an alleged or suspected crime.(^) Any person is liable to an arrest on a criminal charge, provided he is charged with such a crime as will at least justify holding him to bail when taken. An arrest may be made either : A. By warrant. B. "Without warrant. Here we shall have to distin- guish three cases. "Where the arrest is (a) by an officer; (b) by a private person; (c) by hue and cry. A. A warrant is a precept under hand and seal to some officer to arrest an offender, that he may be dealt with ac- cording to due course of law. A warrant may, under certain circumstances, be granted by the speaker of the house of lords or house of commons ; or by the privy council; or by one of the secretaries of state. A judge of the queen's bench division may issue a warrant to bring before him for examination any person charged with felony. He may also issue his warrant for apprehending and holding to bail any person, upon affi- davit or certificate of the fact that an indictment has been found, or information jfiled in that court against any such person for a misdemeanor.(a) Courts of oyer and term.iner {i. e., in general the assizes and central criminal court) and the justices at sessions may also issue warrants against (2) It is almost unnecessary to remind the reader that a person may, under certain circumstances, be arrested in a civil proceeding, and not only for a crime. (a) 48 Geo. 3, c. 58, § 1. 244 ARREST. those against whom indictments for felony or misdemeanor have been found within their jurisdiction. The above cases are of an exceptional character. War- rants are ordinarily issued by justices of the peace, not sit- ting in sessions. The law on this subject was consolidated by 11 and 12 Vict. c. 42.(6) In what cases may it be issued. — "When a charge or com- plaint has been made before one or more justices that a person has committed or is suspected to have committed any treason, felony, or indictable misdemeanor, or other indictable offense, within his or their jurisdiction ; or that, having committed it elsewhere (even within the admiralty jurisdiction or on land beyond the seas,(c) he resides within his or their jurisdiction; then, if the accused is not in custody, two courses are open to the justice : (a) to issue a warrant to apprehend and bring the accused specially before himself, or, generally, before other justices of the jurisdiction ; or (b) to issue, in the first place, a summons directed to the accused, requiring him to appear before himself or other justices of the jurisdiction ; and then, only if the summons is disobej^ed by non-appearance, to issue a w&vv&\xt.{d) [A summons is not used in the United States, except as against corporations, and in a few cases specially provided for. In Michigan, prosecutions under the liquor law may be commenced by summons. (1)] A justice will also issue a warrant to apprehend a person against whom an indictment has been found, on the pro- duction to him of the certificate of the clerk of indictments at the assizes, of the peace at the sessions. If the party indicted is already in custody for some other offense, the justice may issue his warrant to the jailer, commanding him to detain the accused until he shall be removed by habeas corpus, for the purpose of being tried on the indict- (6) This statute does not affect the metropolitan police, or the Lon- don police acts, (c) 1 1 and 12 Vict., c. 42, § 2. {d) Ibid., § 1. (1) Eev. Stat. (1871), vol. 1, p. 694. AERBST. 245 ment, or until he shall otherwise be removed or discharged out of his custody in due course of law.(e) [This paragraph does not apply to the United States. But in the United States a justice in one state may, upon aifidavit being filed with him, issue a warrant for the arrest of a person charged with being a fugitive from justice from some other state, or from one of the territories, and, upon hearing, may commit such fugitive, to jail, to be there held a reasonable time, for a requisition to be brought from the proper state or territory.] To enable a justice to issue a warrant in the first instance (i. e., as in (a) above), it is necessary that an information and complaint, in writing, on the oath or affirmation of the informant, or of some other witness on his behalf, should be laid before the justice. But if a summons only is to be issued in the first instance, the information maybe by parol and without oath.(/) The summons is directed to the accused. It states shortly the charge, and orders him to appear before the justice issuing it, or some other justice of the jurisdiction, at a certain time and place. It is served by a constable on the accused personally, or at his last and usual place of abode. (^) («) 11 and 12 Vict., c. 42, g 3. (/) Ibid., g 8. (g) Ibid., § 9. The following is an example of a summons: "To John Styles, of, etc., laborer. Whereas you have this day been charged before the undersigned, one of her majesty's justices of the peace in and for the said county of , for that you, on, etc. (the of- fense stated shortly): These are therefore to command you, in her maj- esty's name, to be and appear before me on Thursday, the l.^th day of June, at eleven o'clocli in the forenoon, at , or before such other justice or justices of the peace for the said county as may then be there, to answer to said charge, and to be further dealt with according to law. Herein fail not. " Given under my hand and seal, this 13th day of June, in the yeai of our Lord 1876, at , in the county aforesaid. " J. F. [l. s.] " [form or SUMMONS rOR A COBPORATION. "State of Ohio, Hamilton County, ss. : "To the sheriff of the county of : " Whereas, at the term, a. d. 18 , of the court of common pleas 246 ARREST. The warrant is directed to a particular constable, or to the constables of the district where it is to be executed, or generally to the coustablesof the jurisdiction of the issuing justice. It states shortly the offense, and indicates the offender, ordering the constable to bring him before the issuing justice, or other justices of the same jurisdic- tion. It remains in force until executed, the execution being effected by the due apprehension of the accused. (A) of said county of , an indictment was found by the grand jury against [give name of corporaiiori], for a certain misdemeanor to wit, for [state the ojf'ense; copy the charge as set ovt in the indictment^. " You are commanded to notify the said . to appear on the day of , A. D. 18 , before the court of common pleas of county, to answer to the said charge, and to be further dealt with according to law. " Witness my hand and the seal of said court, this day of , a. D. 18 . " E. L. [l. s.] "Clerk of 'Court of C. P., County, O."] (h) 11 and 12 Vict., c. 42, § 10. An example of a warrant: " To the constable of , and to all other peace officers in the said county of . Whereas, A. B., of , laborer, hath this day been charged upon oath before the undersigned, one of her majesty's jus- tices of the peace in and for the said county of , for that he on , at , did, etc. [stating shortly the offense\ : These are, therefore, to com- mand you, in her majesty's naAe, forthwith to apprehend the said A. B., and to bring him before me, or some other of her majesty's justices in and for the said county, to answer unto the said charge, and to be further dealt with according to law. "Given under my hand, etc." [as in the case of a summonsl. [form op WARRAKT in OHIO. " T]ie State of Ohio, County, ss. : " To any constable of said county, greeting : " Whereas, there has been filed with me an affidavit of which the following is a copy : [here copy the affidavif], " These are therefore to command you to take the said E. F., if he be found in your county, or, if he has fled, that you pursue after him into any other county in the state, and take and safely [keep] the said E. F. so that you have his body forthwith before me, or some other magistrate of said county, to answer the said complaint, and be further dealt with according to law. " Given under my hand, this day of , "A. B., " Justice of the Peace."'] ARREST. 247 It may be issued on Sunday as well as on any other day.(0 A warrant from the chief or other justice of the queen's bench division extends all over the kingdom, and is tested, or dated, England, not Oxfordshire, Berks, or other par- ticular county. But the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by a justice of the peace in another, as Middlesex, before it can be executed in the latter. (A') But the justice backing, in certain cases, may require the accused to be brought be- fore him, or some other justice of the jurisdiction.(^) A warrant issued in England may be backed not only in another jurisdiction in England, but also in Scotland, Ire- land, or th«i Channel Islands, and vice versa.{m) When a warrant is received by the officer, he is bound to execute it, so far as the jurisdiction of the justice and bira- self extends. And a warrant drawn up according to the statutory form will (even though the magistrate who issued it has exceeded his jurisdiction), at all events, indemnify the officer who executes the same ministerially. (n) The officer, in his own jurisdiction, need not show his warrant if he tells the substance of it. Bare words will not consti- tute an arrest without laying hold of the accused, or other- POEM OP WARRANT IN IOWA. County of , The State of Iowa : To any peace officer in the state : Preliminary information upon oath having been this day laid before me, that the crime of [designating W], has been committed, and accusing A. B. thereof. You are, therefore, commanded forthwith to arrest the said A. B., and bring him before me at [naming the place'] ; or, in case of my ab- sence or inability to act, before the nearest or most accessible magis- trate in this county. Dated at , this day of , a. d. 18 . C. D., Justice of the Peace.] (i) 11 and 12 Vict., c. 42, § 4. (k) 4 Bl. 291. (I) Ibid., g 11. (m) Ibid., g§ 12-15. See also 14 and 25 Vict., c. 55, § 18. As to the colonies, 6 and 7 Vict., c. 34, and 16 and 17 Vict., c. 118. (n) 24 Geo. 2, c. 44. 248 ARREST. wise restraining his liberty. [An arrest is made by an actual restraint of the person to be arrested, or by his sub- mission to the custody of the person making the arrest. Any manual touch is considered a restraint of the person. The person making an arrest must not use unnecessary violence.] The officer may break open doors to execute a warrant for treason or other felony, or a breach of the peace, if upon demand of admittance it can not otherwise be obtained. (o) An arrest for an any indictable offense may be made on Sunday; and, for felonies or bi'eaches of the peace, in the night-time as well as the day. If there is just cause, any justice or the sheriff' may take of the county any number he thinks proper to pursue, arrest, and imprison traitors, felons, and breakersof the peace raising the posse comitatus) ) persons refusing to aid may be fined and imprisoned. (p) A general warrant to apprehend all persons suspected of a crime is void. So a warrant to apprehend the authors, printers, aud publishers of a libel, without naming them.(g') General warrants to take up loose, idle, and disorderly people, and search warrants, are perhaps the only excep- tions to the rule.(r) Though not strictly belonging to the subject in hand, namely, the arrest of criminals, it may be convenient here to notice search taarrants. On the oath of a complainant that he has probable cause to suspect that his property has been stolen, reason for bis suspicion being shown, a justice may issue a warrant to search the premises of a person sus- pected of the felony. And as to property otherwise the subject of fraudulent practices, it is provided that if any credible witness proves upon oath before a justice a rea- sonable ground for suspecting that any person has in his possession, or on his premise, any property with respect to which an offense punishable, under the larceny act, 1861, (o) As to killing a constable in the execution of his duty ; when he is justified in killing the accused, v. p. 126. (p) Dalton, c. 171. (?) Money v. Leach, 1 BL W. 555. (r) 5 Burn's, 1131. ARREST. 249 has been committed, lie may grant a warrant to search for such property, as in the case of stolen good8.(s) B. Arrest without warrant. As to arrests by officers, they may be made by — i. Justices of the peace, who may themselves apprehend, or cause to be apprehended, by word only, i. e., without warrant, any person committing a felony or breach of tbe peace in his presence.(i) ii. The sheriff may apprehend any felon or breaker of the peace within the county. iii. The coroner, any felon within the county. iv. A constable may arrest, without warrant, any one for treason, felony, or breach of the peace committed in his view, within his jurisdiction, and carry him before a ma- gistrate. So, also, on reasonable charge of felony, or of having given a dangerous wound ; or upon reasonable sus- picion that one of the above offenses has been committed, though it should afterward appear that no felony or wound- ing had been committed. But, as a rule, he may not arrest without warrant in a misdemeanor, though he may inter- pose to prevent a breach of the peace, and to accomplish this object he may arrest the person menacing, and detain him in custody till the chance of the threat being executed is over.(M) Also he may arrest without warrant, and then must take before a justice of the peace as soon as rea- sonably may be, any person whom he finds lying or loiter- ing in any highway, yard, or other place, during the night, and whom he has good cause to suspect of having com- mitted, or of being about to commit, any felony against the larceny, arson, and malicious injuries to property, or offenses against the person acts respectively. (x) Also he may take into custody any holder of a license granted under the penal servitude acts, who is reasonably suspected of having (s) 24 and 25 Vict., c. 96, § 103. {I) As to apprehension, etc., for contempt in face of court, v. p. 90; {u) V. 2 Hale, P. C. 88. {x) 24 and 25 Vict., c. 96, § 104; c. 97, § 57; c. 100, § 66. 250 ARHBST. committed any offense or broken any of the conditions of his license.(!/) If, upon a reasonable charge for which he may arrest without warrant, the constable refuses, he may be indicted and fined. When he acts without a warrant, by virtue of his office as constable, he should, unless the party is pre- viously acquainted with the fact, or can plainly see it, no- tify that he is a constable, or that he arrests in the queen's name, and for what. The constable's right to break open doors, his justifica- tion in killing in the execution of his duty, and the conse- quence of his being killed, are generally the same as if he had proceeded upon a warraut.(2;) V. Arrests by -private persons. — Any person who is pres- ent when a felony is committed, not only may, but is bound, without warrant, to arrest the offender. And a pri- vate person is bound to assist an officer who demands his aid in the lawful taking of a felon, or the suppression of an affray. If in any case the felon escapes through his negli- gence to assist, for which there is no good excuse, he is liable to fine and imprisonment. A private person also may arrest (a) any one whom he finds committing an in- dictable offense by night (i. e., 9 p. M. to 6 a. m.) ;(«) or (b) a person committing any oft'ense (except angling in the day-time) punishable under the larceny act ;{b) or (e) a per- son committing an offense against the coinage act.(c) Also the owner of the property injured, or his servant, or any other person authorized by him, may apprehend a person committing any offense against the malicious injuries to property act.(ci() Any person to whom property is offered to be sold, pawned, or delivered, if he has reasonable cause to suspect that any offense punishable under the larceny {y) 27 and 28 Vict., o. 47, g 6. Special acts regulate the powers of constables within the metropolitan police district. (z) V. p. 248. ^ (a) 14 and 15 Viet., o. 19, § 11. \b) 24 and 25 Viol, o. 96, '§ 103. (c) Ibid., c. 99, g 31. \d) Ibid., 0. 97, § 61. AKRBST. 251 act has been committed with respect to such property, is authorized and required to forthwith take the party offer- ing and the property offered before a magi8trate.(e) A private person may also arrest, without warrant, on reasonable suspicion of felony. But he does so at his peril, and is liable to the consequences of false imprisonment, unless he can afterward prove that a felony has actually been committed by some one, and that there was reasonable ground to suspect the person apprehended. (It will be re- membered that a peace of&cer is not liable, although no crime has been committed, if there were reasonable grounds for suspicion.) Not that the private person has no course left open to him ; he is justified in requiring a constable to do whatever the constable by virtue of his ofiice is justified in doing. There is this distinction between arrests in view of the crime and on suspicion by private persons. In the former case he may break open doors to effect the arrest; and the consequences of his killing orbeing killed are generally the same as if an officer were arresting. But if the arrest by a private person is merely on suspicion, he is not justified in breaking open doors ; and if either party kills the other^ it is said to amount to manslaughter at the least. A private person may arrest another for the purpose of putting a stop to a breach of the peace committed in his presence. [The criminal code of Ohio provides that any peace of- ficer " shall arrest and detain any person found violating any law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained." " If a fel- ony has been committed, any person may, without warrant, arrest another, who he believes, and has reason to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained."(l) In Kentucky, by the criminal code (§§ 36, 37), an ofl&cer or a private person, alike, can arrest without warrant, when (e) 24 and 25 Vict., c. 96, § 103. (1) 74 Ohio L. 317. 252 ARREST. he has reasonable grounds for believing that the person ar- rested has committed a felony. The statute of Illinois provides : "An arrest may be made by an officer or by a private person, without warrant, for a criminal offense committed or attempted in his pres- ence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believ- ing that the person to be arrested has committed it."(l) The statute of Iowa provides : "A peace officer, without warrant, may make an arrest — 1. For a public offense com- mitted or attempted in his presence; 2. Where a public offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it. A private person may make an arrest — • 1. For a public offense committed or attempted in hia presence ; 2. Where a felony has been committed, and he has reasonable ground for believing that the person to be arrested has committed it." (2)] Arrest upon hue and cry. — The old common-law process of pursuing with horn and with voice all felons and such as have dangerously wounded others. The hue and cry may be raised by constables, private persons, or both. The constable and his assistants have the same powers, protec- tion, and indemnification as if acting under the warrant of a magistrate; and, if they have obtained a warrant, they may follow by hue and cry into a different county from that in which the warrant was granted, without getting it backed. Private persons who join, are justified, even though it should turn out that no felony has been com- mitted. But if a person wantonly and maliciously, and without cause, raises the hue and cry, he is liable to pun- ishment as a disturber of the peace. (/) .(/) For punishment of assaults committed on officers and persons acting in their aid, or on any other person lawfully authorized to ap- prehend or detain an offender, v. p. 156. (1) Rov. Stat. (1877), p. 396. (2) Rev. Stat. (1873), p. 655. PROCEEDINGS BEFORE THE MAGISTRATE. 253 CHAPTER IV, PROCEEDINGS BEFORE THE MAGISTRATE. When an arrest has been made, the accused should be taken before a magistrate or magistrates, with all reasona- ble possible speed. "When arrested on suspicion, he should not be detained before he is so taken, in order that evidence may first be collected. The magistrate is bound to forthwith examine into the circumstances of the charge. In order to secure the at- tendance of witnesses to the fact, they may be served with a summons or warrant, in a manner similar to that in which the presence of the accused is insured. If a witness refuses to be examined, he is liable to imprisonment for seven days.(/) The room in which the examination is held is not to be deemed an open court ; and the magistrate may ex- clude any person, if he thinks fit.(m) "When the witnesses are in attendance, the magistrate takes, in the presence of the accused (who is at liberty, by himself or his counsel, to put questions to any witness produced against him), the statement on oath or aifirmation of those who know the facts of the case, and puts the same in writing. These statements (technically termed depositions) are then read over to, and signed respectively by, the witnesses who have been examined, and by the magistrate taking such state- ments. (w) The magistrate reads, or causes to be read, over to the accused these depositions, and asks him if he wishes to say any thing in answer to the charge, cautioning him that he is not obliged to say any thing, but that whatever he does say will be taken down in writing, and may be (l) 11 and 12 Viot., c. 42, § 16. As this is the chief act dealing with the subject of this chapter, reference merely to a section must be un- derstood of that statute. H I 19. W § 17. 254 PROCEEDINGS BEFORE THE MAGISTRATE. used in evidence against him at his trial, at the same time explaining that he has nothing to hope from any threat which may have been holden out to him to induce him to make any admission or confession of guilt. Whatever the accused then says is taken down in writing, and signed by the magistrate. (o) The magistrate then asks the accused whether he desires to call any witnesses. If he does, the magistrate, in the presence of the accused, takes their statement on oath or affirmation, whether such statement is given on examination or cross-examination, for they may be submitted to both. These statements, in the same way as those on the part of the prosecution, are read to and signed by the witnesses and by the magistrate. And the same rules apply to wit- nesses, both for the prosecution and for the defense (other than those merely to character), as to being bound over by recognizance to appear and give evidence at the trial. (p) If a witness refuses to enter into such recognizance, he may be committed to prison until the trial. The recognizances, depositions, etc., are transmitted to the court in which the trial is to take pi ace. (g') If the investigation before the magistrate can not be completed at a single hearing, he may, from time to time, remand the accused to jail for any jjeriod not exceeding eight days ; or may allow him his liberty in the interval, upon his entering into recognizances, with or without se- curities, for reappearance. (r) K, when all the evidence against the accused has been heard, the magistrate does not think that it is sufficient to put the accused on his trial for an indictable offense, he is forthwith discharged. But if he thinks otherwise, or the evidence raises a strong or probable presumption against the accused, he commits him for trial, either at once send- ing him to jail so as to be forthcoming for trial, or admit- ting him to bail.(s) Under certain circumstances a third ccnirse is open to the magistrate : he may dispose of the case and punish the off'ender himself. (o) § 18. (p) 30 and 31 Vict., c. 35, § 3. (}) § 20. {r) g 21. {s) g 25. PKOCEEDINGS BEFORE THE MAGISTRATE, 255 It will be noticed that there are two forms of commit- ment to prison : (a) /or snfe custody; (b) in execution, eitlier as an original punishment, or as a means of enforcing pay- ment of a pecuniary fine, or of enforcing obedience to the sentence or order of a magistrate or the sessions. The warrant of commitment under the hand and seal of the committing magistrate, directed to the jailer, contains a concise statement of the cause of commitment. By the habeas corpus act(«) the jailer is required, under heavy penalties, to deliver to the prisoner, or other person on his behalf, a copy of the warrant of commitment or detainer within six hours after demand. The imprisonment of which we are now speaking is merely for safe custody and not for punishment ; therefore, those imprisoned are treated with much less rigor than those who have been convicted. Thus, they may have sent to them food, clothing, etc., sub- ject to examination and the rules made by the visiting ma- gistrates. They have the option of employment, but are not compelled to perform any hard labor ; and if they choose to be employed, and are acquitted, or no bill is found against them, an allowance is paid for the work(a;). Bail. — This admitting to bail consists in the delivery (or bailment) of a person to his sureties, on their giving secu- rity (he also entering into his own recognizances) for his appearance at the time and place of trial, there to surren- der and take his trial. In the meantime, he is allowed to be at large; being supposed to remain in their friendly custody. We shall, in the first place, treat of the law of bail by the magistrate, and then of bail by the queen's bench di- vision and other exceptional cases. In what cases ma}-, and in what cases may not, a magis- trate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a secretary of state, or by the queen's bench division, or a judge thereof in vacation. If the prisoner is charged with some other («) 31 Car. 2, c. 2, § 5. {x) 28 and 2U Vict., c. 126, sched. i, §§ 19, 20, 32, 33. 256 PROCEEDINGS BEFORE THE MAGISTRATE. felony, or one of the misdemeanors enumerated below, the ma- gistrate may, in his discretion, but is not obliged to, admit to bail. These misdemeanors are : Obtaining, or attempt- ing to obtain, property by false pretenses ; receiving prop- erty stolen or obtained by false pretenses ; perjury or sub- ornation of perjury; concealing the birth of a child by secret burying or otherwise ; willful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to I'aise wages ; assault upon a peace officer in the execu- tion of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misde- meanor for the prosecution of which the costs may be al- lowed out of the county rate. In other misdemeanors it is imperative on the magistrate to admit to bail.(y) [Under the acts of Congress, bail must be taken upon all arrests in criminal cases where the offense is not punishable by death; and in capital cases, bail may be admitted by the supreme court, the circuit court, a justice of the su- preme court, a circuit judge, or a judge of a district court.(l) The constitution of Ohio provides that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. The same, or substantially the same provision is found in the constitution or the statutes of all the states.] In cases where, in the exercise of their discretion, the magistrates have the power of admitting to bail or refusing it, the principle which is to guide them is the probabihty of the accused appearing to take his trial, and not his sup- posed guilt or innocence. (2) Though this latter point may be one element to be considered in applying the test. Thus it has been laid down that the points which the court will consider in exercising their discretion include the serious- ness of the charge, the evidence in support of it, and the punishment which the law awards for the offense.(a) (1/) § 23. (z) R. V. Scaife, 5 Jur. 700. (a) In re Barronet, 22 L. J. (M. C.) 25; In re Robinson, 23 L. J. (Q. B.) 286. (]) Rev. Stat. p. 189. PROCEEDINGS BEFORE THE MAGISTRATE. 257 Practically in charges of murder, bail is never allowed. And when a bill has been found against the accused, natu- rally more caution will be exercised. Who may be bail ? The magistrate (or court, v. infra) will act according to his discretion as to the sufficiency of the bail. The proposed bail may be examined upon oath as to their means, though in criminal cases no justification of bail is required. A married woman, an infant, or a pris- oner in custody, can not be bail ; nor can a person who has been convicted of an infamous crime. (6) The usual num- ber of bail is two ; but sometime only one is required, and sometimes three or more. The sureties or bail are not com- pelled to act as such for a longer time than they wish. If they surrender the accused before the magistrate or couf-t by whom he has been bailed, he will be committed to prison, and they will be discharged of their obligation. But the accused may then find fresh sureties. Both at common law and by statute,(c) to refuse or delay to bail any person bailable is a misdemeanor in the magis- trate. But it has been held that the duty of a magistrate in respect of admitting to bail is a judicial duty ; and therefore that not even an action can be maintained against him for refusing to admit to bail, where the matter is one as to which he may exercise his discretion. (rf) It is pro- vided by the bill of rights that excessive bail ought not to be required; though what is excessive must be left to be determined by the court in considering the circumstances of the case. If the magistrate or other authority admits to bail where this is not iiUowable, or if he takes insufficient bail, he is liable to punishment on the non-appearance of the accused. (e) The stage in the proceedings where the question of bail (J) V. R. V. Edwards, 4 T. R. 440. (c) 3 Edw. 1, c. 15; 31 Car. 2, c. 2 {habeas corpus); 1 Wm. & M., st. 2, c. 1 (bill of rights). {d) Linford v. Fitzroy, 18 L. J. (M. C.) 108 ; R. o. Badger, 12 L. J. (M. C.) 66. (e) Hal. Sum. 97. 17 258 PROCEEDINGS BEFORE THE MAGISTRATE. usually arises is when the accused is before the magistrates. But when a person charged with an indictable oft'ense has been committed to prison to await his trial, it is lawful at any time afterward, before the first day of the sessions or assizes at which he is to be tried, for the magistrate who signed the warrant for his commitment to admit him to bail.(/) As to bail in other cases than in proceedings before the magistrates : The queen's bench division, or, in vacation time, a judge thereof,( Franklin Circuit Court. John Smith. J The grand jury of Franklin county, in the name, and by the au- thority, of the Commonwealth of Kentucky, accuse John Smith of the crime of murder, committed as follows, viz. : The said John Smith, on the 10th day of July, 1877, in the county aforesaid, did feloniously and with malice aforethought, kill and murder Thomas Jones, by stabbing him with a knife or some other edged weapon, against the peace and dignity of the Commonwealth of Kentucky. {y) V. 14 and 15 Viot., c. 100, § 23. 264 MODES OF PROSECUTION. oifense was committed must be rightly laid. The prop- erty ill goods (a) of a deceased person must be laid in the executors or administrators; (b) of a married woman in her husband, unless there is separate property under the married women's property act, 1870,(2) or there has been a judicial separation, or a protection order. (a) If the goods belong to partners or joint owners, one only need be named, and " another " or " others " added, as the case may be.(6) So property vested in a body of persons must not be de- scribed as the property of the body, but of all or some in- dividuals of the body, unless it is incorporated. The prop- erty of joint-stock banking copartnerships may be laid in any one of the public officers.(c) Bridges, asylums, etc., must be described as the property of the inhabitants of the county, without specifying any names. . If goods are stolen, etc., from a bailee, tliey should be described as the property either of the bailor or of the bailee, unless they were stolen by the bailor himself. If at the trial it appears that the property has been correctly laid, or the person against whom the offense was committed misnamed, unless such error be amended, the defendant must be acquitted. But, as we shall see,((/) the court has extensive powers of ordering amendment in case of such variance between the indict- ment and the evidence. As to the statement of time. — No indictment will be held insufficient because it omits to state the time at which the offense was committed in any case where time is not of the essence of the offense ; nor because it states the time im- perfectly, or states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened. (e) The time is of importance in several crimes, as in murder, big- amy, and burglary, and in cases where the time within which the prosecution must be commenced is limited. As to place. — The nature of the crime in some cases re- (z) 33 and 34 Vict., c. 93, see g 11. (a) 20 and 21 Vict,, c. 85, g§ 21, 25. lb) 7 Geo. 4, c. 64 § 14. (c) Ibid., g 9. (d) V. p. 265. («) 14 and 15 Vict., c. 100, g 24. MOBBS OF PROSECUTION. 265 quizes this to be stated ; otherwise the venue in the mar- gin, that is, the county or other division, is taken as the veiine for all facts in the indictment.(/) The following are the most common cases in which a local description is re- quired : Burglary, housebreaking, stealing in a dwelling- house, sacrilege, nuisances to highways, etc. The facts, circumstances, and intent, which are the in- gredients of the offense, must be given with certainty, so that the defendant may be able to perceive what charge he has to meet, the court may know what sentence should be given, and that on future reference to the conviction or ac- quittal it may be known exactly what was the alleged offense. (i^) In indictments for certain crimes particular tech- nical words must be used, namely, in murder, murdravit ; in rape, rapuit; in larceny, felonice cepit et asportavit. Again, as to the intent, treason must be laid to have been done "traitorously;" a felony, "feloniously;" burglary, "fel- oniously and burglariously;" murder, "feloniously and of his malice aforethought." If any essential ingredient of the offense is omitted, or not stated with sufficient certainty,, the defendant may move to quash the indictment, or may demur, or, if the defect is not one which is cured by verdict, (A) he may move in arrest of judgment, or bring a writ of error. All objections to formal defects must be taken before the jury are sworn ; and they may then be amended by the court.(i) The law^ as to the amendment of defects in the indictment is now OQ a much more reasonable footing than it was at one time. Instead of requiring the evidence rigorously and servilely to correspond with the indictment as it stands when drawn up, extensive powers of amendment are given to the court. Whenever there is a variance in certain points between the indictment and the evidence, it is law- ful for the court before which the trial is had, if it consid- ers that the variance is not material to the merits of (/) 14 and 15 Vict., c. 100, § 23. (^r) Arch. 54. (A) As to what defects are cured by verdict, see Heymann v. K., L. R, 8 Q. B. 102. (i) 14 and 15 Vict., c. 100, g 25. 266 MODES OF PKOSBCUTION. the case, and that the defendant can not be prejudiced thereby in his defense on such merits, to order the indict- ment to be amended on such terms as to postponing the trial, as the court thinks reasonable. The points mentioned in the statute are the following: (a) in the name of any county, riding, division, city, borough, town corporate, par- ish, township, or place mentioned or described in such in- dictment; or (b) in the name or description of any person or persons, pr body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offense charged therein ; or (c) in the name or description of any person or persons, body poliiie or corporate, therein stated or alleged to be ivjured or damaged, or intended to be in- jured or damaged, by the commission of such ofiense; or (d) in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or de- scribed ; or (e) in the name or description of any matter or thing whatsoever therein named or described ; or (f) in the ownership of any prpperty named or described therein. (/c) But in no case will an amendment which alters the na- ture or quality of the offiense be allowed. (Q The amend- ment must be made before verdict ; and when it is once made there can be no amending the amendment, or revert- ing to the indictment in its original form. [When indictments were drawn in Latin, it was fatal error to write " coUis" instead of " colli," or " murderavit" in- stead of " murdravit." An indictment was fatally defective at common law, which averred the ofiense was committed " on the third day of August, eighteen hundred and forty- three," instead of "the year eighteen liundred and forty- three ;(1) and it has been held the allegation would not be sufficient if the words " the year" were added, unless other words also were added, showing it was a year in the Chris- tian era.(2) The indictment at common law is equally de- {_k) 14 and 15 Vict., c. 100, g 1. (J.) R. v. Wright, 2 F. «fe F. 320. (1) State V. Lane, 4 Ire. Law, 113. (2) Commonwealth v. Loon, 5 Gray, 91. MODES OF PROSECUTION. 267 fective, if the charge be that the defendant stole the goods of " the aforesaid J. S." — no J. S. having been previously named therein. (1) The same ruling was made where the allegation as to the injury was a wound inflicted "on the brest ;"(2) also, where the indictment concluded, " against the peace of the state," instead of " against the peace and dignity of the state ;"(3) and where it concluded, against the peace and dignity of " the State of W. Virginia," in- stead of "the State of West Virginia."(4) Statutes were necessary to obviate these rigid rules of construction. The English statute giving the court the au- tliority to amend the indictment was for this purpose. A similar provision is found in the statutes of Mieiiigan.(5) In some states in the United States, difficulty has been found in giving so large authority to amend. "Where the constitution prescribes that trial must be upon au indict- ment found by the grand jury, it has been held that if the indictment is amended, even with the consent of the de- fendant, it is no longer an indictment found by the grand jury, and no trial can be based upon it.(6) But it has also been held that, as the grand jury does not consider or find the formal parts of the indictment, or the name of the de- fendant, but only the statement of the offense charged, an amendment of a formal part, or of the name of the defend- ant, is not in conflict with that constitutional provision, and may be made.(7) There is another provision generally found in the state constitutions, to the effect that the indictment must exhibit the nature and cause of the accusation against the defendant. It has been held that this does not prevent the legislature from regulating by statute the form of the in- dictment.(8) The crime charged must be set out ; but this (1) 1 Stark. Crim. PI. 182; 2 Hawk. P. C, c. 2-i, § 72. (2) Anonymous, 2 Haj'ward, 140. (3) Cain?;. State, 4 Blackf. 512. (4) Lemons v. State, 4 West Va. 755. (5) Rev. Stat. (1871), p. 2172. (6) People V. Campbell, 4 Parker Crim. Ca. 386. (7) Lasure v. State, 19 Ohio St. 43; Cain v. State, 4 Blackf. 512 ; Com- monwealth V. HoUey, 3 Gray, 458 ; State v. Manning, 14 Texas, 402 ; State V. Shrioker, 29 Mo 265 ; People v. Kelly, 6 Cal. 210. (8) State V. Mullen, 14 La. Ann. 570. 