h L-- (flortipU Slam ^rlynnl Htbtatg 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/cu31924020200659 OJ Elementary Treatises on all the Principal Subjects of the Law The special features of these books are as follows: 1. A succinct statement of leading principles in blacl<-ietter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and bound in buckram. Barrows on Negligence. Blaclt on Construction and Interpretation of Laws (2d Ed.). Blaclc on Constitutional Law (3d Ed.). Blacli on Judicial Precedents. Bogert on Trusts. Burdick on Real Property. Chapin on Torts. Childs on Suretyship and Guaranty. Clark on Contracts (3d Ed.). Clark on Corporations (3d Ed.). Clark on Criminal Law (3d Ed.), Clark on Criminal Procedure (2d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity. Gardner on Wills (2d Ed.). ' Gilmore on Partnership. Hale on Damages (2d Ed.). Hughes bn Admiralty (2d Ed.). Hjughes on Federal Jurisdiction and Procedure (2d Ed.). McKelvey on Evidence (2d Ed.). Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (2d- Ed.). 'Shipman on Equity Pleading. Smith's Elementary Law. Tiffany on Agency. ffDiffany on Banks and Banking. 'Tiffany on Persons and Domestic Relations (3d Ed.). .Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C11517-h HANDBOOK OF CRIMINAL LAW ^^^^*•■"' BY WM. L. CLARK, JR. THIRD EDITION BY WILLIAM E. MIKELL, B.S., LL.M. PROFESSOR OF LAW IN THE UNIVERSITY OF PENNSYLVANIA ST. PAUL, MINN. WEST PUBLISHING CO. 191S •8 57<5 5' COPTBIGfHT, 1894, BY WEST PUBLISHING CO. COPTBIGHT, 1902, BY Wi:ST PUBLISHING CO. COPTEIODT, 1915, BY WEST PUBLISHING CO. (Clabk Ce.L.3d Ed.) PREFACE TO THIRD EDITION In the preface to the first edition of Clark's Criminal Law the author stated that the book was intended to present a concise, but full, statement of the general principles of the criminal law. In preparing this, the third edition, the editor has pursued the same object. The distinguishing method of treatment followed in the Hornbook Series has likewise been retained. The text of the first and second editions has been to a not inconsiderable extent revised and added to wherever such revision or addition seemed necessary or expedient. All important cases decided since the second edition was pub- lished have been studied, and the results incorporated either in the text or notes. W. E. M. CASTifTE, Mai.ne, July 20, IDl."!. PREFACE TO SECOND EDITION In preparing a new edition of Mr. Clark's book, no depar- ture from the original plan of the author has been made. The book is intended, as explained in the preface ta the first edi- tion, to contain a concise, but full, statement of the general principles of the criminal law, exclusive of criminal proce- dure, which has been made the subject of a separate volume in the Hornbook Series by the same author. The editor has incorporated much new matter, which has necessitated chang- es in the original text, and has made other changes which were suggested to him by a use of the book in the classroom. Many additional cases, most of them reported since the first edi- tion, but some of them earlier leading cases, have been cited. F. B. T. St. Paul, June 4, 1902. (vi) TABLE OF CONTENTS CHAPTER I DEFINITION AND NATURE OF CRIME Section Page 1. Definition of Crime 1 2. Nature of Crimfe 2-lS CHAPTER II THE CRIMINAL LAW— HOW PRESCRIBED 3. How the Criminal Law is Prescribed 19 4., The Common Law 19-26 5-6. Statutes 27-40 CHAPTER III CLASSIFICATION OF CRIMES 7. How Classified 41 8. Treason 41^2 9-10. Felonies and Misdemeanors 42-44 11-12. Merger of* Offenses 45-47 CHAPTER IV THE MENTAL ELEAIBXT IN CRIME 13. Criminal Intent 48-50 ' 14. Motive Not Intent 50-52 15. General Intent — Intent Presumed from Act 52-53 16. Specific Intent 54^55 17-18. Constructive Intent 56-59 ' • 19. Intent In Cases of Negligence 59 20. Conc-urrence of Act and Intent 60 Clark Ce.L.3d Ed. (vii) VIU TABLE OF CONTENTS CHAPTER V TERSONS CAPABLE OF COMMITTING CRIME, AND EX- EMPTIONS PROM RESPONSIBILITY Section Page 21-22. Infancy 61-&1 23-27. Insanity 64-75 ■ 28-29. DninJvenness 76-82 30-32. Corporations 82-87 •83-34. Ignorance or Mistake of Law 87-90 . 35. Ignorance or Mistake of Fact — Common-Law Of- fenses 90 36. Ssime — Statutory Offenses 90-97 37. Accident or Biisfortuue 97-98 38. Justitication 9&-99 39. Same— Duress 99-102 40. Same — Coercion— 'Married Women 102-104 41. Same — Necessity 10-H07 42. Provocation 107 CHAPTER VI PARTIES CONCERNED IN THE COMMISSION OF CRIMES 43. Effect of Joining in Criminal Purpose 108-109 44rA5. Principals and Accessaries 109-110 46. Principals in the First Degree 110-112 47. Pi-incipals in the Second Degree 112-119 48. Accessaries hefore the Fact 119-124 ' 49. Accessaries after the Fact 124-127 50-51. Use of Terms "Aider and Abettor" and "Accom- plice" 127-128 52. Principal's Liability for Acts of .A sent: 128-135 53. Agent's Liability for His Own Acts 13&-137 CHAPTER VII THE OVERT ACT— ATTEMPTS, SOLICITATIONS, AND CONSPIRACY 54. Necessity for Overt Act 138 55-56. Attempts 138-151 57. Solicitation 152-153 58-60. Conspiracy 154^165 TABLE OF CONTENTS CHAPTER VIII OFFENSES AGAINST THE PERSON Section Page Cl-62. Homicide in Geiici-ul ' lCG-172 63-64. Distinction between Justifiable and Excusable Homicide 173 65. Justifiable Hoiuicide 173-191 66. Excusable Homicide in General 192 67. Accident .' ' 192-lM. 68. Excusable Self-Defense ; 194-2J)5 • 69. Felonious Homicide in General 205' 70. Murder 206 71-72. Malice Aforetliouglit 206-2ia 73-74. Manslaughter in General 218 ■ 75. Voluntary Manslaughter 21S-229 76. Involuntary Mfinslaughter 220-239 CHAPTER IX OFFIWSES AGAINST THE PERSON (Continued) 77-78. Ma.vhem 240-242 79-80. Rape 242-252 81-83. Assault and Pattery 252-277 84. Fnl.se Imprisonment 278-279 85. Kidnapping 280-282 86-87. Abduction I ,. . . 2S2'.-2Se ' CHAPTER X OFFENSES AGAINST THE HABITATION 88-90. Arson 287-293 91-93. -Burglar:^ 294-304 CHAPTER XI OFFENSES AGAINST PROPERTY 94-98. I/arceny 305-331 99-100. Embezzlement 351-360 101-102. Cheating at Common T/aw 3C0-362 103-104. Cheating by False Pretenses 362-372 105-107. Robbery 373-377 X TABLE OF CONTKNTS Section Page 108-10!). Receiving Stolen Goods 378-3S2 110. Malicious Jlischlef. 382-383 111-113. Forgery '. 385-395 ' 114. Uttering Forged Instrument 396-397 CHAPTER XII OFFENSES AGAINST THE PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS 115. Nuisance in General 398-406 116-117. Bigamy or Polygamy. 406-410 118-119. Adultery 410-115 120-121. Foniication 415-116 122. Lewdness and Illicit Cohabitation 416-417 123. Incest 418-419 124. Miscegenation 420 125-127. Sodomy, BesUality, and Buggery 420-422 128. Seduction 42.'?-428 129-131. Abortion 428-431 CHAPTER XIII OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY 132-134. Common Barratry, Maintenance, and Champerty. . -432-434 135. Obstructing Justice 435-436 136. Embracery 436-437 137-130. ICscape, Prison Breach, and Rescue 437-439 / 140. Mispi-ision of Felony_. ^ 440 141. Compounding Crime * 440-441 142-143. I'er.iui-y and Suboniatioii of Perjury ^41-447 144. Briliery 447^49 145-147. Misconduct in Office 450-452 CHAPTER XIV OFFENSES AGAINST THE PUBLIC PEACE 148. In General 453-454 149. Dueling 455 150-152. Unlawful Assembly, Rout, and Riot 455-458 153. Affray 458^61 154-155. Forcible Entry and Detainer 461-462 156-157. libels on Private Persons 462-468 ,V'' TABLE OF CONTENTS XI CHAPTER XV OFFE>fSES AGAINST THE GOVERNMENT Section Pace luS-160. Treason and Misprision of Treason 4G0— 174 CHAPTER XVI OFFENSES AGAINST THE LAW OF NATIONS ICL Piracy 475-476 t CHAPTER XVII JUKISDICTION 162-164. Territorial Limits of States and United States 477-480 1C5-16S. Jurisdiction as Determined by Locality of Of- fense 480^01 169-170. Federal Courts and the Common Law 491^93 171. Jurisdiction Conferred on Federal Courts by Con- gress . . . . , i 493-495 172-173. Persons Subject to Our Laws 495-496 CHAPTER XVIII f FORMER JEOPARDY 174. In General..' 497-503 ' TABLE OF CASES CITED ^ ' (Page 505) INDEX ' (Page 549) t HANDBOOK OF CRIMINAL LAW THIRD EDITION CHAPTER I DEFINITION AND NATURE OF CRIME 1. Definition of Oriine. 2. Nature of Crime. DEFINITION OF CRIME » 1. A crime may be generally defined as the commission or omission of an act which thq law forbids or com- mands under pain of a punishment to be imposed by the state in a proceeding in its own name. I The following are some of the definitions given in the books: "An act committed or omitted in violation of a public law either, forbidding or commanding it." 4 Bl. Comm. 5. "A crime is any wrong which the government deems injurious to the public at large, and punishes through a judicial proceeding in its own name." 1 Bish. New Or. Law, § 32. Mr. Wharton does not define crime, unless a marginal note may be taken as a definition. This is that "crime is an act made punish-, able by law." In his text he says that, "at common law, a wrong which public policy requires to be prosecuted by the state is an in- dictable ofeense." 1 Whart. Cr. Law, § 14. "The diflrerence between crimes and civil injuries is not to be sought in a supposed difference between their tendencies, but in the difCer- Clakk Cb.L.Sd Ed. — 1 2 DEFINITION AND NATURE OF CRIME (Ch. 1 NATURE OF CRIME 2. Crimes are prohibited and punished on the ground of public policy, to prevent injury to the public, and not to redress the wrong done tO' individuals, and therefore — (a) A civil action by the person particularly injured by a criminal act does not bar a criminal prosecution by the state for the same act, nor does a criminal pros- ecution bar a civil action. (b) Condonation of a crime by the individual injured is no bar to a criminal prosecution, except in case of certain wrongs not of serious injury to the public. (c) Whether consent to the injury by the person particu- larly injured is a defense depends upon the circum- stances : (1) A person cannot consent to being killed or seri- ously injured. (2) Nor Ccm he consent to a breach of the public peace, or to public immorality. (3) He may consent to an assault and battery which does not seriously injure him nor disturb the public peace. (4) Want of consent is an essential ingredient of some crimes, in which case consent is a de- fense. ence between the mode wherein they are respectively pursued, or wherein the sanctSon is applied in the two eases. An offense which is pursued at the discretion of the injured party, or his representative, is a civil injury. An offense which is pursued by the sovereign, or by a subordinate of the sovereign, is a crime." Aust. Jur. § 17. In some of the states the term "crime" is defined by statute. Pen. Code 1889 N. T. § 3 ; Pen. Code Minn. § 3; Pen. Code Cal. § 15 ; and probably in other states. § 2) , NATURE OF CEIMB 3 (5) The consent must in all cases be voluntary, must not have been induced by fraud, and the per- son consenting must be mentally competent. (6) Ordinarily, it is immaterial that the offender was entrapped into committing the crime. (d) As a rule, the fact that the person particularly in- jured was also in the wrong is immaterial. Prohibition by Law is Essential Acts may be prohibited either by a statute, or by a body of the law known as the "unwritten" or "common" law.