268 MODES OF PEOSEOITTION, constitutional provision does not require the time, place, circumstances, or mode of commission to be stated. (1) Accordingly, a statute to the effect that, in an indictment for murder in the second degree or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused, but it shall be suf- ficient to charge that the defendant did purposely and ma- liciously, or did unlawfully, kill the deceased, is not uncon- stitutional. (2) The criminal code of Ohio, of 1877, provides that no in- dictment shall be deemed invalid, nor shall the trial, judg- ment, or other proceeding be stayed, arrested, or in atiy manner affected, by the omission of the words " with force and arms," or any words of similar import; nor for the omission of the words "as appears by the record;" nor for omitting to state the time at which the offense was com- mitted, in any case in which time is not of the essence of the offense ; nor for stating the time imperfectly ; nor for want of a statement of the value or price of any matter or thing, or the amount of damages or injury, in any case where the value or price, or amount of damages or injury, is not of the essence of the offense ; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indict- ment ; nor that dates and numbers are represented by fig- ures ; nor for an omission to allege that the grand jurors Avere impaneled, sworn, or charged ; nor for any surplusage or repugnant allegation, when there is sufiicient matter alleged to indicate the crime or person charged ; nor for want of averment of any matter not necessary to be proved ; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of (1) Cathoart v. Commonwealth, 1 Wright (Pa.), 108; Noles v. State, 24 Ala. 672; Thompson v. State, 25 Ala. 41. (2) Wolf V. State, 19 Ohio St. 248. But it is held in Indiana that the legislature has not the power to dispense with such allegations in an indictment as are essential to reasonable particularity and cer- tainty in the description of the offense. McLaughlin v. State, 45 Ind, 338. MODES OP PROSECUTION. 269 the defendant upon the merits. In an indictment for mur- der in the second degree or for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused ; but it shall be sufficient for an indictment for murder in the second degree to charge that the defendant did purposely and maliciously, and, in an indictment for manslaughter, that the defendant did unlawfully, kill the deceased. In an indictment for forg- ing or uttering, it shall be sufficient to set forth the purport and value of the false instrument. In an indictment for counterfeiting or having possession, it shall be sufficient to describe, by its usual name or designation, the instrument, matter, or thing charged to be engraved or printed. It shall be sufficient to describe any written instrument by its usual name or designation, or by its purport. When it is necessary to make an averment as to any money, or bank bills, or notes. United States treasury notes, postal and frac- tional currency, or other bills, bonds, or notes, issued by lawful authority, and intended to pass and circulate as money, it shall be sufficient to describe the same simply as money, without specifying any particular coin, note, bill, or bond. In an indictment for perjury or subornation, it is not necessary to set forth any part of any record or pro- ceeding, or the commission or authority of the court or other authority before which the perjury was committed. In prosecutions for illegal sale of intoxicating liquor, it shall not be necessary to allege the kind of liquor sold, nor describe the place where sold. It is sufficient to allege, in general, an intent to defraud, without alleging an intent to defraud any particular person or corporation. "When an offense is committed in relation to property belonging to partners or joint owners, it is sufficient to allege the own- ership in the firm hy its firm name, or in any one or more of such partners or owners, without naming all. In an in- dictment for an offense in relation to any election, it is suf- ficient to allege that such election was authorized by law, without stating the names of the officers holding the elec- 270 MODES OF PROSECUTION. tion, or the persons voted for, or the offices to be filled at such election. (1) This statute is perhaps the latest and fullest, but all the states have statutes of Ihe same character. The statute of Illinois is much less detailed. It provides that every indict- ment or accusation of the grand jury shall be deemed siif- liciently technical and correct, which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. All exceptions, which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of erroi', shall be sustained for any matter not affecting the real merits of the offense charged in the indictment. No indictment shall be quashed for want of the words " with force and arms," or of the occupation or place of residence of the accused, nor by reason of any disqualification of any grand juror.(2) In Michigan, the statute provides that, in any indictment for murder, it is sufficient to charge that tbe defendant did willfully and of his malice aforethought kill and murder the deceased, and, in manslaughter, to charge that the de- fendant did kill and slay the accused, without, in either case, setting forth the manner in which, or the means by wbich, the death of the accused was caused. (3)] (c.) The conclusion. — The conclusion given in the fore- going example of an indictment is that which occurs in an indictment for an offense at common law. An indictment for an offense created by statute concludes tbus : "Against the form of the statute in such case made and provided, and against the peace, etc." But an error in the form of the conclusion is not now material, inasmuch as it has been enacted that no indictment shall be held insuflicient for the omission of the words " against the peace," nor for the in- sertion of the words " against the form of the statute," in- stead of " against the form of the statutes," or vice versa; nor for want of a proper or formal conclusion.(m) (1) 74 Ohio L. 334-336. (2) Rev. Stat. (1877), p. 403. (3) Rev. Stat. (1871), p. 2170. (m) 14 and 15 Vict., o. 100, g 24. The same section also provides MODES OF PROSECCTION. 271 Counts. — An indictment very frequently contains more than one count or charge. The object of the insertion of more than one count is either to charge the defendant with different offenses, or with a previous conviction ; or to de- scribe the single offense in other terms, so that proof of one description failing, he may be convicted under another. Thus, an indictment for wounding generally contains a count for doing grievous bodily harm. Again, an indict- ment for obtaining goods by false pretenses must state the false pretense correctly; therefore, in order to prevent a failure of justice in consequence of the false pretense not being properly stated, it is often necessary to insert differ- ent counts laying the pretense in different ways. The dif- ferent counts are tacked on by the insertion of " and the jurors aforesaid, upon their oath aforesaid, do say that, etc." As a rule, more than one offense can not be charged in the same count. This is commonly expressed by saying that a count must not be double, or is bad for ilupUciiy.- Thus one count can not charge the prisoner with having committed a murder and a robbery. There are two excep- tions to the rule : An indictment for burglary usually charges the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended. And in indictments for embezzlement by clerks, or servants, or persons employed in the public service, or in the police, the prosecution may charge any number of distinct acts of embezzlement, not exceeding three, which may have been committed against the same master within six months inclusive. (n) But that no indictment shall be insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words " as appears by the record," nor for that any person is desig- nated by a name of office or other descriptive appellation, instead of his proper name ; nor for want of, or imperfection in, the addition of any defendant; nor for the want of the statement of the value or price of any matter or thing, or of the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil is not of the essence of the offense, (n) 24 and 25 Vict., c. 93, § 71 ; see also § 5. 272 MODES OP PBOSECUTION. even liere it is usual to charge the different acts in different counts. So much for charging different offenses in one count. It remains to be seen what are the rules as to charging a de- fendant with different offenses in different counts of the same indictment : In an indictment for treason, there may be different counts, each charging the defendant with different species of treason ; for example, compassing the queen's death, levying war, etc. In an indictment fov felony, there is no objection in point of law to charging several different felonies in different counts, whether such felonies be of a diflierent character or distinct cases of the same sort of felony ; for example, whether tliey be a burglary and a murder, or two cases of murder. But in practice, as this course would embarrass the prisoner in his defense, it is not adopted, and it will be ground for quashing the indictment, though not for demur- rer or arrest of judgment. If it is discovered, before the jury are charged, that it has been done, the judge may quasli the indictment ; if after, he may put the prosecutor to liis election on which charge he will proceed. The same felony may, however, be charged in different ways in dif- ferent counts; as if there is a doubt whether the goods stolen are the property of A. or of B., they may be stated in one count as the goods of A., in another as the goods of B. There are certain exceptions to the rule forbidding the charging of distinct felonies in different counts. In an indictment for feloniously stealing any property, it is ex- pressly declared lawful to add a count or several counts for feloniously receiving the sarne property, knowing it to have been stolen, and vice versa ; and the prosecutor is not put to any election, but the jury may find a verdict of guilty on either count, against all or an}' of the persons charged. (o) Also, in an indictment for larceny, it is lawful to insert several counts against the same person for any number of distinct acts of stealing not exceeding three, which may (o) 24 and 25 Vict, c. 96, § 92. MODES OP PROSECUTION, 273 have been committed by him against the same person within the space of six calendar months from the first to the last of such acts, and to proceed thereon for all or any of them.(p) We have already noticed a similar rule with regard to embezzlement.(g) [Under an indictment consisting of a single count, it would be possible to prove several acts committed at dif- erent times, each one of which would support the indict- ment. This is sometimes attempted in practice. In such case the prosecutor is required to elect on which one of the ofi'enses he will rely. The practice is not uniform as to the stage of the trial at which he will be required to make his election.(l) But stealing at one time several articles be- longing to different owners is a single offense.(2) And em- bezzling several sums of money received at different times from different persons may constitute a single offense.(3) The Ohio code provides that an indictment for larceny may contain a count for obtaining the same property by false pretense, a count for embezzlement thereof, and a count for receiving or concealing the same property know- ing it to have been stolen, and the jury may find any or all the persons indicted guilty of either of the offenses charged in the indictment. (4) The Michigan statute provides that an indictment for larceny may contain also a count for obtaining property bj'' false pretenses, or for embezzlement, or for receiving or con- cealing stolen property, and the jury may find all or any of these persons indicted, guilty on either count.(5) In Illinois, embezzlement is declared by statute to be lar- (p) 24 and 25 Vict., c. 95, § 5, (q) v. p. 271. (1) Stock well V. State, 27 Ohio St. 563 ; State v. Bainbridge, 30 Ohio, St. 264 ; People v. Jenness, 5 Mich. 305 ; People v. Hopson, 1 Denio, 574; Lovell v. State, 12 Ind. 18; State v. Bates, 10 Conn. 372; State v. 'Sims, 3 Strob. 137; State v. Smith, 22 Ver. 74; State v. Croteau, 23. Ver. 14. (2) State V. Hennessey, 23 Ohio St. 339. (3). Gravatt v. State, 25 Ohio St. 162 ; Brown v. State, 18 Ohio St. 496;. (4) 74 Ohio L. 336. (5) Rev. Stat. (1871), p. 2174. 18 274 MODES OF PROSECUTION. ceny;(l) hence a single count for la rcency would be sup- ported by proof of either embezzlement or strict larceny. The criminal code of Kentucky provides: Sec. 126. An indictment, except in tlie cases mentioned in the next sec- tion, must charge but one offense, but, if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alterna- tive. Sec. 127. The offenses named in each of the subdi- visions of this section may be charged in one indictment : 1. Larceny and knowingly receiving stolen property. 2. Larceny and obtaining money or property on false pre- tenses. 3. Larceny and embezzlement. 4. Robbery and burglary. 5. Eobbery and an assault with intent to rob. 6. Passing or attempting to pass counterfeit money or United States currency or bank-notes, knowing them to be such, and having in possession counterfeit money or United States currency or bank-notes, knowing them to be such, with the intention of circulating the same. The statute of Indiana simply provides that counts for murder in the first and second degree and for manslaughter may be joined in the same indictment. (2) But where a count for embezzlement was joined in the same indictment with a count for larceny, the court refused to require the state to elect on which count the defendant should be tried. (3) The Iowa code (sec. 4300) provides : The indictment must charge but one offense, but it may be charged in dif- ferent forms to meet the testimony, and if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alterna- tive ; provided, that in case of compound offenses, where, in the same transaction, more than one offense has been committed, the indictment may charge the several offenses and the defendant may be convicted of any offense included therein. (4) Which provision is a concise statement of the common-law rule.] If a count for a felony is joined with a count for &mis- (1) Eev. Stat. (1877), p. 360. (2) Rev. Stat. (1876), vol. 2, p. 389. (3) Griffith v. State, 36 Ind. 406. (4) Eev. Stat. (1873), p. 668. MODES OF PROSECUTION. 275 demeanor, the indictment will be held bad if demurred to, or judgment may be arrested if the verdict has been gen- eral (i. e., guilty or not guilty on the whole indictment), but not if the prisoner is convicted of the felony alone. (r) An indictment for misdemeanor vaay contain several counts for dili'erent offenses, even though the judgments upon each be dift'erent, so that the legal character of the substantive offenses charged be the same.(s) Thus, evidence of several assaults or several libels will be received on the several counts of the same indictment. But there are limits, not precisely defined, to this rule ; when convenience and justice demands it, the judge compelling the prosecution to elect upon which charge they will proceed. In all cases of this character, the important consideration is, whether all the acts were substantially one transaction. In certain cases if the prisoner has been previously con- victed, a count is inserted in the indictment charging him with such previous conviction. He will have to plead to this, and proof may be given, if he denies it, as on any other count. The object of putting in this count is that the prisoner may have his identity with the person so pre- viously convicted proved before the severer punishment consequent on a previous conviction is awarded. The cases in which such a count may be inserted are indictments for (a) felonies (not misdemeanors) mentioned in the larceny act,(t) or (b) for off'enses under the coinage act, provided that the previous conviction be for some offense against that or some other coinage act.(M) It should be noticed that in some cases the necessity for axlding a second count, or preferring a second indictment, is obviated by the power which is given to the jury to find the defendant guilty of certain other offenses than those named in the indictment. (x) (r) R. V. Ferguson, 24 L, J. (M. C.) 61. (s) V. Young V. E., 3 T. R. 105. (t) 24 and 25 Vict., c. 96, § 116. («) Ibid., c. 99, § 37. 27 and 28 Vict., c. 47, § 2, seems to imply that a count for previous conviction of felony may be inserted in an indict- ment for any crime punishable with penal servitude. Rose. 190. (x) V. p. 384. 276 MODES OP PRO&ECUTIOKT. As to the joinder of two or more defendants iu one indict- ment. — When several persons take part in the commission of an offense, they may all be indicted together, or any number of them together, or each separatel}' ; and, of com^se, some may be convicted and others acquitted. But certain offenses do not admit of a joint commission, for ex- ample, perjury. This joinder of defendants may be made the subject of demurrer, motion in arrest of judgment, or writ of error; or the court -will in general quash the indict- ment. As a rule, there is no time limited after the commission of a crime, vs-ithin which the indictment must be preferred. The offender is continually liable to be apprehended and visited with the penalties of the criminal law. By particu- lar statutes, however, there are exceptions to this rule, a stated time being fixed after which criminal proceedings can not be commenced. The indictment is usually drawn up by an officer of the court — the clerk of arraigns or the clerk of indictments at the assizes, the clerk of the peace at the sessions ; but in cases of difficulty the assistance of counsel is obtained. On the indictment are indorsed the names of the witnesses intended to be examined before the grand jury. Here we must leave it for a time, merely adding that of course any number of indictments may be preferred against the same person, at the same time, for distinct offenses. B. Information. A criminal information is a complaint by the crown, iu the queen's bench division, in respect of some offense, not a felony, whereby the offender is brought to trial, without the previous finding by a grand jury.{y) (y) The term "information" is also used of (i.) the charge made to a magistrate of some offense punishable on summary conviction, (ii.) A complaint by one who is taking proceedings to recover a penalty, as where a statute awards a pecuniary penalty upon conviction for a given offense, and a judicial proceeding is instituted against some offender to recover the penalty. Inasmuch as the penalty is generally divided between the sovereign and the informer, qui tarn pro dominaregina, quam pro se ipso sequitur, they are termed qui tarn actions, (iii.) A complaint of the crown, in the chancery or exchequer division, in respect of some MODES OP PROSECUTION. 277 These criminal informations are of two kinds : i. Informations ex officio. ii. Informations by the master of the crown office, i. An information ex officio is a formal written sugges- tion of an offense, filed by the attorney-general in the queen's bench, division. It lies for ^misdemeanors only; for in treason and other felonies it is the policy of tiie English law that a man should not be put upon his trial until the necessity for that course has been shown by the oath of the grand jury. The reason for the excep- tional proceeding without the grand jury is that some cases will not admit of the delay involved in the usual course of events. Thus, the proper objects of this kind of information are such enormous misdemeanors as peculiarly tend to disturb or endanger the government, or to interfere with the course of public justice, or to molest public officers; for example, seditious libels or riots, obstructing officers in the execution of their duties, bribery, etc., by magistrates or officers.(2) If the attorney-general delays for twelve months to bring the case on for trial, after due notice the court may authorize the defendant to do so. An information ex officio is in the following form : " Trinity Term., 25 Vict. "Middlesex. — Be it remembered that Sir William Ather- ton, Krdght, Attorney- General of our Sovereign Lady the Queen, who for our said lady the Queen prosecutes in this behalf, in his pro-ptr -person comes into the court of our said Lady the Queen before the Queen herself at Westminster, in the county of Middlesex, on," etc. (stating the facts, etc., and concluding as in an in- dictment.) ii. Information hy the master of the crown office. — A formal written suggestion of an offense, filed in the queen's bench division at the instance of an individual, by the master of the crown office, without the intervention of a grand jury. civil claim, (iv.) An information, guo warranto, is a remedy in the queen's bench division given to the crown against such as have usurped or intruded into any office or franchise, (z) 4 Bl. 308. 278 MODES OF PEOSECUTION. Here, a point in which this differs from the former kind of information, the leave of the court has to be olitaiued. It lies only for misdemeanors, usually those of a gross and notorious kind, which, on account of their magnitude and pernicious example, deserve the most public animadversion (those particularly tending to disturb the goverument be- ing usually left to the attorney-general as above), for ex- ample, bribery at elections, aggravated libels, etc. The course of proceedings is the following : An applica- tion is made for a rule to show cause why a criminal in- formation should not be filed against the party complained of. This application must be founded upon an affidavit dis- closing all the material facts of the case. If the court grants a rule nisi, it is afterward, upon cause being shown, discharged or made absolute as in ordinary cases. The form of this kind of information is similar to that of an information ex officio, substituting the name of the queen's coroner and attorney for that of the attorney-gen- eral. When a criminal information has been tiled either by the attorney-general ex officio or by the master of the crown office, it must be tried in the usual manner by a petty jury of the county where the offense arose. For that purpose, unless the case is of such importance as to call for a trial at bar, it is sent down by writ of nisi prius into that countj'^ and tried either by a common or special jury like a civil action. If the defendant is found guilty, he must after- ward receive judgment from the queen's bench division.(a) [The constitution of the United States provides, " ISTo per- son shall be held to answer for a capital, or otherwise in- famous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or actual danger." The statutes provide that crimes against the elective franchise and civil rights, not infamous, maybe prosecuted either by indictment or information filed by the prosecuting attorney. (1) (a) 4 Bl. 308. (1) U.S. Rev. Stat., p. 190. MODES OP PEOSECOTION. 279 This provision in the constitution of the United States does not apply to prosecutions in the state courts. The practice in the various states, as to prosecution by informa- tion, is far from uniform. The provision in tlie constitu- tion of Ohio is the same with the one in the constitution of the United States, except that the exception of military cases is enlarged by excepting also cases of impeachment and cases of petit larceny, and other inferior offenses. Ac- cordingly, prosecutions in courts whose jurisdiction is lim- ited to cases of petit larceny and other inferior offenses, being probate courts with criminal jurisdiction and muni- cipal police courts, are regularly tried on information filed by the prosecuting attorney. Section 9 of the criminal code of Kentucky says: "All offtinses may be prbsecuted by indictment except — 1. Of- fenses of public officers where a different mode of procedure is provided by law ; 2. Offenses exclusively within the ju- risdiction of justices of the peace or of police or city courts; 3. Offenses arising in the militia, of which a military court has exclusive jurisdiction." In Indiana, by the act of 1873, prosecutions for misde- meanors in the circuit court may be by information or by iudictnient.(l) The constitution of Illinois requires felonies to be prose- cuted by indictment, permits misdemeanors to be prosecuted by information. By the constitution of Iowa, all offenses less than felony, and in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days, shall be tried upon information ; higher offenses upon presentment or indictment. In Michigan, by an act passed in 1859, grand juries are dispensed with, except where the judge of the proper court shall, in writing, direct a grand jury to be drawn; and all offenses, which may be prosecuted by indictment, may be prosecuted by information, (2) An information being presented by the prosecuting at- (1) Eev. Stat. (1876), p. 376. (2) Rev. Stat. (1871), vol. 2, p. 2174. 280 MODES OF PROSECUTION. torney, who is always present iu court, can be amended. (1) It is, in form, the same as an indictment, except in the commencement, which reads : The State of Ohio, Count]], ss. county, term, in the year of our Lord one thousand eight hundred and seventy- M. !N"., prosecuting attorney of the State of Ohio for the said county of , now here in said court, in and for said county, in the name, and by the authority, and in behalf of the State of Ohio, information gives that, etc. Some forms add to the conclusion, " "Whereupon the at- torney prays the advice of this honorable court in the premises," or some equivalent phrase.] Coroner's inquisition. A coroner's inquisition is the record of the finding of the jury sworn to inquire, super visum corporis, concerning the death. On this, a person may [in England, but not iu the United States], be prosecuted for murder or manslaughter, without the intervention of a grand jury, for the finding of the coroner's jury is itself equivalent to the finding of a grand jury. The defendant is arraigned on the inquisition as on an indictment; and the subsequent proceedings are the same. The practice is, when a prisoner stands charged on a coroner's inquisition with murder or manslaughter, to take him before the magistrate and to prefer also an indict- ment against him. Of course, he is tried both on the in- quisition and the indictment at the same time. Thus, the sum of the whole matter is that the finding of the coroner's jury and the inquisition are practically disregarded and useless as far as criminal proceedings are concerned. The proceedings are, shortly, the following : On receiv- ing due notice of the sudden or violent death, the coroner issues his precept to the oflicers of the place where the body lies dead, requiring them to summon a jury (which muHt consist of twelve, at least), and names the time and place of inquiry. At the court, the jury are svvoru, and then view the body. The witnesses are examined on oath, (1) State V. Rowley, 12 Conn. 101. MODES OF PROSECUTION. 281 and their evidence is put into writing by the coroner. He has authority to bind by recognizance all material witnesses to appear at the assizes, to prosecute and give evidence ; and he must certify and subscribe the evidence and all such re- cognizances and the inquisition before him taken, and deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court.(c) The inquisition consists of three parts — the caption or incipitur, the verdict of the jury, and the attestation. (c^) The rules as to certainty, description, etc., which prevail in the case of an indictment, apply also to an inquisition. When the jury have returned a verdict of murder or manslaughter against a person, the coroner must commit him for trial, if present ; if not in custody, the coroner may issue a warrant for his apprehension, and order him to be brought before himself or some magistrate of the jurisdic- tion. (e) From the foregoing inquiry, we find that, apart from proceedings by way of sammary conviction, practically the only modes of criminal procedure are by way of indict- ment or information.' Of these, the former is much the more common ; and, unless any thing be stated to the con- trary, it will be this mode that will be kept in view in the succeeding pages.(/) (c) 7 Geo. 4, c, 64, § 4. (d) For example, v. Arch. 126. (e) As to bail by coroners, v. p. 258. (/) The old mode of trial by appeal, involving a trial by battle, abolished after Thornton's Case (J B. & Aid. 405), by 59 Geo. 3, c. 46, may just be mentioned. 282 PLACE OF TRIAL. CHAPTER VI. PLACE OF TRIAL. Wb have already iutiinated( terms or vacations next im- mediately preceding.()') Jurors who have been summoned not attending, and not giving sufScient reason for their absence, and in court hav- ing been three times ordered to appear and save their fines, may be fi.ned. Of course, no person who was on the grand jury by which the bill was found can sit upon the petty jury by which it is tried. The names of the jurors summoned are written on tickets and put into a box. The twelve first drawn out are sworn on the jury, unless absent, excused, or challenged, or unless a previous view of some matter connected with the subject in issue has been ordered by the court, in which case the jurors who have had the view are sworn first. The re- maining jurors are either ordered by the judge to rentaiu in attendance in case their services should be required, or are allowed to retire until another day, or are released altogether, according to the discretion of the judge. (y) 33 and 34 Vict., o. 77, g 20. (r) 6 Geo. 4, c. 50, | 42. THE PETTY JURY. 323 The prisoner or prisoners, for usually a batch of them are brought up at the same time to appear before the jury, are apprised of their right to object to or challenge any of the jurors by the clerk of the arraigns or other officer of the court in the following terms : " Prisoners, these men that you shall now hear called, are the jurors loho o.re to pass between our sovereign lady the queen and you, upon your re- spective trials (or, in a capital case, uponyourlife and death) ; if, therefore, yo\i, or any of you, will challenge them, or any of them, you must challenge them as they come to the hook to be sworn, and before they are sworn, and you shall be heard." The twelve jurors are then called by the proper officer. Challenges may be made, not only on behalf of the pris- oner, but also on behalf of the crown. They are of two kinds: (a.) For cause; (b.) peremptory. The former are either — i. To the array, when exception is taken to the whole panel, ii. To the pells, when particular individuals are ob- jected to. i. The challenge to the array is an objection to the whole body of jurors returned by the sheriff, not on account of their individual defects, but for some partidlity or default in the sheriff or his under-officer who arrayed the panel. It maybe either — (a.) A pn'nci^'flZchalledge, which is founded on some manifest partiality, as if tVie sheriff be the prose- cutor or person itvjured, or be closely connected with such person, or if he has any pecuniary interest in the trial, or be influenced in his retnrn of jurors by the prosecutor or defendant, or if he be counsel, attorney, etc., in the case; or it. may be founded on some error on the part of the sheriff. If the cause -of challenge is substantiated the court will quash the array, (b.) Challenge for favor, in cases where the groTind of partality is less apparent and direct, as when one of the parties is tenant to the sheriff. The challenge to the array ought to be in writing, and must state specifically the ground of objection. How is it to be determined whether it shall take effect ? The other 324 THE PETTY JURY. side, prosecution or defense, may either plead to the chal- lenge, traversing or denying its cause, or may demur to it as insufficient. If it is demurred to, the court will decide the demurrer. If the other side pleads to the challenge, two triers are appointed by the court (generally from the jurymen returned), and are sworn and charged to try whether the array is an impartial one. Sometimes it is tried by the coroners, or by othei's, the mode being left to the discretion of the court. (s) If the challenge is found to be well-grounded, a new venire is awarded to the coroners; or, if they are interested, to the elisors (two clerks of the court, or two persons named by the court and sworn). The retui'n of these elisors can not be questioned. Though the challenge to the array be determined against the party, he may still have — ii. A challenge to the foils. — This is also either (a) princi- pal ; or (b) for favor. Principal challenges may be subdivided into these : Propter honoris respectum — where a peer or lord of parlia- ment is sworn on a jury for the trial of a commoner. Propter defectum — that is, on account of some personal objection, as alienage, infancy, old age, or a want of the requisite qualification. Propter affectum — where there is supposed to be a bias or prospect of partiality, as on account of the relationship of a juror; or where an actual partiality is manifested, or where a juror has expressed an opinion as to the result of the trial. Propter delictum — if a person has been convicted of an infamous crime (e. g., treason, felony, perjury, etc.), and has not been pardoned, or has been outlawed. (<) Challenges for favor are made when there is reasonable ground for suspicion (as if a fellow-servant be one party), but there is not sufficient ground for a principal challenge propter delictum. The challenge to the polls is generally made orally, and («) 4 Bl. 353. (0 34 and 35 Viot., c. 77, § 10. THE PETTY JURY. 325 ninst be made before the juror h.as kissed the book, though often the publicity of the matter is avoided by previous in- timation of the objection being made to the proper officer, and in such case probably the juror objected to would not be called. How is the validity of the challenge to be de- termined ? If it is a principal challenge, by the court itself; if a challenge for favor, by two jurors who have al- ready been sworn. But if the challenge for favor is of one of the first two jurors, the court appoints two indifferent persons, thence termed " triers," to try the matter ; but they are superseded as soon as two are sworn on the jury. Wit- nesses may be called to support or defeat the challenge, and the person objected to also may be examined, but not asked questions which tend to liis discredit. It should be noticed that, as a rule, a person may challenge himself, upon which he may be examined on oath as to the cause. So the sher- iff may suggest the objection to his array on the ground of his relationship, etc. The crown may order any number- of persons called as jurors to stand by, and has not to show any cause for ex- cluding them, until the panel has been gone through and it appears that there will not be left enough jurors without those ordered to stand by.(u) So much for challenges for cause, to the number of which there is no limit, and the rules as to which are generally alike, both in criminal and civil cases. But there is an- other kind of challenge known to the criminal law alone. Peremptory challenge. — In felonies the prisoner is allowed to arbitrarily challenge, and so exclude, a certain number of jurors without showing any cause at all. He can not claim this right in misdemeanors ;(x) but it is usual, on application to the proper officer, for him to abstain from calling any name objected to by the prosecution or defend- (m) v. Mansell v. R., 27 L. J. (M. C.) 4. (»•) " It is equally absurd that in the case of a trifling theft, the pris- oner should have the right of peremptorily challenging twenty jurors, whilst a man accused of perjury might see his bitterest enemy in the jury box, and be unable to get rid of him as a juror, unless he could give judicial proof of his enmity."— Fitz. St. 106. 326 THE PETTY JURY, ant within reasonable limits ; and this course has been sanctioned by the court [y) The defendant may peremptorily challenge to the num- ber of thirty-live in treason, except in that treason which consists of compassing the queen's death by a direct attempt against her life or person. (2) In such excepted case, in murder, and all other felonies, the number is limited to twenty.(a!) If challenges are made beyond the number allowed, those above the number are entirely void, and the trial proceeds as if no such extra challenge had been miide.(/-') The court itself may take out of the panel the names of any jurors and insei't others whei'e such a course is necessary. (c) If a sufficient number of jurors do not appear, or if by means of challenges or exemptions a sufficient number of unexceptionable ones do not remain, either side may pray a tales, that is, a supply of such men as are summoned upon the panel, in order to make up the deficiency (generally from the bystanders, tales de cireum stantibus) ; but this couree seems to require a warrant from the attorney-general. (d) The usual course, however, at the assizes, is for the judge to order the sheriff to return a new panel instanter, without further precept ; and at sessions, for the justices to is- sue a special precept commanding the sheriff to return a sufficient number of jurors immediately. (i/) The reasons which Blackstone assigns are: 1. As every one must be sensible what sudden impressions and unaccountable preju- dices we are apt to conceive upon the bare looks and gestures of an- other, and how necessary it is that a prisoner should have a good opin- ion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one against whom he has conceived a prejudice, even without being able to assign a reason for such dislike. 2. Because, upon challenges for cause shown, if the rea- son assigned pi-ove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment. — 4 Bl. 353. (z) 39 and 40 Geo. 3, c. 93. (a) 6 Geo. 4, c. 50, ? 29. (i) 7 and 8 Geo. 4, c. 28, § 3. (c) 6 Geo. 4, c. 50, g 29. {d) 2 Hawk., c. 41, § 18; 4 Bl. 355; Arch. 164. THE PETTY JURY. 327 When the jury have once been sworn they can not leave the box without the leave of the court, and then only in company with some ofHcer of the court. If, in consequence of being unable at once to come to a conclusion, they ob- tain leave to withdraw in order to consider their verdict, they are kept apart from any one, under the charge of an officer, who is sworn not to speak to them (except to ask them whether they have agreed), or suffer any one else to do so. Their verdict will be set aside if they speak with any one interested, or cast lots as to which way they shall decide. In these and other cases of delinquency they may be fined. By leave of the court they may have reasonable refre3hment.(e) If the trial is adjourned over night in treason or felonies, the jury retire in custody of the sheriff and his officer, who are sworn to keep them together. In misdemeanors they are allowed to go home on engaging not to listen to any thing spoken to them as to the case under trial. If during the trial, before verdict is given, one of the jury dies, or is taken so ill that he is not able to pro- ceed with the trial, or without permission leaves the box,(/) the jury is discharged and a new one sworn to try the case. Of course in such an event the remaining eleven may, and most irequently will, be in the new jury. "We have been hitherto referring to common juries. But asin civil, so in criminal cases, special i\ir\ea are sometimes summoned. But this is only in misdemeanors, where the record is in the queen's bench division, and only bj^ per- mission of the court on motion of either the prosecutor or the defendant. The party applying for a special jury must pay the extra fees and expenses, unless the coui-t certifies that it was a proper case to be tried by a special jury. These jurors are taken from a higher class than common jurors, their qualifications being determined by statute. (^) The instances of the trial of a criminal case by a special jury are so rare that we need not enter into farther par- ticulars. Another exceptional form of jury was, until lately, some- (e) V. 33 and 34 Vict., c. 77, § 23. (/) E. v. Wood, 10 Cox, 573. iff) 33 and 34 Vict., c. 77, § 6. 328 THE PETTY JURY. times demanded ; a jury de medietate linguce. Formerly, in cases of felony or misdemeanor, but not of treason, an alien might claim his right to be tried by a jury, half of whose number were aliens, or, at least, if not half, as many as the town or place could furnish. But this privilege was taken away by the natui'alizati'on act, 1870; (h) and now an alien is tried as if he were a natural-born subject.(i) [In some states, as Ohio, Kentucky, and Iowa, the whole subject of challenging is determined in great detail by statute; in others, the grounds for challenge are left sub- stantially as at common law. The challenge on the ground of a previously formed or expressed opinion as to the de- fendant's guilt has given rise to more decisions in the United States than on all other giounds together. A digest of the decisions may be found in the note to § 771, 1 Bishop's Criminal Procedure. If the proposed juror, in a capital case, has such conscientious scruples against capi- tal punishment that he would not find a verdict of guilty, he must, if challenged, be excluded. When he admits he has a fixed opinion against capital punishment, but does not say he would not find a verdict of guilty, it has been held he should be excluded.(l) And, contra. (2) It has like- wise been held good ground for challenge that the juror would not render a verdict of guilty on circumstantial evi- dence ;(3) that he does not think the matter charged against the defendant is a crime;(4) that he holds the statute under which the defendant is indicted unconstitutional, and, there- fore, would not bring in a verdict of guilty. (5) An exemption is a pi-ivilege of the juror; if he does not choose to claim it, his failure does not give either party ground for challenge. (A) 33 and 34 Vict., c. 14, § 5. (/) We have ah-eady referred to another case of so-called jury ds medietate lingua;, v. p. 300. (1) O'Brien v. People, 36 N. Y. 276 ; Walker v. State, 40 Ala. 325. (2) Atkins v. State, 10 Ark. 568 ; People v. Stewart, 7 Cal. 140; Com- monwealth v. Webster, 5 Cush. 295. (3) Gates V. People, 14 111. 433. (4) Choteau v. Pierre, 9 Mo. 3. (5) Commonwealth v. Austin, 7 Gray, 51. THE PETTY JURY. 329 The trial of a challenge for favor by triers is generally abolished by statute, and trial by the court substituted. Parties may waive tbeir right to challenge. If either party, knowing the existence of ground for challenge, omits to challenge before the juror is sworn, he waives his right to except to the juror on such ground. It is held by some courts that if the party omits to use the means given to him by the law, of ascertaining the juror's competency — if he omits to inquire of the juror or challeuge him before he is sworn — it is too late to except to him.(l) In other courts, this is denied or qualified.(2) If a challenge is erroneously overruled, and the juror is then peremptorily challenged, this is not cause for new trial or reversal, if the challenging party goes to trial with- out exhausting his peremptory challenges.(3) In Ohio, where there are several defendants, and there has been no severance, each defendant is entitled to as many peremptory challenges as if he were tried alone.(4) In Kentucky(5) and Iowa,(6) all the defendants constitute one party, and a challenge by any one of them is a chal- lenge by all. In the various states, statutes ordinarily give the defend- ant in capital cases a lai'ge number (in some, twenty ; in others, twenty-three; in Michigan, thirty) of peremptory challenges ; and, in all other cases, misdemeanors as well as felonies, a smaller number — in some states, two ; in others, three. Generally, the state has a limited number — (1) State, V. Howard, 27 N. H. 171 ; Stalls v. State, 28 Ala. 25 ; Gil- lespie u. State, 8 Yerg. 507; Beck v. State, 20 Ohio St. 228, the prin- ciple stated in a civil case, Kenrick v. Reppard, 23 Ohio St. 333. (2) Commonwealth v. Wade, 17 Pick. 395; Commonwealth v. Flan- nagan, 7 Watts & S. 515; Thompson v. Commonwealth, 8 Gratt. 637; State V. Underwood, 6 Ired. 96 ; Ogle v. State, 33 Miss. 383 ; State v. Bunger, 14 La. Ann. 461; Stoner v. State, 4 Mo. 368; State v. Groome, 10 Iowa, 316. (3) Nimms v. State, 16 Ohio St. 221 ; Erwin v. State, 29 Ohio St, 186; Carroll v. State, 3 Humph. 315 ; State v. Elliott, 45 Iowa, 486. But contra, Dowdy v. Commonwealth, 9 Gratt. 727. (4) 74 Ohio L. 346. (5) Grim. Code, § 198. (6) Rev. Stat. (1873), p. 681. 330 THE PETTY JCET. the same in all cases. In some states, the number is three; in some, two. In Illinois, the defendant and the state have alike twenty peremptory challenges in capital cases, ten in cases where the punishment is imprisonment for more than eighteen months, and six in all other cases. (1) When talesmen are required to fill the jury, the court directs the sheriff to call the required number. The sher- iff is not restricted to persons in the court-house. (2) In Ohio, the statute prohibits summoning as talesman any person known to be in the court-house at the time. In Ohio, either pai't}' has the right, when talesmen are needed, to call upon the court to draw up a list of names to constitue a special venire. Under the criminal codes of Kentucky(3) and Iowa,(4) no juror is sworn as such, till twelve are accepted, when the twelve are sworn together. In the absence of statutory regnlation, the court may require both parties to make their peremptory challenges, after having exhausted their challenges for cause, to each juror as called, and, upon de- fault, may require the juror to be sworn as such at once, before calling another.(5)] (!) Rev. Stat. (1877), pp. 405, 406. (2) State V. Lamon, 3 Hawks (N. C), 175. (3) § 217. (4) Eev. Stat. (1873), p. 683. (5) Schufflin v. State, 20 Ohio. St. 233. THE HEARINO. 331 CHAPTER XIY. THE HEARING. [A PERSON who is insane, is held incompetent to defend himself. Accordingly, provision is made in most of the states that upon proper suggestion that a person under in- dictment is insane, all proceedings against him shall be stayed until that question is determined. The determina- tion of that question is not the determination of any ques- tion arising under the indictment, for it is the ascei'tain- ment of his sanity or insanity at the time the inquiry is made, not his sanity or insanity at the time the offense is charged to have been committed. In Ohio, if suggestion by counsel is made, and the certificate of a respectable phy- sician is presented to the court at anytime before sentence, that the defendant is not sane, a jury is impaneled to de- termine the fact if he is insane, at the time of the impanel- ing of such jury. If the verdict be that he is not sane, proceedings are stayed until his restoration to sanity ; and meanwhile the fact is certified to the probate, judge, by whom the defendant is to be dealt with, as if found insane by the probate judge. Upon his restoration, or if he be found sane, the prosecution proceeds. (1) If a convict, sen- tenced to death, appear to be insane, a like trial is had ; if he he found insane, execution is stayed until the governor, convinced that the convict has become of sound mind, shall issue a warrant appointing a time for his execution. (2) There are substantially similar provisions in Kentucky,(3) Illinois,(4) and Iowa. (5) At any time before the jury is sworn to try the issue, the prosecuting attorney may enter a nolle prosequi. This is a (1) 66 Ohio L. 339. (2) Ibid., p. 357. (3) Crim. Code, g 156. (4) Eev. Stat. (1877), p. 391. (5) Eev. Stat. (1873), p. 710. 332 THE HEAKING. discontinuance of the prosecution, and has the same effect as a dismissal without prejudice in a civil action. But if a nolle prosequi is entered after the jury is sworn, it is a dis- missal after jeopardy has begun, and is therefore, in effect, an acquittal ; a final and conclusive discharge of the defend- ant.(l) If, liowever, the indictment is bad, the defendant can not be put in jeopardy by it ; and a nolle prosequi, after the jury is sworn in such case, is not a bar to a subsequent prosecution by another indictment for the same oft'ense.(2) In Michigan, the prosecuting attorney can not enter a nolle prosequi without leave of court. (3) In Indiana, it can not be entered except by the court on motion. (4) In Iowa, the entry of a nolle prosequi is abolished ; but the court may, on its own motion, or on application of the district attorney, order a dismissal of the prosecution, which dismissal is a bar to another prosecution for the same offense, if it is a misdemeanor, but not if it is a felony.(5) The constitution of the states, as well as the constitution of the United States, provides, in various phraseology, that the right of trial by jury shall be inviolate. The word jury, as there used, means a jury of twelve men. (6) It was •lately held, by the Supreme Court of Iowa, that this pro- vision simply secures a right to ihe accused, which he can therefore waive in any case, whether misdemeanor or fel- ony.(7) But the prevailing opinion is, that the trial of an issue of not guilty bj' the court, without the intervention of a jury, is a matter which concerns the jurisdiction of the court as well as the right of the defendant. It is held by some courts, that the defendant can waive trial by jury in cases of mi8demeanor,(8) while the contrary is held by (1) Mount' u. State, 14 Ohio, 295. (2) "Walton v. State, 3 Sneed, 687. (3) Rev. Stat. (1871), vol. 2, p. 2108. (4) Rev. Stat. (1876), vol. 2, p. 399. (5) Rev. Stat. (1873), p. 709. (6) Work V. State, 2 Ohio St. 296. (7) State V. Kaufman, decided September, 1879, reported Cent. Law J., October 17, 1879, p. 313. (8) Commonwealth v. Dailey, 12 Cush. 80; Murphy v. Common- wealth, 1 Mete. (Ky.) 365; Tyra v. Commonwealth, 2 Mete. (Ky.) 1; "Williams v. State, 12 Ohio St. 623; Darst v. People, 51 111. 286. THE HBAKING. 333 other court8.(l) It is generally held that trial by jury can not be waived in cases of felony.(2) In some cases the ruling is, that trial by jury can not be waived even in cases of misdemeanor, unless the court is authorized by statute to consent to the waiver.(3) And under a .statute provid- ing that the defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court, ex- cept iu capital cases, and all other cases must be by jury, it is held that, in cases other than capital, the trial must be eitiier by the court without the intervention of any jury, or by a jury of twelve men; the defendant's consent will not authorize a trial by ten jurors.(4) And, under a stat- ute authorizing the submission of all cases to the court, the court may, by consent, try a case of murder without the intervention of any jury. (5)] The full complement of jurors having been obtained, they are. sworn; or, if any of them, on conscientious grounds, object to the oath, they make the statutory de- claration. (_/) The oath, and mode of taking it, differ slightly in felonies and in misdemeanors. In felonies, each juror is sworn separately, in the following terms : " You shall well and truly try, and true deliveran.ce make, between our sovereign lady the queen and the prisoner at the bar, lohom you shall have in charge, and a true verdict give according to the evi- dence. So help you God." In misdemeanors, four take hold of the book at the same time, and four, or sometimes all, are sworn together. The oath is : " You shall well and tndy try ike issue joined between our sovereign lady the queen and the defendant, and a true verdict gice according to the evidence. So help you God."{/c) (!) Bond V. State, 17 Ark. 290; Neales v. State, 10 Mo. 498. (2) Cancemiv. People, IS N. Y. 123; Williams v. State, 12 Ohio St. 622; Boll v. State, 44 Ala. 393. (3) State V. Maine, 27 Conn. 281 ; People v. Smith, 9 Mich. 193 ; Hill V. .People, 16 Mioh. 351. (4) Brown v. State, 16 Ind. 496 ; Allan v. State, 54 Ind. 461. (5) League v. State, 36 Md. 257. 0') 30 and 31 Viot.. c. 35, § 8. (i) V. Fitz. St., p. 57, as to the historical cause of this distinction, the terms of the oath in a misdemeanor showing the resemblance of pro- 334 THE HEARING, Aftei- the jury are sworn, in cases of treason or felony, the crier of the assizes makes the following proclamation : " If avy one can inform my lords the queen's justices, the queen's attorney-general, or the queen's serjeant, ere this inquest taken beticeen our sovereign lady the queen and the prisoners at the bar, of any treason, murder, felony, or misdemeanor, committed or done by them, or any of them, let him come forth, and he shall be heard; for the prisoners stand at the bar on their deliverance." The clerk of arraigns or of the peace, having calleil the prisoner to the bar, says to the jary: " Gentlemen of the jury, the frisoner stands indicted by the name of John Styles, for that he on the (reciting the substance of the indictment). Upon this indictment he has been ar- raigned, and upon his arraignment he has pleaded that he is not guilty ; your charge, therefore, is to inquire whether he be guilty or not guilty, and to hearken to the evidence." In mis- demeanors, the jury are not thus charged. The counsel for the prosecution now opens the case to the jurj^, stating the principal facts which the prosecution intend to prove. He then calls his witnesses, who, having been sworn, are examined by him, and then subjected to cross-examination by the counsel for the defense ; or, if the prisoner is not defended by counsel, to any questions which the prisoner may put to them. The counsel for the prosecution may re-examine on matters referred to in the cross-examination. The court, also, may, at any time, interpose, and ask ques- tions of the witnesses. After the case for the prosecution is closed, it is ascertained whether the defense intend to call any witnesses. If they do not, the counsel for the prosecution may address the jury a second time in support of his case, for the purpose of summing up the evidence against the prisoner :(/) but this right will be exercised only in exceptional cases, as whei-e the evidence materially difi'ers from the counsel's instructions. But if the prisouer cedure in a misdemeanor to that in a civil action; that in a felony re- minding us of the days "when the jury were both judges and wit- nesses, who reported on the prisoner's guilt or innocence of their own knowledge.'' (0 28 Vict., c. 18, § 2. THE HEARING. 335 has witnesses whom he wishes to call, his counsel opens the case for the defense, and calls these witnesses in sup- port tliereof. They also are subject to cross-examination by the counsel for the prosecution, and re-examination by the counsel for the defense, on this cross-examination. The counsel for the prisoner is now entitled, at the close of the examination of his witnesses, to sum up his evi- dence.(m) After this address by the counsel for the defense, the counsel for the prosecution has the right of reply. This is in consequence of the defense having adduced evidence, written or parol, in defense (but mere evidence to character has not, iu practice, this result) ; for if he has not done so, the address of the counsel for the defense is the last. There is, however, one exception. When the attorney- general, or some one else as his representative, is prosecut- ing, he has the right of reply, although no evidence has been adduced for the defense.(n) If two prisoners are jointly indicted for, the same offense, and only one calls witnesses, the counsel for the prosecution has the right to reply generally ; but not if the offenses are separate, and the prisoners might have been separately indicted. (o) If the prisoner is not defended by counsel, he may cross- examine the witnesses for the prosecution and examine his own witnesses, and, at the end of such examination, ad- dress the jury in his own defense. And if one only of two prisoners jointly indicted, is defended by counsel, the undefended one may cross-examine and examine as above, and make his statement to the jury before or after the ad- dress of the counsel for the other, as the court thinks fit. If the prisoners jointly indicted are defended hy different counsel, each counsel cross-examines and addresses the jury in order of seniority at the bar, or, if the judge thinks de- sii'abJe, in order of the names of the prisoners on the in- dictment.(5') If a prisoner defended by counsel wishes to (to) 28 Vict., c. 18, § 2. (n) E. v. Toakley, 10 Cox, 406. (o) R. V. Jordan, 9 C. & P. 118. (?) Arch. 167. But this point does not seem to be clearly settled E. V. Meadows, 2 Jur. (N. S.) 718 ; E. v. Holman,, 3 Jur. (N. S.) 722. 336 THE HEARING. address the jury and examine and cross-examine witnesses, lie may do so, and his counsel may argue points of law, and suggest questions to him in cross-examination; but he can not have counsel to examine and cross-examine witnesses, and reserve to himself the right of addressing the jury.(r) It will simplify matters if we tabulate the steps in the various cases which may occur. i. The prisoner defended by counsel, and adducing evidence in defense. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who may be then cross-examined and re-examined. Counsel for defense opens his case. Counsel for defense examines his witnesses, who may be then cross-examined and re-examined. Counsel for defense sums up his case. Counsel for prosecution replies, ii. Prisoner defended by counsel, but not adducing evidence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who, etc. Counsel for prosecution sums up his case.(s) Counsel for defense addresses the jury, iii. Prisoner not defended by counsel, but adducing evidence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who, etc. Prisoner examines his witnesses, who, etc. Prisoner addresses the jury. Counsel for prosecution replies. iv. Prisoner not defended by counsel, and not adducing evi- dence. Counsel for prosecution opens his case. Counsel for prosecution examines his witnesses, who, etc. Prisoner addresses the jury. (r) R. V. White, 3 Camp. 97. (s) v. p. 334. THE HEARING. 337 [The order of proceeding in the trial in Kentucky is the same as No. 1 above, except that, after the close of the evi- dence for the defense, the parties may respectively ofler re- butting evidence, and also, by leave of court upon good reason, may ofler further evidence in their original case; and the court shall, on motion of either party, and before argument to the jury, instruct the jury on the law applica- ble to the case, which instruction shall always be given in writing.(l) In Ohio, the counsel for the state must first state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it. The defendant, or his coun- sel, then must state his case, and may briefly state the evi- dence he expects to offer. The state produces its evidence, and then the defendant offers his. The state will then be confined to rebutting evidence, unless the court, in further- ance of justice, permit it to offer further evidence in chief. If such permission is given, the defendant has the right to offer new evidence in answer to such additional evidence. "When tlie evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court, and shall be in writing if either party request it. The argument is begun by the state, then by the defense, and the state concludes. The court then charges the jury, which charge shall be in writing if either party request it, before tlie argument to the jury is begun. (2)] The only other proceeding before the jury consider their verdict, is the summing up by the judge, or, at the sessions, by the chairman or recorder. The object of this is to ex- plain the law as applicable to the case under trial, and to marshal the evidence so that it may be more readily under- stood and remembered by the jury. He first states to them the substance of the charge against the prisoner; he then, if necessary, explains to them the law upon the subject; he next reads the evidence which has been adduced in support (1) Crim. Code, gg 220-225. (2) 74 Ohio L. 349. 22 338 THE HEARING. of the charge, making, occasionally, such observations as may be necessary to connect the evidence, to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defense, and the evidence given on the part of the defendant; and he usually con- cludes by telling the jury that, if upon considering the whole of the evidence they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt, and acquit him.(<) (<) Arch. Q. S. 619. In an American case it has been decided that a judge may, when the evidence is clear and uncontradicted, and the character of the witnesses unshaken, tell the jury that it is their duty to convict. Commonwealth v. Magee, 12 Cox, 549. The summing up of the judge "may, and generally does, indicate his opinion, but it is an opinion which is the result of the evidence laid before him, and not as an independent inquiry." — Fitz. St. 161. [In the United States, the boundary is strictly drawn between the province of the court and the jury. The court decides what is evi- dence, the jury weighs evidence. If no evidence is offered by the state, or if there is such failure as to any material allegation in the indictment, the court may say, as matter of law, there is nothing for the jury to consider, and may direct the jury to acquit the defendant. But if there is evidence as to every material averment, whether it be slight or cogent, the court must leave it absolutely to the jury to de- termine its weight. The Pennsylvania case, Conamonwealth v. Magee, reported in the English series of Cox, and cited above by the author, is against the current of American cases. In Tucker v. State, 57 Ga. 503, where the same point arose, it was held error for the court to di- rect the jury to bring in a verdict of guilty, though the evidence of guilt was overwhelming. Where the evidence consists of the testi- mony of a single witness, and is, therefore, not contradicted, it is error for the court to direct a verdict of guilty. Huffman v. State, 29 Ala. 40. Though the evidence produced by the state may not be contra- dicted by evidence offered by the defense, yet the jury have the right to consider the credibility of the state's witnesses. Hence there is a distinction between Magee's case and the case of United States v. An- thony, 11 Blatchf. 200. There, Hunt, J., held that where all the facts are conceded, are agreed to, and the only contest is as to the legal ef- fect of those facts, there is nothing to submit to the jury, aud the court may direct the jury to find a verdict of guilty. It has been repeatedly hsld, by the Supreme Court of the United States, th.it it is the exclusive province of the jury to judge of the weight of evidence. But, in Gaines et al. v. Stites, 14 Pet. 322, thmt THE HEARING. 339 court said: " The principle is well established that a court may give their opinion on the evidence to the jury, being careful to distinguish between matters of law and matters of opinion as to facts.'' But, generally, in the state courts, such expression of opinion by the court is ground for reversal. It is correct, indeed, to charge, when the tes- timony is all positive, " if you believe the witnesses, it is your duty to find the defendant guilty." Duffy v. People, 5 Parker, 321 ; 26 N. Y. 588. But it is errorto charge, "if you believe the defendant volun- tarily confesses his agency in the transaction, you ought to find him guilty," for it is still the province of the jury to find if the confession is in fact true. Butler v. Commonwealth, 2 Duvall, 435. It is correct for the court to refuse to charge, " the jury might take into considera- tion the publicity with which the property had been taken, kept, and sold by the accused, in deciding as to the felonious intent," as giving by the court undue prominence to particular facts. Elswich v. Com- monwealth, 13 Bush, 155. Where the evidence is conflicting and evenly balanced, an instruction that the remembrance of occurrences nearly a year back, "is not always to be expected of a witness," is er- roneous, as bolstering up his testimony. Shaw v. People, 81 111. 151. It has been held error for the court to instruct the jury, when the wife of the defendant has testiflied as a witness, "that her testimony should be received with great caution." State v. Guyer, 6 Iowa, 264; State v. Nash, 10 Iowa, 88 ; State v. Collins, 20 Iowa, 85. For similar rulings as to the abstention required of the court : Commonwealth v. Barry, 9 Allen, 276; Walker v. State, 37 Texas, 366; Doan v. State, 26 Ind.495; Doering V. State, 49 Ind. 56; State v. McCanon, 51 Mo. 160; State v. Smith, 53 Mo. 207. But it is not error for the court to recite to the jury what is claimed by the parties to be proved, when this is done fairly, done for the purpose only of a proper explanation of the law applicable to the case. Nimms v. State, 16 Ohio St. 221. There was a tendency in the courts to hold that the jury has the right to decide the law as well as the facts in criminal prosecutions. The current has changed, and it is now generally settled that the jury are not judges of the law, but must take the law from the court. Peo- ple V. Bennett, 49 N. Y. 137. It is provided, however, by the constitu- tion in Maryland and Indiana, and by statute in Connecticut, Georgia, and Illinois, that the jury, in criminal cases, is judge of the law as well as of fact. It is accordingly held in Maryland and Indiana, that though the court may instruct the jury as to the law, such instruction is not binding, but only advisory. Wheeler v. State, 42 Md. 563 ; Lynch v. State, 9 Ind. 541. In Illinois, it is held correct for the court, after instructing the jury that they are the sole judges of law as well as fact, to add, " it is the duty of the jury to accept and act on the law laid down by the court, unless you can say upon your oaths you are better judges of the law than the court." Mullinix v. People, 76 111. 211. The rule is substantially the same in Connecticut. State v. 340 THE HEARING. Buckley, 40 Conn. 246. While, in Georgia, it is held, notwithstanding the statute, that it is the duty of the jury to take the law from the charge of the court, because it is the only source from which they can properly ascertain it. Habersham v. State, 56 Ga. 61. The court is not required to give instructions in manner and form as asked ; but if instructions, the same in substance with those asked, are given, the party asking can not allege error. Bolen v. State, 26 Ohio St. 371; State v. Donneker, 40 Iowa, 340; State v. Woodson, 41 Iowa, 425.] THE WITNESSES, 341 CHAPTER XV, THE WITNESSES. PoHMBELY, many more classes of persons were excluded, as incompetent, from giving evidence, than are at the pres- ent day. An objection to the testimony of a witness gen- erally operates in another way now. Instead of excluding it altogether, the objection weakens the testimony, and pre- vents the jury from placing ordinary credit in it, and at the same time giving them the opportunity of gathering there- from as much truth as possible. Thus, it has been provided by statute that no person offered as a witness shall be ex- cluded by reason of incapacity from crime or interest from giving evidence ;(«) two grounds of incompetency which formerly prevailed. However, even now, a person under sentence of death is incapable of giving evideuce.(a;) The forms of incompetency, at present existing, are: 1. Incompetency of the accused, and the wife or hus- band. 2. Incompetency from want of understanding. 3. Incompetency on account of the relationship of legal adviser. Though incompetency from want of religious belief may be regarded as a thing of the past, it is important to notice it. 1. Ineowpetency of accused, and the wife or husband. It is a general principle of English law that no one is bound to criminate himself (nemo tenetur prodere seipsum). In other words, the accused can not be examined as a witness either for the prosecution or the defense. It is obvious that if he were examined as a witness in his own defense, being subjected also to cross-examination by the counsel for the prosecution,, he might be compelled to answer questions (u) 6 and 7 Vict., o. 85, g 1. (x) K. v. Webb, 11 Cox, 133. 342 THE WITNESSES. ■which would criminate him9elf.(?/) There is at least one exception to this principle. The case referred to is under the merchant shipping act, 1875,(2) where it is provided that one accused of sending an unseaworthy ship to sea may give evidence in the same manner as any other witness, for the purpose of showing that he used all reasonable means to make and keep the ship seaworthy, etc.(a) [The states have generally enacted that a person indicted shall, at his own request, but not otherwise, be a compe- tent witness ; but his neglect or refusal to testify shall not create any presumption against him, nor shall any com- ment be made upon such neglect or refusal. This provis- ion was not adopted in Iowa,(l) or in the federal courts, (2) till 1878. It has not been adopted in Kentucky. A person has direct knowledge of his own motives and intentions ; hence the defendant can testify directly as to his motive and purpose, so far as they are material to the issue. (3) The defendant is competent to testify on his own behalf, under such statutory permission, although, having been pre- viously convicted of felony, he is, by the law of the state, incompetent as a witness generally.(4) When a defendant testifies in his own behalf, his cross-examination can be car- ried to the same extent, and is subject to the same limita- tions, as the cross-examination of other witnesses. (5)] (y) The interrogation of prisoners, subject to certain provisions, is recommended by Sir James Stephen. See Gen. View Crim. Law, 189, where the whole subject is entered into, and where the system of non- interrogation is shown to be of modern date. The reader will remem- ber that the interrogation of prisoners is one great feature of French criminal procedure. (z) 38 and 39 Vict., c 88, § 4; v. p. 138. (a) The first instance in modern times of a prisoner being examined occurred at the Liverpool Spring Assizes, 1876, when the innovation gave rise to some very severe condemnatory i-emarks by Mr. Justice Brett. (1) Laws of 1878, c. 168. (2) Statutes Second Session 45th Congress, p. 30. (3) Kerrains v. People, 60 N. Y. 221 ; Greer v. State, 53 Ind. 420; White V. State, 53 Ind. 595. (4) Newman v. People, 63 Barb. 630. (5) Commonwealth u. Launan, 13 Allen, 563; Commonwealth v. THE WITNESSES. 343 In some cases a wrong-doer is not excused from answer- ing questions on the ground that his answer may tend to criminate himself; but on his making full disclosure he is shielded from all ill consequences ; for example, 17 and 18 Vict., c. 38, § 5. Defendants jointly indicted and given in charge to the jury, and being tried together, can not be called as wit- nesses for or against each other. But, as we have seen, (6) the course is sometimes adopted of ajDplying for an acquit- tal of one of the codefendants, in order to make him a witness for the prosecution, and the other defendants can not object to this.(e) If a second person is indicted with the design of closing his mouth and preventing him from giving evidence, the court may direct his acquittal, if there is no evidence to affect him, or may order him to be tried separately, so that his testimony may be admitted. A de- fendant who has pleaded guilty may be examined as a witness for or against his codefendants, even before he has received sentence. [The general provision, in the statutes of the states, is that nn person is disqualified as a witness, in a criminal prosecu- tion, by reason of his interest therein as a party or other- wise. The other provision gives the defendant a privilege of declining to be a witness. Any defendant, therefore, can offer himself as a witness on his own behalf, and can consent to be a witness on behalf of, or against, his co- defendants. The Kentucky code provides, " If two or more persons be jointly indiced'for the same offense, each shall be a competent witness for the others, unless the indict- ment charge a conspiracy between them."(l) Where sep- arate trials are awarded to parties jointly indicted, each is a competent witness against the other.(2)] Husband and wife. — In treating of the evidence of a wife, Mullen, 97 Mass. 545; Farley v. State, 57 Ind. 321 ; People v. MoGun- nigill, 41 Cal. 429; State v. Cohn, 9 Nev. 179. (6) V. p. 359. (c) E. V. Rowland, Ry. & M. 401. (1) g 234. (2) Brown v. State, 18 Ohio St. 351. 344 THE WITNESSES. it maybe understood that the same rules, mutatis mutandis, apply to the evidence of a husband. The wife can not be a witness for or against her husband. IsTot only this, but she can not be a witness for any other person indicted jointly with her husband, where her testi- mony would tend to her husband's acquittal, though only remotely, as, for instance, merely by shaking the evi- dence of a witness.(rf) And if several prisoners, jointly indicted, are being tried together, the wifie of one of them can not be called as a witness for or against any of the prisoners. (e) But to bring the case under this incompetency or exception, the parties must have been actually married; mere cohabitation will not suffice. [There are three states of case in which a wife can not be a witness for a co-defendant with her husband : First, where her testimony, as in case of conspiracy, would tend directly to the acquittal of her husband ; sec- ondly, where, as in the case of an assault, the interests of all the defendants are inseparable ; thirdly, where the rights of the husband, though not a party to the suit or prosecu- tion, would be concluded by any verdict therein.(l) But upon the separate trial of one defendant, under a joint in- dictment against him and several others, charging them with murder, the wives of the latter are competent wit- nesses to prove an alibi for the former.(2) In Iowa, a hus- band and wife can testify for each other in all cases, but against each other only in a prosecution for a crime com- mitted by one against the other.(3)J There are two exceptions to this principle, one of which is doubtful. (a.) In high treason it is said that husband and wife may be witnesses against each other, but no instance can be given.(/) {d) K. V. Smith, 1 Mood. C. C. 289. (^ E. V. Thompson, L. R., 1 C. C. R. 377 ; 41 L. J. (M. C.) 112 (/) V. Rose. 129. R. V. Griggs, T. Eaym. 1 (an obiter dictum). (1) Cornelius v. Commonwealth, 3 Mete. (Ky.) 481. (2) Thompson v. Commonwealth, 1 Mete. (Ky.) 13; and see State v. Burnside, 37 Mo. 343. (3) Rev. Stat. (1873), g 3636, p. 564, § 3641, p. 565, and § 4556, p. 700. THE WITNESSES. 345 (b.) In cases of personal injury (e. g., assault) by busband to wife, and vice versa. In bigamy, of course the so-called second wife is a com- petent witness ; also in forcible abduction and marriage, the marriage here being invalid, the parties may give evi- dence against each other. No other relationship entitles to exemption. Parents and children, brothers and sisters, masters and servants may be, and constantly are, called to give evidence for or against each other. 2. Incompetency from want of understanding. Generally the same rules which serve to render a person incapable of committing a crime, apply to exclude a person from being a witness. Thus an idiot or a lunatic, unless in an interval of sanity, is incompetent, it being the province of the court to ascertain whether a person is able to under- stand the nature of an oath and to give evidence. Persons deaf and dumb, or dumb only, may give evidence through an interpreter. As to children, the rule is somewhat difierent from that which prevails when the question is whether the child is responsible for its acts. An infant under the age of seven is incapable of committing a crime, but it is competent to give evidence at any age, if it satisfies the test, namely, if it has sufficient intelligence to understand the nature and obligation of an oath.(^) The judge frequently, before al- lowing a child to be sworn, questions it as to its belief in God, knowledge of the consequences of telling a lie, etc. ' 3. Incompetency on account of the relationship of legal ad- viser. Counsel, solicitors, and their agents are not obliged, nor are they allowed, without the consent of their clients, to give evidence of communications, written or parol, made to them by their clients in their professional capacitj^ And it is not material whether the communications were made in the case under trial or not, nor whether the client be a party (?) V. Fitz. St. 287, as to the evidence of children, though frequently based on imagination, having too much weight, on account of the- sympathies of the jury. 346 THE WITNESSES. to the cause. But of course they may be witnesses on points which do not come within the sphere of professional confidential communications; for exariiple, to prove their client's handwriting or his identity. This privilege does not apply to a medical attendant, a conveyancer, a priest, nor indeed to any others than those mentioned above. [In Indiana(l) and Iowa(2) physicians and clergymen, as well as attorneys, are incompetent to testify concerning confidential communications made to them in the course of their profes- sion or the discipline of their church. But this exemption is the privilege of the client, patient, or penitent, and may be waived by him. Ohio has the same provision in the civil code, as has Kentucky, except as to physicians.] In some cases the court will not compel or allow the dis- closure of a particular fact, if such disclosure may be of detriment to the public service, and does not bear directly upon the matter in question; for example, evidence dis- closing the channels through which information reaches the government. (/i) In competency from loant of religious bdief.(i) Formerly a person who had no religious belief which he deemed binding upon his conscience to speak the truth upon oath could not be a witness. But now this incompe- tency appears to have been done away with by a recent statute,(/i;) which provides that those who object to taking an oath, or are objected to as incompetent to take an oath, the court being satisfied that the taking of an oath would have no binding effect on their conscience, shall make a promise and declaration, in the prescribed form: "J sol- emnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth." Any person who, having made this declaration, willfully and corruptly gives false evidence, is liable to be (A) V. Hardy's Case, 24 How. St. Tr. 753. (i) For a full discussion of the question, v. Omichund v. Barker, Willes, 538; 1 Smith's Lead. Cas. (i) 32 and 33 Vict., c. 68, g 4. (1) Rev. Stat. (1876), § 90, p. 395, and act of 1867, inserted p, 132. (2) Rev. Stat, (1873), g 4556, p. 700, and g 3643, p. 565. THE WITNESSES. 347 indicted, tried, and convicted as if he had taken an oath. For some time, those who had some religious belief, but who conscientiously objected to oaths, such as Quakers, Moravians, and Separatists, had been admitted as witnesses on their making the statutory form of solemn affirmation or declaration. (?) The form of oath varies according to the creed of the witness. In the case of an ordinary Christian, the wit- ness, holding the New Testament in his bare right hand, is thus addressed by an officer of the court: " The evidence you shall gice to the court and jury, sworn between our sover- eign lady the queen and the jnisoner at the bar, shall be the truth, the whole truth, and nothing but the truth. So help you God." He then kisses the book. Jews are sworn on the Pentateuch, keeping their hats on, the oath concluding with " So help you Jehovah." In the case of others, the form which they consider binding is resorted to ; thus, a Chinese may be sworn by means of a cracked saucer. (/n) The objection to the competency of a witness should be made before he has been examined in chief, unless, of course, the incompetency appears only on examination. CEEDIBILITT OF WITNESSES. As we have already seen, instead of altogether exclud- ing a witness on account of some supposed bias, the course generally adopted is to admit his evidence, allowing the circumstances causing suspicion to affect his credibility. The great canon as to the credit of witnesses is that it is for the jury to form their opinion thereon, as on any other fact. " The credibility of a witness is compounded of his knowledge of the facts, his disinterestedness, his integrity, his veracity, and his being bound to speak the truth by such an oath as he deems obligatory. Proportioned to these, is the degree of credit his testimony deserves from the court and jury."