* Prohibition by one or the other is essential. It is often loosely said that such and such an act is a crime, and that there ought to be a law against it, but an act is not a crime merely because it is wrong. It is not prohibited because it is a crime. It is prohibited because of its wrongful na- ture and injurious effect, and the fact of prohibition, to- gether with the other considerations mentioned in the defi- nition, makes it a crime. In the absence of prohibition by the law, no act is a crime, however wrong it may seem to the individual conscience. Thus it has been decided that the federal court could not punish one who procured an- other to commit murder, in the absence of an act of Con- gress making such procuring a crime, although as said by the court, the person who instigates another to commit murder is frequently guilty of a greater moral wrong than the one who strikes the fatal blow.* Furthermore, the law which prohibits the crime must be in force, not only when the act is committed, but when it, is punished. If the law ceases to be operati've by its own limitation or by a repeal before judgment is pronounced, the accused cannot be pun- 2 Post, M>. 19-26. a tJ. S. V. Ramsay, Hempst. 481, Fed. Cas. No. 16,115. 4 DEFINITION AND NATURE OF CRIME (Cll. 1 ished for its infraction, even though it was in force when he did the act forbidden by it and when he was convicted there- for. Hence it is usual in every repealing law to insert a saving clause continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed.* Public Policy the Ground of Punishment The ground upon which certain acts are declared crimes and punished, while others which may seem to some equal- ly wrong are not, is, or should be, public policy or the pub- lic good. This is the foundation of the criminal law. Where an act has a tendency to injure the public, it is the duty of the state, as the representative of the public, to take such steps as may be necessary to prevent it. It is for this reason that the state inflicts punishment, the primary ob- ject being to deter. Retributive justice does not of itself warrant infliction of punishment, but where the public good makes punishment necessary as an example to deter, the of- fender's desert of punishment justifies its infliction on him.^ Aside from the consideration of public policy, the state would have no right whatever to punish any man ; and the common law does not undertake to do so." The ground of punishment is not, however, an essential part of the definition of a crime. The elements essential to *TJ. S. V. Ii-vine, 98 U. S. 450, 25 L. Ed. 193; Com. v. Mar- shall, 11 Pick. (Mass.) 350, 22 Am. Dec. 37T; State v. IngersoU, 17 Wis. 631; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Com. v. Duane, 1 Bin. (Pa.) 601, 2 Am. Dec. 497; State v. Williams, 97 N. C. 455, 2 S. B. 55 ; Wheeler v. State, 64 Miss. 462, 1 South. 632 ; STATE V. MANSEL, 52 S. 0. 468, 30 S. B. 481, Mikell Illus. Cas. Criminal Law, 20. s See 4 Bl. Comm. 11. For a discussion of the various theories of punishment, see 1 Whart Cr. Law, §§ 1-13, and notes. ■6 Post, pp. 24, 25. f 2) NATURE OF CRIME 5 the more important crimes at common law have become fixed by judicial decision. Nevertheless, before the defini- tions of crimes had become crystallized, in determining whether the act complained of was a crime, the question whether the act was injurious to the public, as distinguished from the individual, was a test which the courts constantly applied ; '' and the test is still applied in determining wheth- er particular acts fall within the definition of certain crimes, — such as nuisance ' and offenses against the public peace,"" of which injury to the public is an essential element. Stat- utes may sometimes seem to punish for purely private wrongs, although they are not supposed to punish for any- thing unless the public good so requires ; and any act which falls within the statutory definition, within constitutional limits, is necessarily a crime. The question of the ground of punishment is for the legislators.^" Trifling Offenses not Noticed Public policy clearly does not require the state to inter- fere and punish for an act unless it injures the public to a material extent, and the criminal law, therefore, does not usually notice trifling offenses. Nor does it notice wrongs which, though of serious injury to an individual as an in- dividual, do not perceptibly injure or endanger the other members of the community. Of course, in theory, no in- jury can be done to one member of the community without injury to the community itself, but the injury is so slight in many cases that the act may be classed with the trifling T Hex V. Wheatly, 2 Burrows, 1125; Com. v. Warren, 6 Mass. 72; People V. Babcock, 7 Johns. (N. Y.) 201, 5 Am. Dec. 256. 8 Post, p. 398. » Post, p. 453. 10 See Com. v. Murphy, 165 Mass. 66, 42 N. E. 504; 30 L. R. A. 734, 52 Am. St. Eep. 496. 6 DEFINITION AND NATURE OP CRIME (Ch. 1 offenses which the law does not notice.^' This brings us to the distinction between a public and a private wrong, and the difference between the nature and purpose of the pro- ceedings by which the one is punished and the other re- dressed. Distinction between Crimes and Torts The law affords redress for any act done by a person which inflicts injury on another. It does not, however, call all such acts crimes. Some it regards as mere torts or civil wrongs, entitling the person injured to damages from the wrongdoer but not otherwise subjecting the wrongdoer to punishment.^" Whether an act is a crime, or a tort only, depends, in general, on whether the good of the state is best subserved by denouncing it as an offense and annexing a penalty to the act, and providing for prosecution by the state or by leaving it to the individual to seek redress in damages in a private action for the injury suffered. In the absence of an express statute declaring an act to be a crime, the test usually applied by the courts is the effect of the act upon the community. If the act is such as to af- fect injuriously the community as a community, such act is a crime ; if, however, the act injuriously affects an indi- vidual only, or in affecting an individual also affects the community, but only in a slight degree, such act is 6nly a tort. Thus, if A. merely trespass upon B.'s land,^' or if A. maintain on his own land, near B.'s dwelling, a filthy pond, 11 1 Bish. New Or. Law, §§ 212-228. 12 4 Bl. C!om. 5; 1 Whart Or. Law, § 15; 1 Bish. New Or. Law, 18 229-254; Jag. Torts, 8. For a clear statement of the distinction, see Cooley, Torts (2d Ed.) pp. 94-103. IS Rex V. Turner, 13 East, 228 ; Com. v. Powell, 8 Leigh (Va.) 719 ; Henderson t. Commonwealth, 8 Grat. (Va.) 70S, 56 Am. Dec. 160; Kilpatrick v. People, 5 Denlo (N. Y.) 277. § 2) NATUEB OF CRIME 7 the odors from which reach no one but B.,** A. commits a wrong against B., but does not perceptibly injure the other members of the community. In such a case the public good does not require the state to interfere and punish A., but it is considered sufficient if B. is allowed to bring an action against A. in his own name for redress. The wrong is a civil injury or tort, and the proceeding a civil action. If, on the other hand, A. enter on B.'s land with force and arms,^' or if A. maintain a filthy pond in a thickly-settled commu- nity,^' A. injures the whole community; for, in the first case, A. commits a breach of the public peace, and, in the second, A. endangers the public health and comfort. Here the public good requires the state to notice the wrong, and punish it. The proceeding by the state is in no sense to ob- tain redress or compensation,^' but is to punish A. and fur- nish an example to prevent similar acts in the future. This is a criminal proceeding or prosecution, and the act is a crime. It is not to be supposed, however, that all wrongs which affect the public injuriously have always been crimes. At common law many wrongs which are to-day deemed public wrongs were treated only as private wrongs, and cognizable only by the civil courts. Thus, at common law it was not a crime to deprive a man of his goods or money by embez- zlement or by false pretenses (except by false symbols or tokens^*), although. in such cases the injury to the public, 1* COM. V. WEBB, 6 Band. (Va.) 726, Mikell lUus. Cas. Criminal Law, 1. 16 Post, p. 461. 16 Post, p. 398. 17 Hager v. Thomas, 44 Pa. 128, 84 Am. Dec. 422. If the man- ifest purpose of a criminal prosecution is to enforce payment of a debt, or to punish its nonpayment, the courts will not lend their aid thereto. State v. Miller, 44 Mo. App. 159. 18 Cheating by use of false weights and measures, that may de- 8 DEFINITION AND NATURE OF CEIMB (Ch. 1 according to modern views, is at least as great as if the goods or money were obtained by larceny, ^' which was a crime. Embezzlement,"" obtaining property by false pre- tenses,"^ and many other public wrongs have been made crimes only by statute. Civil and Criminal Proceedings for the Same Wrong "' An act may, however, constitute both a crime and a tort, subjecting the doer to punishment at the hand of the state and rendering him liable to pecuniary damages in a civil suit by the individual immediately injured. The two proceed- ings are distinct, however, and have a different object, the one being to punish as an example, while the other is to ob- tain redress for the injury. Neither proceeding is a bar to the other."* The fact, therefore, that one has been held lia- ble for damages in a civil action by an individual, is no de- fense when he is criminally prosecuted by the state. In cases of misdemeanor) the civil action may be brought be- fore institution of the criminal prosecution, and carried on at the same time."* In cases of felony, which is a more ser- fraud the public generally, was a public wrong and a crime at com- mon law; but cheating by lying and false representations was a mere private injury. Rex v. Wheatly, 2 Burrows, 1125. And see Rex V. Dunnage, Id. 1130 ; Hartman v. Com., 5 Pa. 60 ; Com. v. War- ren, 6 Mass. 72; People v. Miller, 14 Johns. (N. Y.) 371. 10 Post, p. 305. "0 Post, p. 351. 21 Post, p. '360. 224 Bl. Comm. 6; 1 Whart. Cr. Law, § 31b; Cooley, Torts (2d Ed.) p. 101. For a review of the cases on this question, see Benn. & H. Lead. Or. Cas. 42-50. aspiummer v. Smith, 5 N. H. 553, 22 Am. Dec. 478; White v. Fort, 10 N. C. 251 ; State v. Walsen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 456 ; Knox County v. Hunolt, 110 Mo. 67, 19 S. W. 628; Aus- tin V. Carswell, 67 Hun, 579, 22 N. Y. Supp. 478; Lofton v. Vogles, 17 Ind. 107; Boston & W. R. Corp. v. Dana, 1 Gray (Mass.) 83; Bundy V. Maginess, 76 Cal. 532, 18 Pac. 668. 24 Shields v. Yonge, 15 Ga. 349, 60 Am. Dec. 698. § 2) NATURE OF CRIME 9 ious grade of crime, it was formerly the rule in England and in a few pf the states that the civil remedy was suspends ed until the wrongdoer had been prosecuted; but this doc- trine has been questioned in England, and is not genei^ally recognized in the United States.