(n) (0 V. 3 and 4 Wm. 4, c. 49; 3 and4 Wm. 4, c. 82; 1 and 2 Vict., c. 77; 24 and 25 Viot., a. 66. (m) V. Best, Ev. 230. («) Arch. 296. 348 THE WITNESSES. We have just noticed the means taken to secure the most stringent obligation by oath or affirmation. As to knowledge. — It will be important to consider on what the witness bases his conclusion ; what opportunities he had of satisfying himself; what were the surrounding circumstances, whether they were such as to conduce to a correct opinion ; for example, whether it was light or dark, etc. As to disinterestedness. — Here should be considered the relationship of the prisoner and witness, natural or other- wise ; the advantage or disadvantage that would accrue to the witness on the prisoner's conviction ; prejudices, quar- rels, etc.(o) As to veracity. — The chief mode in which the veracity of a witness is impeached, is by showing that at some former time he has said or written, or, what is more damaging, sworn, something not agreeing with or opposed to that which he now swears. As to the manner in which he may thus be confronted with his former allegations, it is pro- vided, by 28 Vict., c. 18, that if, on cross-examination, a wit ness does not admit having made a former statement, proof may be given that he did make it ^ but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be men- tioned to the witness, and he must be asked whether or not he has made such a statement. (y>) If the statement has been in writing, he may be cross-examined as to it with^ out the writing being shown to him ; but if it is intended to contradict him by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him. But this does not prevent the judge from inspecting and making such use of the writings as he thinks proper.(g') The wi'iting most frequently used to impeach the testimony of a witness is his deposition taken before the ma^strate. (o) As to the evidence of accomplices, v. p. 350. (p) 28 Vict., c. 18, § 4. (j) Ibid. § 5. THE WITNESSES. 349 As to general character. — It has been noticed above that a person is a competent witness although he has beeii convicted of a crime; but of course that fact will carry- weight with the jury. To weaken the testimony of a wit- ness, either one of two courses may be taken. The witness may be cross-examined as to his delinquencies, or (b) other witnesses may be called to prove his generally bad reputa- tion. After considerable conflict between the authorities, it seems to be settled that a witness may be asked questions with regard to alleged crimes, or other improper conduct ; but that he is not compelled to answer them if such answer would tend to expose him to a criminal charge, or t® a pen- alty or forfeiture of any kind.(r) And the court will de- cide whether the witness has shown reasonable grounds for believing that the answer will tend to criminate him.(s) But all other questions must be answered, however strongly they may reflect on the witness' character. And a denial of impi'oper conduct by the witness is conclusive, and can not be contradicted by calling other witnesses, unless, of course, the fact be relevant to the issue.(i) A witness may be questioned as to whether he has been convicted of a fel- ony or misdemeanor, and, if he does not admit it, the cross- examining party may prove the conviction. (m) In order to show the general bad character of the witness, almost any question may be asked as to his past life. It is left to the discretion and good feeling of the bar not to exceed the limits required by the necessities of the case, by wantonly taking away a person's character, (x) When other witnesses are called to show the bad character of the witness [for veracity], the object is to show that the former, from their acquaintance with the latter, are of the opinion that he is not to be believed on oath. But they may not be examined as to any particular offenses which are alleged against the (r) V. 2 Taylor's Evidence, pt. 3, c. 3. (s) R. V. Boyes, 30 L. J. (Q. B.) 301. (t) Yewjn's Case, 2 Camp. 638. It has been doubted whether such discrediting questions must be answered, if they are not otherwise mar terial to the issue. (u),2B Vict., c. 18, § 6. ix) V. Fitz. St. 296. 350 THE WITNESSES. •witness. On the other hand, witnesses may be called to testify to the general good character of the witness, if that is questioned. NUMBER OF WITNESSES. In all cases, both before the grand jury and at the trial, one witness for the prosecution is sufficient, with the fol- lowing exceptions : 1. In treason or misprision of treason (except where the overt act alleged is the assassination of the queen, or any direct attempt against her life or person), two witnesses are required, unless the prisoner confesses. And both of the witnesses must testify to the same overt act of treason ; or one of them to one overt act, and another to an overt act of the same species of treason. (?/) But, of course, collateral facts may be proved by one witness. 2. In perjury there must be two witnesses. Both need not necessarily directly contradict what the accused has sworn ; it will suffice if Ihe second corroborates in any material cir- cumstance, by circumstantial evidence or otherwise, what the first has said. (2) The reason usually assigned for this exception is that otherwise there would ouly be oath against oath ; but more probably the expediency of protecting witnesses, and thus furthering the ends of justice, is the ground. (a) [The fact of perjury can be established by one positive witness and other corroborative evidence.(l) The falsity of the oath may be proved wholly by documentary evidence. (2) The corroborative evidence need not be equiv- alent to the testimony of another witness ; it must be enough to satisfy the jury.(3)] It will be convenient here to notice the evidence of ac- complices. IS'atnrally it is viewed with suspicion, inasmuch as, on the one hand, the accomplice may hope to gain favor (y) 7 and 8 Wm. 3, c. 3, §§ 2, 4. (z) v. oases, etc., Best, Ev. 755. (a) Best, Ev. 752. (1) Commonwealth v. Pollard, 12 Mete. (Mass.) 225; Galloway v. State, 29 Ind. 442 ; State v. Heed, 57 Mo. 252 ; State v. "Wood, 17 Iowa, 19. (2) United States v. Wood, 14 Peters, 430. (3) Crusen v. State, 10 Ohio St. 258; State xi. Heed, 57 Mo. 252. THE WITNESSES. 351 and leniency by assisting the prosecution ; on tlie other hand, he will often be anxious to shield his companions. In practice, though not in strict law, it is deemed essential that the evidence of the accomplice should be corroborated in some material part by other evidence, so that the jury may be led to presume that he has spoken the truth generally. This confirmatory evidence must be unimpeachable ; so that the evidence of another accomplice or his wife will not suffice. And the confirmatory evidence should not be merely to the fact of the act having been committed, but should extend to the identification of the prisoner with the party concerned. (6) How is the attendance of witnesses procured? In both felonies and misdemeanors the witnesses examined are usu- ally bound over by recognizance by the committing magis- trate to appear at the trial and give evidence. If they do not appear, the recognizances may be estreated and the pen- alty levied. All other witnesses may be compelled to at- tend by subpena. This may be issued either at the crown office in London, or by the clerk of assize, or clerk of the peace at sessions. A copy of the writ is served upon the witness personally, the original writ being shown to him. If a written instrument, required as evidence, is in the possession of some person, he is served with a subpena duces tecum, ordering him to bring it with him to the trial. Un- less he has some excuse, allowed to be valid by the court, he must produce it at the trial. Such lawful excuses are the following : that the instrument will tend to criminate the person producing it ; that it is his title-deed. In the event of the non-appearance of a wdtness in an- swer to a subpena, he incurs certain penalties. If the writ has been sued out of the crown office, the queen's bench, upOn application, will grant an attachment for the contempt of court. In other cases, the proceedings must be by way of in- dictment.(c) But to render a witness subject to these penal- ties, he must have been served personally, and served a reasonable time before trial. If his expenses have not been (4) R. V. Farler, 8 0. & P. 106. (c) v. Arch. 309. 352 THE WITNESSES. tendered, and he is so poor as not to be able to go to the trial, this will probably be allowed by the court as a suffi- ent excuse. If the witness is in custody, the proceedings are differ- ent. If in criminal custody, a secretary of state, or any judge of the superior courts, may, on application by affi- davit, issue a warrant or order under his hand for bringing up such person to be examined as a witness ;(d) or his at- tendance may be secured by a writ of habeas corpus ad testi- ficandum. If in civil custody, a writ of hab. corp. ad test. is obtained upon motion in court or application to a judge in chambers, founded upon an affidavit stating that lie is a material witness. If the evidence of a person in court is required, he is bound to give it, although he has not been subpenaed. A witness, whether subpenaed or bound over by I'ecogni- zance, either to prosecute or give evidence, is privileged from arrest whilst attending the trial on every day of the assizes or sessions until the case is tried ; also for a reason- able time before and after trial whilst coming to or return- ing from the place of trial. As we have seen, preventing a witness from attending or giving evidence is a contempt of court ; and intimidating a witness from giving evidence for the prosecution is a misdemeanor.(e) {d) 16 and 17 Vict., c. 30, § 9. (e) v. p. 82. THE EXAMINATION OF 'WITNESSES. 353 CHAPTEE XVI. THE EXAMINATION OF WITNESSES. This is a subject on which, though a wide latitude ia allowed to counsel, some rules may be laid down as directly authorized, others as developed in and sanctioned by practice. "We have already noticed the general course of the ex- amination of witnesses ; (p) namely, that the witnesses for the prosecution are first examined in chief by the counsel for the prosecution, and then cross-examined by the coun- sel for the defense ; and after the case for the prosecution has closed, then the witnesses for the defense are examined by the counsel for the defense, and cross-examined by the counsel for the prosecution ; in each case the witness being re-examined by the party calling him, if it is thought desirable. It should also be remembered that the court may,' at any time, put such questions as it thinks fit to the witness, even after he has left the witness-box ; and that if, after the counsel has finished his examination or cross- examination, he thinks of some other question which ought to have been asked, that question can be put only through or by leave of the court. Through the court, also, are asked questions which occur to the jury. All the witnesses, whose names are on the back of the indictment, should be called by the counsel for the prose- cution; and although he does not ask them any question, or even call them, the defense may have them called, so that they may be subjected to cross-examination. But; in such a case, the counsel for the prosecution may re-exam- me.{q) (p) V. p. 334. (?) R. V. Edwards, 3 Cox, 82; R. v. Beezlen, 40. & P. 220. 23 354 THE EXAMINATION OP WITNESSES "When any collusion is suspected among the witnesses, or it is thought that any of them will be influenced by what they hear from counsel or other witnesses, those who have not yet been examined are ordered to leave the court until they are wanted, and after examination they are required to remain in court. The judge will do this, either at his own instance, or on the application of the opposite party. If the order be disobeyed, the witness may be punished as for his contempt; but, though the disobedience will be matter of remark for the jury, the judge has no right to reject his testimony. (r) At the outset it will be well to ascertain the position of the counsel for the prosecution and for the defence respect- ively, their functions and conduct, their respective parts, and the spirit in which they should conduct them. It is needless to observe that it is not the object of the counsel for the prosecution to get a conviction at any price. It is his duty to see that the case against the prisoner is brought out in all its strength; but it is not his duty to conceal, or in any way diminish the importance of, its weak points. His function is not to inquire into the truth, but to put forward, with all possible cajidor and temperance, that part of it which is unfavorable to the prisoner, (s) On the other hand, the counsel fortheprisoner has before him, as his object, the acquittal of the prisoner. His duty is to act as an advocate, and not to any extent as a judge. He is to put himself in the place of the accused, and so is not under any obligations which the accused would not be under. Thus, he is not obliged to divulge facts with which he may I)e acquainted which are unfavorable to the prisoner.(<) (r) R. V. Colley, Moo. & M. 329. {s) Fitz. St. 160. (l) " The counsel for the crown may not use arguments to prove the guilt of the prisoner which he does not himself believe to be just, and he is bound to warn the jury of objections which may diminish the weight of his arguments. In short, as far as regards his own evidence, hi.s speech should as much as possible resemble the summing up of the judge. The counsel for the prisoner may use arguments which he does not believe to bo just. It is the business of the jury, after hear- ' ing the judge, to say whether or not they are just." — Fitz. St. 168. THE EXAMINATION OF WITNESSES. 355 The rules, as to the examination-in-chief and cross- examination, are generally the same, whether the witness be for the prosecution or the defense. They are based upon the supposition that the witness, called and presented by the party examining him, is favorable to his side, and therefore unfavorable to his opponent. If this should turn out not to be the case, the rules of cross-examination ap- ply to the examination of one who thus proves hostile to the party producing him. Examination-in-chief. — What questions may be put to a witness? In the first place, only such as are relevant to the matter in issue, and which, if answered in the way desired by the examiner, will tend to prove the offense or defense. Of course, if circumstantial evidence is resorted to, greater latitude will be allowed ; inasmuch as it is not so easy to estimate the relevancy of the question. The second great rule is, that leading questions may not be asked in the examination-in-chief. What is a leading question ? One which in any way suggests to the witness the answer which the person asking requires. Thus, to ask a witness, " Had the prisoner a white hat on ? " would be a leading question ; but the question, " What sort of a hat had the prisoner on? " would not be. Unless, indeed, the point to be proved was whether he had or had not a hat on. It is often given as a test whether a question be leading or not, whether it miaht be answered by "Yes" or "E"o." But this test is by no means decisive ; all questions which may be thus answered not being leading, and other ques- tions than those which may be so answered being equally leading. Thus, the question, "Could the prisoner hear what he said?" is not leading; whereas " What did he do with the purse?" is leading, because it implies that the person to whom it relates dealt with the purse in some way or other.((t) Though the rule is, that leading questions may not be put in examinatiou-in-chief, there are certain exceptions, some allowed as of right, others for conve- nience sake. («) Fitz. St. 280. 356 THE EXAMIl^fATION OF WITNESSES. (a.) For the purpose of identifying persons or things which have already been described, the attention of the witness may be directly pointed to theni.(x) (b.) When a witness is called to contradict another, who has swoi'n to a certain fact, he may be asked in direct, terms whether that fact ever took place. (c.) When the witness is, in the opinion of the judge, hostile to the party calling him. (d.) When the witness is unable to answer general ques- tions from defective memory, or the complicated nature of the matter as to which he is interrogated. (y) Leading questions are also not objected to — (a.) When merely introductory, so as to save time. (b.) When the particular matter is not disputed. Thus, where a witness having deposed to a fact has not been cross-examined on it, qiiestions may be put which assume that fact. A third general rule is, that the evidence of the witness must relate to what is immediately loithin his knov:ledge and recollection. But there is one exception to this rule. In matters of science, skill, travel, etc., the evidence of ex- perts is allowed — that is, persons who have a special knowl- edge of the branch in question may be called to give their opinion as to the consequences, etc., of facts already proved. For example, if the wounds of a murdered person are de- scribed, a surgeon may be asked his opinion as to whether they caused the death ; but, of course, it will be for the jury to determine how far they will adopt this opinion.(2) In accordance with the general rule, a witness is not al- lowed to read his evidence. But he is allowed to refresh his memory by referring to any writing made by himself, or examined by him, soon after the event to which it refers, provided that after he has thus refreshed his memory he can swear to the fact from his own recollection. A fourth general rule is, that the contents of a written doc- ument can not be proved orally if the document is capable {x) R. V. Watson, 2 Starkie, X. P. C. 128. ly) Best, Ev. 804. (z) R. v. Wright, R. & E. 456. THE EXAMINATION OF WITNESSES.. 357 of being produced, but must be proved by the document itself. But if it be shown that it is lost, destroyed, or ia possession of the prisoner who has had notice to produce it, other evidence may be given of its contents.(a) Another matter to be noticed is the hostiWy of one's own witness. It is a rule that a counsel can not discredit his own witness ; it is also, as we have seen, a rule that lead- ing questions may not be put in examinatiou-in-chief. But it is provided by statute(6) that although a party producing a witness is not allowed to impeach his credit by general evidence of bad character, he may, in case the witness, in the opinion of the judge, proves adverse (t. e., hostile), con- tradict him by other evidence, or, by leave of the judge, prove that at other times he has made a statement incon- sistent with his present testimony ; but before such last- mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. So, also, if, in the opiuion of the judge, the witness is keeping back some of the truth, in order to favor the prisoner or otherwise, he may allow the examining counsel to ask lead- ing questions, and generally to treat the witness as hostile. Cross-examination. — Inasmuch as a witness is supposed to be inclined to favor the party calling him, greater powers arc given to the cross-examining counsel. He may ask leading questions, and in this way remind the witness of any thing which may tend to help the cause of the oppo- site party. But if the witness proves any thing favorable to the cross-examiner, the fact that the evidence was i)ro- cured by leading questions will, of coui'se, diminish its value. The counsel will not, however, be allowed to put in the witness' mouth the very words he is to echo back again. (c) In cross-examination the questions will be of two classes : (a.) Those which tend directly to refute or ex- plain what has been given in evidence in the examination- (a) V. p. 412. (b) 28 Viot., o. 18, § 3. (fl) E. V. Hardy, 24 How St. Tr. 755. 358 THE EXAMINATION OF WITNESSES. in-cliief ; (b.) Those whose object is to aflfect the credit of the witness. It is not usual to cross-examine witnesses to character except the counsel cross-examining has some dis- tinct charge on which to cross-examine them.((/) It is needless to add that a cross-examining counsel should avoid a-king questions, the answer to which, if unfavorable, would he conclusive against him. And he should always remember tliat the story of the witness, if true, will be confirmed the more he is questioned about it; and this although there may be slight discrepancies on immaterial points. [There is a diversity of practice as to the proper limit of cross-examination. In England, when one party introduces a witness, has hira sworn, and asks him a single question, however unimportant, he thereby makes him a witness in the case, and the other party has the right to cross-examine him upon all matters pertinent to the case.(l) And if the prosecutor puts upon the stand a witness whose name is indorsed as a witness on the indictment, or if the prosecutor fails to call any such witness, the accused may have such witness called and sworn as a witness for the prosecution, and may cross-examine him upon the whole case. (2) The rule that the cross-examination of a witness is not restricted to the subject-matter of the direct examination, but extends to the whole case, is followed in New York,(3) Alabama, (4) and Missouri, (5) and, subject to such restric- tions as the court may impose, in Massachusetts. (6) (d) R. V. Hodgkins, 7 C. & P. 298. (1) Taylor on Ev., § 1289, and case.s there cited. (2) Rex V. Simmons, 1 C. & P. S4; Hex v. Beezlen, 4 C. & P. 220; Rex V. Bodle, G C. & P. 186; Reg. v. Vincent, 9 C. & P. 91 ; Reg. v. Bailey, 1 Cox C. C. 191. (3) Eden v. Variok, 7 Cow. 238, affirmed 2 Wend. 166; Fulton Bank V. Stafford, 2 AVend. 483. (4) Fralick v. Presley, 29 Ala. 457; Kelley v. Brooks, 2-5 Ala. 523. (5) State V. Sayers, 58 Mo. 585; and see Squire v. Wright, 1 St. Louis Court of Appeals, 172. (6) Webster «. Lee, 5 Mass. 334; Moody v. Russell, 17 Pick. 490; Commonwealth u. Lannan, 13 Allen, 563; Commonwealth v. Morgan, 107 Mass. 199; Commonwealth v. Lyden, 113 Mass. 452; Wallace v. Taunton St. R. H. Co., 119 Mass. 91. THE EXAMINATION OE WITNESSES. 359 111 the Supreme Court of the United States, " the rule has been long settled that the cross-examination of a wit- ness must be liihited to matters stated in his direct exam- ination." If the adverse party desires to examine him as to other matters, he must do so by culling the witness to the stand in the subsequent progress of the cause.(l) The rule of the Supi-eme Court of the United States is followed in ISTew Jersey,(2) Indiana,(3) Illinois,(4) and Iowa. (5) The sauje rule is followed in Pennsylvania ;(0) but it is explained that " the matter stated in the direct examination " is not to be taken in a narrow sense. " The signature of a subscribing witness to an ordinary instru- ment of writing implies nothing more than that the in- strument was signed by the person whose deed or act it purports to be. It is not so in the case of a subscribing witness to a will. His attestation is an assertion, not only that the will was signed by the testator, but of the further fact that the testator was of sound mind when he executed it." Hence, when, upon an issue of devisavit vel non, the propounder of the will introduced an attesting witness to testify simply to the execution of the will, the contes'aut had the right to cross-ex:amine the witness as to the sanity of the testator.(7) This rule has received a further explanation in Michigan. "It is the tendency of the direct examination which deter- mines the subject of it, as a test for cross-examination ; it is that essential or ultimate fact in the plaintiff's case which the direct examination tended to prove, which determines the logical limits of the cross-examination, and not merely the particular minor facts and circumstances tending to the proof of that fact. When two or more main facts are essen- (1) Houghton V. Jones, 1 Wall. 702. (2) Donelly v. State, 2 Dutcher (26 N. J. Law), 463, see p. 494. (3) City of A.urora v. Cobb, 21 Ind. 492, see pp. 511, 512. (4) Stafford v. Fargo, 35 111. 481 ; Bell v. Prewitt, 62 111. 361; Drohn V. Brewer, 77 111. 280. (5) Cooley v. Stale, 4 Iowa, 477; Wilhelmi v. Leonard, 13 Iowa, 330. (6) Ellmakor v. Buckley, 16 Serg. & R. 77 ; Helser v. McGrath, 52 Penn. St. 531. (8) Egbert v. Egbert, 78 Penn. St. 326. 360 THE EXAMINATION OF 'WITNESSES. tial to plaintiff's prima facie case, Buch as the title of the plaintiff, and conversion by defendant in trover, and the direct examination has been confined to matters tending only to the proof of one of those main facts, the defendant should not be allowed to cross-examine as to the other."(l) In Ohio, " the right of cross-examination is not to be limited by the particular facts disclosed in the examination- in-chief, but may be extended to whatever the party calling the witness is required to establish to make out and sustain his cause of action or his defense. Thus, a witness of the plaintiff may be cross-examined by the defendant touching all matters which it is competent for the plaintiff' to prove under the issue, in order to entitle him to recover. And, on the other hand, the plaintiff may cross-examine the de- fendant's witnesses to all maters which the defendant may prove under the issue, in order to sustain his defense." " But a defendant has no right togo into the distinct mat- ter of his defense, by way of avoidance, before the plaintiff has re8ted."(2) The rule in Mississippi is the same as in Ohio. (3) In California, the same rule as in Ohio was once adopted. " If the defendant sets up a defense not necessarily involved in the denial of the plaintiff's case, but consisting of new matter, the defendant must wait until after his opening, before he offers proof of this new matter." (4) But in later cases the rule of the Supreme Court of the United States is followed.(5)] Re-examination. — The object of the re-examination, if it be judged expedient to have recourse to it, is to inquire into and explain what has ti-anspired on cross-examination. But it must be strictly confined to such matter ; the re-ex- aminer may not ask questions which he might and ought to have put on examination-in-chief. (1) Campau v. Dewey, 9 Mich. 381, seej). 419; and see O'Donnell v. Segar, 25 Mich. 367. (2) Legg V. Drake, 1 Ohio St. 286, see p. 292. (3) Mask et al. v. State, 32 Miss. 405, see p. 427. (4) Jackson v. Feather River Water Co., 14 Cal. 18. (5) Aitken v. Mondenhall et al., 25 Cal. 212; People v. Miller, 33 Cal. 99. THE EXAMINATION OE WITNESSES. 361 Any further questions after re-examination must be put through the judge; also through him any questions which occur to counsel after they have finished their examination or cross-examination. (e) [For good cause shown, the judge may, in his discretion, permit the party who called the witness, after re-examina- tion, to examine him in chief on new matter. In such case, the other party has the right to cross-examine on su.eh new matter. In the same wa}' it is in the discretion of the court to permit a witness to be recalled, in order that he may be examined, cross-examined, or re-examined by the party recalling him ; or to permit the witness on his own motion to return to the stand to correct or explain his tes- timony. A witness may also be recalled at the request of the jury.(l)] If any improper question (e. g., irrelevant or leading) in examination-in-chief be put, the counsel on the other side should immediately interpose and object to it before the witness has time to answer it. Though in the case of a leading question this will often be ineffectual, inasmuch as the mischief has been done by the suggestion being made. The counsel in the same way should interpose if parol evidence is given when a document should be pro- duced. (e) V. p. 334. (I) For authorities, see notes to §§ 572, 573, 574. Wharton on Evi- dence. 362 EVIDENCE. CHAPTER XVII. EVIDENCE. " Evidence includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of. fact the truth of which is submitted to judicial iiivestiga- tion."(/) In ascertaining the law on the subject of evidence in general, four or five heads present themselves under which may be ranged the chief principles which it is necessary to consider : 1. On whom the burden of proof lies. 2. "What must be proved, and what may not be proved. 3. The best evidence must always be given. 4. Hearsay is not evidence. 5. Confessions, under certain circumstances, are not admitted as evidence. 1. The burden of proof is on the prosecution as a rule. The prosecution must prove their case before the prisoner is called upon for his defense ; and this, although the offense alleged consists of an act of omission and not of commis- sion, and therefore the prosecution have to resort to nega- tive evidence. ((/) The law considers a man innocent until (/) 1 Tayl. Ev. 1. (17) There is an exception to this rule when the accused pleads spe- cially, e. g., autrefois acguit. [The issue made by the pleadings deter- mines on which party the burden of proof lies. Throughout the trial the burden of proof remains on him to establish his claim, while the other party is bound only to prevent the claim being established. When the issue is made by a special plea in bar, as former acquittal or former conviction, the burden is on the defendant. But when the issue is made by the plea of not guilty, the burden is continually on the state to prove the guilt of the defendant; and the defendant need only invalidate, or raise a reasonable doubt as to the proof of, any es- sential ingredient of the crime charged. But this is by no means uni- EVIDENCE. 363 he is shown to be guilty. But the principle under dis- cussion must not be understood witli unlimited signitica- versally accepted. For when the law creates a particular disputable presumption, either in the absence of evidence, as the prestimption of innocence or the presumption of sanity — or from the proof of some fact, as the presumption of larceny from the unexplained possession of stolen goods, or the presumption of malice from the fact of killing — • a particular burden of proof is frequently said to lie on the jjarty who proposes to controvert such presumption. Accordingly, many cases speak of the burden of proof shifting, in the course of the trial, from one party to the other. This is especially the case with the presump- tions of sanity and of malice. The state must prove, beyond a reasonable doubt, every essential element of the crime charged. Criminal intent, unless otherwise pro- vided by statute, is an essential element. If the defendant was insane, the law holds he was incapable of criminal intent. Hence, the defense of insanity is merely a denial of criminal intent, and is, therefore, provable under the genei'al issue. Hence, if the evidence raises a reasonable doubt of the sanity of the defendant, it raises a doubt as to his criminal intent, and, logically, he is entitled to an acquittal. And it is so held in State v. Bartlett, 43 N. IT . 224 ; State v. Jones, 50 N. IT. 369; State v. Johnson, 40 Conn. 136; People v. McCann, 16 N. Y. 58; Wagner v. People, 4 Abb. App. Decisions, 50D; McFarland's case, 8 Abb. App. Decisions, 57; Dovo v. State, 3 ITciskell, 348; People V. Garbutt, 17 Mich. 1 ; Polk v. State, 19 Ind. 170; Bradley v. State, 31 Ind. 492; Hopps v. People, 31 111. 385; Chase v. People, 40 111. 35J ; State w. Crawford, 11 Kansas, 32; V7 right v. People, 4 Neb. 407. The cases People v. Garbutt, 17 Mich. 1, and State v. Crawford, 11 Kansas, 32, are especially full and thorough. In other cases, it is held that the presumption of sanity throws the burden of proof on the defendant; that the defense of insanity is in the nature of a plea of confession and avoidance ; and that the defend- ant must establish the fact of his insanity by n, preponderance of proof Commonwealth v. Eddy, 7 Gray, 583; Ortwein v. Common- wealth, 76 Penn. St. 414; Lynch v. Commonwealth, 77 Penn. St. 205; Myers v. Commonwealth, 83 Penn. St. 131; Boswell v. Commonwealth, 20 Grattan, 860; State v. Coleman, 27 La. Ann. 091; McKcnzie v. State,. 26 Ark. 334; Graham v. Commonwealth, IG B. IMon. 589; Kriel V. Commonwealth, 5 Bush; 362; Loeffner v. State, 10 Ohio St. 5C8; Bergin v. State, 31 Ohio St. Ill ; State v. Felter, 32 Iowa, 49; State v. Sticldey, 41 Iowa, 232; State v. Klinger, 43 Mo. 127; State v. Smith, 5'3 Mo. 257. But, in this last case, though the court says it is neces- sary for the defendant to make out insanity by a preponderance of tes- timony, it also says it is irregular to tell the jury so, and cites approv- ingly the statement of Mr. Bishop, that the jury should acquit if they entertain a reasonable doubt of the defendant's sanity. Bonfanti v. 364 EVIDTiNCE. tion. Though the burden of proof of the charge is in gen- eral on the prosecution, yet on particular points it is on the prisoner. This is markedly the case in some offenses. Thus, by various acts of parliament it is declared penal to do certain things, or possess certain articles, without lawful State, 2 Minn. 123; People v. McDonnell, 47 Cal. 134; People v. Wil- son, 49 Cal. 13. The facility of juries in. finding the existence of in- sanity, in cases of homicide, has influence in some of these decisions. The court say, in Ortwein v. Commonwealth: " And if this reasoning were less conclusive, the safety of society would turn the scale. Merely doubtful insanity would fill the land with acquitted criminals.'' The influence of this consideration may be estimated by comparing the ruling of this court in cases of homicide with the ruling made in the case of a contested will — Egbert v. Egbert, 78 Penn. St. 326. Some American cases hold that the defense of insanity can not pre- vail, unless established beyond a reasonable doubt. These cases are clearly erroneous. In like manner, the claim of self-defense is merely a denial of the malice which the prosecution is bound to establish beyond a reasona- ble doubt. Accordingly, some cases hold that the defendant is enti- tled to an acquittal, if, upon the evidence, it is doubtful whether the homicide or assault was malicious or was in self-defense. Slate v. Peo- ple, 53 N. Y. 164; State v. Porter, 34 Iowa, 131; State ■<,. Wingo, 66 Mo. 181. And, in Massachusetts, in cases of assault. Commonwealth V. McKie, 1 Gray, 61. While others hold the defendant must make out a case of selfdefense by a preponderance of proof. People v. Shroyer, 42 N. Y. 1 ; Silvus v. State, 22 Ohio St. 99; Weaver v. State, 24 Ohio St. 584. And, in Massachusetts, in cases of homicide, the pre- sumption of malice, arising from the fact of killing, remains till over- come by prei)onderance of proof Where the possession of stolen goods by the defendant is established, he is not required to prove by preponderance of proof that he is in- nocent. State V. Merrick, 19 Maine, 401. In a case of forgery, where it was proved that the paper came into the hands of the defendant unaltered, and left his hands altered, it was held error to charge that thereby the burden was cast on the defendant to prove that he did not alter it. The court said: " If the result of the case depends upon the establi.shment of the proposition of the one on whom the burden was first cast, the bui-den remains with him throughout, though the weight of evidence may have shifted from one side to the other, according as each may have adduced fresh proof There is a wide difference be- tween a requirement, in a criminal prosecution, that the accused shall prove his innocence, when a presumption is raised against him, and the necessity of explaining, in some degree, the fact on which that presumption rests."] EVIDENCE. 365 excuse or authority ; such excuse or authority must be proved by the accused. For example, to possess public stores marked with tlie broad arrow ;(^) to possess coining tpols.(z) Again, it lies on the defendant to prove that sig- nals to smuggling vessels were not made for the purpose of giving illegal notice •,{k) also to show some justification for sending an unseaworthy ship to sea.(f) But it will be no- ticed that in all these cases there ia something to be proved in the first instance by the prosecution — either the posses- sion of the goods, the unseaworthiness of the ship, etc. And not only in the particular cases of which we have given examples, but in most cases of circumstantial evi- dence " there is a point (though it is impossible to deter- mine exactly where it lies) at which the prosecutor has done all that he can reasonably be expected to do, and at which it is reasonable to ask for evidence from the prisoner in explanation, and to draw inferences unfavorable to him from its absence."(m) Thus the court will naturally ex- pect from the prisoner an explanation of the object for which poison was purchased ; so also in the case of recent possession of stolen goods. Killing is presumed to be mur- der until otherwise accounted for. 2. What must be ^proved ? — All facts and circumstances stated in the indictment which can not be rejected as sur- plusage ; in other words, all the constituents of the offense. Though, as we shall see hereafter, if a more serious crime contains, as it were, a less serious one, the prisoner indicted for the former may sometimes be convicted of the latter ; if the more serious circumstances can not be established; thus on an indictment for murder, if the malice prepense be not proved, the prisoner may be convicted of man- slaughter. We have seen above(r?.) in what cases the time and place must be correctly stated in the indictment ;(o) and thus we now know when they must be correctly proved. But in (A) V. 38 and 39 Vict., c. 25. (0 24 and 25 Vict., o. 99, § 24. (k) 16 and 17 Vict., c. 107, g 245. {I) 38 and 39 Vict., c. 88, § 4. (m) Fitz. St. 303. (n) v. p. 264. (o) T. p. 264. 366 EVIDENCE. any case the offense must be proved to have been commit- ted within the extent of the court's jurisdiction. Any ma- terial variance between the fact laid in the indictment and the fact proved will be fatal, unless amended. (/j) [In criminal cases, as in civil, descriptive averments must be strictly proved. If, under a statute against stealing any horse, mare, or gelding, the indictment charges the stealing of a horse, and the evidence shows the theft of a gelding, the defendant must be acquitted.(l) But the contrary is held in England.(2) So if the charge is stealing two tur- keys, and the evidence shows the stealing of two dead tur- keys ;(3) for the allegation of an animal means a live ani- mal, uuless it is described as dead. (4) A variance as to a person named in the indictment is fatal, unless it is a vari- ance in spelling merely, which does not affect the sound. The cases are not entirely harmonious in determining what is a variance in sound. Where the name in the indictment was Dougal Mclnnis, and the name proved was Dougal McGinnis, the variance was fatal ;(5) while proof of "Win- yard in place of Whyneard, as averred, was not.(6) When a paper is set out by its tenor in the indictment, the rule is "that where the omission or addition of a letter does not change the word, so as to make it another word, the variance is not material. "(7) Where the allegation was "not," and the jiroof was " nor," and the sense was. not af- fected thereby, the variance was fatal ;(8) but where the al- legation was " undertood," and the proof was " under- stood," the variance was not fatal. (7) Though the descriptive averment be unnecessary, still it must be strictly proved. Where, in an indictment for the theft of a horse, the failure to prove that the stolen horse (p) V. p. 265, 267. (1) Hooker v. State, 4 Ohio, 350; Turley v. State, 3 Humph. 323. (2) Eeg. V. Aldridge, 4 Cox C. C. 143. (3) Rex V. Halloway, 1 C. & P. 128. (4) Rex V. Edwards, R. & R. 497; Commonwealth v. Beaman, 8 Gray, 497; State v. .Jenkins, 6 Jones (N. C), 19. (5) Barnes v. People, 18 111. 52. (6) Rex v. Foster, R. & R. 412. ' (7) Reg. V. Drake, 11 Modern, 78. (8) Rex v. Beech, Comp. 229. EVIDENCE. 367 was black was fatal. (1) And where, in an indictment for bigamy, the woman was needlessly described as a widow, the failure to prove her widowhood was fatal. (2) The rule that a descriptive averment must be strictly proved has one qualification i n cases of homicide and feloni- ous assault. If the averment is that the homicide was caused or the assault made in a designated manner, it is not necessary to prove strictly the details of the means averred to have been used in so committing the oifense. If the indictment is for murder by poisoning, and it is averred by poisoning with a certain drug, the indictment is sup- ported by proof of poisoning with a different drug.(3) A charge of felonious assault with a staff" will be su.stained by proof of such assault with another bruising implement, as a stone ;(4) and a charge of strangling by clasping both hands about the throat is sustained by proof of strangling by placing one hand over the mouth. (5) A mistake in the name of the defendant does not occa- sion a variance, since it is not necessary to prove his name. If the defendant desires to take advantage of such mistake, he does so by plea in abatement. If this plea is sustained, the indictment is amended, and the case proceeds. The effect of variance in particulars not material to the merits of the case is overcome in Michigan by a statute au- thorizing the indictment to be amended to correspond with the evidence, when such a variance occurs ;(6) and in Ohio by the statutes declaring that no such variance shall be ground for acquittal. (7) Under the Ohio statute, it was held that the defendant was correctly convicted where the indictment charged him with stealing certain articles of sil- verware, and the evidence showed the articles were of plated ware, consisting of only one-twenty-fifth part sil- ver. (8)] (1) 1 Stark. Ev. 374. (2) Rex v. Deeley, 4 C. & P. 579. (3) East, P. C, o. 5, § 107. (4) Sherwin's Case, cited East, P. C, c. 5, § 107. (5) Rex V. Culkins, 5 C. & P 121. (6) Rev. Stat. (1871), p. 2172. (7) 74 Ohio L. 334. (8) Goodall V. State, 22 Ohio St. 203. 368 EVIDENCE, Closely connected with the question " what must be proved?" is the question " what may not be given in evi- dence ?" As a rnle, nothing must be given in evidence which does not directly tend to prove or disprove the mat- ter in issue. The previous or subsequent bad character of the prisoner may not be proved ; unless to rebut evidence of good character. (g-) Thus, also, if other true bills are found against the prisoner, theoretically this is not supposed to influence the judge or jury.(r) ifTor may it be proved that he has a general disposition to commit the particular kind of offense. Again, it is not allowable to prove a man guilty of one* felony in order to prove him guilty of another un- connected with it. In other words, if the offenses are dis- tinct, evidence of one offense is, in general, inadmissible on the trial of the prisoner for another offense. But if they are connected, and form one entire transaction, other offenses may be proved to show the character of the transaction. If the evidence is admissible on general grounds as being relevant, it can not be excluded merely because it discloses other offenses.(s) There are exceptions to the rule excluding evidence of other offenses : (a.) In treason, other overt acts may be given in evidence, if they directly prove any overt acts which are laid. And in conspiracy, sedition, libel, and similar offenses, wide lim- its are given to the reception of evidence, inasmuch as the offense can only be estimated by the surrounding circum- stances. (^) (b.) When it is necessary to prove the guilty knowledge of the defendant, evidence may be given of his having com- mitted the same offense before. Thus, on an indictment for uttering forged bank-notes, or for uttering counterfeit (5) V. R, V. Eowton, 34 L. J. (M. C.) 57. ()•) However, as both the judge and jury are supplied with calen- dars, they can not help noticing that there are other charges against the prisoner. It would be well if the jury, at least, were not so sup- plied; they know perfectly well without a calendar what they are to give their verdict on. (s) Rose. 90; v. R. v. Salisbury, 5 C. & P. 155. (0 V. R. V. Hunt, 3 B. & Aid. 566; R. v. Pearce, Peake, 75. EVIDENCE. 369 coin, evidence may be given of the defendant's having at other times uttered or had in his possession other forged bank-notes or counterfeit coin. So it seems that the guilty knowledge of the falsehood of a pretense may be shown by evidence of a previous obtaining or attempting to ob- tain by false pretenses.(M) Under the prevention of crimes act, 1871, (x) when proceedings are taken against a person for receiving or having in his possession stolen goods, evi- dence may be given at any stage of the proceedings of the defendant's having^had in his possession, within the preced- ing twelve months, other stolen property ; and evidence may also be given, under the same circumstances, of his pre- vious conviction, within five years, of any offense involv- ing fraud or dishonesty. (c.) "When it is necessary to prove malice or intent on the part of the defendant, evidence of other offenses may, under some circumstances, be given. Thus, in a trial for murder, evidence of former unsuccessful attempts or threats to murder would be admissible. As to evidence of good character. — Witnesses may be called to speak generally to the good character of the pris- oner ; but they may not give evidence of particular acts, unless such evidence tends directly to the disproving of some of the facts put in issue by the pleadings. The evidence must be to the general reputation for good character, and not to the witness' own opinion. The way in which the information is elicited is by questions of this sort : " How long have you known the prisoner ? " " During that time, what has been his general character for sobriety, honesty, and industry?" Genei'al evidence of good character may be disproved by general evidence of bad character, but not by particular cases of misconduct. However, for such purposes, pre- vious convictions may, as a rule, be proved.(2/) {u) E. V. Francis, L. E., 2 C. C. E. 128 ; 43 L. J. (M. C.) 97. {x) 34 and 35 Vict., c. 112, § 19. [y) V. 6 and 7 Wm. 4, c. Ill; 24 and 25 Vict., o. 96, § 116; 24 and 25 Vict., c. 99, g 37. 24 370 EVIDENCE. It is important to notice in what way evidence of pre- vious good character operates. " Judges frequently tell juries that evidence of character can not be of use, when the case is clearly proved, except in mitigation (or, possi- bly, aggravation) of punishment; but that, if they have any doubt, evidence of character is highly important." (2) 3. The best evidence must always be given — that is, if it is possible to be had. If not, then inferior evidence will be admitted. But, before this inferior (or secondary) evi- dence is let in, the absence of the better evidence must be accounted for. By this is meant that merely substitution- ary jBvidence — that is, such as indicates more original sources of information — must not be received, so long as the original evidence is attainable. It does not imply that weaker proofs (which are not substitutionary) may not be selected instead of stronger ones. Thus, an act may be equally proved by a written instrument, and also by one who saw it ; both these modes of proof are primary. The most common application of this rule is in the case of written instruments. It is plain that the best evidence of the contents of a written document • is the writing itself; and, therefore, before a copy or parol evidence of its contents can be received, the absence of the original in- strument must be accounted for, by proving that it is lost or destroyed, or that it is in the possession of the opposite party, and that he has had reasonable notice to produce it. If once secondary evidence is admitted, any proof may be given, as there are no degrees of secondary evidence; thus, if an original deed can not be produced, parol evi- (z)Fitz. St. 312. " This always seems to me to be equivalent to say- ing, ' If you think the prisoner guilty, say so; and. if you think you ought to acquit him independently of the evidence of character, ac- quit him rather more readily because of it.' Evidence of character would thus be superfluous in every ease. The true distinction is, that evidence of character may explain conduct, but can not alter facts. 1 do not disbelieve a credible witness because the man whose hand he swears he saw in his neighbor's pocket has a very high character for honesty; but I do not draw the inference from the fact which I should draw in most cases, namely, that there existed a felonious intent. I ascribe the fiot to some innocent motive." — Ibid. EVIDENCE. • 371 ^deuce of its contents maybe given, although there is an attested copy in existence. But, for the sake of conveni- ence, copies may be given in evidence of all records other than those of the court requiring proof of them, of jour- nals of either house of parliament, and, generally, of the official documents of other courts, and parish registers, en- tries in corporation books, and books of public companies relating to things public and general. 4. Hearsay is no evidence. Hearsay (derivative, or second hand, as opposed to second- ary) evidence is that which is learnt from some one else, whether by -word of mouth or otherwise; in other words, it is any thing which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. (a) The reasons usually assigned for the rejection of hearsay evidence are two : (a) that the original statement or writing was not made on oath ; (b) that the party affected has not the, opportunity of cross-examining the originator of it. Its reception would also have the effect of lengthening the proceedings, without any corresponding advantage. We have seen that secondary evidence can be given only where there has been an explanation of the absence of the best evidence; second-hand evidence can not be given at all, subject to the following exceptions: (6) i. To prove the death of a person beyond the sea. ii. To prove a prescription, a custom ; matters of pedi- gree ; reputation on questions of public or general right. iii. When the hearsay is what the witness has been heard to say at another time, in order to invalidate or confirm his testimony given in court. [This is not hearsay. The evi- dence is direct and primary that the witness made a cer- tain statement ; there is no evidence, in such case, either (a) 1 Ph. Ey. 185. . (6) "All the exceptions to the rule are based upon the principle that the special circumstances which establish them supply a sanction to the statement, and exclude the possibility of calling the person who made it."— Fitz. St. 319. 372 EVIDENCE. direct or hearsay, as to the truth of the matter contained in the statement.] iv. Declarations made by persons under the sensible con- viction of their impending death. Such declarations are admitted only when the death of the deceased is the sub- ject of the charge (that is, in cases of murder or man- slaughter), and only if the declaration refei's to the injury which is tlie cause of death. V. Statements made by deceased persons, if against their interest ; or entries made by them in the regular course of their duty or employment. vi. When the bodily or mental feelings of 'a person are material to be proved, the usual expressions of such feel- ings, made at the time in question, are admissible as original evidence ;(c) for example, what was said to a surgeon im- mediately after an assault.(ci) vii. When the sayings, etc., of another are part of the res gestCB, that is, of the general transaction, and are not merely a medium of proof of another fact. Thus the cries of a person being stabbed, of a mob, are good evidence.(e) In fact, these are not strictly instances of hearsay evidence at all, but the original proofs of what took place. [viii. Evidence, in a second trial, of testimony given by a witness now deceased, at a former trial of the same case between the same parties.(l)] (c) 1 Tayl. Ey. 530. {d) Aveson v. Lord Kinnaird, 6 East, 198. (c) V. 21 How. St. Tr. 514, 529. (1) " It is essential to the competency of the witness called to give this kind of evidence, first, that he heard the deceased person testify at the former trial; and second, that he has such accurate recollection of the matter stated, that he will, on his oath, assume or undertake to narrate in substance the matter sworn to by the deceased person, in all its material parts, or that part thereof which he may be called on to prove. " It is essential to the competency of the evidence, first, that the mat- ter stated at the former trial by the witness, since deceased, should have been given on oath ; second, between the sameparties, and touch- ing the same subject-matter, where opportunity for cross-examipation was given the person against whom it is now offered ; and third, that the matter sworn to by the deceased be stated, in all its material EVIDENCE. 373 It will be convenient here to notice the rule that if a wit- ness is dead, or too ill to travel (or kept out of the way, as against the person so keeping him out),(/) his depositions may be read, provided that such depositions were taken in the presence of the accused, and that he had an opportunity of cross-examining the witness.(^) 5. Covfessions, under certain circumstances, are not ad- mitted as evidence. Confessions, if received at all in evidence, are received with great caution, not only from the consideration that, owing to insanity, or other reason, they may be false, but also there is the danger of their not having been correctly reported. The general rule is, that to be admissible they must be free and voluntary. What amounts to a free and voluntary confession does not clearly appear. " This much is certain, that no confession by the prisoner is admissible which is made in consequence of any inducement of a tem- poral nature, having reference to the charge against the prisoner, held out by a person in authority; and on the whole, the tendency of the present decisions seems to be to admit any confessions which do not come within this proposition. (A) Confessionary evidence is admissible only against the person who makes it, though, of course, if the jury hear any thing in it against accomplices, it will be apt to preju- dice them against such co-defendants. In the same way, if a confession is improperly blurted out where it is not admissible, it can not but have weight with the jury. With regard to confessions or statements before the mag- istrate, it is provided by statu,te(i) that after the examina- parts, and in the order in which it was given, so far as necessary to a correct understanding of it. " The requirement that all the matter sworn to at the former trial by the person, since deceased, be stated, being one of the tests of the evidence, not of the witness, it is not essential that it be all proven by a single witness." Summons v. State, & Ohio St. 325. (/). E. V, Scaife, 2 Den. 2S1. (g) M and 12 Vict., c. 42, § 16. So, also, as to depositions on behalf of the accused, 30 and 31 Vict., c. 35, § 3. (A) Rose. 40. (i) 11 and 12 Vict., c. 42, g 18. 374 EVIDENCE. tion of all the witnesses for the iDroeecution, one of the magistrates shall have all the depositions against the ac- cused read to him, and shall then say to him these words, or words to the like effect : " Having heard the evidence, do you wish to say any thing in answer to the charge ? You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." The magistrate gives a further caution that the ac- cused has nothing to hope from any promise of favor, and nothing to fear from any threat which may have been holden out to induce him to make any confession or ad- mission of his guilt. But this second caution is necessary only when it appears that some inducement has been holden out to the accused.(A;) The statement of the prisoner thus made before the magistrate is read at the trial from the depositions without further proof. It will be remembered that a witness is not compelled to answer questions which tend to criminate himself. By several statutes, though they are obliged to answer the questions, the evidence given by witnesses is expressly de- clared not available against them on a criminal charge; for example, under the corrupt practices prevention act, 1863.(0 CIRCUMSTANTIAL AND PRESUMPTIVE EVIDENCE. It is usual to distinguish two kinds of evidence, direct or 'positive, cireiimslantial or presumptive. By the former we mean the evidence given by a person who testifies to hav- ing actually seen, etc., the aot constituting the crime com- mitted ; the proof applying immediately to the ftictum pro- bandnm, without any intervening process. All other evi- dence is termed indirect, presumptive, «r circumstantial; being evidence of facts from which the fact of the crime may be inferred ; it applies to collateral facts which con- tribute to the conclusion that the principal fact exists. (k) R. V. Sansome, 19 L. J. (M. C.) 143. (I) 26 Vict., c. 29, g 7. For other examples, v. Tayl. Ev. 1261. EVIBENCE. 375 Thus, if a witness proves that lie saw the prisoner cut A.'s throat, or put his hand into B.'s pocket, draw out his purse, ami run away, the evidence is direct. But if the witness proves that the prisoner was seen going to B.'s house at 4 o'clock ; that there was no other person in the house at the time ; that at 4:15 B.'s throat was found cut, and that a blood-stained knife was found concealed in B.'s locked box, the evidence is circumstantial. It is difficult to draw the line between direct and circum- stantial evidence. Tins will be seen more readily from an example. A. stabs B. in three places ; it is not known in consequence of which of the wounds death ensues. G. sees A.'s hand raised to strike one of these blows. Is his evi- dence to be regarded as direct or circumstantial as to the murder? In other words, it is often impossible to draw the line between the principal fact and subsidiary facts.(?n) And if it were possible clearly to distinguish, what would be the advantage? It is certainly incorrect to say that direct is stronger than circumstantial evidence. It may be that in the former there is not the danger involved in drawing the inferences which are incidental to the latter; but, on the other hand, in the latter more facts are brought on the car- pet by a greater number of witnesses, and thereby any mistake is much more likely to be exposed.(??) (m) " It is impossible to say specifically of any crime which is the principal fact. In murder, is the principal fact the conception of mal- ice in the mind, or the infliction of bodily injury, or the death in con- sequence? Unless all these take place there is no murder. These facts may occur at times and places remote from each other. Are there three principal facts ? " — Fitz. St. 267. (n) ''There is no sort of difference between the cogency of the dif- ferent kinds of evidence, whether the comparison is made between weak cases or strong ones. Compare two strong cases. How is it pos- sible to say whether the evidence of several credible witnesses, who say they saw a man put his hand into another man's pocket, and take out his purse and run away, is stronger or weaker than that of the same number of equally respectable witnesses who prove that the purse was taken, and that immediately afterward the prisoner was seen running away, and on being stopped was found to have the purse in a secret pocket, no explanation being given? Or take two weak cases. A man swears that he was robbed on a dark night, and that 376 EVIDENCE. The so-called circumstantial evidence is said to be of two kinds : Conclusive, when the connection between the principal and evidentiary facts is a necessary consequence of the laws of nature ; as in an alibi. Fresumpiive, when it only rests on a greater or less de- gree of probability.(o) Such evidence is termed " presump- tive," inasmuch as the fact of the crime is to be presumed from certain other facts. Presumptions, or inferences of other facts from facts which are already admitted or proved, are sometimes di- vided into violent, probable, slight, or rash, according as the facts presumed necessarily, usually, or otherwise attend the fact proved. A more scientiiic classification is into presumptions : i. Juris et de jure. ii. Juris. iii. Fadi or nominis. The last of these is the kind of presumption produced by evidence in the way we have noticed. The other two must be explained : i. Juris et de jure. — Presumptions of this character are absolute, conclusive, and irrebutable. 'Eo evidence is al- lowed to be given to the contrary. For example, an infant under the age of seven is incapable of committing a felony. Every person knows the law. the prisoner is the man who robbed him. The light by which he saw him was the reflection of a furnace a long way off, whicli would cast a light at once strong and unsteady, and the robber was exposed to it only for a moment. A sack is stolen, and is found three months after- ward, apparently concealed, in the house of a marine store dealer. He says something on the subject, which may be, and probably is, a lie. Other people had access to the place when the sack was found. Which of these cases is the stronger of the two? Their relative strength can not be shown to depend in any way on the properties of either direct or circumstantial evidence as such." . . . Circum- stantial "is, in short, a word useful only for the sake of puzzling juries, and providing them with a loophole for avoiding a painful, but most important, duty." — Fitz. St. 273. (o) Best, Ev. 25, 400. EVIDENCE. 377 ii. Juris. — Presumptions whicli are. conditional, inclusive, and rebutable. They only hold good until the contrary is proved. For example, a child between the age of seven and fourteen is presumed to be incapable of committing a felony ; but only till it is proved he had a miscbievous dis- cretion. A person is presumed to be innocent till he is shown to be guilty. Malice is presumed from the act of killing, unless its absence be shown. (1) WRITTEN EVIDENCE. "Written documents may be divided into three classes ; differing as to the manner in which they must be given in evidence and proved: i. Records. ii. Matters quasi of record, iii. "Written documents of a private nature. i. Records. — First, as to acts of parliament. Public stat- ■ utes do not need auy proof; the court is bound judicially to take notice of them. And all acts passed since Febru- ary 4, 1851, are to be taken as public acts unless the con- trary be expressly provided.(_p) Private acts must be proved by an examined copy of the parliament roll ; or by a copy pur|)orting to be printed by the queen's printers. As re- gards proof, general customs of the realm are on the foot- ing of public acts; particular customs on that of private acts. As to other records. — Inasmuch as the records of the va- rious courts are frequently required to be given in evidence, perhaps in two places at the same time, and thus incon- venience would arise, as well as the danger of destruction or loss ; and inasmuch as the whole community is interested in their preservation, alteration is not to be feared, the production of the originals is not to be required. (5') Their place is supplied by an exemplification of the record un- der the great seal, or under the seal of the court, or by a copy sworn to be true by a person who has compared it (p) 13 and 14 Vict, c. 21, §g 7, 8. (?) v. Best, Ev. 616. (I) For a discussion of the law of presumptions, see 2 Wharton on Evidence, c. 14. 378 EVIDENCK. with tlie original. But a mere copy will not suffice if the matter of the record forms the gist of the pleading, e. g., on a plea of autrefois acquit. A copy of a copy will never suf- fice. In certain cases not even a copy of the whole record is required. Thus, to prove a previous conviction or ac- quittal, it is sufficient that it be certified, or purport to be certified, under the hand of the clerk of the court, or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment, or acquittal, as the case may be, omitting the formal parts thereof.(r) And, further, it has been provided that a previous conviction may be proved in any legal pro- ceeding hy producing a record or extract of such convic- tion, and by giving proof of the identity of the person against whom the conviction is sought to be proved with the per- ' son appearing in the record or extract of conviction to' have been convicted. A record or extract in the case of an in- dictable offense is explained to be a certificate of the in- dictment and conviction of the nature of that described in 14 and 15 Vict., c. 99, § 13 ; and in case of a summary con- viction consists of a copy of the conviction, purporting to be signed by any justice of the peace having jurisdic- tion over the offense in respect of which such conviction was made, or to be signed by the proper officer of the court by which such conviction was made, or by the clerk or other officer of any court to which such conviction has been returned. And there is no need to prove the signa- ture or official character of the person whose signature ap- pears. (s) [Under the article in the constitution of the United States authorizing congress to prescribe the manner of au- thenticating the public acts, records and judicial proceed- ings of one state when they are offered in evidence in an- other state, congress has enacted : " The acts of the legis- (r) 14 and 15 Vict., c. 99, § 13. See also 7 and 8 Geo. 4, c. 28, § 11 ; 24 and 25 Vict., c. 96, § 116; c. 97, § 70; c. 99, § 37. (s) 34 and 35 Vict., c. 112, § 18. EVIDENCE. 379 lature of any state orterritory, or any country subject to the jurisdictiou of the United States, shall be authenticated by having the seals of such state, territory, or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the United Stales by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certilicate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form."(l) This is not exclu- sive, and each state may prescribe for its own courts other modes of authentication which may also be sufficient. The states have generally provided that the printed volumes of the statutes of other states, made by authority, shall be re- ceived as evidence of the statute law, and the printed vol- umes of reported decisions shall be received as evidence of the law.j ii. Matters quasi of record. — "Without going into detail, it may be said generally that the proceedings, not being rec- ords, of any of the divisions of the high court, or of the ecclesiastical courts, may be proved by copies. In county courts the proceedings are to be proved by an entry in the clerk's book, or a copy bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court.(<) In other inferior courts the proof is by producing the books in which the entry has been made, or by an examined copy. In bankruptcy, a copy of the Gazette, containing an adjudication of bankruptcy, is con- clusive evidence of the bankruptcy.(M) We have already noticed the provision which is made for the reading of the depositions for or against the prisoner in the case of a witness who is dead or too ill to travel. (x) To perpetuate the testimony which can be given by a per- son whose death is apprehended, it is provided that if it appear to some justice of the peace, and in the opinion of (0 9 and 10 Vict., e. 95, § 111. (m) 32 and 33 Vict., c. 71, § 10. See also Arch. 263-265. (x) V. p. 373. i (1) Rev. Stat. p. 170. 380 EVIDENCE. a registered medical practitioner, that some person is not likely to recover, and is able to give material information relating to an indictable offense, and it be not practicable to take the depositions in the ordinary way, the justice may take, in writing, the statement, on oath or affirmation, of the person who is ill, opportunity being given to the other party (prosecution or accused) to cross-examine the deponent. Having observed the formalities prescribed by the statute, such depositions are transmitted to the proper quarter. And if, on the trial of the offender, it is proved that the deponent is dead, or will not, in all probability, ever be able to travel or give evidence, the statement may be read in evidence. (?/) iii. Written documents of a private nature. — As to deeds. — ' As a general rule, if they are to be given in evidence, they must be produced themselves at the trial. But in cases of accidental loss, and others arising from necessity, the con- tents may be proved by copies or other secondary evidence. And so, also, if other written documents are lost, second- ary evidence may be received, if the genuineness of the original instrument is proved at the same time.(2) The manner of the proof of the execution of deeds and other written instruments is the same. If the instrument is one to the validity of which attestation is requisite, it must be proved by a subscribiug witness. But to this rule there are several exceptions, for example, if the witnesses be dead, insane, etc.(«) But if the instrument is not one which requires attestation, even though it be actually at- tested, it need not be proved by the attesting wituess,(6) but may be proved by simple proof of the party's hand- writing. Handwriting may be proved in several ways : (a.) By one who has seen the party write {ex visu scrip- tionis). (b.) By one who has carried on a correspondence, or had (y) 30 and 31 Vict., c. 35, g 6. (a) v. p. 370. {a) V. Arch. 283. (5) 28 Vict., c. 18, § 7. EVIDENCE. 381 other opportunities of getting acquainted with his writing (ex scriptis olim visis). (c.) By comparison with documents known and admitted to be in the handwriting of the party (ex scripto nunc visa, or ex comparatione scriptorum). It is provided, by statute, that the comparison of a disputed writing with any writing proved, to the satisfaction of the judge, to be genuine, shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genu- ineness or otherwise of the writing in dispute. (c) It may be useful to notice the chief points in which dif- ferences exist between the rules of evidence in civil and criminal cases -.(d) 1. In the latter, in some cases, more than one witness is required, (e) 2. Confessions — when admitted — when conclusive.(/) 3. A party to a cause may be a witness, but [in England] a prisoner on his trial may not. 4. The husband or M'ife of a party in a civil action may give evidence for or against his consort ; but, as a rule, such evidence is excluded in criminal cases. (^) 5. The use of the depositions of witnesses prevented from attending in person ;(/i) and their use to contradict the witness at the trial itself.(?) 6. In cases of homicide, the dying declaration of the de- ceased is admitted in evidence as to the cause of death.(/(r) 7. Witnesses to character are allowed in criminal cases. (c) 28 Vict., 0. 18, § 8. (d) v. 4 St. Bl. 426. (e) V. p. 350. (/) V. p. 372. (g) V. p. 344. (A) v. p. 373. (0 V. p. 348. (k) V. p. 372. 382 VEEDICT. CHAPTEE XVIII. VERDICT. We have already considered the province of the jury, and the opportunities afforded to them for considering their verdict. In order to clear up any difficulties, they may ask. the opinion of the judge on any point wliich is not exclu- sively for their determination ; or may have read over to them by the judge anj"- part of the evidence ; or, through the judge, in court, may ask any additional question of any witness. If they can not, after a reasonable time, agree upon their verdict, they are discliarged,(Z) the pris- oner, of course, being liable to be tried again. Before find- ing the prisoner guilty, they must be unanimous in believ- ing that there is no reasonable doubt of his guilt — not nec- essarily that there is no other possible explanation. If they do all agree, on coming into court again, if they have retired, they answer to their names. The clerk of the as- size, clerk of the peace, or other officer, thus addresses them: " Gentlemen, have you agreed upon your verdict?" " How say you, do you find John Styles gnilty or not guilty?" They deliver their verdict through the foreman. In treason or felony, the prisoner must be present when this is done, but not necessarily in misdemeanor. Verdicts in criminal cases may be distinguisiied into — General — i. e., "guilty" or "not guilty" on the whole charge. Partial — as when the jury convict on one or more counts of the indictment, and acquit on the rest. Special — when the facts of the case, as found by the jury? are set forth, but the court is desired to draw the legal in- ference from the facts, for example, whether they amount to murder or manslaughter. The jury may acquit one of several codefendants who are (_l) V. p. 327, as to discharge on account of death, etc., of juror. VERDICT. 383 joined in the same indictment, and convict the others, and vice versa; even though charged with jointly receiving.(?n) But in cases where, to constitute the crime, it is necessary that a certain number should join in it, if so many are acquitted that less than the requisite number are left, these also must be acquitted — thus, three are necessary for a riot, two for a conspiracy. A person charged with a felony or misdemeanor may be found guilty of an attempt to commit the same oftense,(??) the same consequences following as if he had been in the first instance charged with the attempt only.~^This applies, in states where there are only statutory crimes, only to such attempts as are specifically made criminal by statute.] Upon aij indictment for a misdemeanor, if the facts given in evidence amount to a felony, the prisoner is not on that account to be acquitted of the misdemeanor, unless the court thinks fit to discharge the jury and to order the de- fendant to be indicted for the felony. (o) [The verdict must correspond with both the indictment and the evidence. A verdict finding the defendant guilty in a higher degree than charged, is erroneous.(l) The ver- dict can not find the defendant guilty of a distinct ofi'ense from the one charged ; and finding him guilty with a dif- ferent intent from that charged, is finding him guilty of a different offense. (2) If the charge is proved, the verdict may be guilty as charged, though the evidence also proves a different or a greater offense.(3) Where value constitutes an essential element of the crime, a general verdict of guilty is a finding of the amount chargod.(4) But where statute requires the verdict to st^-te the value of the thing stolen, embezzled, or obtained by false pretenses, an omission (m) 24 and 25 Vict., c. 96, g 94. (n) 14 and 15 Vict., c. 100, § 9. (o) Ibid., § 12. (1) Commonwealth v. Smith, 2 Va. Cases, 327. (2) Morman v. State, 24 Miss. 54. (3) Commonwealth v. McPike, 3' Gush. 181; White v. People, 32 N Y. 465. (4) State V. White, 25 Wis. 369; Schoonover v. State, 17 Ohio St. 294; Clifton v. State, 5 Blackf. 224. 384 VERDICT. to state the value invalidates the verdiet.(l) A general ver- dict of guilty convicts the defendant of all matters well charged in the indictment, and hence convicts him of the highest degree well charged.(2) Where the statute pro- vides that counts for larceny, embezzlement, and obtaining goods by false pretenses may be joined in one indictment, and the defendant found guilty of either, a general verdict of guilty, under an indictment so drawn, is not valid. Where there is a verdict of guilty as to some counts in the in- dictment, and the jury fail to make a finding as to the other counts, the court may direct a verdict of acquittal to be en- tered as to the counts for which there is no verdict, or the prosecuting attorney may enter a nolle prosequi as to them. But it has lately been held, in Illinois, that finding guilty as to one count, and omitting to mention the other counts, is equivalent, of itself, to an acquittal of the others.(3) The earlier cases held such a verdict, failing to respond to all the issues, was irregular, and could not stand.(4) When the verdict is delivered, the jury may be polled at the re- quest of either party. After the jury have returned their verdict, have been discharged, and have separated, they can not be recalled to alter or amend it. (5) In Kentucky(6) and Indiana,(7) when the jury find a verdict of guilty, they also, as part of their verdict, fix the punishment. In Illi- nois,(8) the jury do so in felonies.] Upon an indictment for robbery, the prisoner may be found guilty of an assault with intent to roh.{p) Upon an indictment for larceny, the prisoner may be found guilty of embezzlement, and vice versa.(q) Upon an indictment for obtaining hj false pret&nses, if the (p) 24 and 25 Vict., c. 96, § 41. (g) Ibid., f 72. (1) Armistrong v. State, 21 Ohio St. 357. (2) People V. March, 6 Cal. 54.3 ; Sohoonover v. State, 17 Ohio St. 294; Bstes v. State, 55 Ga. 131. (3) Keedy v. People, 84 111. 569. (4) United States v. Keen, 1 McLean, 429 ; Hurley v. State, 6 Ohio, 399. (5) Sargent v. State, 11 Ohio, 472. (6) Grim. Code, § 258. (7) Eev. Stat. (1876), vol. 2, p. 401, (8) Rev. Stat. (1877), 407. VERDICT. 385 -olFense turns out to amount to larceny, the defendant may i still be convicted of false pretenses.(r) And whenever a person is indicted for an offense which includes in it an offense of minor extent and gravity of the same class, the prisoner may be convicted of such minor offeuse.(s) Thus, on an indictment for murder, he may be convicted of manslaughter ; so of simple larceny, if in- dicted for stealing in a dwelling-house, or any other aggra- vated form of larceny.(;) If the judge is dissatisfied with the verdict, he may direct ■the jury to reconsider it, and their subsequent verdict will stand as the true one. If, however, the jury insist upon having the first recorded, it must be recorded ; but if it be a veixiict of guilty, and contrary to the evidence, it will be set aside and a new trial granted by the queen's bench di- vision. («) [In the United States, the court in which the trial was held can, for cause, set aside the verdict of guilty, and award a new trial. When the indictment contains several counts setting out the sume offense in diflerent terms, and the verdict is guilty on one count and not guilty on the rest; or when the offense charged in a single count has several di.^grees, and the verdict is guilty of an inferior de- gree ; or when the verdict is not guilty of the offense .charged, but guilty of a less included offense; and the ver- ,dict is set aside, the courts are at variance as to what the defendant may be tried for at the new trial. Some courts hold that in all such cases the verdict is a unit ; it is the finding of the jury upon the offense charged, and when the verdict is set aside, the jeopardy which once existed as to that offense is wholly removed, and the defendant is to be tried upon the indictment as if there never had been a trial. (1) {r) 24 and 25 Viot., c. 95, §88; v. p. 194. [s) V. Eosc. 81 (0 V. Arch. 223. («) v. p. 406. (1) United States v. Harding et al., 1 Wall, Jr., 127, see p. 148; Liv- ington's Case, 14 Gratt. 