^" ' Condonation of a Crime by the Person Injured Another distinction between torts and crimes should be noticed. In case of a tort, the person injured is alone con- cerned; hence he may settle with the wrongdoer, or may refrain from bringing an action against him. In case of a crime^ however, it is the public that is injured; hence, as a rule, the person particularly injured has no control over the criminal proceedings, and no settlement between him and the wrongdoer can make the act any the less a crime, or take away the state's right to punish it. Thus it has been held that a woman who has been ravished cannot condone the crime by forgiving hen ravisher; "" nor can one who is in- dicted for obtaining money by false pretense show in de- 25 The notion, once prevailed that the civil rein^y was merged in the felony, but whether the doctrine of an absolute merger ever existed has been doubted. Wells v. Abrahams, L. R. 7 Q. B. 554. In modern times it has been held in England that the merger amounts only to a suspension, as stated in the text. Lutterell v. Eeynell, 1 Mod. 282; Crosby v. Leng, 12 East, 409; Osborn v. Gillett, L. R. 8 Exch. 88; White v. Spettigue, 13 Mees. & W. 603. Moreover, it has been doubted whether the doctrine existed even to this limited extent Wells v. Abrahams, supra. In the United States the doc- trine of the suspension of the civil remedy has been held by some courts. Boody v. Keating, 4 Greenl. (Me.) 164; Martin's Ex'r v. Martin, 25 Ala. 201. But it has more frequently been denied. Bos- ton & W. R. Corp. V. Dana, 1 Gray (Mass.) 83; Williams v. Dicken- son, 28 Fla. 90, 9 South. 847. See Bishop New Or. Law, §§ 267- 272 ; Jag. Torts, 11. z« Com. v. Slattery, 147 Mass. 428, IS N. E. 399. See, also. Com. T. Brown, 167 Mass. 144, 45 N. E. 1 ; Thalheim v. State, 38 Fla. 169, 20 South. 938. 10 DEFINITION AND NATURE OF CRIME (Ch. 1 fense, that he had settled with the person defrauded by re- turning the money obtained.^' Indeed, in the case of felonies (a name given to the more serious crimes, which will be explained hereafter), a person settling with the offender, and agreeing not to inform on him, is himself guilty of a crime.^' Statutes have been en- acted in some states making exceptions in some cases to the rule that the individual immediately injured cannot condone the offense, and allowing the wrongdoer to make reparation, and relieving him from punishment on his doing" so. These exceptions relate generally to misdemeanors, or crimes of lesser degree. Thus in Michigan it is provided that prosecutions for adultery can be instituted only on the complaint of the husband or wife of one of the offending parties ; if such complaining party condone the offense, the guilty party cannot be prosecuted therefor.^* Consent of Person Injured With respect to civil wrongs the rule "volenti non fit in- juria" prevails; i. e., no man can complain of an act to which he consents. Whether or not consent of the person injured by an act deprives it of its criminal character de- pends upon the nature of the act. No man can take his 2 7 WILLIAMS V. STATE, 105 Ga. 606, 31 S. B. 546, Mikell Illus. Gas. Criminal Law, 4. Embezzlement, settlement by defendant's bonds- men no defense. Fleener v. State, 58 Ark. 98, 23 S. W. 1; Robson V. State, 83 Ga. 166, 9 S. E. 610. A compromise is no bar to a prose- cution for seduction. Barker v. Com., 90 Va. 820, 20 S. E. 776. Rati- fication is not a bar. State v. Frisch, 45 La. Ann. 1283, 14 South. 132 ; May v. State, 115 Ala. 14, 22 South. 611. Nor can forgery be condoned. State v. TuU, 119 Mo. 421, 24 S. W. 1010. See, also, post, p. 440. 2 8 Post, p. '440. 2» See People v. Dalrymple, 55 Mich. 519, 22 N. W. 20; Com. v. Carr, 28 Pa. Super. Ct. 122 ; State v. Smith, 108 Iowa, 440, 79 N. W. 115. ^ 2) NATURE OF CRIMB 11 own life or maim himself, these being among the inalienable rights, and he cannot consent to another's killing ^ maim- ing him.'" Nor can a person consent to a breach^f the public peace,*?^ or to acts endangering the public safety or the public morals.'^ Thus, it is a crime to engage in mutual •combat in a public place, and the consent of the parties fur- nishes no excuse. So certain crimes require for their com- mission the consent of the parties, as fornication, adultery, and incest ; therefore the consent of the parties furnishes no defense. On the other hand, there are rights which a man may give up. He may consent to what would otherwise be an assault and battery, provided it does not maim or cause severe bodily injury, and is not inflicted so as to be a breach of the peace. Mutual combat in private, where the parties are not maimed, or severely injured, is no crime. ^' Again, in certain crimes, such as rape and larceny, and, as a rule, in -crimes against property, want of consent is of the essence of the crime; and hence, if there is consent, the crime is not ■committed. It is not rape to have intercourse with a wo- man who consents, since, to constitute rape, the intercourse must be by force, and against her will.'* So, to constitute larceny, the property must be taken without the owner's -consent.^" And in cases of extortion by putting in fear, or 30 Killing In duel: Reg. v. Barrouet, Dears. Cr. Cas. 51; Com. v. Parker, 9 Mete. (Mass.) 263, 43 Am. Dec. 396. Administering poison: •Com. V. Stratton, 114 Mass. 303, 19 Am. Bep. 350. Maiming: 1 Inst. 107a, 107b; WRIGHT'S CASE, Co. Litt. 127a, Mikell Illus. Cas. Crim- inal Law, 5 ; People v. Clough, 17 Wend. (N. Y.) 351, 31 Am. Dec. -303. See Reg. v. Bradsliaw, 14 Cox, Cr. Cas. 83 (football match). 31 Post, p. 275. And see Fost Cr. Law, 260; 1 East, P. C. 270; Rex V. Billingham, 2 Car. & P. 234; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801. 32 Com. V. Barrett, 108 Mass. 302 ; Sanders v. State, 60 Ga. 126; Tucker v. State, 8 Lea (Tenn.) 633. 33 Post, p. 243. " Post, p. 245. 85 Post, p. 320. 12 DEFINITION AND NATURE OF CRIME (Ch. 1- of robbery which is committed by force or intimidation, if the property is delivered by the owner for the purpose of prosecuting the taker, the crimes are not committed.^* In those cases where consent is a good defense, the consent, to be effective, must be a real consent; if the consent is ob- tained by force or threats,^^ or by fraud as to the nature of the act,"* or if, because pi mental defect or by reason of youth, one is in law incapable of consenting, his consent fur- nishes no excuse.'" In some states a statute makes it rape to have intercourse with a female under a certain age, whether she consents or not. Here, of course, consent is no excuse, however mentally capable of consenting the girl may have been.*" Same — Entrapment into Crime Where a person entraps another into the commission of an act the same principles apply. If the acts of entrapment amount to consent, and the crime for which the accused is indicted is one for which consent is an excuse, then the ac- cused cannot be convicted. If, however, the crime is one for which consent is no excuse, or the acts of entrapment do not amount to consent, then the fact that the accused was entrapped into the crime is no defense.*^ 33 People V. Gardner, 73 Hun, 66, 25 N. T. Supp. 1072; Connor v. People, 18 Colo. 373, 33 Pae. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295. 37 Post, pp. 242, 275, 297, 377. 88 THE QTJEEN v. FLATTERY, 2 Q. B. D. 410, Mikell lUus. Cas. Criminal Law, 137; Bex v. Rosinski, 1 Moody ,\ 19; Reg. v. Case, 4 Cox C. C. 220. 3 8 State V. Rollins, 8 N. H. 550; State v. Farrar, 41 N. H. 53; COM. V. NICKERSON, 5 Allen (Mass.) 518, Mikell lUus. Cas. Crim- inal Law, 148 ; Givens v. Com., 29 Grat (Va.) 830 ; Hadden v. People, 25 N. Y. 373. *oPost, p. 246. 4.1 Entrapment by detective Into illegal sale of liquor, no de- § 2) NATURE OF CRIME 13 The owner of property, on learning that an attempt is to be made to steal it, may leave it exposed, and the person who takes it may be guilty of larceny; but, if he consents to the taking for the purpose of prosecuting the offender, there is no crime, as property must be taken without the owner's consent to constitute the crime of larceny.*^ The same is true of robbery.*' In case of burglary, if the owner knows that it is to be committed, and merely takes no steps to prevent it, but lies in wait to catch the burglar, he does not consent to the entry,** though it is otherwise if he takes steps to aid the intending burglar, as where he unlocks the fense, People v. Murphy, &3 Mich. 41, 52 N.W. 1042 ; People v. Curtis, •95 Mich. 212, 54 N.W. 767 ; City of Evanston v. Myers, 172 111. 266, 50 N. E. 204. See, also, post, pp. 117, 335. One who accepts a bribe is not excused because instigated by others for entrapment. People V. Liphardt, 105 Mich. SO, 62 N. W. 1022. See, also, State v. Du- •doussat, 47 La. Ann. 977, 17 South. 685. Conspirator to rob may be convicted though entrapped, into attempt. Thompson v. State, 106 Ala. 67, 17 South. 512. It is no objection to conviction for mailing obscene matter that a government inspector, who instigated the proceeding, wrote decoy letters, in answer to which defendant mailed the matter. Price v. U. S., 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727. Nor is it a defense to an indictment for illegally selling liquor that the liquor was purchased, by the buyer, not for his own use, but with money furnished by the chief of police for the purpose of entrapping defendant. State v. Smith, 152 N. C. 798, 67 S. E. 50S, 30 L. R. A. (N. S.) 946. *2 Eex V. Headge, 2 Leach, 1033 ; Reg. v. Lawrance, 4 Cox, Cr. Cas. 438 ; Pigg v. State, 43 Tex. 108 ; People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238 (feigning drunken sleep not consent); State v. Hull, 33 Or. 56, 54 Pac. 159, 72 Aju. St. Rep. 694; State V. Adams, 115 N. C. 775, 20 S. E. 722. 4 3 McDaniel's Case, Foster, 121; Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295. 44 Rex V. Bigley, 1 Craw. & D. 202 ; Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364; State v. Sneff, 22 Neb. 481, 35 N. W. 219; State V. Stickney, 53 Kan. 308, 36 Pac. 714, 42 Am. St. Rep. 284 -(failure to fasten door securely, as usual, no defense). 14 DEFINITION AND NATURE OF CRIME (Ch. 1 door to admit him, or instructs his servant to do so.*° If the owner of a store, or his servant, by his authority, insti- gates a person to break and enter for the purpose of steal- ing, the latter is not criminally liable for burglary, for the entry was consented to ; " but he may be liable for larceny in taking goods after the entry, for the owner may consent to the entry, and not to the taking of the goods.*' Crime or Negligence on the Part of the Person Injured The fact that a person who has been injured by a crime was in the wrong, or guilty of negligence contributing to the injury, does not as a rule furnish an excuse for the crime, for this does not make the act any the less an injury to the public. A person who has stolen property cannot defend on the ground that the taking was due to the negligence of the owner;** nor can he defend on the ground that it had been stolen by the person from whom he stole it.*' On a prose- cution for obtaining goods by false pretense, it is no de- fense that the prosecutor was himself trying to cheat the defendant, or do other unlawful acts; °° and one may be con- *6Rex V. Egglnton, 2 Leach, 913;' Allen v. State, 40 Ala. 334, 91 Am. Dee. 477; SPEIDEN v. STATE, 3 Tex. App. 157, 30 Am. Rep. 126, Mlkell lUus. Cas. Criminal Law, S; Love v. People, 160 111. 501, 43 N. B. 710, 32 L. E. A. 139; 1 Bisli. New Cr. Law, § 262, and cases cited. 48 People V. McCord, 76 Mich. 200, 42 N. W. 1106. *7 Rex V. Egglnton, 2 Leach, 913. *8 Post, p. 335. 48 Com. V. Finn, 108 Mass. 466 ; Ward t. People, 3 Hill (N. T.) 395. See, also. Rex v. Beacall, 1 Car. & P. 454. It is no defense to an indictment for larceny of liquors, or for embezzlement of the pro'- ceeds of their sale, that they were kept for sale or sold in violation of law. Com. v. Smith, 129 Mass. 104. . 