592; States. Stanton, 1 Ired. Law, 424; State V. Commissioners, 3 Hill (S. C), 239; Bailey v. State, 26 Ga. 579; Jarvis V. State, 19 Ohio St. 595; State v. Behimer, 20 Ohio St. 572; Ex parte Bradley, 48 Ind. 548 ; State v. Knouse, 33 Iowa, 365. 25 386 VERDICT. Others hold that the application of the defendant can be considered only as applying to so much of the verdict as was against him ; that the acquittal is absolute, and so much of the charge as was covered by the acquittal can not be tried again, and the new trial must be restricted to that part of the charge as to which there was a conviction. (1)] If a verdict of acquittal is returned, the prisoner is for ever free from the present accusation ; and he is discharged in due course, unless there is some other charge against him. If he is acquitted on account of some defect in the proceedings, or not, as above, on the merits of the case, he may be detained and indicted afresh. If he is acquitted on the ground of insanity at the time of the commission of the oliense, whether auch an offense was a felony(x) or mis- demeanor,(!/) he must be kept in custody until the queen's pleasure be known ; and the queen may order his confine- ment during her pleasure.(0) If a verdict of guilty is brought in, the accused is said to be convicted. The jury may annex to such verdict a recom- mendation to mercy on any grounds they think proper, Avhich recommendation will usually be taken into consid- eration by the judge.(a) If there are several counts in the indictment, the verdict specifies on which count the pris- oner is convicted. If there is a second indictment against a prisoner who has been found guilty, frequently it is not proceeded with, if the charge is similar to that on which he has just been convicted. The counsel for the prosecution often merely gives the court an outline of the case. If he is acquitted, the second indictment is then proceeded with, unless it {x) 39 and 40 Geo. 3, c. 94, § 1. (ij) 3 and'4 Vict., c. 54, § 3. (z) V. pp. 300 and 331, as to insanity at time of trial and not of com- mission of offense. (a) Unless, indeed, as is not unfrequently the case, it appears that the recommendation is founded on some lingering doubt as to the sufficiency of the evidence. (1) Hurtu. State, 25 Miss. 378; State w. Chandler, 5 La. Ann. 489; State V. Desmond et al., lb. 398 ; Jones v. State, 13 Texas, 168; Bar- nett V. People, 54 111. 325; State v. Ross, 29 Mo. 82; State v. Martin, 30 Wis. 216. VERDICT. 387 is obvious that there is no more evidence than in the first case. If a prisoner indicted for any felony, or the offense of ut- tering false or counterfeit coin, or of possessing counterfeit gold or silver coin, or of obtaining goods or money by false pretenses, or of conspiracy to defraud, or of any misde- meanor under 24 and 25, Vict., c. 96, § 58,(6) has been found guilty, then, if he has been previously convicted of any of the above crimes, he is asked whether he has been so previously convicted, the previous conviction being also alleged in the indictment. If he admits it, the court pro- ceeds to sentence him. But if he denies it, or will not an- swer, the jury are then, without being again sworn, charged to inquire concerning such previous conviction ; the point to be established being the identification of the accused with the person so convicted. (c) The only case in which evidence of a previous conviction may be given before the subsequent conviction is found is when the prisoner givea evidence of character. In this case the jury are to inquire of the previous conviction and the subsequent offense at the same time.((i) (b) V. p. 243. (c) 34 and 35 Vict., c. 112, §§ 18, 20; see also 24 and 25 Vict,, c. 96, §116; c. 97, §37. (d) Arch. 231. Though the previous conviction does not fall within the scope of the above provision, the judge has before him a record of it, and all other occasions on vrhich the accused has been before a criminal court. See p. 182, as to evidence of certain previous convic- tions on an indictment for receiving. 388 JUDGMENT. CHAPTEE XIX. JUDGMENT. Before judgment, in cases of treason and felony, the prisoner is supposed to be asked whether he has any thing to say why the court should not proceed to pass sentence upon him. But, in actual practice, this is not always done. ■ The interval between conviction and judgment is the time for the defendant to move the court in arrest of jitdg- went. The motion must be grounded on some defect ap- parent on the face of the record, and not on some irregu- larity in the proceedings. The objection must be a sub- stantial one, such as want of sufficient certainty in the in- dictment as to the statement of facts, etc. But judgment will not be arrested, if the defect has been amended during the" trial, or is such an one as is aided by verdict. The court itself will ai'rest judgment, if it is satisfied that the defendant has not been found guilty of any offense in law. If judgment is arrested, the proceedings are set aside, no judgment is given, and the prisoner is discharged. But, unlike an ordinary acquittal, the defendant may be indicted again on the same facts. [In Ohio, amotion in arrest of judgment may be granted, if the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within tlie jurisdiction of the court; or if the facts stated in the indictment do not constitute an offen8e.(l) The provision in the statute of Indiana is the same. (2) In Kentucky, the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the « (1) 66 Ohio L. 359. (2) Rev. Stat. (1876), vol. 2, pp. 409, 410. JUDGMENT. 389 court.(l) In Iowa, judgment may be arrested upon any ground which would have been ground of demurrer; and also when, upon the whole record, no legal judgment can be prononnced.(2) In Kentucky, Indiana, and Iowa, the court may, without motion by defendant, arrest judgment upon the same grounds. In all four states, if the court is of opinion, upon the evidence, that he is guilty of an of- fense, the defendant shall be held for further indictment. In Ohio, motion in arrest of judgment can not be made after three days after the verdict is rendered. In Ken^ tucky and Iowa, the motion can be made at any time be- fore judgment, or after judgment at the same term.] Judgment may be postponed, if the court wishes to re- serve any point of law for the consideration of the court for crown cases reserved. (e) If the defendant has been found guilty of a misdemeanor, in his absence (in felonies, he must be present), process is- sues to bring him to receive judgment ; and, on non- appearance, he may be prosecuted to outlawry.(/) If he has been allowed to leave the court, on entering into re- cognizances to come up for judgment when called for, and he fails to come up, his recognizances will be forfeited, and a warrant issued for his apprehension. Judgment or sentence is given hj the court, the judge adding such remarks as he' thinks proper. Formerly, in all capital felonies, "when the court thought that the person convicted was a fit subject for royal mercy, it was lawful, instead of publicly giving sentence of death, to enter it on the record, the effect being the same.(5') But it seems that now, by virtue of 24 and 25 Vict., c. 100, § 2, sentence of death must be pronounced on conviction for murder. [The right to include several counts in an indictment for felony is limited to presenting the same transaction in dif- ferent forms. A general verdict on such an indictment is therefore a finding of guilty of a single transaction. As (e) V. p. 410. (/) V. p. 291. (g) V. 4 Geo. 4, c. 48, § 1 ; 6 and 7 Wm. 4, c. 30, § 2 ; 24 and 25 Vict., c. 95. (1) Crim. Code, § 276. (2) Rev. Stat. (1873), p. 693. 390 JUDGMENT. such a verdict finds proved all the material averments well charged, the sentence, while it can be for only one oflense, may be for the highest offense well charged.(l) But, in Pennsylvania, it was held that where the counts charge several offenses committed in a single transaction — as a breaking with intent to steal and an actual larceny — there may be separate sentences on the separate counts. (2) And, in Massachusetts, where, contrary to the prevailing rule, distinct felonies, committed at different times, may be charged in one indictment, (3) there may be, in such case, on a general verdict of guilty, a single sentence, awarding the aggregate punishment that could be imposed for the separate offenses. (4) When sentence has been pronounced upon a general verdict of guilty, and it appears that some of the counts are good and some bad, the sentence is held to apply to and be supported by the good counts, and be valid. The ruling to the contrary, that the sentence, in such cases, is erroneous, made by the majority of the house of lords, in O'Connell's case, 11 CI. & Fin. 15, made under the stress of political circumstances, excited surprise in the profession in England, and has not been followed in this country. The rule of pleading above stated is modified by tbe statutes which permit several distinct larcenies or embez- zlements to be charged in one indictment. Several distinct misdemeanors may be joined in one in- dictment. But it was held, in IN'ew York, that, upon a verdict of guilty of all, the sentence can not be greater than if there were but a single count.(5)] (1) Commonwealth v. Hope, 22 Pick. 1; Commonwealth v. Kirby, 2 Cush. 577; People u. MoGreery, 6 Parker, C. C. 653 ; People u. Bruns, lb. 657; Manly v. State, 7 Md. 135; Bullock v. State, 10 Ga. 47. (2) Commonwealth v. Burdsall, 69 Penn. St. 482. (3) Commonwealth i. Hills, 10 Cush. 530. (4) Carleton v. Commonwealth, 5 Mete. 532. (5) Tweed v. People, 60 N. Y. 559. INCIDENTS OF TRIAL. 391 CHAPTER XX. INCIDENTS OF TEIAL. Some miscellaneous points connected with a criminal trial remain to be noticed, now that we have viewed the general order of proceedings. Defense in forma pauperis. — In cases of extreme poverty (that is, when the defendant will swear that he is not worth £5 in the world, besides his wearing apparel, after paying his debts) the defendant may petition the queen's bench di- vision to be allowed to defend himself as a pauper. His petition must be verified at the same time by an aflidavit. It (the petition) is presented either to a judge at chambers or in court. On the prayer of the petition being granted, a rule is drawn up by the judge's clerk, mentioning the name of the counsel and attorney assigned for the defense; and this must be produced when the pauper requires any thing to be done without payment of fees.(A) There is also a custom of a similar nature. In cases where there is a special difficulty, or where the conse- quences are very serious, and therefore usually on indict- ments for murder, if the prisoner is not defended by coun- sel, the judge requests some barrister to give his honorary services to the prisoner. Of course this request is always complied with. [In Ohio,(l) Illinois,(2) and Iowa,(3) the court assigns counsel to defendants who are too poor to employ any. Counsel, as used in these statutes, includes counsel, attor- ney, and bari'ister, named in the text, there being no dis- tinction in most of the states between attorneys and bar- risters.] (A) Arch. 151. R. v. Dugdale, Corner's Cr. Prac. 167. (1) 63 Ohio L. 340. (2) Rev. Stat. (1877), p. 405. (3) Rev. Stat. (1873), p. 673. 392 INCIDB^TTS OF TRIALi Sometimes a poor person is allowed to prosecute in forma pauperis, but tl)en, in addition to the petition and affidavit, tlierc must be special grounds shown for allowing this ir- regularity, (z) View of locus in qiio by the jury. — The judge may allow the jury to view the scene of the crime, or other occnrrenco under investigation, at anytime during the trial, even after the summing, up. But care should be taken that no im- proper communications are made at the view ; and that no evidence is received in the absence of the judge and the prisoner.(A) Adjournment of the trial. — If the trial is not concluded on the same day on which it is commenced, the judge may ad- journ from day to day.(Q And a judge may adjourn a case and proceed with another if the emergency requires it, as, for example, to give time for the production of something essential to the jjroof, or for the witnesses to arrive.(7?i) If the prisoner is taken so ill as to render him incapable of remaining at the bar, the jury is discharged, and the pris- oner is afterward tried by another jury.(7?) Withdrawal from, prosecution. — Frequently the prosecutor is desirous of withdrawing from the prosecution, the ac- cused engaging not to bring an action for trespass and false imprisonment or malicious prosecution. If the offense is a misdemeanor more immediately affecting the individual, e. g., a battery, or, in other words, one which might be made the subject of civil action, this will be allowed, and the agreement will be enforced; but not if the offense is a felony or a misdemeanor of a more public nature.(o) Even after verdict, if the court deems such a course proper, the defendant is sometimes allowed to "talk with the prose- cutor." Though one person is not obliged in the first in- (0 Arch. 151. R. v. Wilkins, 1 Dowl. P. C. 536. \k) E. V. Martin, L. R., 1 C. C. R. 378; 41 L. J. (M. 0.) 113. {I) As to what happens to the jury in the interval, v. p. 327. (m) E. V. Wenhorn, 6 Jur, £67. ()i) R. V. Stevenson, 2 Leach, 546. (o) V. Ravflings v. Coal Consumers' Association, 43 L. J. (M. C.) 111. INCIDENTS OF TRIAL. 393 stance to prosecute another whom he suspects of crime, that is, not until he has been bound over by the magistrate to prosecute and give evidence, it is a crime to take a revfard not to prosecute a felony.(7j) [In Iowa, when a defendant is prosecuted in a criminal action for a misdemeanor, for which the person injured by the act constituting the offense has a remedy by civil action, the offense may be compromised, except when it is com- mitted by or upon an ofBcer while in the execution of the duties of his office; or riotously; or with intent to com- mit a felony. The party injured must acknowledge in writing, in court, before trial, that he lias received satisfac- tion. Thereupon, on payment of costs, the court may, in its discretion, discharge the defendant, which discharge is final, and a bar to another prosecution for the same offense. (1)] Restitution of goods. — If any person guilty of any felony or misdemeanor mentioned in the larceny consolidation act, in stealing, taking, obtaining, extorting, embezzling, con- verting, or disposing of, or in knowingly receiving, any chattel, money, valuable security, or other property, is in- dicted for such offense by or on behalf of the owner of the property, or his executors or administrators, and convicted thereof; in such case the property is to be restored to the owner or his representative. The court may order the restitution in a summary manner. But no such restitution is made if it appears that any valuable security has been bona fide paid or discharged by some person or body corpo- rate liable to the payment thereof, or, being a negotiable instrument, has been bona fide taken or received by trans- fer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or rea- sonable cause to suspect that the same had, by any felony or misdemeanor, been stolen, etc. But the above provisions as to restitution do not apply to the case of any prosecu- (p) V. compounding felony, p, 85. (1) Rev, Stat, (187a), p. 721. 394 INCIDENTS OF TRIAL. tion of any trustee, banker, merchant, solicitor, factor, broker, or other agent intrusted with the possession of goods or documeuts of title to goods, for any misdemeanor against the larceny act.(g') But the court has not power, as a rule, to order property not forming part of the subject of the indictment, for example, property found on the prisoner, to be disposed of in a particular manner.(?') The right to claim restitution is not defeated by the fact that the goods have been sold to an innocent buyer in mar- ket overt. It is obvious that either the owner or the pur- chaser must suffer, and the law prefers the cause of the former, " who has done a meritorious act b^' pursuing a felon to condign punishment, to the right of the purchaser, whose merit is only negative."(s) Not that the innocent pur- chaser is always a total loser; for it is provided that money found on a prisoner, who has been convicted of an offense which includes the stealing of any property, may be ordered by the court to be given to the purchaser of the property if he did not know that the same was stolen. This takes place only after he has restored the property to the owner; and of course the amount so given must not ex- ceed the amount of the proceeds of the sale.(^) If the property has been pawned, the court may order the deliv- ery thereof to the owner, either on payment to the pawn- broker of the amount of the loan, or of any part thereof, or without payment of any part, as the court, according to the conduct of the owner, and the other circumstances of the case, thinks just and fitting.(K) Restitution may be ordered in the same way by magis- trates convicting of larceny, etc., in the exercise of their summary jurisdiction. (») (?) 24 and 25 Vict,, c. 96, § 100. (r) R. (J. Corporation of London, 27 L. J. (M. C.) 231. But an ex- ception is introduced by statute, 30 and 31 Vict., c. 35, § 9. (s) 4 Bl. 363. (0 30 and 31 Vict., c. 35, § 9. (m) 35 and 36 Vict., c. 93, § 30. (v) 18 and 19 Vict., c. 126, § 8; so, also, in the case of juvenile of- fenders, under 10 and 11 Vict, c. 82, g 12. INCIDENTiS OP TRIAL. 395 Even without any award of restitution, the owner may peaceably retake his goods whenever he happens to iind them, unless a new property has been fairly acquired therein, (x) (x) 4 Bl. 363. Scattergood v. Sylvester, 15 Q, B. 506. 396 PUNISHMENT. CHAPTER XXI. PUNISHMENT. The object of the sentence is to prescribe tbe punishment. The law, whether common law or statute law, which assigns the punishment, almost unexceptionally gives the judge a certain latitude as to the amount of punishment. Though he is restricted as to the maximum, in almost every case he can give as little as he pleases, minimum punishments hav- ing been abolished by statute. (y) On conviction for treason or murder, however, sentence of death must be passed. Crimes against nature must be punished by at least ten yeai's' penal servitude. Some crimes demand a wide limit of punishment; for example, manslaughter, where it may range from penal servitude for life to a merely nominal punishment according to the circumstances. But practi- cally this works well, as the judges are quite competent to apportion the punishment to the crime ; and the incon- venience of reposing that confidence in them is a less evil than the multiplication of technical distinctions which in- evitably results from the multiplication of the definitions of crime.(a) The punishment prescribed by statute for felonies is usu- ally penal servitude for not less than five years, or impris- onment not exceeding two years with or without hard la- bor. When the punishment is not prescribed by statute, the combined effect of several statutes(6) is, that such fel- onies may.be punished by penal servitude for not more than seven nor less than five years, or by imprisonment for any term not exceeding two years ; and, it a male, the court (y) 9 and 10 Vict., c. 24. (a) Fitz. St. 143. (b) 7 and 8 Geo. 4, c. 28, g 8 (see also §9); 20 and 21 Viot., c. 3, g 2; 27 and 28 Vict, c. 47, § 2. . PUNISHMENT'. 897 may order the felon to be once, twice, or thrice pubhcly or privately whipped in addition to such punishment. The punishment prescribed by statute for misdemeanors is usually line or imprisonment, or both ; and it is also the same when it is not prescribed by statute, but left to the common law.(c) The court may also require the defendant to find sureties to keep the peace and be of good be- havior. The punishment for a felony (not punishable with death 'and not being simple larceny), after a previous conviction for felony, is penal servitude for life or for not less than seven years, or imprisonment not exceeding two years ; and in the case of a male, if the court thinks fit, whipping pub- licly or privately, once, twice, or thrice.(a!) To a person convicted of a crime punishable by penal servitude, after a previous conviction for felony, the least sentence of penal servitude that can be awarded is seven years. (e) Special enactments impose certain terms of punishment in the case of conviction for simple larceny after previous conviction for certain oflenses. The punishment for sim- ple larceny, after previous conviction for felony, is penal servitude from seven to ten years, or imprisonment not ex- ceeding two years, with or without hard labor, or solitary confinement ; and in the case of a male under sixteen years of age, with or without whipping.(/) For simple larceny, or any oft'ense made punishable as simple larceny by the larceny act, after previous conviction for any indictable misdemeanor under tlie larceny act, the punishment is penal servitude from five to seven years, or imprisonment as in the last ca,se.(g) The same limits of punishment ap- ply to simple larceny, or an ofiense punishable as simple larceny, after two summary convictions for offenses pun- ishable upon summary conviction under certain enumerated acts.(/i) (c) As to hard labor, v. p. 400. {d) 7 and 8 Geo. 4, o. 28, § 11 ; 20 and 21 Vict, o. 3, § 2 ; 27 and 28 .Vict, c. 47, § 2. (e) 27 and 28 Vict, c. 47, § 2. (/) 24 and 25 Vict, c. 96, § 7. (g) Ibid., § 8. ' (A) Ibid. § 9. 398 PUNISHMENT. For uttering, etc., counterfeit coin, after previous convic- tion for such crime, or previous conviction for a felony against a coinage act, the punishment is penal servitude for life, or for not less than five years, or imprisonment not ex- ceeding two years, with or without hard labor, or solitary confinement.(i) We may notice here that if the prisoner is found guilty of several distinct ofienses on different counts, he may be sentenced to several terms of punishment; snch terms to be concurrent, or the second to commence at the expiration of the first. When a sentence for felony is passed on a person already suffering imprisonment for another crime, the court may order the imprisonment for the subsequent offense to commence at the expiration of the former term ; so also the court may order a sentence of penal servitude to commence after the previous imprisonment or penal servitude, although the aggregate term of imprisonment or penal servitude respectively may exceed the term for which either of these punishments could be otherwise awarded, (/c) The punishments which the law prescribes are the fol- lowing : Death; penal servitude ; imprisonment; fine. Incidental to the imprisonment are sometimes Hard labor; whipping; solitary confinement. In addition to other punishment there is often made an order that the person convicted be under police supervision for a certain time. Again, in some cases the ends of justice are attained by requiring the prisoner to enter into recognizances to come up for judgment if called for ; which generally means that if he conducts himself with propriety he will hear nothing more of the matter. The prisoner may also be required to find sureties to keep the peace, or to be of good behavior. Youthful offenders, under certain circumstances, may be sent to reformatories or industrial schools. (t) 24 and 25 Vict., c. 99, § 12. (A) 7 and 8 Qeo. 4, o. 28, § 10. PUNISHMENT. 399 Each of the above-named sanctions of the law will in turn receive a brief notice. Death. — This is the only punishment which must be awarded in treason and murder. And it can not be awarded in any other cases except piracy, or the two crimes of setting fire to her majesty's vessel of war or to ships, etc., in the port of London. (^) Penal servitude. — This mode of punishment was intro- duced in substitution for transportation beyond the seas in certain cases by 16 and 17 Vict., c. 99, and totally snper- seded transportation by 20 and 21 Vict., c. 3. It was placed generally on the same footing as the latter punishment: thus, any person who might formerly have been sentenced to transportation is now liable to be kept in penal servitude for the same period ; and any person who might have been sentenced either to transportation or imprisonment may now be sentenced either to penal servitude or imprison- ment. But in cases where before the act sentence of seven years' transportation might have been passed, the court may now pass sentence of not less than five years' penal servi- tude.(m) Persons sentenced to penal servitude may be confined in any prison, or place of confinement in any part of the United Kingdom, or in any river, port, or harbor of the United Kingdom, in which persons under sentence or order of transportation might formerly be confined, or in any other pi'ison in the United Kingdom, or in her majesty's dominions beyond the sea, as one of her majesty's secreta- ries of state may direct. And in other respects, as to cus- tody, hard labor, management, control, property in their services, and punishment for unlawfully being at large be- fore the expiration of their term,(n) they may be dealt with as persons sentenced to transportation formerly were.(o) The shortest term of penal servitude which can be {I) As to recording sentence, v. p. 389 ; as to mode of execution, v. p. 419. (m) 20 and 21 Vict., c. 3, § 2 ; 27 and 28 Vict., c. 47, § 2. {n) V. p. 70. (o) 16 and 17 Viot., o. 99, g 6 ; 20 and 21 Vict., c. 3, § 3. 400 PUNISHMENT. awarded is five years ; or, after a previous conviction for felony, seven years. (2?) Imprisonment. — As a general rule, no longer sentence of imprisonment than for two years can be awarded. From that to penal servitude (if allowed in the particular case) for five years there ia a spring. But under some stat- utes still in force, imprisonment to the extent of three or four (or even more) 3'ears may be awarded ; for exam- ple, under 24 and 25 Vict., c. 13-4, § 221 ; 24 and 25 Vict., c. 98, § 11 ; 7 Wm. 4 and 1 Vict, c. 36, § 26 ; 2 Geo. 2, c. 25, § 2. line. — In offenses punishable by fine, usually the amount of the fine is not restricted by statute. The reason of this is obvious. Not only does tlie value of money change from time to time, but a fine which would be ruin to one man would be matter of indifference to another.(^) The bill of rights provides that excessive fines shall not be imposed. It would be imprudent to hinder a man from getting his livelihood; and if the crime demands more severe punish- ment, the court may award imprisonment, for it is generally empowered to award either the one or the other, and fre- quently both. Felonies fire very rarely punished by mere fine.(r') Each of the criminal consolidation acts, 1861, pro- vides that a person convicted of a misdemeanor under those acts may be fined in addition to or in lieu of other punishment. (s) Hard labor. — This punishment may be added in nearly all cases to imprisonment for felovy. The misdemeanors to the imprisonment for which hard labor may be added are enumerated in 3 Geo. 4, c. 114, and 14 and 15 Vict., c. 100, § 29. Each of the criminal consolidation acts, 1861, con- tains a clause to the effect that the court may add hard labor to imprisonment in case of indictable offenses, fel- onies or misdemeanors, under those acts.(i) Also in oft'enses (p) 27 and 28 Vict., c. 47, § 2. (?) 4 Bl. 378. (r) V. 24 and 25 Vict., c. 100, § 5. (s) 24 and 25 Vict., c. 90, § 117; c. 97, §73; 0. 93, § 51; c. 99, § 38; c. lot). § 71. (0 24 and 25 Vict., c. 96, § 118; 0. 97, § 74; o. 98, §52; c. 99, § 39; 0. 100, § 69. PUNISHMENT. 401 , under the post-office acts for which imprisonment may be awarded, the court may add hard labor.(M) So that in nearly every case now hard labor may accompany impris- onment. Two classes of hard labor are distinguished — one for the employment of males above the age of sixteen ; the other for that of males below that age and of females. Regula- tions as to its nature and application are made by statute, (x) Whipping. — Two classes of cases in which whipping is allowed must be distinguished : — (i.) of males below the age of sixteen ; (ii.) of males of an age. It should be premised that a female can never be whipped. Where formerly sen- tence of whipping might be passed, the court or magistrate may now order the female to be kept to hard labor for a term not exceeding six months nor less than one month, in lieu of the whipping. (?/) i. By three of the consolidation acts whipping may be inflicted for a variety of specified offenses cornmitted by males under the age of sixteen, and in one case, males un- der the age of eighteen. (2;) It is to take place once, and the number of strokes and the instrument with which they are to be inflicted are to be specified by the court in the sentence.(a) When this punishment is awarded by the magistrates in the exercise of their summary jurisdiction, the sentence must specify the number of strokes- and the instrument; and in the case of an offender whose age does not exceed fourteen, the number of strokes must not exceed twelve, and, the instrument used must be a birch rod. The offender must not be whipped more than once for the same of- fense.(6) {u) 7 Wm. 4, and 1 Vict., c. 36, § 42. (x) 28 and 29 Vict., c. 126, § 19, and part 4, sched. i, regs. 34-37. ly) 1 Geo. 4, c. 57, § 2. (z) 24 and 25 Vict., c. 96, § 101. This exception is probably a mere Dversight on the part of the legislature, (a) 24 and 25 Vict., c. 96, § 119; c. 97, g 75 ; c. 100, g 70. {(>) 25 and 26 Vict., c. 18. ^6 402 PUNISHMENT. ii. Whipping once, twice, or thrice, may be awarded to males of any age in case of: (a.) Robbery, etc., with violence — or an attempt to choke, suffocate, or strangle. The following regulations must be observed : The whipping must be privately inflicted ; (b) if the age of the offender does not exceed sixteen, the number of strokes at each whipping must not exceed twenty-five, and instrument must be a birch rod ; (c) in other cases not the more than fifty strokes at a whipping; (d) the court must specify the number of strokes and the instrument; (e) the whipping must not take place after six months from the sentence ; (f) in the case of a person sentenced to penal servitude, the whipping must be inflicted before he is re- moved to a convict prison. (c) (b.) Felony, after a previous conviction for felony; and certain offenses relating to the falsifying of certificates of previous conviction. The whipping is to be publicly or privately inflicted, (c?) (c.) Felony for which no particular punishment has been provided, (e) Solitary confinement. — This may be ordered in certain specified cases mentioned in the criminal consolidation acts. Also for felonies for which no particular punishment has been prescribed by statute ;(/) and for certain other of- fenses which it is unnecessary to enumerate. But in no case may a prisoner be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year,(^) Police supervision. — When any person is convicted on an indictment for a crime (explained by the act to mean in England — any felony, or the offense of uttering false or counterfeit coin, or of possessing counterfeit gold or silver coin, or of obtaining by false pretenses, or of conspiracy to defraud, or of any misdemeanor under 24 and 25 Vict, c. 96, § 58), and a previous conviction of a crime ia proved (c) 26 and 27 Vict., c. 44. {d) 7 and 8 Geo. 4, e. 28, § 11. (e) Ibid., § 8. (/) Ibid., § 9. (g) 7 Wm, 4, and 1 Vict., c. 90, § 5 ; 24 and 25 Vict., o. 96, § 119; c. 97, g 75; 0.98, §53; c. 99, g 40; c. 100, § 70. PUNISHMENT. 403 against him, the court may, in addition to any other pun- ishment, direct that he is to be the subject of the super- vision of the police for a period of seven years or less, com- mencing immediatel}' after the expiration of the sentence passed on him for the hist of such crimes.(A) The consequence of such sentence is that the person to be supervised must notify the place of his residence to the chief officer of police of the district in which his residence is situated, and also notify any change vidthin such dis- trict; and if he goes out of the district, he must notify the change to the chief officer of the district he is leaving, and also to the chief officer of the district to which he is going. If a male, he must report himself personally or by letter, as required, once a month to the chief officer of the district. If he offends against these regulations, or is forty- eight hours in any place without notifying the place of his residence to the chief officer, he is subject to imprisonment with or without hard labor for a term not exceeding one year.(i) Recognizances and sureties. — Under each of the criminal consolidation acts, in case of conviction for an indictable misdemeanor punishable under those acts, the court may fine the offender, and require him to enter into his own recognizances and to find sureties, both or either, for keep- ing the peace and being of good behavior, in addition to to or in lieu of any other punishment. In case of a fel- ony punishable under the acts, the court may order him to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to any other punishment. But under these clauses no one may be im- prisoned for not finding sureties for any period exceeding; one year. (A) Reformatory and industrial schools. — When any offender who,in thejudgmentof thecourtormagistrates,is underthe age of sixteen years, is convicted of an offense punishable by penal servitude or imprisonment, and is sentenced to impris- (A) 34 and 35 Vict., c. 112, § 8. (0 Ibid. (A-) 24 and 25 Vict., 96, § 117 ; c. 97, §73; c. 98, § 51 ; c. 99, § 38;: c:. 100, § 71. 404 PUNISHMENT. onment for ten days or more, the court or magistrates may also sentence him to be sent, after his imprisonment, to a cer- tified reformatorii school, to be there detained for a period of of from two to five years. But if he is under the age of ten years he may not be sent to the reformatory unless he has been previously charged with some offense punishable by penal servitude or imprisonment; or is sentenced by a judge of assize or a court of general or quarter sessions. Tbe court sending such a youthful offender to a school will choose one of his apparent religious persuasion. (Z) Industrial schools meet the case of those who have not to so great an extent fallen into crime, but are on the high- way to it. Thus, two magistrates may send the following, among others, to such schools: children apparently under the age of fourteen begging, having no home or visible means of existence, in the company of reputed thieves; destitute orphans, or having a surviving parent in penal servitude or imprisonment ; children apparently under the age of twelve charged with an offense punishable by im- prisonment or less punishment, but not having been con- victed of felony, etc. No child is detained in such school after he has attained the age of sixteen, unless with his own consent expressed in writting.(m) Other consequences of conviction. Until recently certain forfeitures and other consequences followed on conviction for treason or felony. But by stat- ute(w.) it has been provided that from and after the passing of the act (July 4, 1870) no confession, verdict, inquest, conviction, or judgment of or for any treason, felony, or felo dc se, shall cause any attainder or corruption of blood, or any forfeiture, or escheat; provided that nothing in the act shall affect the law of forfeiture consequent upon outlawry. Of course this does not refer to, or interfere with, any fine or penalty imposed in the sentence.(o) But a conviction for treason or felony for which the sen- tence is death, penal servitude, or imprisonment with hard (0 29 and 30 Vict., c. 117, g 14. (m) Ibid., c. 118. (n) 33 and 34 Vict., o. 23, § 1. (o) Ibid., § 5. PUNISHMENT. 405 labor, or exceeding t^¥elve months, determines the tenure of any military or naval office, or any civil office under the crown, or other public employment, or any ecclesiastical benefice, or any office or emolument in any university or other corporation, or any pension or superannuation allow- ance payable by the public, or out of the public funds, un- less a pardon is received within two months after the con- viction, or before the filling up of the office, place, etc., if given at a later period. It also disqualifies for the future, until the punishment has been suffisred or pardon received, the felon from holding any military or naval office, or any civil office under the crown, or other public employment, or any ecclesiastical benefice, or of being elected, or sitting, or voting as a member of either house of parliament, or of exercising any right of sufirage or other parliamentary or municipal franchise within England, "Wales, or Ire\and..(p) As to the property of the felon. — By the same 8tatute(2) it is provided that this may be committed to the custody and management of an administrator, to be appointed by the crown ; or, in default of such appointment, to the management of an interim curator, who may be ap- pointed by the magistrates on an application made in the interest of the felon or his family. The administrator or curator must pay his debts and liabilities, and support his family, and preserve the residue of the property for the felon himself or his representatives, on the completion of his punisnment, his pardon, or his death. Persons convicted of treason or felony may be condemned in costs ; and if convicted of felony may be ordered to pay a sum of money, not exceeding £100, as compensation to the person defrauded or injured by the commission of the felony. (r) (p) 33 and 34 Vict., c. 23, § 2. (y) Ibid., §§ 9, 18, 21. (r) Ibid., §§ 3, 4. 406 PROCEEDINGS AFTER TRIAL. CHAPTER XXII. PROCEEDINGS AFTEK TRIAL. Though there is no appeal on the merits in a criminal case, the verdict of the jury does not always determine the conviction or acquittal of the prisoner. We have already fieen(s) that judgment may be arrested on certain grounds. It remains to consider those cases in which the judgment, though actually given, is subsequently affected. This mat- ter will be ti'eated of under the heads of new trial, reversal of judgment by writ of error, and the court for crown cases reserved. The subject of reprieve and pardon will form a separate chapter. NEW TRIAL. " Where an indictment has been preferred in the queen's bench, or has been removed into that court by certiorari, a new trial may, after convieUon, be moved for, on the ground that the prosecutor has omitted to give due notice of trial ; or that the verdict has been contrary to evidence, or to the direction of the judge ; or for the improper reception or rejection of evidence, or other mistake or misdirection of the judge ; or for any gross misbehavior of the jury among themselves ; or for surprise ; or for any other cause where it shall appear to the court that a new trial will further the ends of justice. (<) It is now settled that only in misdemeanors, and not in felonies, can a new trial be granted.(M) As a rule, after a verdict of acquittal, a new trial will not be granted ; but this rule is subject to qualifications — for example, where the defendant has kept back witnesses for the prosecution ; or where the object of the criminal proceeding is to try a (s) V. p. 388. (0 Arch. 188. (m) R. v. Bertrand, L. R. 1 (Priv. Counc.) 520. PROCEEDINGS AFTER TRIAL. 407 right, as in the case of a prosecution for the non-repair of roads.