5 It is no defense to an indictment for obtaining money under false pretense that the money was obtained In selling to the prose- § 2) NATURE OF CRIME 15 victed for uttering counterfeit money, in giving it to a pros- titute in return for allowing sexual intercourse/^ In some cases the conduct of the person injured may in law amount to an excuse or a justification for the injury. Thus, as will be seen hereafter, a person may repel an attack without be- ing criminally liable for injury necessarily inflicted in doing so." It will hereafter be seen that a person who causes anoth- er's death by culpable negligence — as, for instance, by care- less driving — ^is guilty of manslaughter. In such cases con- tributory negligence on the part of the deceased is not a defense; ^^ nor is negligence on the part of a person wound- ed in caring for himself, although it contributes to his death, a defense in favor of one charged with causing the death."* Mental Element in Torts and Crimes Still another distinction between crimes and torts is in the fact that, to render one criminally liable for an act, the law requires that he shall have had a criminal intent, so that a lunatic or a very young child, not being able to entertain such an intent, is incapable of committing crime, while it is otherwise in case of torts, where the person injured seeks cutor counterfeit money which the prosecutor was buying for Illegal purposes. Horton v. State, 85 Ohio, 13, 96 N. B. 797, 36 L. R. A. (N. S.) 423, Ann. Cas. 1913B, 90. See, also, Reg. v. Hudson, 8 Cox, Cr. Cas. 305; Com. v. Morrill, 8 Cush. (Mass.) 571; In re Cummins, 16 Colo. 451, 27 Pac. 887, '13 L. R. A. 752, 25 Am. St Rep. 291; People V. Martin, 102 Cal. 558, 36 Pac. 952. See, also, post, p. 371. "If the other party has also subjected himself to a prosecution for a like ofCense, he also may be punished. This would be much better than that both should escape punishment, because each deserved it equal- ly." ' Per Dewey, J., in Com. v. Morrill, supra. But see, contra, MeCord v. People, 46 N. Y. 470. SI Anonymous, 1 Cox, Cr. Cas. 250. es Post, p. 238. 62 Post, pp. 181, 272. ■>* Post, p. 16&. 16 DEFINITION AND NATUEB OF CRIME (Ch. 1 redress. A lunatic, or an infant under seven years of age, is liable in damages for a wrongful act, but he cannot be pros- ecuted criminally therefor. '"> Crime may he One of Omission As stated in the definition, a crime may be one of omis- sion, or, in other words, a person may commit a crime by remaining perfectly passive when the law requires him to act. Thus a switchman who neglects to set a switch, thus causing derailment of a train and consequent loss of life, is guilty of a crime ; '° and so is a father who, though able to do so, fails to furnish food to a child who is dependent upon him and who dies from the neglect. ''^ Hereafter, as in pre- vious sections, the term "act" will be intended to include omission to act where the law requires action. Punishability Not an Absolute Test The mere fact that punishment in some form is imposed for the doing of a forbidden act does not of itself make the act a crime ; and it cannot be said without more that a crime is an act forbidden under pain of punishment. -The object of the punishment must be considered, and the nature of the proceeding in which it is inflicted. The punishment must be inflicted on the ground of injury to the public at large, and by the state. There are a number of private wrongs, such as slander, false imprisonment, prosecution without cause, etc., for which, in case of malice, the law allows the person injured to recover, in a civil action, damages in ex- cess of his actual injury. They are known as "punitive" or 6 Post, p. 61. And see Oooley, Torts (2(1 Ed.) p. 97. B6 STATE V. O'BRIEN, 32 N. J. Law, 169, Mikell lUus. Cas. Crim- inal Law, 34. f Post, p. 234. § 2) NATURE OF CRIME 17 "exemplary" damages, and are allowed, as the terms imply, as a punishment and example."* So, also, in case of cer- tain penal statutes, such as those prescribing a penalty for unlawful sale of intoxicating liquors, if the penalty is recov- erable by indictment in the name of the state, the proceed- ing is criminal, but, if it is rcoverable by an action of debt, the proceeding is civil/' Indictahility Not cm Absolute Test Nor can the mere fact that a wrongful act renders one liable to indictment in the name of the state determine ab- solutely that the act is a crime. You must look at the ob- ject of the proceeding, for the state has a right to allow this method for obtaining redress for a private individual. Thus, in some states there are, or formerly were, statutes under which, if a death is caused by the wrongful act of the servants or agents of a corporation, an indictment lies against it to recover a penalty, in the nature of damages, for the benefit of the widow and children of the deceased."" Such statutes are, however, rare, and in general indictahility is the best test of whether an act is a crime. It may not be out of place to say also in this connection that, in some of the states, criminals are proceeded against in some cases by information, and not necessarily by indictment. 5 8 The rule allowing punitive damages applies as well to cases where the wrongful acts are within the law for punishment of crimes as to those where they are not. Boetcher v. Staples, 27 Minn. 308, 7 N. W. 263, 38 Am. St. Kep. 295. In an action for assault and battery, that defendant had been punished criminally for the assault is not a bar to recovery of exemplary damages. Bundy v. Maginess, 76 Cal. 582, 18 Pac. 668. 59 See 1 Bish. New Cr. Law, § 32, and cases cited. eoPub. St. Mass. c. 112, §§ 212, 213; Tiff. Death Wrong. Act. § 186. Claek Cr.L..^d Ed.-^2 18 DEFINITION AND NATUKB OF CEIMB (Ch. 1 Mala in Se and Mala Prohibita The books make a distinction between crimes which are mala in se, or wrongful from their nature, and punishable at common law, such as murder, robbery, rape, and many lesser offenses, and those that are mala quia prohibita, or wrong merely because prohibited by statute."^ The dis- tinction is sometimes of practical importance. If an act is prohibited by statute on pain of punishment, the violation of the statute is a crime. Again, an act which is wrong from its very nature, and a crime at common law, may be defined and prohibited by statute ; and, as will hereafter be seen, in some states the common law has been abrogated, and no act is a crime unless prohibited by statute. «i COM. V. ADAMS, 114 Mass. 323, 19 Am. Rep. 362, MIkell lUus. Cas. Criminal Law, 30. §§ 3-4) THE CRIMINAL LAW HOW PKESCEIBBD 19 CHAPTER II THE CRIMINAL LAW— HOW PRESCRIBED 3. How the Criminal Law is Prescribed, 4. The Common Law. 5-6. Statutes. HOW THE CRIMINAL LAW IS PRESCRIBED 3. The criminal law consists both of statutes, or express en- actments of the lawmaking power of the state, and of the common or unwritten law. THE COMMON LAW 4. The common law is a body of law which derives its au- thority, not from express enactments of the law- making power of the state, but from the imme- morial practice of the people. Its principles have been accepted as law from time immemorial, and are evidenced by decisions of the courts applying them to particular cases. (a) The common law of England, so far as it was applica- ble to the njew conditions of the American colo- nists, .together with some old English statutes, was brought with them to this country, and is now the common law with us, except so far as it has been modified or superseded by statutes. (b) There are no crimes against the United States gov- ernment by virtue of the common law ex proprio vigore. 20 THE CRIMINAL LAW HOW PRESCRIBED (Ch. 2 The Common Law Defined and Explained The common law, in the sense in which it is here used, is a body of law which derives its authority, not from ex- press enactments of the legislative power, like the statute law, but from the fact that it has existed and been accepted as the law from time immemorial. It is preserved and evi- denced by judgments of -the courts applying it to particular cases as they arise. As said by Sir James Stephen : "It is not till a very late stage in its history that law is regarded as a series of commands issued by the sovereign power of the state. Indeed, even in our own time and country that conception of it is gaining ground very slowly. An earlier, and to some extent a still prevailing, view of it is that it is more like an art or science, the principles of which are at first enunciated vaguely, and are gradually reduced to preci- sion by their application to particular circumstances. Somehow, no one can say precisely how, though more or less plausible and instructive conjectures upon the subject may be made, certain principles came to be accepted as the law of the land. The judges held themselves bound to de- cide the cases which came before them according to those principles, and, as new combinations of circumstances threw light on the way in which they operated, the prin- ciples were, in such cases, more and more fully developed and qualified, and, in others, evaded or practically set at naught and repealed. Thus, in order to ascertain what the principle is at any given moment, it is necessary to compare together a number of decided cases, and to deduce from them the principle which they establish." ^ This law is spoken of as the unwritten law, or lex non scripta, to distin- guish it from the statutory law. The common law is in fact unwritten, though it is evidenced by writing. A decision 1 Steph. Cr. Law, Introduction, viii. §§ 3-4) THE COMMON LAW 21 and judgment of a court declaring a principle of law, and applying it to a particular case, is reduced to writing, and published in the Reports, but the written report is not the law, nor does the law derive its authority from the fact that the decision is written. The report is merely evidence of the law — a written account of the application to a particu- lar case of a principle of law which is still unwritten.