(x) Only in case of some irregularity in the proceedings, or, in other words, a mis-trial, can any other court than the queen's bench grant a new trial, the mis-trial being regarded as a mere nullity. The motion for a new trial is made upon the judge's notes of the trial, or upon affidavit, the defendant being present in court. "Wiien counsel have been heard on both sides, the court either makes the rule absolute or discharges it, with or without costs. If the new trial is granted, the effect of the former trial is completely swept away, and all the facts are re-heard. [In the United States, new trials, after a verdict of con- viction, are granted by the court in which the verdict is returned, upon the same principles which regulate the granting of new trials in civil cases. In some states, the grounds for which a new trial may be granted are defined by statute. In Ohio, the grounds, as defined by statute, are: 1. Irregularity in the proceedings of the court, jury, or the prosecuting attorney, or the witnesses for the state, or for any order of court, or abuse of discretion, by which the defendant was prevented from having a fair trial. 2. Mis- conduct of the jury, or of the prosecuting attorney, or of the witnesses for the state. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. That the verdict is not sustained by sufficient evidence, oris con- trary to law. 5. JSTewiy discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial. 6. Error of law, occurring at the trial. (1) In Kentucky, the grounds are : 1. If the trial, in a case of felony, were commenced and completed in his absence. 2. If the jury have received any evidence out of court, other than that resulting from a view, as provided in this code. 3. If the verdict have been decided by lot, or in any other manner than by a fair expression of opinion by the (x) V. E. V. Chorley, 12 Q. B. 515. (1) 74 Ohio L. 358. 408 PKOCEEDINGS AFTER TRIAL. jurors. 4. If the court have misinstructed, or refused properly to instruct the jury. 5. If the verdict be against the law or evidence. 6. If the defendant have discov- ered important evidence in his favor since the verdict. 7. If, from misconduct of the jury, or from any other cause, the court he of opinion that the defendant has not received a fair and impartial trial. Members of the jury can testify that the verdict was made by lot.(l) There are statutory provisions of the same character in Indiana(2) and Iowa.(3) In Michigan, a new trial may be granted for any cause for which, by law, a new trial maybe granted, or when it shall appear to the court that justice has not been done, and on such terms and conditions as the court shall direct. (4)] REVERSAL OF JUDGMENT BY WRIT OP ERROR. As a rule, the only way in which judgment can be re- versed is by writ of error, though such writ is not necessary if the objection is to some matter dehors, or foreign to the record, as if judgment be given by persons who have no authority. A writ of error is a writ directed to an inferior court which has given judgment against the defendant, requiring it to send up the record and proceedings of the indictment in question to the queen's bench division, for that court to examine whether the errors alleged took place, and to affirm or reverse the judgment of the inferior court. It must be grounded on some substantial defect, apparent on the face of the record, as if the indictment be bad in substance, or the sentence be illegal. It will never be allowed for a formal defect.(i/) The following are examples of cases where it has been held that a writ of error would lie : In perjury, where the court has not competent authority to administer the oath ; in libel, if the words do not appear to 0/) V. 14 and 15 Vict., c. 100, § 25. * (1) Crim. Code, §§ 271, 272. (2) Rev. Stat. (1876), vol. 2, p. 409. (3) Rev. Stat. (1S73), p. 692. (4) Rev. Stat. (1871), p. 2179. PROCEEDINGS AFTEK TRIAL. 409 be libelous ; in false pretenses, if it is not shown what the false pretenses were. (2') Before suing odt the writ of error, it is necessary to ob- tain the flat of the attorney-general, on showing reasonable ground of error. This is at the discretion of the attorney- general, but is not generally refused ; indeed, in misde- meanors, it is granted as a matter of course. The writ is delivered to the clerk of the peace, or other officer of the court to which it is directed, who has the custody of the indictment. He makes up the record, and makes out the return to the court. The party suing assigns his errors. The crown joins in error. The case is argued, and judg- ment of affirmance or reversal given. The court of error may either pronounce the proper judgment itself, or remit the record back to the inferior court, in order that the lat- ter may pronounce jndgment.(a) If judgment is affirmed, the defendant may be at once committed to prison; and if he does not surrender within four days, a jndge may issue a warrant for his apprehen- sion. (6) If judgment is reversed, all the former proceedings are null and void, and the defendant is in the same position as if he had never been charged with the offense; therefore, he may be indicted again on the same ground. In the interval before the result of the proceedings in error is known, in cases of misdemeanor, the defendant is discharged from custody on entering into the recognizances with sureties required by tlie acts mentioned below; in felonies, he remains in custody.(e) The jurisdiction in error, in criminal cases, is thus regu- lated by the supreme court of judicature acts. On a judg- ment of the high court of justice (including the queen's bench division, commissions of jail delivery, and oyer and terminer), an appeal lies to the court of appeal, if there is some error of laio apparent on the face of the record, as to (z) V. Castro v. Murray, 3-2 L. T. (N. S.) 675. {a) 11 and 12 Vict., c. 78, g 5. (6) 16 and 17 Vict., c. 32, § 4. (c) 8 and 9 Vict., c. 68, § 1 ; 9 and 10 Vict., o. 24, g 4; 16 and 17 Vict., c. 32, g 1. 410 PROCEEDINGS AFTEK TRIAL, which, no question has been reserved under 11 and 12 Vict., c. 78.(c?) And, as to appeals from quarter sessions and otlier inferior courts, which might have been brought to any court or judge whose jurisdiction is transferred to the high court of justice, it is provided that they may be heard aud determined by divisional courts of the high court, con- sisting of judges who may be assigned for that purpose. The determination of such appeals, respectively, by these divisional courts, is final, unless special leave to appeal to the court of appeal is given by the divisional court so hearing, (e) COURT FOR CROWN CASES RESERVED. If any question of law arises at a trial for treason, fel- ony, or misdemeanor, which the court (whether a judge at the assizes, the justices, or recorder at the quarter sessions) deems it inexpedient or impracticable to decide at once and of itself, it reserves the point for the consideration of the court for crown cases reserved ; provided, of course, a con- viction takes place — for, otherwise, there would be no need for further consideration. (/) Such court consists of the judges of the high court of justice, or five of them at least, of whom the lord chief justice of England, the lord chief justice of the common pleas division, or the lord chief baron must be one.(^) The court reserving the point may respite execution of the judgment on such conviction, or postpone the judg- ment until the question is decided. And, in either case, to secure the appearance of the defendant when he is required, the court will, in its discretion, either commit him to prison, or take a recognizance of bail, with one or two sureties. (A) The court for crown cases reserved hears counsel on either side, even though counsel do not appear on the other side. If they appear on both sides, the counsel for {d) 36 and 37 Vict., c. 06, §§ 18, 19, 47. As to 11 and 12 Vict., c. 78, V. p. 451. (e) 36 and 37 Vict., c. 66, § 45. (/) 11 and 12 Vict., c. 78, § 1. (^r) Ibid., § 3 ; 36 and 37 Vict., c, 06, g 47. [h) 1] and 12 Vict., c. 78, g 1. PROCEEDINGS AFTER TRIAL. 411 the prisoner begins and has a reply. If counsel do not ap- pear at all, the lord chief justice or lord chief baron pre- siding reads the case, and then judgment is pronounced. The judgment is that the court reverses, affirms, or amends the judgment of the court reserving the point; or avoids such judgment, and orders an entry to be made on the record that, in the opinion of the court for crown cases re- served, the party convicted ought not to have been con- victed; or orders judgment to be given at some otlier as- sizes or sessions, if no judgment has been given up to that time; or makes such other order as justice requires. The order of the court, whether for execution of judgment or discharge of the prisoner, is carried out by the sheriff or jailer in whose custody the person convicted is, to whom a certificate of such order is transmitted by the clerk of the assize or of the peace. (?) The court may send the case back for amendment, and, after that has been effected, judgment will be delivered.(/^) The determination of any such question in the manner indicated above is final and without appeal. (Q [The judgment upon a verdict of conviction can be re- viewed by the proper appellate court. The proceeding, varying in form, and called by different names in the dif- ferent states, is every-where substantially the same. In Il- linois and Michigan, the proceeding is called writ of error; in Ohio, petition in error; in Kentucky, Indiana, and Illi- nois, it is called appeal. In all, the object of the proceed- ing is to transmit the record of the trial court to the appel- late court, in order that the appellate court may determine if there is error in the record, to the prejudice of the plaintiff in error or appellant, and thereupon render ap- propriate judgment. In Ohio, in any criminal case, a judgment of a court or officer inferior to the court of common pleas may be re- viewed in the court of common pleas; judgment of any court inferior to the district court may be reviewed in the (i) 11 and 12 Viot., o. 78, § 2. (k) Ibid., § 4. (0 36 and 37 Vict., c. 66, § 47. 412 PKOCEEDINGS AFTER TRIAL. district court; and the judgment of any court inferior to the supreme court, may be reviewed in the supreme court. The plaintiJff in error files his petition in error with a transcript of the record in the appellate court. Petition in error can not be filed in the supreme court, without an allowance hy the supreme court or a judge thereof; in capital cases, the allowance must be by the court or by two judges thereof. Upon hearing, the court may affirm the judgment or reverse it, in whole br in part, and order the accused to be discharged, or grant a new trial. (1) In Kentucky, the court of appeals has appellate juris- diction in all cases of felonj'^, and also in penal actions and prosecutions for misdemeanors, where the judgment is for a fine exceeding fifty dollars or imprisonment exceeding thirty days. The circuit court lias appellate jurisdiction from the judgments of inferior tribunals, where the sen- tence is a fine of twenty dollars or more, or is imprison- ment. Where an appeal is taken to the circuit court, the defendant files in the circuit court a copy of the summons or warrant, and of the judgment, together with a state- ment of the costs, and the ease is tried in the circuit court as if no judgment had been rendered. Where, after judgment in the circuit court, the defend- ant, at the same term, prays an appeal, the appeal is granted as a matter of right. The appeal is perfected by lodging in the clerk's office of the court of appeals, within sixty days after the judgment, a certified transcript of the record. The clerk issues a certificate that the appeal has been taken, but no summons or notice is necessary. A judgment of conviction must be reversed for any error of law, to the defendant's prejudice, appearing on the record. But it shall noUbe reversed for error in instructins or re- fusing to instruct the jury, unless the bill of exceptions contains all the instructions given to the jury.(2) It is provided in the chapter on bills of exceptions, that decisions of a court upon challenges to the panel, and for (1) 74 Ohio L. 359-361. (2) Grim. Code, title 9. PROCEEDINGS AFTER TRIAL. 413 cause, tipon motions to set aside an indictment, and upon motions for new trial, shall not be subject to exception. (1) In Indiana, an appeal to the supreme court can be taken as a matter of right, by the defendant, from any judgment against him. It must be taken within one year after the rendering of the judgment. It is taken by serving on the clerk of the trial court notice that the defendant appears, and a similar notice upon the prosecuting attorney. The appellate court must give judgment without regard to technical errors or to exceptions which do not affect the substantial rights of the parties, and may reverse, affirm, or modify the judgment appealed from, and may, if neces- sary, order a new trial. (2) In Illinois, in capital cases, the party aggrieved by mani- fest and material error appearing on the record may be re- lieved by writ of error, if the writ be allowed to issue by the supreme court in session, or by a judge thereof in va- cation. In all other cases, a writ of error is a writ of right, and is issued of cour8e.(3) The jury, in criminal cases, is judge of law and fact.(4) But the defendant may except to any ruling or decision of the judge, as in civil cases, (5) and, hence, may except to the court's overruling a motion for new trial.(6) , The provisions for appeal in Iowa are substantially the same as in Indiana.(7) In Iowa, if the judge to whom a bill of exceptions is tendered does not sign it within a day, it may be signed and sworn to by two or more attorneys or officers of the court, or disinterested bystanders, and filed with the clerk, and thereupon becomes part of the record. (8) In Michigan, no writ of error, upon a judgment of con- viction for treason or for murder in the first degree, issues, unless allowed by one of the justices of the supreme court, after notice to the attorney -general. In all other cases, the (1) Grim. Code, title 9, § 281. (2) Rev. Stat. (1876), vol. 2, pp. 410-412. (3) Rev. Stat. (1877), p. 409. (4) Ibid., p. 405. (5) Ibid., p. 406. (6) Ibid., p. 742. (7) Rev. Stat. (1873), pp. 696-699. (8) Ibid., 692. 414 PROCEEDINGS AFTER TRIAL. writ issues as a matter of course. All proceedings upon writs of error are to be according to the course of the com- mon law, as modified by practice and usage in the state, and by such general rules as may be made by the supreme court. (1) In Ohio, Kentucky, Indiana, and Iowa, the state, as well as the defendant, can take a case by petition in error or by appeal to the appellate court. In Indiana, the state can appeal only upon a judgment for the defendant, on quash- ing or setting aside an information or indictment ; upon an order of court arresting the judgment; or upon a question reserved by the state. Upon such appeal in Indiana, the supreme court can reverse a judgment quashing or setting aside an indictment or information, or an order arresting judgment ; but in all other cases of appeal by the state the decision of the supreme court only settles the question of law reserved, but does not affect the judgment rendered in the case. (2) In Kentucky, a judgment in favor of the de- fendant which operates as a bar to a future prosecution for the offense can not be reversed bj' the court of appeals. (3) lu such cases in Kentucky, and in all cases in Ohio and Iowa, the judgment of the appellate court has no effect upon the judgment rendered below, but only settles for fu- ture cases the law upon the questions considered. Judgments in criminal cases in the federal courts are final, and are not subject to review by proceeding in error or an appeal. The district court must remit every indict- ment found therein for a capital offense, and may remit any indictment involving diflicult and important questions of law to the circuit court ; whereupon the circuit court pro- ceeds as if the indictment had originally been found therein. (4) "When the judges of a circuit court are divided in opinion upon any question in a criminal proceeding, the point shall, on request of either party, be certified to the supreme court. But this shall not prevent the cause from (1) Rev. Stat. (1871), pp. 1969, 1970. (2) Rev. Stat. (1876), vol. 2, p. 411. (3) Crim. Code, § 339, (4) Rev. Stat., p. 192. PROCEEDINGS AFTER TRIAL. 415 proceeding, if, in the opinion of the court, further proceed- ings can be had without prejudice to the merits.(l) If the circuit or district court render judgment without having jurisdiction, the defendant can be discharged by the su- preme court on habeas corpus. (2)] (1) Rev. Stat., p. 117. (2) Ex parte Lange, 18 Wall. 163. 416 REPRIEVE AND PARDON. CHAPTEE XXIII. KEPEIEVK AND PAEDON. A REPRIEVE (reprendre) is the withdrawing of a sentence for an interval of time, whereby the execution of a crim- inal is suspended. (?n) Reprieves may be granted either : i. By the crown {ex manrlato regis) at its discretion ; its pleasure being signified to the court by which execution is to be awarded. ii. By the court empowered to award execution, either before or after verdict {ex arbitrio judicis). Generally, it must be guided by its own discretion, as to whether sub- stantial justice requires it, as, for example, when it is not satisfied with the verdict. But in two cases the court is bound to grant a reprieve, (a.) When a woman sentenced to death is ascertained to be pregnant. To discover whether she is quick with child a jury of twelve matrons is impan- eled. If so found, she is reprieved until either she is de- livered or proved by the course of nature not to have been with child at all. But after she has been once delivered, slie can not be reprieved on this ground a second time, (b.) "When the prisoner becomes insane after judgment. We have alread}^ seen that the occurrence of insanity in the prisoner is a stay to proceedings at any stage. Pardon. — The exercise of the prerogative of pardoning is at the absolute discretion of the sovereign. If, either from the opinion of judges represented to him, or for any other reason, the home secretary thinks the case a fit one for the interposition of royal mercy, he recommends the same to the queen, and she usually acts on the recommend- ation. The sovereign can not pardon where private interests (m) 4 Bl. 394. REPRIEVE AND PARDON. 417 are principally concerned in the prosecution of offenders " non potest rex gratiam facere cum injuria et damno aliorum;" for example, a common nuisance can not be pardoned while it remains unredressed. But a recent etatute(?i) enables the sovereign to remit penalties, although they may be wholly or in part payable to some other than the erown.(o) There is another case in which the offender can not be par- doned, namely, when he is guilty of the offense of commit- ting a man to prison out of the realm.(y) It should also be noticed that a pardon can not be pleaded to an impeach- ment so as to stifle the inquiry. But of course the person impeached and sentenced may be afterward pardoned. (5) A pardon must be by warrant under the great seal, or under the sign manual. As a rule, it is to be taken most beneficially /or the subject and against the queen.(?-) A pardon may be conditional — the most frequent example of which is when a person sentenced to death is pardoned on the condition that he submit to punishment either of penal servitude or imprisonment.(s) [Where a pardon is granted on condition, and there is a breach of the condi- tion, the pardon becomes void, and the convict may be re- manded to undergo 8entence.(l) J Ticket of leave. In connection with the subject of pardon, it will be con- venient to notice the case of those who are allowed to be at large before the expiration of their term of confinement. When any person is sentenced to penal servitude or im- prisonment, the queen, by order in writing under the hand and seal of the secretary of state, may grant him a license to he at large in the United Kingdom and the Channel Isl- (ji) 22 Vict., c. 32. (0) See also 24 and 25 Vict., c. 96, g 109 ; c. 97, § 67. (p) 31 Car. 2, c. 2. (?) 12 and 13 Wm. 3, c. 2, § 12. (r) See further 4 St. Bl. bk. vi, c. 25. (s) V. 5 Geo. 4, c. 84; 20 and 21 Vict., c. 3. (1) People V. Potter, 1 Parker Crim. Ca. 47; State v. Smith, 1 Bailey, 123; State u. Fuller, 1 McCord, 178; Commonwealth v. Haggerty, 4 Brewster, 326. 27 418 REPBIEVE AND PARDON. ands, or in sueh part thereof respectively as in such license shall be expressed, during such portion of the term of penal servitude or imprisonment, and upon such conditions as her majesty thinks lit. But the license may be revoked or al- tered at the queen's pleasure. It will be forfeited in the event of (a) a subsequent conviction, (b) of failure to report himself to the police unless prevented by unavoida ile cause, (c) of changing residence without due notificatica. On the subsequent conviction the offender vrill first sufft the punishment attached to such oflfeiise, and then finish his original term. If the license is revoked, the convict may be apprehended and sent back to the prison from vs^hich he came to undergo the residue of his seutence; or he may be sent to any other prison wherein convicts under seutence of penal servitude may lawfully be confined. Certain offenses connected with these licenses subject the holders to imprisonment for a term not exceeding three months, on summary conviction. The holder of a license suspected of committing an offense may be apprehended without a warrant.(i) In the case of those sentenced to penal servitude, the remission of a part of the term, proportioned to the. num- ber of years contained in the sentence, follows as a matter of course, if the convict conducts himself well. But if the sentence is penal servitude for life, the special order of one of the secretaries of state is required. (O 16 and 17 Vict., c. 99, §g 9-11 ; 20 and 21 Vict., e. 3, § 5 ; 27 and 28 Vict., c. 47, §g 4-10; 34 and 35 Vict., c. 112, g§ 3-5. EXECUTION. 419 CHAPTER XXIV. EXECUTION. Execution is carried out by the sheriiFor his deputy, thus giving effect to the sentence of the judge. It is the usage for the judge, at the end of the assizes, to sign, the calen- dar containing the prisoners' names and sentences. This is left to the sheriff as his warrant and authority; and if he receive no special order to the contrary, he executes the judgment therein contained. The criminal is usually executed about a fortnight or three weeks after his sentence. An execution for murder must take place within the walls of the prison in which the offender is confined at the time.(M) If the execution be not by the proper officer, or if not carried out in strict conformity with the sentence, as if the criminal is beheaded instead of hanged, the official is guilty of murder. If the criminal survives, he must be hanged again, inasmuch as the sentence is that he be hanged by the neck till he is dead. (u) 31 Vict., c. 24, § 2. INDEX; ABATEMENT— demurrer in, 317. plea in, 305, 306. ABATEMENT OF NUISANCE, 118. ABETTORS, 36, n. ABORTION: v. Miscarriage. ACCESSORY— distinguished from principal, 3T. before the fact, 37. what answerable for, 37. in manslaughter, 38, 142. trial of, 38. after the fad, 39. by receiving stolen goods, 39. wife as, 40. trial and punishment, 40. no accessories in treason nor in misdemeanor, 40. ACCIDENT— an exemption from criminal responsibility, 31. ACCIDENTAL HOMICIDE, 130. ACCOMPLICE, 36, n. turning queen's evidence, 302. evidence of, 395. ACCOUNTS— falsification of, 187. ACQUITTAL— consequences of verdict of, 386. ACTS OF PARLIAMENT: w. Statutes. ACTUAL BODILY HARM, 153. ADHERING TO THE SOVEREIGN'S ENEMIES, 50. ADJOURNMENT— of trial, 392. ADMINISTERING— poison, etc , 154. ADMINISTRATION OF JUSTICE, LIBELS ON : v. Sedition. ADMINISTRATION OF GOODS OF FELON, 405. ADMIRALTY— robbery within the jurisdiction of, is piracy, 44. ADVERTISING REWARD FOR RETURN OF STOLEN PROP- ERTY, 86. AFFIRMATION— false, 72. of those objecting to oath, 347 : v. Oath. (421) 422 INDEX. AFFRAY, 94. aggravations, 95. suppression and punishment, 95. AGE OF DISCRETION, 29. AGENT— embezzlement by, 188. trafficking in property intrusted to his care, 188. charging property so intrusted, 188. AGREEMENT TO WITHDRAW FROM PROSECUTION, 392. AIDER BY VERDICT, 265, n. AIDERS AND ABETTORS, 36, n. AIDING PRISONER TO ESCAPE, 69. ALIENS— not exempt from criminal responsibility, 30, 34. formerly might demand jury de mediatate Ungues, 328. ALLEGIANCE— seducing soldier from, 60. ALTERING— in forgery, 220. AMBASSADORS— how far amenable to the criminal law, 34. AMENDMENT OF DEFECTS, 265. ANIMALS— larceny of, 162. killing in order to steal carcass, skin, etc., 165. cruelty to, 231. ANIMUS FURANDI— possession of goods obtained with, 169. what is it, 174. must exist at time of taking, 174. APOSTASY, 64. APPEAL— none ordinarily in criminal cases, 406. under the supreme court of judicature act, 409 in Kentucky, Indiana, and Iowa, 411. APPRENTICES— assaults on, 155. ARMY— oflenses in, 57. ARRAIGNMENT, 299. standing mute at, 300. insanity at, 300. ARRAY— , challenge to the, 323. ARREST— obstructing lawful, 71. defined, 243. with warrant {q. v.), 243. without warrant, 249. by constable, 249. by private person, 250. on hue and pry, 252. privilege of witness from, 352. INDEX. 423 AEEEST OF JUDGMENT, 388. ARSON— definition of, 224. at common law, 225. in the United States, 22R. act must be done unlawfully and maliciously, 228. what is a setting-fire, 229. the intent to defraud, 229. ASPORTATION— must be proved in larceny, 173. ASSAULT— both a crime and a civil injury, 3, 152. common assault, 161. wide scope of the crime, 151. distinguished fi'om battery, 151. punishment or compensation, 152. summary Jurisdiction in, 152. defenses, 152. aggravated as.sault, 153. actual bodily harm, 153. wounding, 153. grievous bodily harm, 153. with intent to commit a felony, 154. with intent to rob, 179. to obstruct sale of grain, etc., 108. on revenue officers, 105. on peace officers, 71, 156. on apprentices, 156. on servants, 156. on lunatics, 156 : v. Ikdecekt. ASSEMBLY— unlawful, 92. ATHEISTS— formerly could not be witnesses, 390. ATTACHMENT, 90. ATTAINDER, 314. ATTEMPT— punishable, 19. what is an, 19. sometimes a felony, always at least a common-law misdemeanor, 19. verdict of, on indictment for completed offense, 20, 383. punishment of, 20. to procure miscarriage, 50, to steal, 1 73. ATTORNEY : v. Solicitor. AUTREFOIS ACQUIT— plea of, 309. what acquittal must be proved, 310. AUTREFOIS ATTAINT, 314. AUTREFOIS CONVICT, 310. BACKING A WARRANT, 247. BAIL— false personation of, 200. what it consists in, 255. in what cases may be allowed by magistrates, 255. 424 INDEX. Bail — Continued. number and. sufficiency of, 257. refusing or delaying, 257. excessive, 257. bail after committal for trial, 258. bail by the queen' .s bench division, 258. by justices at quarter sessions, 258. by judges of assize, 258. by coroners, 258. in the United States, 256. BAILEE— larceny by, 170. goods stolen from bailee, ownership, how laid, 264. BANK: V. Joint Stock. BANK NOTES— larceny of, 162. sometimes to be described as paper, 162. BANKER— embezzlement by, 188. trafficking in property intrusted for safe custody, 188. BAPTISM: V. Register. BARN— setting fire to, 261. BARRATRY— common, 83. by solicitor, etc., 83. BARRISTER: w. Counsel. BATTERY, 157. BATTLE— trial by, 319. BAWDY-HOUSE : v. Brothel. BENCH WARRANT, 292. BEST EVIDENCE, 370. BETTING-HOUSE, 117. BIGAMY, 113. when a second marriage is not felonious, 113. defense and eyidence, 114. punishment, 115. BILL OF EXCHANGE- larceny of, 162. BILL OF INDICTMENT— before the grand jury, 286. found true or thrown out, 287. if thrown out, may be preferred again, 287. BIRD— larceny of, 163. BIRTH: V. Concealment; Register. BLASPHEMY, 65. BLOOD— corruption of, abolished, 404. BOAT: V. Vessel. BODILY FEAR: v. Fear. INDEX. 425 BODILY HARM— doing actual, 153, grievous, 153. BOND— larceny of, 162. BOUNDARY— crimes committed within five hundred yards of, where tried, 285. BREACH OF PRISON, 69. when a felony, when a misdemeanor, 69. BREACH OF TRUST : v. EMBEezLEMENT. BREAKING— in burglary, 207. actual, 208. constructive, 208. breaking out, 209. breaking, but no entry, guilty of attempt, 209: v. Housebreaking. BRIBERY, 77. to influence the conduct of one in office, 78. to procure a place or appointment, 78. at elections, 79, 80. undue influence, 79. BRIDGE— nuisance to, 118. BROKER— embezzlement by, 188. trafficking in property intrusted to, 188 BROTHEL— keeping, 119. BUILDING— being found at night with intent to break into, 210. being in, by night with intent, etc., 210. setting fire to, 224, 225. BULL : V. Cattle. BURDEN OF PROOF, 362, n. BURGLARY, 203. in Kentucky, 203. in Ohio, 203. in Indiana, 204. in Illinois, 204. in Michigan, 204. in Iowa, 204. defined at common law, 203. under the larceny act, 203. the time, 203. the place, 206. what is a dwelling-house, 206. the residence necessary, 206. the manner, 207. the breaking (q. .), 207. the entry, 208. breaking out, 209. breaking, but no entry, an attempt, 209. the intent, 209. -^ punishment, 209. burglary distinguished from housebreaking, 210, 212. 426 INDEX. BUYING— counterfeit coin at lower value, 60. CAPIAS AD EESPONDENDUM, 293 CAPITAL PUNISHMENT, 399. none in Iowa, 9. execution, 419. CAENAL KNOWLEDGE— of girls, under age of twelve, 149. under age of thirteen, 149. by false representations, etc., procuring female tinder age of twenty-one to have, 149. CARRIER: v. Bailee. CATTLE— stealing, 165. killing, maiming, etc., 231. CHALLENGE OF JURORS, 323. form of, 323. for cause, 323. to the array, principal, or for favor, 323. how made and tried, 324. to the polls, principal, or for favor, 324. how made and tried, 324. jurors ordered by the crown to stand by, 325. peremptory challenge, 325.. number allowed, 326. • reasons assigned for allowing, 326, n. exemption, not a ground for, 328. in the United States, 328. CHALLENGE TO FIGHT, 95. CHAMPERTY, 84. in Ohio, Indiana, and Iowa, 84, n. CHANCE MEDLEY, 129. CHARACTER OF PRISONER— evidence of good, 369. of bad, 368, 369. effect of evidence as to, 370. CHARACTER OF WITNESS, 349. what questions may be asked, 349. proof of former conviction, 349. CHARGE— to the grand jury, 286. to the petty jury, 320: v. Summing up. CHATTELS : v. Goods. CHAUD MEDLEY, 129. CHEATING— at common law, 201. statutes punishing particular deceits, 202. CHOSES IN ACTION— larceny of, 162, 165. CHRISTIANITY— a part of the law of England, 65. CHURCH, CHAPEL, ETC.— at common law might be the subject of burglary, 207. setting fire to, 224. INDEX. 427 CIRCUMSTANTIAL EVIDENCE, 375. distinguished from direct, 375. conclusive or presumptive, 376. CIVIL OR CRIMINAL— test whether proceeding is, 4. CIVIL INJURIES— contrasted with crimes, 2. course to be taken when the act is also a crime, 2. false distinctions pointed out, 3. narrow line separating from crime, 3. CLERK— proof of employment as, in embezzlement, 185. CODICIL: V. Will. COIN— offenses relating to the, 58. some offenses might be dealt with as false pretenses, 68. counterfeiting, 58. coloring, washing, etc., 59. impairing, 59. defacing, 60. buying or selling counterfeit, at lower value, 60. importing and exporting, 60. uttering, 60. having in possession, etc., 61. making, etc., coining tools, 61. offenses relating to, in the United States, 62. COMBINATIONS: v. Conspiraot. COMMITTAL— for trial, 255. forms of committal, 255. COMMON LAW— crimes at, 5. in the United States, 5. none in the federal courts, 7. COMMON INFORMER, 94. COMPANIES— public, embezzlement by directors, etc., 190. receiving property, and not entering in books, 190. falsifying books, 190. making false statements, etc., 190. falsifying books of company wound up, 191. COMPANIES ACT (1862), 229. COMPASSING— death of sovereign, queen, or eldest son and heir, 48. death, destruction, harm, etc., of sovereign, 51. COMPENSATION BY PRISONER, 406. COMPOUND LARCENY— distinguished from simple, 158. COMPOUNDINa FELONY, 85. reward for return of stolen property, 86. advertising reward, etc. , 86. COMPOUNDING MISDEMEANOR, 86. COMPOUNDING INFORMATION ON PENAL STATUTE, 86i. 428 INDEX. COMPULSION— as an exemption from, criminal responsibility, 31. CONCLUSION OF INDICTMENT, 270. CONFESSION— on arraignment, 302. before magistrate is merely evidence, 302. when admitted in evidence, 373. against whom, 373. before magistrate, 373. CONSPIRACY, 109. the'combination, the gist of, 109. wide nature of crime, 110. objects enumerated, 110. not every combinaition to effect a tort is criminal. 111. punishment. 111. merged in felony, if carried out, 112. in the United States, 112. CONSPIRACY AND PROTECTION OF PROPERTY ACT (1875), 107. CONSTABLE: u. Officer. CONTEMPT OF COURT, 88. direct, 89. consequential, 89. by whom committed, 89. proceedings, 90, 91. in the United States, 91. CONTRIBUTORY NEGLIGENCE- not recognized in manslaughter, 142. CONVEYANCES— fraudulent, 202. CONVICTION— how proved, 378. verdict entailing, 386. COPIES— when allowed in evidence, 378. CORN— servants taking master's, etc., 175. CORONER— arrest by, 249. bail by, 258. inquisition of, 280. proceedings before, 280. committal for trial by, 281. CORPORATE BODIES: v. Companies. CORPORATIONS— may be guilty of crime, 33, n. how brought into court, 294. CORRUPTION: v. Blood; Bribekt. COSTS— in certain cases of libel, paid by prisoner, 102. on acquittal of offense under vexatious indictments act, prosecu- tor may be ordered to pay, 289. on certiorari, 296. when paid by prisoner, 405. INDEX. 429 COUNSEL— order of speeches and examination, 334, 337. when incompetent to give evidence against client, 345, 346. functions of counsel for prosecution, 354. for defense, 354. requested by judge to defend prisoner, 391. COUNTEEFEITlNa COIN : v. Coi.v. COUNTERFEITINO TRADE-MARKS, 105. COUNTS— for distinct acts of stealing, 175. when more than one count may be inserted, 271. more than one offense in same count, 271. charging different offenses in different counts, 271, 273. not allowed in Iowa, 274, in treason. 272. in felony, 272. felony and misdemeanor, 274. in misdemeanor, 275. count charging previous conviction, 275. COUNTY PROPERTY— how described in indictment, 264. COURTS OF A CRIMINAL JURISDICTION, 239. COURT MARTIAL, 57. CREDIBILITY OF WITNESSES, 341: v. Witness. CRIME— description thereof, 1. contrasted with civil injury, 2. proof that an act does not become a crime on account of its in- trinsic qualities, 2. courses open when an act is both a crime and a civil injury, 3. false distinctions from civil injury pointed out, 3. narrow.line between the two, 3. morality and crime, 4. crimes at common law, 5, 7. by statute, 5. crime contrasted with offense, 7. what are indictable crimes, 8. in the federal courts of the United States, 7. completed crime punished more severely than attempt, 19, 123. essentials of, 13, n. CRIMINAL OR CIVIL— _ test whether a proceeding is, 4. CRIMINAL INTENTION: v. Intention. CRIMINAL RESPONSIBILITY: v. Eesponsibilitt. CROSS-EXAMINATION, 357: v. Examination. in the United States, 358. CROWN CASES RESERVED— court for, 410. proceedings in, 411. CUSTOMS— offenses relating to, 104. general or particular, how proved, 377. CUTTING: v. Woitnmng. 430 INDEX. DEAD ANIMALS— subjects of larceny, 163. DEAF AND DUMB PERSONS— by presumption of law, are idiots, 22. DECEASED— ownership of goods of, how laid, 214. depositions of deceased witnesses, 373. DEED- stealing, destroying, obliterating, etc., 161. how proved, 380. DEFENDANTS- joinder of two or more, 276. DEMANDING MONEY— by forged instrument, 259: v. Threats. DE MEDIETATE LINGUA, JUEY— formerly on trial of alien, 328. DEMENTIA— naiuralis, or a nativitate, 24. accidentalis, or adventiiia, 24. affectaia, 28. DEMURRER— definition of, 316. form of, 316. judgment on, 316. reason why it seldom occurs in practice, 317. demurrer in abatement, 317. in the United States, 317. DEPOSITIONS— taken before magistrates, 253. accused may have copies, 259. deposition of deceased or ill persons read at trial, 373. of person whose death is apprehended, 379. DESERTION, 57. DETAINER— forcible, 103. DILATORY PLEAS, 304. DISCHARGE— by magistrate, 254. of jury on non-agreement, 382. DISFIGURE— wounding, etc., with intent to, 154. DISORDERLY HOUSE, 119. DISTRINGAS, 292. DISTURBING PUBLIC WORSHIP, 65. DOCUMENT— stealing, obliterating, etc., 161. DOG— stealing, 164. DOLI INCAPAX— infant when presumed to be, 29. DOMIT^ NATURE, ANIMALS— larceny of, 163. INDEX. 431 DBIVING— wanton and furious, 120. DRUNKENNESS— no excuse for crime, 28. when it is to be considered, 28. involuntary, 28. as a defense, general statement, 28. a disease, 28. DUEL— killing in a, 143-145. DUMB: V. Deap. DUPLICITY— count bad for, 271. DURESS PER MINAS, 31. DWELLING-HOUSE— what is a, under the larceny act, 206. part let off, 207. entering at night, with intent to commit felony, 210. being found in, by night, armed, etc., 210. being found in, by night, with intent to commit felony, 210. housebreaking (q. v.), 210. setting fire to dwelling-house, 224. DYINft DECLARATION— when received in evidence, 379. EFFIGY— hanging in, 102. ELECTIONS— offenses relating to, 79. ELECTION- if too many acts are alleged in indictment for larceny, 175, 273. ELISORS, 324. EMBEZZLEMENT— definition of, 184. distinguished from larceny by clerks or servants, 184, 211. the employment as clerk or servant, 185. the receipt for, etc., the master, 186. the unlawful appropriation, ] 86. three distinct acts within six months maybe charged, 187, 271. verdict of larceny on indictment for embezzlement, and vice versa, 176. embezzlement by public officers, 185. by bankers, merchants, broliers, solicitors, agents, factors, 188. by trustees, 189. by directors, officers and members of public companies, and cor- porate bodies, 189. in the United States, 191. EMBRACERY, 82. ENDANGERING— safety of railway passengers, 143, 144, 155. ENTERING— in burglary, 242. 432 INDEX. ERROR— writ of, 408. jurisdiction in error under supreme court of judicature acts, 409. in the United States, 411. ESCAPE, 68. distinguished from breach of prison and rescue, 68. allowed by officers, 68. by private individuals, 69. aiding to, 69. ESTREAT: v. Recognizakces. EVIDENCE— definition of, 362. burden of proof on prosecution, 362, n. what must be proved, 365. what may not be given in evidence, 368. evidence as to other ofl'enses, 368. when allowed, 368. evidence of good character, 369. of bad character, 369. effect of evidence of character, 370. best evidence must be given, 370. as to written documents, 370. hearsay no evidence, 371. why rejected, 371. when it may be given, 371. testimony given by deceased witness, 372, n. deposition of those ill or deceased given in evidence, 373. confessions, 373. confession before magistrates, 373. circumstantial or presumptive evidence distinguished from di- rect, 374. circumstantial evidence, conclusive or presumptive, 376. presumptions classified, 376, 377, n. written evidence, 377. records, 377. acts of parliament, 377. other records, 377. in the United States, 378. previous conviction, how proved, 378. ^ matters quasi of record, 379. perpetuating the testimony of witness whose death is appre- hended, 379. written documents of private nature, as deeds, 380. handwriting, how proved, 380. points in which rules of evidence in civil and criminal cases differ, 381. EXAMINATION— of witnesses, by grand jury, 286. order of examination by counsel, 334, 353. what witnesses must be called, 353. ordering witnesses out of court, 354. functions of counsel for prosecution, 354. for defense, 354. rules founded on principle that witness is favorable to party call- ing him, 355. examination-in-ehief, 355. questions must be relevant, 355. INDEX. 