* The Common Law in 'the Several States When our country was settled, the colonists from Eng- land brought with them so much of the common law of the mother country, and such acts of parliament, as were ap- plicable to their new condition and surroundings, and this law became the common law of the original colonies, and of the new settlements As the colonies extended, and re- mained with them when they became independent states. In some of the states this body of law was expressly adopted by the Constitution or by statutes. In a Massachusetts case it is said: "Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged in- applicable to their new state and condition. The common layv thus claimed was the common law of their native coun- try, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as in- corporated into the common law. Some few other English statutes passed since the emigration were adopted by our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages orig- inating probably from laws passed by the Legislature of the colony of Massachusetts Bay, which were annulled by the 2 1 Bl. Comm. 63 et seq. ; Com. v. Chapman, 13 Mete. (Mass.) 6& 22 THE CRIMINAL LAW HOW PEESCEIBED (Ch. 2 repeal of the first charter, and from the former practice of the colonial courts, accommodated to the habits and man- ners of the people." ° Texas, though originally governed by the civil law derived from Mexico, afterwards adopted the common law. In Louisiana the statute, after defining crimes, provides that "all crimes, offenses, and misdemean- ors shall be taken, intended, and construed according to and in conformity with the common law of England." It may be said now that, except where it has been changed by statute, the common law of England, so far as it is appli- cable to our conditions, and some of the old English stat- utes, are the common law in all of the United States,' except in some few states, where statutes have been enacted in- tended to cover the whole field of criminal law. In those states no act is a crime unless made so by statute ; but even in those states the common law is still in force for the pur- 3 Com. V. Knovvlton, 2 Mass. 530 ; 1 Kent, Comm. 470. And see Com. V. Churchill, 2 Mete. (Mass.) 118; Com. v. Leach, 1 Mass. 59; Com. V. Warren, 6 Mass. 72, 73; Com., v. Chapman, 13 Mete. (Mass.) 68 ; Respuhllca v. Mesca, 1 Dall. (Pa.) 73, 1 L. Ed. 42. "It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the, English usages, or substituted others bettter suited to our wants, till at length, before the time of the Revolution, we had formed a system of our own, founded in general on the English Constitution, but not without considerable variations." Guardians of the Poor v. Greene, 5 Bin. (Pa.) 554. *Com. v. Callaghan, 2 Va. Cas. 460; STATE v. BUCHANAN, 5 Har. & J. (Md.) 317; 9 Am. Dec. 534, Mlkell Illus. Cas. Criminal Law, 95; Stuart v. People, 3 Scam. (111.) 305; Sans v. People, 3 Oilman (lU.) 327 ; Dawson v. Coffman, 28 Ind. 220 ; State v. PuUe, 12 Minn. 164 (Gil. 99); Stout v. Keyes, 2 Doug. (Mich.) 184, 43 Am. Dec. 465; In re Lamphere, 61 Mich. 105, 27 N. W. 882. The common-law punish- ment for a common scold, ducking, was not received nor embodied by usage, so as to become a part of the common law in Pennsylvania. James v. Com., 12 Serg. & R. 220. §§ 3-4) THE COMMON LAW 23 pose of construing the statutes, and in the field of criminal procedure. English Common-Law Authority not Essential Although our common law was thus brought with our ancestors from England, there, are common-law crimes with Us for which there can be found no direct authority in the English decisions. The reason for this is found partly in the difference between the institutions of the two coun- tries, and partly in the fact that certain acts were covered by statutes in England when they first required notice, and have been punished under the statutes, instead of under the common law. The fact, therefore, that there is no com- mon-law authority in England declaring a certain act a crime, does not determine that it is not a common-law crime with us. In England, where they have an established church, adultery and other acts of lewdness were punished exclusively in the ecclesiastical courts, and therefore we can find no cases in which they were punished under the com- mon law. In some of our states adultery has been held a common-law crime. Other states, on the contrary, have refused so to hold, and have declared it could not be pun- ished in the absence of a statute declaring it a crime.* So, also, in England there have been, since an early day, penal statutes covering almost every kind of malicious injury to property, and there are therefore few cases in which mali- cious mischief has been there punished at common law. It is, however, a well-settled principle of the common law that all acts tending to a breach of the public peace are crimes, and we have many cases in which acts of malicious mischief have been punished as common-law crimes. ° Whether or not, therefore, an act is a common-law crime with us, does » Post. p. 410. « Post, pp. 382, 383. 24 THE CRIMINAL LAW HOW PRESCRIBED (Ch. 2 not necessarily depend on the existence of common-law au- thority in England.' The Common Law Prohibits as Well as Punishes It will be noticed that in the definition of crime it was said to be an act "prohibited" by law. This feature of the definition has been objected to, on the ground that it is inadequate where the common law is recognized, because the common law determines from the reason of the thing that a particular act is a crime. The common law, how- ever, does prohibit. To say otherwise would be to say that the common law makes an act punishable which was not against the law when it was committed, and no civilized nation would punish such acts. The common law says that no one shall commit murder, robbery, rape, etc., and that, if he does so, he will be punished. This prohibition is evi- denced by the judicial decisions, and furthermore, is written in the heart and conscience of every mentally responsible human being. There are acts, it is true, which may never before have been committed, but, which, when they are committed, may be punished. They will not be punished, however, unless they violate the general principles of the common law, and unless they are mala in se, or wrong in themselves. The common law punishes acts tending to a breach of the public peace, acts injurious to the public health and comfort, acts injurious to the public morals, and acts having certain other tendencies. Any acts, therefore, which have such effect, are prohibited by the common law. The fact that a man does not know what the general sanc- tions of the common law prohibit is immaterial, for he is presumed to know the law, and ignorance is no excuse.' T Com. V. McHale, 97 Pa. 407 ; Com. v. Hoxey, 16 Mass. 385. « Post, p. 87. g§ 3-4) THE COMMON LAW 25 There is certainly no hardship in this so far as the common law is concerned, for it only punishes acts which are mala in se, or wrong in their very nature, and which are there- fore contrary to the dictates of conscience. The hardship, if any, is in case of the statute law, where it prohibits an act which is only wrong because of the statute. Even here ignorance of the statute is no excuse for violating it. Morality and Christianity Morality and the teachings of Christianity have had an influence in the formation of the common law, as well as on legislators. They may be the cause of an act being pro- hibited by the common law or by statute, but an act is not a crime simply because it is immoral, nor because it is con- trary to the doctrines of Christianity. It is true that an act is a crime if it shocks the moral sense of the community, and creates a public scandal, but this is because of the in- jury to the public. The same act which would be a crime if done in public is not punished at all if done in private, though it is none the less immoral. Some of the writers on criminal law make the broad assertion that Christianity is a part of our common law, and there are statements to the same effect by some of the judges;* but the assertion is too broad. No court in this country would punish a man because he does not believe in the doctrines of Christianity, or because he argues against the truth of Christianity. Our Constitution expressly declares that no man's religious lib- erty shall be interfered with, and a man is free in this coun- try, as far as the law is concerned, to worship Mohammed or the sun, without being liable to punishment. The com- • 1 Bish. New Cr. Law, § 497; May, Cr. Law, § 43; Updegraph v. C!om, 11 Serg. & K. (Pa.) 394; People v. Euggles, 8 Johns. (N. T.) 290, 5 Am. Dec. 335; Vidal y. Girard, 2 How. 12T, 11 L. Ed. 205. 26 THE CRIMINAL LAW HOW PRESCRIBED (Ch. 2 fort, the peace, and the morals of the community are pro- tected by the common law, and it punishes acts which have a tendency to injure them, but it does not interfere with one's religious views. Disturbance of a church meeting is a common-law crime, but this is because of the breach of the public peace, and not because of the religious character of the meeting, for disturbance of an assemblage to argue against Christianity is equally a crime. A person may shut himself up in a room and blaspheme without being ame- nable to punishment ; but, if he blasphemes in a public place, it is otherwise. This is not because of the sin, but because the blasphemy is a public nuisance, or because it tends to a breach of the public peace.^" No CommonrLaw Crimes agcdnst the United States There are no common-law crimes againsti the United States, either within state' limits or within territory with- in the exclusive jurisdiction of the United States. It can punish no offenses that have not been expressly defined, and made punishable by an act of Congress. "-^ 10 1 Whart Cr. Law, § 20, citing Cooley, Const Lim. 472; 13 Alb. Law J. 366 ; 20 Alb. Law J. 265, 285 ; Donahoe v. Eichards, 38 Me. 379, 61 Am. Dec. 256; Chapman v. Gillet, ,2 Conn. 40 ; Lindemniaier V. People, 33 Barb. (N. Y.) 548; Com. v. Jeandell, 2 Grant Cas. (Pa.) 506; People v. Porter, 2 Parker, Cr. R. (N. Y.) 14; Bloom v. Richards, 2 Ohio St. 387 ; Board of Education of City of Cincinnati v. Minor, 23 Ohio St 211, 13 Am. Rep. 233 ; State v. Pepper, 68 N. C. 259, 12 Am. Rep. 637. And see People v. Ruggles, 8 Johns. (N. Y.) 290, 5 Am. Dec. 335; Com. v. Kneeland, 20 Pick. (Mass.) 206. Post, p. 401. 11 U. S. V. Hudson, 7 Cranch, 32, 3 L. Ed. 259; U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct 764, 36 L. Ed. 591; 1 Kent Comm. 331. See, also, post, p. 491 et seq. §§ 5-6) STATUTES 27 STATUTES 5. The state Legislatures can punish any act unless restrict- ed by the state or federal Constitution, 6. The United States Congress has no power to declare and punish crimes except such as is derived from the federal Constitution. Statutory Crimes In addition to crimes at common law, there are statutory crimes; that is, acts declared criminal by express enact- ments of the lawmaking power. After the Legislature ex- pressly prohibits an act, and makes it a crime, there is no longer any test of public policy to be applied. The Legis- lature has presumably enacted the law for the public good, and the courts cannot look further into its propriety than -to ascertain whether the Legislature had the power to pass it." Same — Power of the State Legislatures The Legislatures of the different states have the inherent power to prohibit and punish any act, provided they do not violate the restrictions of the state and federal Constitu- tions. Same — Power of the United States Congress The United States Congress also has power to a certain extent to define and punish crimes, but it has only such power as is expressly or by implication conferred by the 12 Com. V. Walte, 11 Allen (Mass.) 264, 87 Am. Dec. 711 ; Parker -V. State ex reL Powell, 132 Ind. 419, 31 N. E. 1114. 28 THE CRIMINAL LAW HOW PEESCRIBBD (Ch. 2 federal Constitution.^' Unlike the state Legislatures, it has no inherent power.** Same — The Powers Conferred on Congress by the Constitution The Constitution gives Congress the power to regulate commerce with foreign nations and between the several states ; *" to provide for the punishment of counterfeiting the securities and current coin of the United States ; to de- fine and punish piracies and felonies committed on the high seas, and offenses against the law of nations;** to make rules for the government and regulation of the land and naval forces; to provide for organizing, arming, and dis- ciplining the militia, and for governing such part of them as may be employed in the service of the United States; to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by* the consent of the L,egislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings ; and, finally, to make all i« Post, p. 491. 14 U. S. V. Hudson, 7 Crancli, 32, 3 L. E See following section and cases cited. §§ 0-6) STATUTES 35 states there are statuory provisions as to construction of statutes.*^ Common Law in Connection with Statutes. In all of the states statutes have been passed defining and punishing particular crimes, and the question arises as to what efifect this has on the common law. Sometimes the statute merely declares what was already the common law. In this case all the rules and decisions under the common law are applicable. Again, a statute may change the com- mon law by prescribing new elements as essential to con- stitute the crime, or by rendering unnecessary certain ele- ments which the common law required. In such case, of course, the statute is to control, but it is to be strictly con- strued. .Statutes in derogation of the common law cannot be extended beyond their express provisions. A statute creating a crime in general terms, while it may supersede the common law as to the definition of the crime, will be construed in connection with the common-law exemptions from responsibility of persons not having at the time of committing the act the criminal intent required by the com- mon law, such as infants, insane persons, married women, and persons under necessity or under mistake of fact.*" So, also, a general statute, containing nothing to show a con- trary intent on the part of the Legislature, must be con- strued in reference to the common law as to principals and accessaries.** A statute may also prohibit an act or impose «i Pen. Code Minn. § 9, abollslies the rule, as to the C!ocle, that a penal statute is to be strictly construed. 12 Bish. St Crimes, § 131 et seq.; Rex v. Groombridge, 7 Car. & P. 582; Wilbur v. Crane, 13 Pick. (Mass.) 289, 290; Com. v. Knox, 6 Mass. 76 ; State ex rel. Johnson v. Martlndale, 1 Bailey (S. C.) 163 ; Duncan v. State, 7 Humph. (Tenn.) 148. 43 COM. V. CARTER, 94 Ky. 527, 23 S. W. 344, MikeU lUus. Cas. Criminal Law, 18 ; Bish. St. Crimes, §§ 135, 136, 139. 36 THE CRIMINAL LAW HOW PRESCRIBED (Ch. 2 a public duty without prescribing any punishment or mode of procedure for its violation, and in such a case the com- mon-law punishment and procedure by indictment apply.''* Any attempt to commit a crime being a misdemeanor at common law, where a statute defines a crime, but makes no provision for. attempts, an attempt to commit the crime is punishable under the common law, provided, however, that the subject of attempts is not entirely regulated by statute. In all cases, however, the plain and express terms of a stat- ute must control. The rule is that, unless there is a repug- nancy between the statute and the common law, the latter is not repealed,*" and there are numerous cases where an indictment defectively drawn under a particular statute has been held good as a common-law indictment. But a stat- ute punishing an act which was a crime at common law, and covering the whole subject, supersedes, and by necessary implication repeals, the provisions of the common law on the same subject.*" Where a statute merely punishes a crime, calling it by name, but not defining it, the common law supplies the definition.*^ iil Bl. CJomm. 122; Com. v. Chapman, 13 Mete. (Mass.) 68; State V. Fletcher, 5 N. H. 257; Keller v. State, 11 Md. 525, 69 Am. Dec. 226. 4 5 Shannon v. People, 5 Mich. 71; State v. PuUe, 12 Minn. 164 (Gil. 99). But the Legislature may extend the common-law definition of a particular offense so as to include acts not punishable at common law, and not embraced within the common-law definition. Peo- ple V. Most, 128 N. T. 108, 27 N. E. 970, 26 Am. St. Rep. 458. *f> COM. V. COOLEY, 10 Pick. (Mass.) 37, MikeU Illus. Cas. Crim- inal Law, 19. 47 Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833; Pitcher v. People, 16 Mich. 142; Benson v. State, 5 Minn. 19 (GU. 6) ; U. S. v. Carll, 105 U. S. 611, 26 U Ed. 1135 ; Smith v. State, 58 Neb. 531, 78 N. W. 1059. §§ 5-6) STATUTES 37 Same — Penal Codes Many of the states have adopted penal or criminal codes, the purpose of which is to define what acts shall be punish- ed as crimes. In some of them the code is intended to cov- er the whole law, and no act is a crime unless it is expressly- declared so.** In others the code does not entirely abro- gate the common law in so far as it makes acts crimes, but merely abrogates it as to the acts expressly prohibited, leav- ing the common law where it is not so supplanted still in force.*" Thus, in Ohio and Iowa, it is held that there are no common-law crimes ; that no act, however injurious, is a crime unless it is expressly prohibited by statute; °° and it was held in Ohio that a man who attempted to have car- nal knowledge of a girl under ten years of age, with her consent, was not guilty of a crime, because there was no statute against it ; ^^ and the Iowa court held sodomy no crime.^^ In Indiana, there is a statute declaring that "crimes and misdemeanors shall be defined, and the pun- ishment thereof fixed, by statutes of this state, and not oth- erwise." °* Even in those states, however, which have pe- nal codes, and which do not recognize common-law crimes, the common law is in force to the extent that it may be re- sorted to for the definition of crimes which are not defined in the statutes prohibiting them.°* *8 state V. Shaw, 39 Minn. 153, 39 N. W. 305. *9 Johnson v. People, 22 lU. 314 ; State v. PuUe, 12 Minn. 164 (GU. 99). 60 Estes V. Carter, 10 Iowa, 400; Smith v. State, 12 Ohio St 466, SO Am. Dec. 355; Allen v. State, 10 Ohio St. 287. 61 Smith V. State, 12 Ohio St. 466, SO Am. Dec. 355. 6 2 Bstes V. Carter, 10 Iowa, 400. 63 Jones V. State, 59 Ind. 229. 64 state V. Twogood, 7 Iowa, 252 ; Estes v. Carter, 10 Iowa, 400; Smith V. state, 12 Ohio St. 466, 80 Am. Dec. 355. 38 THE CRIMINAL LAW HOW PRESCRIBED (Cl;!. 2 Repeal of Statute — Revival of Former Lazv It is a maxim of the common law applicable to the con- struction of statutes that the simple repeal of a repealing law, not substituting other provisions in place of those re- pealed, revives the pre-existing law, unless the repealing act or some general statute makes a dififerent rule.°° Ac- cordingly, an act committed in violation of the pre-existing law and after the repeal of the repealing law may be pun- ished, although, if it were committed before such repeal, it could not be punished, since the pre-existing law would not then be in force. °° Municipal Ordinances Cities and other municipal bodies are generally vested by the Legislature with power to enact ordinances against dis- orderly houses, gambling houses, and the like, as well as to regulate many other matters for the welfare of the com- munity, for a violation of which a penalty by fine or impris- onment is attached as a punishment. Great diversity of opinion exists as to whether acts in violation of municipal ordinances are crimes. By many courts it is held or de- clared that they are not crimes, as not being violations of public law.^'^ By a few courts it is held that they are crimes, being breaches of law established for the protection 6 6 Com. V. Churchill, 2 Mete. (Mass.) 118; Com. v. Mott, 21 Pick. (Mass.) 492; U. S. v. Philbrick, 120 U. S. 52, 7 Sup. Ct 413, 30 L. Ed. 559. 6 6 Ante, p. 3. 67 City of Greeley v. Hamman, 12 Colo. 94, 20 Pac. 1; State v. Rouch, 47 Ohio St. 478, 25 N. E. 59; City of Oshkosh v. Schwartz, 55 Wis. 487, 13 N. W. 552; OITX OF KANSAS v. CLARK, 68 Mo. 588, Mikell lUus. Cas. Criminal Law, 21; Kansas City y. Neal, 122 Mo. 232, 26 S. W. 695; State v. Heuchert, 42 La. Ann. 270, 7 South. 329; State v. Boneil, 42 La. Ann. 1110, 8 South. 299, 10 L. R. A. 60, 21 Am. St. Rep. 413. And see case cited note 63, infra. §§ 5-6) STATUTES 39 of the public, as distinguished from infringements of private rights."* "A municipal ordinance is as much a law for the protection of the public as a criminal statute of the state, the only difference being that the one is designed for the protection of the municipality and the other for the protec- tion of the whole state; and in both cases alike the pun- ishment is imposed for a violation of a public law. If the state itself directly should make the act an offense, and pre- scribe the punishment, there could be no question that the act would be a 'crime' and the prosecution a 'criminal pros- ecution'; * * * aj^(j hQ^ (.^ji it tnake any difference, either in the intrinsic nature of the thing or in the conse- quences to the accused, whether the state does this. itself or delegates the power to pass the law to the municipal authorities?""" The decision of the question has some- times turned on the construction of the peculiar language of the Constitution or of a statute.^" The question has frequently been considered in cases in- volving the right of the accused to a trial by jury, but denial of the right does not necessarily involve a determination that the offense is not criminal, since at common law a per- son accused of a petty offense of this nature, of which justic- es of the peace and police magistrates had jurisdiction, had no right to a trial by jury; and it is generally held that the constitutional guaranty is no broader than the common-law 5 8 STATE V. WEST, 42 Minn. 147, 43 N. W. 845, Mikell Illus. Caa Criminal Law, 23; Jaquith v. Eojce, 42 Iowa, 406; State v. Vail, 57 Iowa, 103, 10 N. W. 297; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 li. K. A. 751. 69 Per Mitchell, J., in STATE v. WEST, supra. But see State v. Bobitshek, 60 Minn. 123, 125, 61 N. W. 1023, 33 L. B, A. 33. 8 Bish. New Cr. Law, § 32. "Crime," as used in the Code of Criminal Procedure, does not include petty offenses subject to sum- mary convictions by a magistrate. Steinert v. Sobey, 14 App. Div. 505, 44 N. Y. Supp. 146. 40 THE CRIMINAL LAW HOW PRESCRIBED (Ch. 2 right.'* Again, the question has been much considered in cases involving the determination of whether the constitu- tional provisions against double jeopardy apply to prevent two prosecutions for the same act, the one in violation of a municipal ordinance prohibiting it, and the other under a state statute. If the offense against the ordinance is a crim- inal offense, it would follow logically that the same act may not be punished under both ordinance and statute; and there are decisions to that effect.*" The opposite conclu- sion, however, has more frequently been reached; the two offenses being declared to be distinct.** 81 STATE V. WEST, supra; City of Mankato v. Arnold, 36 Minn. 62, 30 N. W. 305; Mclnemey v. City of Denver, 17 Colo. 302, 29 Pac. 516 ; Ckllan v. Wilson, 127 TJ. S. 540, 8 Sup. Ct 1301, 32 L. Ed. 223 ; State V. Glenn, 54 Md. 573; State v. Conlin, 27 Vt 318; Byers v. Com., 42 Pa. 89 ; McGear v. Woodruff, 33 N. J. Law, 213 ; People v. Justices of Court of Special Sessions, 74 N. Y. 406; In wood v. State, 42 Ohio St. 186 ; Wong v. Astoria, 13 Or. 538, 11 Pac. 295. ea State v. Thornton, 37 Mo. 360; Hanldns v. People, 106 111. 628. 83 Ambrose v. State, 6 Ind. 351; Levy v. State, 6 Ind. 281; State V. Lee, 29 Minn. 445, 13 N. W. 913 ; State v. Fourcade, 45 La. Ann. 717, 13 South. 187, 40 Am. St Eep. 249 ; State v. Clifford, 45 La. Ann. 980, 13 South. 