43S Examination — Continued. leading questions not allowed, 355. exceptions, 356. witness must testify from own knowledge, 856, evidence of experts, 356. contents of written documents, how proved, 856. witness proving hostile, 357. cross-examination, 357. limits and extent of, 358. re-examination, 360. questions put through judge, 361. objections to questions, how made, 361. recalling witness, 361. EXCEPTION'S— bill of, 412, 413. none in the federal courts, 414. EXCUSABLE HOMICIDE, 127. distinguished from justifiable homicide, 127. homicide in self-defense, 128. by misadventure, 130. by correction, 164. whilst doing another act, 165. EXECUTION OF CRIMINAL : v. Justifiable Homicide. EXECUTION OF DEED— how proved, 422, EXEMPTIONS— from criminal responsibility, 19. EXPERTS— evidence of, 356. as to handwriting, 221. EXPRESS MALICE, 17. in murder, 137. FABRICATION— what will constitute, in forgery, 219. FACTOR— embezzlement by, 188. charging property intrusted, 188. FALSE IMPRISONMENT, 157. FALSE PRETENSES— obtaining goods or money by means of, 194. some coining oflfenses might be dealt with as, 58. hard to distinguish from larceny and from non-criminal lie, 169, 194, 212. on indictment for larceny, not acquittal because it turns out to be false pretenses, 169, 1 98. the pretense must be of an existing fact, 195. what misrepresentation amounts to, 195, 196. exaggeration, 196. ^ breach of warranty, etc., 196. must induce the parting with the goods, 196. sufficient, though other circumstances constitute, 197. not criminal, if one thereby obtains only what is his own, 197. false pretense need not be expressed in words, 197. when defendant should be indicted for forgery, 197. 28 434 INDEX. False Pretenses — Continued. the intent to defraud, 197. need not be to defraud a particular person, 198. evidence of subsequent or prior obtaining, 198. punishment, 198. fraudulent winning at play punished as, 198. inducing, by fraud, the execution of valuable securities, 198. FALSE WEIGHTS AND MEASURES: u. Weights akd Measures. FALSIFICATION OF ACCOUNTS, 187. FALSIFICATION OF BOOKS— of public company, 190. of company wound up, 191. FEAR OF EXCESSIVE AND UNLAWFUL HARM— as an exemption from criminal responsibility, 31. bodily fear, in robbery, 177. "FELONIOUSLY"— applied by statute to an act makes it a felony, 10. FELONY— distinguished from misdemeanor, 9. origin of the term, 10. further points in which it differs from misdemeanor, 11. compounding, 85. misprision of, 87, 5. general punishment for, by statute, 396. in the United States, 9. FEME COVERT : v. Wife. FER.ffl NATURE, ANIMALS— larceny of, 163. FICTITIOUS PLAINTIFF— suing in name of, 84. FINDING— lai'ceny on, 172. FISH— taking or destroying, 164 FIXTURES— larceny of, 159. FORCIBLE ENTRY AND DETAINER, 103. FOREIGN ENLISTMENT ACT : v. Neutrality Latts. FORFEITURE— abolition of, on conviction, 11, 404. of oflBce, on conviction for treason or felony, 404. not a consequence of felony in the United States, 9. FORGERY— definition of, 214. connection with false pretenses, 197, 214. instruments dealt with in the forgery acts, 215. forgery at common law only a misdemeanor, 218 nature of the instrument forged, 218. the fabrication necessary, 219. alteration, 220. proof of handwriting, 220. the intent to defraud, 221. no person need be defrauded, 221. INDEX. 435 FoKGERT — Continued. the uttering, 222. when a tender will suffice, 222. kindred offenses relating to exchequer bills, etc., 223. to bank notes, 224. demanding, etc., by means of forged instrument, 225. FRAUDULENT CONVEYANCES, 202. FUEIOUS DRIVING, 120. GAME— offenses relating to, 140. GAMING, 115. winning by fraud, 116. in public places, 116. GAMING-HOUSE, 116. steps taken by legislature to suppress, 116. betting-house, 117. evidence as to character of the house, 117. GENERAL ISSUE— of not guilty, 314. advantage of pleading this, 315. what the prosecutor must prove, and what may be urged by the prisoner, 315. form of, on record, 316. GOOD- BEHAVIOR— security for, 233, 234. in the United States, 237. forfeiture of recognizances, 234, 236. GOODS— stolen, how disposed of by court, 393. of felon, how administered, 405. GOVERNMENT— offenses against the sovereign and, 46. GRAND JURY— can not ignore bill on ground of insanity, 26. disclosing evidence to prisoner, 83. prosecution with or without previous finding by, 260, how chosen, 286. sworn and charged, 286. examination of witnesses bv, 287. finding by, 287. in the United States, 289. GRAND DISTINGUISHED'FROM PETTY LARCENY, 165. in the United States, 166. GUILTY, PLEA OF: v. Confession. GUILTY KNOWLEDGE— in receiving stolen goods, 181. in uttering forged instrument, 223. evidence of other offenses allowed in proof of, 368. HABEAS CORPUS— removal of defendant to plead, 291. HABEAS CORPUS AD TESTIFICANDUM, 352. HABEAS CORPUS ACT— copy of warrant of commitment to accused, 255, early trial, 258. 436 INDEX. HANDWRITING— proof of, in forgery, 220. how proved, 380. HARD LABOR— punishment of, 400. two classes, 401. HEARING OF THE CASE, 331 : v. Trial HEARSAY- no evidence, 371. reason for rule, 371. when allowed, 371. HERESY, 67. HIGH COURT OF JUSTICE: v. Supreme Court op Judicature Acts. HIGH SEAS— offenses against the law of nations committed on, 43. robbery on, or piracy, 44, 45. ofifenses committed on, where tried, 45. HIGH TREASON, 46, n. : o. Treason. HIGHWAYS— nuisanoes'to, 118. HOMICIDE, 125. malice presumed, 125. justifiable {q. v.), 125. excusable {q. u.), 127. felonious, 131. suicide, 131. murder, 132. manslaughter, 139. classification according to the various states of mind, 145. HORSE— stealing, 165. HOUSEBREAKING— in Michigan, 204. in Iowa, 205. in Ohio, 205. distinguished from burglary, 210, 212. definition, 211. punishment, 211. HOUSEBREAKING INSTRUMENT— being found at night with, 210. HUE AND CRY— arrest on, 252. HUSBAND— can not steal property of wife, 172. can not be witness against wife, 344. except in two cases, 344. the rule in Iowa, 344. IDIOT— exempt from criminal responsibility, 22. IGNORANCE— as an excuse for crime, 30. of law never excuses, 30. of fact, when it excuses, 30. IGNORING THE BILL, 287. INDEX. ILLNESS— of juror, 327. of witness, 373. of prisoner, 392. IMMORALITY— not punished, as such, by the criminal law, 4, 64. INCITING— to commission of crime, 38. to desertion or mutiny, 56, 57. INCOMPETENCY v. Witness. INDECENT ASSAULT— on females, 149. on males, 149. INDECENT CONDUCT, ETC., 115: «. OsscEifE. INDICTABLE CRIMES, 6, 7, 8. INDICTMENT— definition of, 261. when it lies, 261. examples of, 261, n. the co'mmencempnt, 263. the statement, 263. defendant's name, 263, 267. ownership of property, 263. statement of time, 264, 266. of place, 265. of facts, intent, etc., 265. technical words, when to be used, 265. defects in, 265. immaterial, under statutes, in the United States, 268. amendment of defects, 265, 267. the conclusion, 270. insertion of more than one count, 271. charging more than one offense in the same count. 271. different offenses in different counts, 272. in the United States, 273. in treason, 272. in felony, 272. felony and misdemeanor, 274. in misdemeanor, 275. count for previous conviction, 275. joinder of defendants, 275. cases in which time is limited for preferring, 275. how drawn up and indorsed, 276. before the grand jury, 286. iinding of grand jury, 287. consequences of being thrown out, 28T. quashing, 306. INDIVIDUALS- offenses against, 122. INDORSEMENT— fraudulently inducing, 198. INFANCY— when exempts from criminal responsibility, 29. three ages to be considered, 29. infancy of witness as a ground of incompetency, 345. 437 438 INDEX. INFORMATION— definition of criminal, 276. other uses of the term, 276, n. information ex officio, 277. examples of, 277, 280. information by master of the crown oflBce, 277. proceedings, 278. how tried, 278. process on, 294. in the United States, 278. IX JURY TO PROPERTY, 224: o. Malicious Injury. INNUENDO— in libel, 100. INQUISITION OF OFFICE, 260: v. Coroner. INSANITY— an exemption from criminal responsibility, 21, 23, n. medical and legal views differ, 22, 23, n. varieties of, 22. partial or total, 22. permanent or temporary, 22. three stages in the history of, 23. the existing law, as declared in M'Naughten's case, 23. medical evidence, 25, n., 26. trial in cases of, 26. is a bar, at any stage, to further proceedings, 27. appearing at arraignment, 300, 331. reprieve, if after judgment, 416. insanity of witness a ground of incompetenccy, 345, INSURRECTION AGAINST THE SOVEREIGN, 49. INSTRUCTIONS TO THE JURY: v. Summing up. INTENT— in homicide, 138, n., 145. in murder, in Ohio, 142. in larceny, 174. in false pretenses, 197. in burglary, 209. in forgery, 221. in malicious injuries, 229. INTENTION— an essential of crime, 13, n. unless otherwise provided by legislature, 14, n., 16. what it is, 13. contrasted with will, 13. must be contemporaneous with the act, 15, n. determines whether an act is criminal, 16. naked intention not punishable, except in treason, 18. criminal intention, or malice: v. Malice. INTERROGATION OF PRISONER, 341. INTIMIDATING PARTIES OR WITNESSES, 83. INVOLUNTARY— meaning of the term, 13. acts not punishable, 21. IRRESISTIBLE IMPULSE, 24, n., 26. INDEX, 439 JEOPABDY— constitutional provision concerning, 311. plea of, 311. when it begins, 311. when it does not arise, 311. when there is verdict of guilty as to part of the indictment, and not guilty as to part, 385. JOINDER OP COUNTS : v. Counts. JOINDER OF DEFENDANTS, 276. JOINT OWNER— larceny, etc , by, 172. JOINT TENANT— larceny by, 172. JOURNEY— offenses committed on, where tried, 284. JUDGE AND JURY- respective province of, 338. JUDGMENT, 388. arrest of, 388. postponed, 389. where defendant is not before the court, 389. how given, 389. on several counts in one indictment, 389. reversal of: v. Reversal. JURISDICTION— plea to the, 304. JURORS : V. JaRT. JURY— contempt of court by, 89. trial by, 319: v. Embracery; Grakd Jury; Petty Jury. province of, 338, n, in some states, is judge of law as well as fact, 339, n. pronounces the punishment, 384. JURY OF MATRONS, 416. JUSTICE OF PEACE: v Magistrate. KEEPING THE PEACE— security for, 233, 235. forfeiture of recognizances, 234, 235. recognizances, general or special, 235: v. Security. in the United States, 237. KNOWLEDGE: o. Carnal Knowledge; Guilty Knowledge. LAND : V. Real Property. LARCENY— definition of, 158. simple and compound distinguished, 158. what things may be the subjects of, lo9. at common law, only personal goods, 159. law as to things real, 159, 165. severance, etc., makes personal goods, 160. materials of buildings,"flxtures, etc., 160, 165. ore or coal from mines, 161. trees, 161. plants, etc., 161. deeds, etc., 161, 165. 440 INDEX. Larceny — Continued. choses in action (including checks, etc.), 162, 165. animals, 162. deer, 163. hares and rabbits, 164. fish, 164. oysters, 164. dogs, 164. horses, cows, sheep, etc., 165. killing animals to steal carcass, skin, etc., 165. the value of the thing stolen, 165, 166. grand and petty larceny, 166. ownership of goods, how laid, 167. the willfully wrongful taking possession, 167. if claim of right, no felony, 167, 174. actual taking, 1 67. constructive taking, 168. where the right of property, as well as of possession, is parted with, 168. authority of servant to part with property or possession, 168. where the possession is obtained animo furandi, 169. ring dropping, 169. narrow line separating larceny from false pretenses, 169, 194. where the possession is obtained lawfully and bona fide without any fraudulent inten-t in the first instance, 170. in cases of bailment, 170. where the delivery does not alter the possession in law, 170. bare use does not divest of possession, 171. the taking must be of another's goods, 172. by joint tenant or tenant in common, 172. by members of a corporation, 172, n. by a copartner, 172. by husband or wife, 172. larceny of things found, 172. the taking physically regarded, 173. asportation, 173. attempt, 173. animus furandi, 174. larceny distinguished from trespass, 174. need not be lucri causa, 174. servants taking master's corn, etc., 175. counts for distinct acts of stealing, 175, 272. verdict of embezzlement on indictment for larceny, and vice versa, 176. place of trial, 176, 282. larceny distinguished from embezzlement, 184, 211. stealing from the person, 179. on indictment for false pretenses, not acquittal because it turns out to be larceny, 194. count for receiving may be added, 182, 272, 273. LAW OF NATIONS— offenses against, 43. LEADING QUESTIONS— rules as to, 355, 357 : v. Examination. LEVYINa WAR AGAINST THE SOVEREIGN, 49. direct or constructive, 49. LEWDNESS : v. Indecency. ^ INDEX, 441 LIBEL— both a crime and a civil injury, 2. an offense against the public peace, 96. definition oil, 96. civil and criminal proceedings, 97. when an indictment will lie, 98. when it will not, 99. truth of the libel, 97, n. privileged communications, 99. form of libel, 100. publication of, 100. proof of malice, 100. what must bo proved, 101. the province of the jury, 101. Fox's act, 101. who are criminally liable, 101. newspaper proprietors, etc., 101. punishment, 102. costs, 102. threatening to publish, etc., in order to extort, 102. LIMITATION OF TIME FOR PROSECQTION: v. Time. LOCUS IN QUO— view of, by jury, 392. LORDS, HOUSE OF : v. Peers. LOST GOODS— larceny of, 172. LOTTERIES, 119. LUCRI CAUSA— in what sense taking in larceny must be, 175. LUNATICS: v. Insanity. assault on, 156. MADNESS, 22: v. Insanity. MAGISTRATE— contempt of court by, 89. issue of warrant by, 244. summons, 244. information to, 245. arrest by, 249. proceedings before, 253. examination, 253. depositions, 253. binding over witness, 254. remand, 254. discharge or committal, 254. bail, 255', 256. the sureties, 257. refusing or delaying bail, 257. excessive bail, 257. MAILS: V. Post-office. MAIM, 154. wounding, etc., with intent to, 153. MAINTENANCE, 84. what acts do not amount to, on account of relationship, 84. in Ohio, Indiana, and Iowa, 84, n. 442 INDEX. MALA IN SE AND MALA QUIA PROHIBITA, 5. as a test of the responsibility of ambassadors, 34. MALICE, 135, n. equals, in legal signification, criminal intention, 16. when it must be directly proved, 16. when presumed, 17. active or positive, passive or negative, 17. express or implied, 17, 137. danger of entertaining the moral signification, 17. absence of, exempts from criminal responsibility, 21. presumed in homicide, 125. aforethought (prepense), or murder malice, 135. in arson, 229. MALICIOUS INJURY, 230. under statute, not necessary to prove malice against the owner of the property, 231. otherwise at common law, 230. MANSLAUGHTER, 139. moral character varies widely, 139. voluntary, 139. the instrument used, 140. distinguished from homicide se defendendo, 130, 140. involuntary, 140. negligence, 141. acessories before the fact, 38, 142. punishment, 142-145. by correction, 130. while doing an unlawful act, 141. a dangerous act, 131, 141. of officers of justice, 126. states of mind constituting manslaughter, 146. MANUFACTURES— offensive or dangerous, are nuisances, 118. MARINES : v. Army. MARRIAGE— offenses connected with, 113, 115,' n. MARRIED WOMAN: v. Wife. MATRONS— jury of, 416. MAYHEM, 154. MEDICAL EVIDENCE ON INSANITY, 25, n. 26. METAL, ETC.— belonging to house, larceny of, 160. MILL— setting fire to, 224. MINE— larceny from, 161. MINIMUM PUNISHMENTS— abolished, 396. MISADVENTURE— homicide by, 130. MISCARRIAGE— attempts to procure, 150. INDEX. 443 MISDEMEANOR— distinguished from felony, 9. meaning of the term, 9, 10. further points in which it differs from felony, 9, 10. compounding, 86. verdict for, though facts show felony, 138, 383. general punishment for, 9, 397. MISFORTUNE, OR MISHAP— as an exemption from criminal responsibility, 31. MISJOINDER OF COUNTS : u. Counts. MISNOMER : v. Name. MISPRISION— meaning of, 8. negative or positive, 8. in Ohio, Indiana, and Iowa, 5. of treason, 54. of felony, 87. MOCK AUCTION— larceny by means of, 169. MORAL NATURE— of an act does not determine whether it is criminal, 4, 64, 113. MORALS— offenses against public, 113. MOTIVE— may explain the intention, but does not determine the quality of an act, 16. absence of, does not prove insanity, 26. MURDER, 132. definition, 133. the offender must be of sound memory and discretion, 133. the unlawful killing, 133. form of death, 133. cause of death, 134. time of death, 134. variance as to the form of death, 134. finding the body, 134. the offender must be a reasonable creature, in being, and under the king's peace, 134. the malice aforethought, 13.5, 136, n. express and implied malice, 137. punishment, 138. accessories after the fact, 138. on indictment for murder the jury may convict of certain other offenses, 138. states of mind constituting murder, 145. in the United States, 142. " MURDRAVIT "— to be issued in indictment for murder, 265. MUTE— prisoner standing, 300. MUTINY, 55, 57. z-^- inciting to, 56, 57. 444 INDEX. NAME— of prisoner in indictment, 263. mistake in, 305, 367. of third parties in indictment, 266, 366. NATIONAL CHURCH— offenses against, 73. NATIONS— offenses against the law of, 43. NEGLIGENCE— sometimes amounts to malice, 17. caushig manslaughter, 141. NEUTRALITY LAWS— offenses under, 55. NEW TRIAL, 406. when granted, 406. by what courts, 407. how obtained, 407. in the United States, 407. NEWSPAPERS AND LIBEL, 101, 99. NOLLE PROSEQUI, 311, 331, 384. NONCONFORMITY, 67. NON COMPOS MENTIS : v. Insanity. NOT GUILTY : v. General Issue. NOTE: V. Bank. NUISANCE— common or public, 117. contrasted with private nuisance, 117. when gives rise to civil action, 118. abatement, 118. to highways, etc., 118. offensive trades, etc., 118. houses as, 119. lotteries, 119. miscellaneous, 120. who is liable for, 120. NUMBER OF WITNESSES— two in treason, 53, 350. two i n perjury, 75, Z'lQ. not in the United States, 76. OATH— nature of, in perjury, 72. of juror in felonies, 331. in misdemeanors, 331. of witness, 347. false, 78 : v. Perjury. OBSCENE BOOK, PRINT, ETC.— exposing to sale, 115. OBSTRUCTING LAWFUL ARREST, ETC., 71. OBTAINING MONEY, ETC. : v. False Pretenses. OFFENSE— contrasted with crime, 7. of a public nature, 43. against the law of nations, 43. INDEX. 445 Offense — Continued. against the government and sovereign, 46. by members of the army and navy, 57, 58- against religion, 64. against public justice, 68. compounding, 85. against the public peace, 93. against public trade, 104. _ against public morals, health, and good order, 113. of a private nature, or against individuals, 122. against the person, 123. against the property, 158. prevention of, 233, 237 : v. Peevention. OFFICE— trafficking in public, 78. OFFICER, PEACE— allowing escape, 68. assaulted in execution of duty, 71, 156. refusing to aid, 71. killing those resisting, etc., in execution of duty, 126. when guilty of murder or manslaughter, 126. embezzlenaentby, 185. executing vvarrant, 2471 arrest by, 249. OFFICER, PUBLIC— misconduct of, 87. malfeasance of, 88. nonfeasance of, 88. embezzlement by, 185. OUTLAWRY— in misdemeanors, 292. in felonies, 293. consequences of, 293. reversal of, 293. OVERT ACT— in compassing, etc., death of sovereign, 48. in treason, generally, 53. OWNERSHIP OF STOLE.^ GOODS— how described, 167. indictment, how laid, 263. consequences of incorrectly laying, 264. PALMISTRY, 66. PANEL OF JURORS, 321. PARDON— when may be pleaded, 314. at the discretion of the sovereign, 416. when the sovereign can not pardon, 416. how given and construed, 417. conditional, 417. PARENT— killing by, in defense of child, 128. PARIS, DECLARATION OF, 44, n. PAROL : V. Evidence. PARTIAL INSANITY, 24. 446 IXDEX. PARTY TO SUIT— contempt of court by, 90. PASSENGER: v. Railway. PAWNBROKER— compensation to, 394. PEACE OFFICER: v. Officer. PEACE: V. Public Peace. PEDIGREE— proof of, 371. PEINE FORTE ET DURE, 300. PENAL SERVITUDE— being at large during term of, 70. as a punishment, 397. place, etc., 399. shortest term, 399. PENETRATION— proof of, in rape will suffice, 147, 148, n. PEREMPTORY CHALLEMGE: v. Challekgb. PER,TURY— definition, 71. punishments of, applied to other false oaths, 72, false affirmation, 72. nature of the oath, 72. it must be taken falsely, willfully, and absolutely, 73. materiality of matter sworn, 73. the oath need not be believed, etc., 74. false verdict, etc., not perjury, 74. sufficient to prove one assignment, 74. under vexatious indictments act, 74. judge may direct prosecution, 75. two witnesses must be called, 75. punishment, 75, 76. in the United tjtates, 75. evidence, 77. subordination of, 77. PERPETUATION OF TESTIMONY, 379. PERSON— stealing from the, 179. PERSON ATION,. FALSE— punished at common law as a cheat, 199. closely connected with forgery, 199. of seamen, 199. of soldiers, 199. of owners of stock, etc., 200. to obtain property generally, 200. of bail, 200. RETT'S; TREASON— now regarded simply as murder, 46, n. PETTY JURY— who are liable to serve, 320. who exempt, 321. list prepared by sheriff, 321. exemptions after service, 322. INDEX. 447 Petty Jury — Continued. fining for non-attendance, 322. putting into the box, 322. challenge, 328. tales, in case of insufficient number, 326, 330. conduct of, 327. adjournment of trial, 327. death, illness, etc., of, 327. special jury, 327. jury de medietaie linguce, 328. swearing the jury, 330, 333. must comprise twelve men, 332. when it can be waived, 332. view of locus in quo, 392 : v Embracery ; Verdict. PETTY LARCENY— distinguished from grand, 165, 166. PHYSICAL COMPULSION— an exemption from criminal responsibility, 31. PIRACY, 43. ^ at common law, 43. where tried in England, 44. enemies can not commit, 44. punishment, 46. under laws of the United States, 45. PLACE OF TRIAL, 282. general rule, 282. in the federal courts, 282. goods stolen in one state or county and carried to another, 283. if crime committed partly in one county, partly in another, 283. partly in one state, partly in another, 284. obtaining goods by false pretenses, 284. upon journey, 284. receivers, where tried, 284. accessories, 284. ■ : '.' blow followed by death, 283. PLEAS— names and order of, 319. how many may be resorted to, 304. to the jurisdiction, 304. in abatement, 305. special pleas in bar, 308. judgment thereon, 309. autrefois acquit, 309, 312. autrefois convict, 310, 312. once in jeopardy, 311. '' autrefois nltaint, 314. pardon, 314. general issue of not guilty, 314. PLEAS OF THE CROWN— origin of the term, 6, n. POCKET-PICKING, 178. POISON— administering, etc., 154. POLICE OFFICER: v. Opfioer. 448 INDEX. POLLS— challenge to the : v. Challenge. POSSE COMITATUS, 94, 248. POSSESSION— having counterfeit coin in, 61, 62: v. Recent Possession; Taking. distinguished from property, 159. POST-OFFICE— offenses relating to, tried in the federal court, 7. POSTPONEMENT OF TEIAL, 298. POUNDBREACH, 71. PRACTICE (u. the various titles)— summons, 244, 245. arrest, 243. by warrant, 243. without warrant, 249, 251. by private persons, 250, 251. upon hue and cry, 252. i proceedings before the magistrate, 253. examination, 253. bail, 255, 256. modes of prosecution, 260. upon previous finding, 260. presentment, 260, 278. indictment, 261, 278. counts, 271. joinder of defendants, 276. time limited for prosecution, 276. information, 276, 279. coroner's inquisition, 280. place of trial, 282. grand jury, 286, 289. process, 291. certiorari, 295. time of trial, 298. arraignment, 299. standing mute, 300. confession, 302. pleas, 304. to jurisdiction, 304. in abatement, 305. in bar, 308. autrefois acquit, 309, 312. autrefois convict, 310, 312. once in jeopardy, 311. autrefois attaint, 314. pardon, 314. the general issue, 314. demurrer, 316. petty jury, 321. summoning, 322. fining for non-attendance, 322. putting in box, 322. challenging, 323, 328. tales, 326. INDEX. 449 Practice — Continued. conduct of, etc., 327. illness, death, 327. special, 328. hearing, 331. preliminary, as to sanity of defendant, 331. nolle prosequi, 331. swearing the jury, 330, 333. giving the prisoner in charge, 334. address and examination by counsel, 334, 337. summing up, 337, 338, n. witnesses, 341. grounds of incompetency, 341. tests of credibility, 347. character of, 349. number of, 350. evidence of accomplices, 350. attendance of, 351. examination of witnesses, 353. witnesses out of court, 354. examination-in-chief, 355. leading questions, 355. evidence from own knowledge, 356. of experts, etc., 356, refreshing memory, 356. contents of documents, how proved, 356. witness proving hostile, 357. cross-examination, 357. re-examination, 360. questions through the judge, 361. objections to questions, 361. evidence, 362. burden of proof, 362, n. what must be proved, 365. what may not be proved, 368. evidence of other offenses, 368. when admitted, 368. as to character, 369. best evidence to be given, 370. hearsay no evidence, 371. when admitted, 371. depositions of ill or deceased persons, 373. confession, 373. circumstantial evidence, 374. vrritten evidence, 377. handwriting, 380. differences between rules of civil and criminal evidence, 381. verdict, 382. for crime not charged in indictment, 383. conviction on some counts only, 385. acquittal or conviction, 386. second indictment, 386. proof of previous conviction, 387. judgment, 388. arrest of, 388. 29 450 INDEX Practice — Continued. on verdict of guilty on several counts, 390. incidents of trial, 391. defense, etc., in forma pauperis, 391. view of locus, 392. adjournment of trial, 392. withdrawal from prosecution, 392. restitution of goods, 393. punishment, 9, 396. death,. 399. penal servitude, 399. imprisonment, 400. fine, 400. hard labor, 400. whipping, 401. solitary confinement, 402. police supervision, 402, recognizance and sureties, 403. reformatory, 403. industrial school, 404. forfeiture of office, etc., 404. costs, 405. proceedings after trial, 406. new trial, 406. reversal of judgment by writ of error and appeal, 408, 411. error under supreme court of judicature acts, 410. court for crown cases reserved, 410. reprieve and pardon, 416. ticket of leave, 417. execution, 419. PREGNANCY— of woman sentenced to death, 416. PRESENTMENT, 260, 278. PRESUMPTIONS^ classified, 376. law of, 377, n. PRESUMPTIVE EVIDENCE— distinguished from direct, 374 : v. CiRCUMSiANTi.iL. PREVENTION OF CRIME, 233. by giving security (q. v.), 233. in the United States, 237. PREVIOUS CONVICTION— evidence of, on indictment for receiving, 182. ' when count may be added for, 275. how proved, 378, 387. when evidence of, may be given before subsequent conviction, 387, n. punishment for offenses after, 397. in simple larceny, 397. in uttering coin, etc., 398. PRINCIPAL— distinguished from accessory, 36. in the first degree, 36. in the second degree, 36. INDEX. 451 Peinci pa l — Continued. all are principals in treason, 40. as to misdemeanor, 40. PRISONER— allowing to escape, 68. aiding to escape, 69. presence of, at trial, 9, 301. interrogation of, 343. maj testify on his own request, 342. PRIVATEERING ABOLISHED, 44, n. PRIVILEGED COMMUNICATIONS— exempting from libel, 99. between solicitor and client, 345. PROCESS, 291. . . , warrant by magistrate, 291. ; ;; bench warrant, 292, 294. "" , , in misdemeanors, 244, 292. in felonies, 292. . outlawry, 292. on information, 294. against corporations, 244, 294. .-, PROFANATION OF THE SABBATH, 86. . - '' PROFANE SWEARING, 66. PROMISSORY NOTE— larceny of, 162, 165. PROPERTY— distitiguished from possession, 159: «. Goobs; Ownership. PROSECUTION— modes of, 260. PROSECUTOK— want of public, in England, '85. in the United States, 3, n., 289. PEO VOCATION— reducing homicide to manslaughter, 140. PUBLIC HEALTH— morals, etc., offenses against, 113. PUBLIC JUSTICE— offenses against, 68. PUBLIC OFFICE, OFFICER; ^.Office; Officer. PUBLIC PEACE— offenses against, 92. PUBLIC TRADE— . /c; offenses against, 104. -^^ . PUBLIC WORSHIP— ■■■■■; disturbing, «tc., 65. PUNISHMENT— general nature oi', 1. the test whether a proeceeding is civil or criminal, 4. an otiense is felony or misdemeanor, 9. minimum punishments abolished, 396. wide limits in some crimes, 39(5. for felonies, 396. after previous conviction, 397. for misdemeanor, 397. 452 INDEX. Punishment — Continued. for larceny after previous conviction, 397. for uttering, etc., coin after previous conviction, 398. several terms, either concurrent or continuous, &98. punishments enumerated, 398. death, 399. penal servitude, 399. imprisonment, 400. line, 400. hard labor, 400. whipping, 401. solitary confinement, 402. police supervision, 402. recognijsances and sureties, 403. reformatory, 403. industrial school, 404. forfeiture of property abolished, 404. of office, 404, ' property of felon taken care of, 405. costs by prisoner, 405. • QUAKER— false affirmation by, 72. affirmation by, 347. QUARREL— killing in sudden, 140. QUASH mDICTMENT— motion t(i, 305. QUEEN'S BENCH DIVISION— bail by, 258. QUEEN'S EVIDENCE, 302. QUI TAM, 27G, n. RAILWAY— offenses endangering on, 155. setting fire to buildings, 224. offenses committed on, where tried, 285. RAPE, 147. who can not be convicted of, 147. essentials of the crime, 147. credibility of testimony of the woman, 148L RAPUIT— must be used in indictment for rape, 265. REAL PROPERTY— at common law not the subject of larceny, 1 59. statutory qualification of the rule in Ohio, 165. RECEIVING STOLEN GOODS, 180. when a felony, when a misdemeanor, 180. if felony, offender tried as accessory, or as committer of a disr tinct felony, 181. evidence, 181. guilty knowledge, 181. evidence of previous conviction, 182, 369i post letters, etc., 182. punishment, 180, 182. verdict of larceny or of receiving, 182. INDEX. 453 Eeceiving Stolen Goons—Contimud. any number of receivers may be tried for substantive felonies, 183. count for larceny may bo added, 182, 272. where tried, 284. evidence of having had possession, or of previous conviction, 369. RECENT POSSESSION, 183. RECOGNIZANCE— nature of, 233. for keeping the peace, 233, 237, 238. for good beliavior, 234. forfeiture or estreat, 234. of witness to appear at trial, 254. delivery to court, 259. RECOMMENDATION TO MERCY, 386. RECORD— courts of, 88, n. how proved, 377, 378. RE-EXAMINATION, 3G0: v. Examination. REFRESHING THE MEMORY, 3:6. RELIGION— offenses against, 04. want of, does not now render incompetent to give evidence, 346. RELIGIOUS IMPOSTERS, 66. REMAND— of accused by magistrate, 254. REPLICATION TO PLEA, 305. REPRIEVE, 416. RESCUE, 70. distinguished from escape, etc., 64. of person committed for, or convicted of, murder, 70. of offender sentenced to penal servitude, 70. RES GESTAE- hearsay admitted as evidence, if part of, 372. RESPONSIBILITY— exemptions from criminal, 21. RESTITUTION— in forcible entry and detainer, 103. of goods, under the larceny act, 393. REVERSAL OF JUDGMENT, 408, 412: v. Writ of Erkoe. REWARD- taking, for helping to property stolen, etc., 86. advertising for return of such property, 86. for helping to recover stolen dog, 164. RING-DROPPING, 169. RIOT, 92. killing by oflScers justifiable, 126. RIOT ACT, 93. RIVER— nuisance to, 1 18. 454 INDEX, BOBBERY— on high seas is piracy, 43, 45. definition, 177, 212. gist is the force or bodily fear, 177. possession of the property must be obtained, 178. taking must be from the person, or in the presence, 178. against the will, 178. punishment, 178. assault with intent to rob, 179. verdict of assault with, etc., on indictment for robbery and vice versa, 179. ROUT, 92. SABBATH— profanation of, 66. SANCTIONS— attendant on civil injuries and on crimes, 1. of the criminal law enumerated, 398. SAVINGS BANK— appropriation of money by officers, 191. SCIENTER: v. Gcii,tt Knowledge. SEARCH WARRANT, 248. SEfOND INDICTMENT, 386. SECONDARY EVIDENCE, 370. SECURITY— giving, 233. of what it consists, 233. nature of the recognizance, 233. forfeiture, 234. by whom and of whom demanded, 234. proceedings if granted by justices out of sessions, 234. at sessions, 23.5. for keeping the peace (7. v.), 235.' for good behavior (9'. v.), 236. SECURITY, VALUABLE: v. Valuable Securitt- SE DEFENDENDO— homicide, 127, 128. depends upon circumstances as they reasonably appeared to the defendant at the time, 129, n. distinguished from manslaughter, 130, 140. SEDITION, 54. what constitutes seditious libels or words, 55. truth of, no defense, 55. SELF-DEFENSE: v. Sb Defekdekdo. SELLING— counterfeit coin at lower value, 60. SENDING THREATENING LETTERS : ^. Thkeatenikg. SENTENCE: v. Judgment. SERVANT— assault on. l.')6. authority of to part with property or possession, 168. having ovi rsight of goods, master still in possession, 171. larceny by, 171, 175. proof of employment as, in embezzlement, 185. SETTING ASIDE INDICTMENT: v. Quash. INDEX. 455 SEVERANCE— turning real into personal property, 160. must take place, to constitute asportation, 173. SHEEP STEALING, 165. SHOOTING— at revenue vessels or officers, 105. at any person with intent, etc., 153. SHOP— breaking into, 211. setting fire to, 224. SIMILITER, 315. SIMPLE LARCENY— distinguished from compound, 158: v. Lakcent. SLANDER— indictable, 100. SMUGGLING, 104. forfeitures and penalties, 104. three or more armed for purpose of, 104. shooting at revenue vessels or officers, 104. more than five armed, or with prohibited goods, 105. assaulting officers, 105. making signals to smuggling vessels, 105. search for smuggled goods, 105. time limited for prosecution, 276. SOCIETIES, UNLAWFUL : v. Unlawful. SODOMY: v. Unnatubal Crime. SOLDIER: v. Armt. SOLICITOR— embezzlement by, 188. when incompetent to give evidence against client, 345. SOLITARY CONFINEMENT, 402. SOVEREIGN— incapable of committing crime, 33. offenses against, 46. compassing or imagining the death of, 47. levying war against, 49. compassing, etc., death, destruction, harm, etc., 51. "SPEAKING WITH THE PROSECUTOR," 86, 392, 393. SPECIAL JURY, 327. SPECIAL PLEA : v. Plea. STABBING: o. Woukdisg. STABLE— setting fire to, 224. STACK— setting fire to, 226. STANDING MUTE : v. Mute. STARVING— homicide by, 134. STATEMENT OF INDICTMENT, 263. as to name, 263. ownership, 263. 456 INDEX. Statemekt of Indictment — Continued. time, 264, place, 264. facts, etc., 265. STATUTE— crime.? by, 5. when makes an act an indictable crime, 7, 261. how proved, 377, 378. •STEALING: v. Larceny. SUBORNATION OF PERJURY, 76. SUBPENA, 35. consequences of not obeying, 351. SUBPENA DUCES TECUM, 351. SUICIDE, 131. advising to commit, 131. consequences, 132. attempt to commit, 132. SUING— in name of fictitious plaintiflf, 84. SUMMING-UP OF THE JUDGE, 337. in the United States, 338, n. SUMMONS— issue of, 244. contents of, 245. form of, 245, n. in the United States, 294. SUNDAY: v. Sabbath. SUPPLTCAVIT— writ of, 234. SURETIES: v. Bail; Recognizance. SUSPICION— arrest by constable on, 249, 251. by private person, 251. " SWEARING THE PEACE," 235. SWEARING— profane, 66. TAKING— willfully wrongful, 167. actual, 167. constructive, 168. what amounts to, 172. lucri causa, 174. in robbery, 178 : v. Larceny. TALES DE CIRCUMSTANTIBUS, 326. ' TENANT IN COMMON— larceny by, 172. THEFT— proposed definition of, 213: v. Larceny. THEFT BOTE, 85. INDEX. 457 THREATENING LETTERS— sending, to burn, kill, etc., 95. to murder, 95. with intent to extort money, etc., 96. accusing of crime, in order to extort, 96. THREATS— in order to extort money, 96. in order to procure execution of deed, etc., 96. to publish libel in order to extort, 102. TIME— when of essence of crime, 264. limited for prosecution in certain cases, 276. of trial, 298. TITLE-DEEDS— at common law not subjects of larceny, 160. TOOLS— making coining, 61. conveying out of mint, 61. TORTS CONTRASTED WITH CRIMES, 2. TRADE— offenses against public, 104. unlawful interference with, by combinations, etc., 106. trade union, 107. acts criminally punishable, 107. proceedings by indictment or summary conviction at option of offender, 108. assault to obstruct sale of grain, etc., 108. TRADES— offensive or dangerous, are nuisances, 118. TRADE-MARKS— counterfeiting and falsely applying, 105. selling goods with forged, 106. TRADE UNION— not to render liable to prosecution for conspiracy merely because in restraint of trade, 107 : v. Trade. TRANSPORTATION : v. Penal Servitude. TREASON- why termed " high,'' 46, n. popular conception of, 46. cl.issification of acts of, 47. history of the law of, 47. the statute 25 Edw. III., 47. gist of the offense altered, 48. compassing, etc., death of sovereign, etc., 48, violating king's wife, etc., 49. levying war, 49. adhering to sovereign's enemies, 50. slaying the chancellor, etc., 50. counterfeiting the great seal and coinage offenses no longer trea- 'son, 50. additions to the list of acts which are, 51. time limited for prosecution, 52. prisoner may have copy of indictment and list of witnesses, 52. 458 INDEX. Treason — Continued. the overt act, 53. prisoner's defense, 53. punishment, 53. evidence of other acts may be given, 368. misprision of: v. Mispri.sion. in the United States, 51. TREES— larceny of, 161. TRESPASS— larceny distinguished from, 174. TRIAL— offenses interfering with free administration of justice at, 83. place of, 282. time of, 298. modes of: v. Practice. TRIERS— in case of challenge of jurors, 325. TRUSTEE- embezzlement by, 189. TRUTH— of seditious libel, no extenuation, 55. of defamatory libel, 97, n. UNLAWFUL ASSEMBLIES, 91 UNLAWFUL COMBINATION: v. Trade; UnlawfBl Societies. UNNATURAL OFFENSE, 149. attempt, 149. assault with intent, 149. UTTERING COUNTERFEIT COIN, 60. UTTERING— in forgery, 222. the guilty knowledge, 222. VALUABLE SECURITY- stealing, destroying, obliterating, etc., 162. the term defined, 162. inducing person by fraud to execute, 198. VALUE OF THING STOLEN, 165, 166. VARIANCE BETWEEN INDICTMENT AND EVIDENCE, 265, 266. VENIRE FACIAS AD RESPONDENDUM, 292. VENUE, 263: v. Place. VERDICT— how arrived at and given, 382. general, partial, or special, 382. in case of co-defendants, 382. of attempt on indictment for complete crime, 383. for crime other than that charged, 383, 384. general, on indictment containing several counts, 384. objections to, 385. of aoquittnl, what it implies, 386. of guilty, 380. on previous conviction, 386. VIEW OF LOCUS IN QUO BY JURY, 392. INDEX. 459 WAR— levying against the sovereign, 49. prisoner of, aiding to escape, 69. )jj WAREHOUSE— !' breaking into, 204, 205, 211. setting fire to, 224. WARRANT— definition, 243. by whom granted, 243. when issued, 244. if indictment has been found, 244, 291. if accused is in custody, 244. construction of, 240. form of, 246, n. backing, 247. executing, 247. general warrants, illegal, 248. search warrants, 248. bench warrant, 292, 294. WAY: V. Highway. WEIGHTS AND MEASURES— false, 201. WHIPPING, 401. WIFE— when not criminally responsible, 31. as accessory after the fact, 40. can not steal property of husband, 172. goods of, ownership how laid, 264. can not be witness against her husband, except in two oases, 344. can not, in certain cases, be witness for co-defendant with her husband, 344. WILL— iin essential of a crime, 13. contrasted with intention, 16. absence of, exempts from criminal responsibility, 21. WITCHCRAFT, C6. WITHDRAWAL FROM PROSECUTION, 392. WITNESS— offenses with regard to, 83, 352. contempt of court by, 90. before magistrates, 254. binding over to appear at trial, 254. examination by grand jury, 226. grounds of incompetency fewer now tlian formerly, 341. forms of incompetency, 341. incompetency of accused, 341, 342. of accused's consort, 344. on account of insanity, 345. of infancy, 345. of relation of legal adviser, 345. of relation of physician and confessor, 346. of want of religious belief, 346. objection to competency, when made, 347. credibility of, 347. knowledge of, 348. disinterestedness of, 348. 460 INDEX. WiTSESS — Continued. veracity of, 348. general character of, 349. what questions witness may refuse to answer, 349, 374. number of, 350. accomplices as, 350. ' attendance of, how secured, 351. production of documents by, 351. consequences of failure to appear, 351. attendance of witness, who is in custody, 352. privilege from arrest, 352. ordering out of court, 354. examination of: v. Examination. "WOMEN : V. Girls. WORDS— technical, when to be used in indictment, 265. WOUNDING, 153. WpiT OF ERROR, 408. when it lies, 409. how obtained, 409. judgment affirmed or reversed, 409. in the United States, 411. WRITING— how proved, 357. best evidence as to, 370. rules as to evidence of, 377 : v. Evidence.