281; State v. Stevens, 114 N. O. 873, 19 S. E. 861; Mclnemey v. City of Denver, 17 Cola 302, 29 Pac. 516; Koch v. State, 53 Ohio St 433, 41 N. E. 6S9 ; City of Yankton v. Douglass, 8 S. D. 441, 66 N. W. 923 ; Ex parte Hong Shen, 98 Cal. 681, 33 Paa 799; State v. Gustin, 152 Mo. 108, 53 S. W. 421. §§ 7-8) OLASSIPICATION OF CEIMHa 41 CHAPTER III CLASSIFICATION OF CRIMES 7. How Classified. 8. Treason. &-10. Felonies and Misdemeanors. 11-12. Merger of Offenses. HOW CLASSIFIED 7. Crimes, at common law, are divided into— (a) Treason. (b) Felonies, and (c) Misdemeanors. TREASON 8. In this coimtry treason can consist only in levying war against the United States, or a particular state, or in adhering to their enemies, giving them -aid and comfort. Under the old English common law, treason was divided into high and petit treason, the former consisting in cer- tain acts against the sovereign, and the latter in the mur- der of a superior by an inferior ; that is/ of a husband by his wife, a master by his servant, or a lord or ordinary by an inferior ecclesiastic.^ There is no longer such a crime as petit treason, the offense being regarded simply as homicide. With us the crime of treason is expressly defined by the federal constitution, which declares that "treason against the United States shall consist only in levying war against 1 4 Bl. Comm. 75. 42 CLASSIFICATION OF CEIMES (Ch. 3 them, or in adhering to their enemies, giving them aid and comfort" ; ^ and there are similar provisions in the state con- stitutions. Treason is a specific crime, and will be so treat- ed hereafter.' FELONIES AND MISDEMEANORS 9. "Felony is any offense which by the statutes or by the common law is punishable with death, or to which the old English law attached the total forfeiture of lands or goods, or both, or which a statute express- ly declares to be such." * In some states, the stat- utes expressly declare all crimes to be felonies which are punishable by death or by imprisonment in the state prison. 10. All crimes less than felonies are misdemeanors. A felony at common law was any crime which occasioned the forfeiture of lands and goods. This was usually accom- panied by capital punishment, though not always ; ° but, as capital punishment was usually inflicted, felonies came to •include all crimes punishable by death." Forfeiture of lands and goods as a punishment for crime is now abolished. Felony is now generally defined by statute, either in general terms or by a specific declaration accompanying the defini- tion of the crime. In states where there is no general stat- utory definition of the term, and no accompanying declara- 2 Const U. S. art. 3, § 3, cl. 1. s Post, p. 469. * 1 Bish. New Cr. I^w, § 615; State v. Murphy, 17 K. I. 698, 24 Atl. 473, 16 L. E. A. 550; Com. v. Schall, 12 Pa. Co. Ct. R. 554. B Suicide was felony. Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109. So excusable homicide, being accompanied by forfeiture, was a felony. e 4 Bl. Comm. 94. §§ 9-10) FELONIES AND MISDEMEANORS 43 tion to determine whether the given crime is a felony or a misdemeanor the courts look to the history of the particular offense, and ascertain whether it was a felony at common law, and this although the punishment may be imprison- ment, and not death.'' In many states statutes have been enacted declaring all offenses to be felonies which are punishable by death or by imprisonment in the state prison.' Under these statutes, a crime is a felony if it may be punished by imprisonment in the state prison, though it may lie within the discretion of the court or jury to inflict a less punishment," and even though a less punishment is in fact imposed.^" Where a statute provides that one who violates its provisions shall be deemed to have "feloniously" committed the act, the of- fense is thereby made a felony; and so, also, if it provides for punishing accessaries, as there can be accessaries in fel- onies only.^^ ■• 1 Bish. New Or. Law, § 616 ; State v. Dewer, 65 N. O. 572. Cf. Com. V. Newell, 7 Mass. 245. In the absence of a statute defining "felony" the word is used to designate such serious offenses as were formerly punished by death, or by forfeiture of lands or goods. Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494. 8 Drennan v. People, 10 Mich. 169 ; State v. Smith, 8 Blackf. (Ind.) 489; Nichols v. State, 35 Wis. 308 ; Smith v. State, 33 Me. 48, 54 Am. Dec. 607. Under Code N. C. § 1097, providing that for misdemeanors of an innocent third person, his act can neither be entitled to excusie nor reduction on the ground of fear.'' Stiness, J., In State v. Nar- gasliian, 26 R. I. 304, 58 Atl. 953, 106 Am. St. Rep. 715, 3 Ann. Gas. 1026. 17 See Reg. v. Leslie, 8 Cox, Cr. Gas. 269. 18 1 Hawlr. P. C. c. 1, § 14; People v. Richmond, 29 Gal. 415. 18 Com. V. Hadley, 11 Mete. (Mass.) 66; Sanders v. State (Tex. Gr. App.) 26 S. W. 62. 20 U. S. V. Jones, 3 Wash. G. G. 209, Fed. Gas. No. 15,494; V. S. V. Garr, 1 Woods, 480, Fed. Gas. No. 14,732; Com. v. Blodgett, 12 Mete. (Mass.) 56; RIGGS v. STATE, 3 Cold. (Tenn.) 85, 91 Am. Dec. 272, Mikell lUus. Gas. Criminal Law, 63; In re Fair (C. C.) 100 Fed. 149 ] 02 CAPACITY FOE CRIME AND EXEMPTIONS (Ch. 5 while he is not excused in carrying out an illegal order of his superior, yet, if such order appear legal on its face, he is bound to obey it, and it will be a protection to him.''^ A somewhat dififerent rule, as will be seen, applies to acts done by a married woman in the presence of her husband.''^ SAME— COERCION— MARRIED WOMEN 40. If a married woman, in the presence of her husband, commits an act which would be a crime under other circumstances, she is presumed to have acted under her husband's coercion, and such coercion excuses her act,^' but this presumption may be re^ butted if the circumstances show that in fact she was not coerced. EXCEPTIONS— This rule is subject to exceptions in cases of treason, murder, probably robbery, and of those crimes which are from their nature generally committed by women. The ground on which a married woman is prima facie not criminally liable for wrongful acts done in the presence of her husband is coercion, it being presumed from the marital 21RIGGS V. STATE, 3 C!old. (Tenn.) 85, 01 Am. Dec. 272, MiUell lUus. Gas. Criminal Law, 63. Where a member of the militia, called out to suppress rioting and disorder, without malice, and under the order of an oflicer, commits a homicide, he is excusable, unless It was manifestly beyond the scope of his authority and he must have known that the act was Illegal as a man of ordinary understanding. A soldier Is liound to obey the orders of his superior officer, where such orders do not clearly show their own Illegality, and such order will be a protection to the soldier. Com. v. Shortall, 206 Pa. 165, 55 Atl. 952, 65 Ij. R. A. 193, 98 Am. St. Rep. 759. 22 Post, § 40. 2SJ. icel. (A. D. 1664) 31; Reg. v. Dykes, 15 Cox, Cr. Cas. 771; Com. V. Neal, 10 Mass. 152, 6 Am. Dec. 105; Davis v. State, 15 Ohio. § 40) JUSTIFICATION 103 relation that she acted by his command, and under the im- pulse of fear. She must, however, have been in his pres- ence, or so near that he could have exerted an immediate influence and control.^* It is doubtful what crimes are ex- cepted from this rule. It seems, however, that it does not apply to treason, murder, or robbery,'" nor to crimes of a domestic nature, such as keeping a bawdy house, in which the wife may be supposed to have a principal share.'" The presumption is always rebuttable by evidence showing that there was no coercion. '' In one state, at' least, this prcr sumption is not recognized, but the burden of proving co- 72, 45 Am. Dec. 559; State v. Kelly, 74 Iowa, 589, 38 N. W. 503; State V. Houston, 29 S. O. 108, 6 S. E. 943. Under Georgia Code, see Bell V. State, 92 Ga. 49, 18 S. E. 186. 2* Com. V. Butler, 1 Allen (Mass.) 4 ; Com. v. Feeney, 13 Allen (Mass.) 560; Com. v. Burk, 11 Gray (Mass.) 437; Com. v. Munsey, 112 Mass. 287 ; State v. Potter, 42 Vt 495 ; Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684. Mere proximity not sufBcient. State v. Shee, 13 R. I. 535; Com. v. Daley, 148 Mass. 11, 18 N. E. 579. Must ap- pear that ".violent threats, command, and coercion were used" (un- der Code). Bell v. State, 92 Ga. 49, 18 S. E. 186. 26 J. Kel. 31 ; Bibb v. State, 94 Ala. 31, 10 Sputh. 506, 33 Am. St Rep. 88 ; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559. Contra as to robbery. Reg. v. Dykes, 15 Cox, Cr. Cas. 771. And see People v. Wright, 38 Mich. 744, 31 Am. Rep. 331 ; Miller v. State, 25 Wis. 384; Com. v. Daley, 148 Mass. 11, 18 N. E. 579. No presumption in perjury, where wife testified in favor of husband on Indictment against him, she not being compellable to testify. Com. v. Moore, 162 Mass. 441, 38 N. E. 1120. 20 4 Bl. Comm. 29; Reg. v. Williams, 10 Mod. 63;. even though the husband resided in the house and furnished, and provided for it, Com. V. Cheney, 114 Mass. 281. But see State v. Hoelch^r, 163 Mo. App. 352, 143 S. W. 850. 2' Blakeslee v. Tyler, 55 Conn. 397, 11 Atl. 855; V. S. v. Terry (D. C.) 42 Fed. 317; People v. Wright, 38 Mich. 744, 31 Am. Rep. 331; Com. v. Daley, 148 Mass. 11, 18 N. E. 579; Miller v. State, 25 Wis. 384 ; State v. Williams, 65 N. C. 400 ; State v. Ma Foo, 110 Wo. 7, 19 S. W. 222, 33 Am. St Rep. 414. By slight circumsta'nces. State v. Cleaves, 59 Me. 302, 8 Am. Rep. 422. May be shown that 104 CAPACITY FOR CRIME AND EXEMPTIONS (Ch. 5 ercion is by statute cast upon the wife.^' This common- law rule as to a married woman's criminal responsibility is not changed by the "married women's acts" in the different states, removing their civil disabilities ; but in some states it is expressly enacted that it is no defense that a criminal act was committed by her in the presence of her husband.^* SAME— NECESSITY 41. Physical necessity or impossibility is an excuse for fail- ure to perform a duty imposed by law. How far an act which would otherwise be a crime may be excused if done, not in defense, but to avoid other- wise inevitable consequences, which would inflict upon him or others whom he is bound to protect ir- reparable evil, is doubtful. It seems that no man can, on the plea of necessity, excuse himself for taking the life of an innocent person. It is doubtful how far the mere pressure of circumstances, as distinct from duress or coercion as above explained (ex- cept the circumstances which will be hereafter considered in treating of justification and excuse of homicide and of as- sault), is a justification for the commission of otherwise criminal acts.'" It is probably the law that no man can husband was crippled and incapable of coercion, Reg. v. Pollard, 8 Car. & P. 553. 28 Freel v. State, 21 Ark. 212; Edwards v. State, 27 Ark. 493. 2» Pen. C!ode Minn. § 22. 80"An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid con- sequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose: § 4:1) JUSTIFICATION 105 excuse himself under the plea of necessity for taking the life of an innocent person.'^ Lord Bacon, indeed, in his Maxims, states that: "If divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, * * * ^^d another, to save his life, thrust him from it, whereby he is drowned, this is * * * justifiable." '^ But this statement of the law was disap- proved by the English court in a case where it was held that shipwrecked persons, who put to death a boy upon the chance of preserving their lives by feeding upon the body, although otherwise they would probably not have survived, and the boy, being in a weak condition, was likely to have died before them, were guilty of murder.^^ A somewhat similar case had previously arisen in this country, where a sailor was charged with felonious homicide in throwing passengers out of a boat to save his life. The court said that, if two persons who owe no duty to one another, should be placed in a position where both cannot survive, neither would commit a crime in saving his life in a struggle for the only means of safety; but the court held that, as the defendant was a seaman, and the persons thrown out were passengers, the defendant owed them a duty, and was not justified in sacrificing their lives to save his own.''* and that the evil Inflicted by It was not disproportionate to the evil avoided." Steph. Dig. Or. Law, art. 32, citing Rex v. Stratton, 21 How. St. Tr. 1045, Bac. Max. No. 5, and (with some adverse comment) U. S. V. Holmes, 1 Wall. Jr. 1, Fed. Cas. Xo. 1.5,.3S3. See criticisms upon this article and uiwn the cases cited by Ixird Coleridge in. Reg. V. Dudley, 15 Cox, Cr. Cas. 624, 14 Q. B. Dlv. 273. SI Reg. V. Dudley, 15 Cox, Cr. Cas. 624, 14 Q. B. Div. 273; Arp V. State, 97 Ala. 5, 12 South. 301, 19 1.. R. A. 357, 38 Am. St. Rep. 137. But see U. S. v. Holmes, 1 Wall, Jr. 1, Fed. Cas. No. 15,383. 8 2 Bac. Max. No. 5. 53 Reg. V. Dudley, supra. 54 U. S. V. Holmes, supra. The court also said: "When a ship Is 106 CAPACITY FOE CRIME AND EXEMPTIONS (Ch. 5 Lord Bacon also says that, "if a man steals viands to sat- isfy his present hunger, this is no felony nor larceny";" but this is probably not the law at the present day." It has been held, however, on an indictment for retailing spir- ituous liquors without a license, where it appeared that the sale was made by druggists on a physician's prescription, and was bought, sold, and used in good faith as medicine, that the defendant was not guilty, on the ground that the sale was not within the mischief which the statute was in- tended to suppress.'' It has also been held that one is not guilty of the breach of a statute against stopping vehicles in the street if the one which he was driving was unavoidably stopped by the exigencies of traffic." Statutes forbidding labor on Sunday usually contain a proviso excepting work of necessity. In such cases a ne- cessity brought about through the negligence of the accused is not an excuse." Physical necessity or impossibility, however, is an excuse for failure to perform a duty. Thus, where the defendant was indicted for failure to repair a highway which it was his duty to repair, and it appeared that the land over which in danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary in order to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode, and in some sort, as an appeal to God for the selection of the victim.'' "I doubt whether an English court would take this view. It would be odd to say that two men on a raft were bound to toss up as to which should go." Steph. Dig. Cr. Law, art 32, note 1. 8 6 Bae. Max., supra. 88 1 Hale, P. C. 54. See opinion of Lord Coleridge in Reg. v. Dud- ley, supra. 87 State V. Wray, 72 N. C. 253. 88 Com. V. Brooks, 99 Mass. 434. 8B State V. Goft, 20 Ark. 289. § 42) PROVOCATION 107 the road passed had been washed away by the sea, it was held that this, being an act of God, relieved him from lia- bility."" PROVOCATION 42. Provocation is no ground for exempting one absolutely from criminal responsibility for his acts, but may be ground for mitigating the punishment. A person who commits a crime cannot escape liability al- together by showing that he was provoked; but the fact that a crime was committed under provocation may some- times be ground for inflicting less severe punishment in cases of homicide and assault. The law in these cases re- gards the infirmities of human nature, and recognizes the fact that a man may be provoked to such an extent that in the heat of sudden passion, caused by the provocation, he may strike a blow before he has had time to think and to control himself, and therefore does not punish him so se- verely as if he had acted deliberately. This is a matter re- lating more peculiarly to homicide, and will be fully ex- plained when we come to treat of homicide.*^ *» Reg. V. Bamber, 5 Q. B. 279. See, also. Com. v. Brooks, 99 Mass. 434. *i Post, p. 218. 108 PARTIES CONCERNED IN COMMISSION OF CRIMES (Ch. 6 CHAPTER VI PARTIES CONCERNED IN THE COMMISSIOX OF CHIMES 43. Effect of Joining in Criminal Purpose. 44rA5. Principals and Accessaries. 46. Principals In the First Degree. 47. Principals in the Second Degree. 48. Accessaries before the Fact. 49. Accessaries after the Fact. 50-51. Use of Terms. "Aider and Abettor" and "Accomnplice." 52. Principal's Liability for Acts of Agent. 53. Agent's Liability for His Own Acts. EFFECT OF JOINING IN CRIMINAL PURPOSE 43. Where several persons join in the execution of a com- mon criminal purpose, each is criminally liable for every act done in the execution of that purpose, whether done by himself or by his confederate.' A crime is not always committed by a single individual ; several persons may be concerned in different degrees, some of them by actually doing the deed, others by standing by and abetting it, others by having advised or commanded it, though absent when it is committed, and still others by as- sisting in the escape of one concerned. Whenever persons join for the purpose of executing a common criminal pur- pose, each one is the agent of the other as to all acts in furtherance thereof, and each is criminally liable for such acts of the others. It is otherwise, however, as to acts not in furtherance of the common purpose. This, of course, does not apply to persons assisting after the act. We will 1 Spies V. People, 122 111. 1, 12 N. E. 865, 17 N. E. 898, 3 Ahl. St Rep. 320. See, also, post, pp. 115, 120, 162. §§ 44-45) PRINCIPALS AND ACCESSARIES 109 now see what these degrees of criminality are, the extent of participation necessary to render one liable, the acts for which each participant is liable, and the nature of his lia- bility. PRINCIPALS AND ACCESSARIES 44. Parties concerned in the commission of felonies are principals or accessaries according as they are pres- ent or absent \yhen the act i? committed. Principals are either: (1) Principals in the first degree, or (2) Principals in the second degree. Accessaries are either: (1) Accessaries before the fact, or (2) Accessaries after the fact. 45. The distinction between principals and accessaries is recognized in felonies only. This distinction between principals and accessaries is rec- ognized in felonies only.^ The same participation or assist- ance which in case of a felony would make one an accessary before or after the fact will make him a principal in trea- 2 2 Co. Inst 183; 1 Hale, P. G. 233; 4 Bl. Comm. 35; Reg. v. Clayton, 1 Car. & K. 128; Ward v. People, 6 Hill (N. Y.) 144; Baker V. State, 12 UMo St. 214; Van Meter v. People, 60 111. 168; Stevens V. People, 67 111. 587; Stratton v. State, 45 Ind. 468; State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; State v. Murdoch, 71 Me. 454 ; State V. Lymbum, 1 Brev. (S. O.) 397, 2 Am. Dec 669; Com. v. Gannett, 1 Allen (Mass.) 7, 79 Am. Dec. 693; State v. Gaston, 73 N. C. 93, 21 Am. Rep. 459; Engeman v. State, 54 N. J. Law, 247, 23 Atl. 676 ; Klnnebrew v. State, 80 Ga. 232, 5 S. E. 56. This principle applies to actions for penalties for breach of municipal ordinances. Village of St. Johnsbury v. Thompson, 59 Vt 300, 9 Atl. 571, 59 Am. Rep. 731. 110 PARTIES CONCERNED IN COMMISSION OP CRIMES (Ch. & son." In case of a misdemeanor, all those who counsel or abet its commission, and who would be accessaries before the fact if the crime were a felony, are treated as princi- pals ; * while those who assist after the act, and who would be accessaries after the fact in case of a felony, are not pun- ished at all for the particular misdemeanor. They may, however, be guilty of other substantive crimes, such as rescue and obstructing an officer. PRINCIPALS IN THE FIRST DEGREE 46. A principal in the first degree is the person who actually perpetrates the deed, either by his own hand or through an innocent agent," To constitute one a principal in the first degree, he need not necessarily be present when the crime is consummated. One who lays poison ' or sets a spring gun for another is a principal in the first degree, though he is absent when the poison is drunk or the gun discharged. Nor need he do the deed by his own hand. It may be done through an inno- cent agent as, for instance, where one incites a child or an insane person to set fire to a house or to kill another, or procures such a person, or a person ignorant of the facts, to administer poison,^ or to utter a counterfeit bank note or » Reg. y. Tracy, 6 Mod. 30. * Blackstone says that In treason all are principals propter odium' delicti, and in misdemeanors, because the law does not descend to distinguish the different degrees of guilt. 4 Bl. Comm. 36. 4 131. Comm. 34, 35; 1 Hale, P. C. 615. 8 3 Co. Inst. 138; Fost. Crown Law, 349; State v. Fulkerson, 61 N. C. 233 ; Blackburn v. State, 23 Ohio St 146. 7 Reg. V. Michael, 2 Moody, Or. Cas. 120 ; Collins v. State, 3 Heislt. (Tenn.) 14. § 46) PEINCIPALS IN THE FIBST DEGREE 111 a forged instrument." The term "innocent agent" is not confined to one morally innocent; it embraces any agent not himself legally responsible for the act. Thus, in those jurisdictions where it is held that a woman cannot be convicted of larceny of her husband's property, one who procures her to decamp with her husband's goods is a principal in the first degree, though he is absent when the act is done.' Where a child is employed to do the act, the question whether the employer is guilty as a principal in the first degree depends on whether the child is himself legally responsible." If the agent is legally responsible for his own acts, the instigator is only an accessary before the fact, if he is absent when the crime is committed. When one acts through an agent, he can himself be guilty as a principal in the first degree only where the agent is in- nocent;^ ^' Where several persons each perform some one or more of a series of acts necessary to constitute the crime intended, as in case of counterfeiting or forging, all are joint principals in the first degree, though some may be absent when the' final act is done.^" A person in one state, 8 Keg. V. Taylor, 4 Fost. & F. 511; Com. v. Hill, 11 Mass. 136; Bishop V. State, 30 Ala. 34. Procuring instrument to be forged, or die made for counterfeiting, Reg. v. Banner, 2 Moody, Cr. Cas. 309; Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774; State v. Shurt- llfE, 18 Me. 368. Procuring child to commit burglary or larceny, REG. V. MANLET, 1 Cox, Cr. Cas. 104, Mikell Illus. Cas. Criminal (Law, 70 ; State v. Learnard, 41 Vt. 585. Obtaining property by false pretenses, through innocent agent, Adams v. People, 1 N. Y. 173. » Reg. V. Flatman, 14 Cox, C. C. 396. 10 See, ante, p. 58. 11 VVixson V. People, 5 Parker, Cr. R. (N. Y.) 129. 12 Rex V. Bingley, Russ. & R. 446; Rex v. Kirkwood, 1 Moody, Cr. Cas. 304. Stealing property, carrying away part in confederate's absence, Reg. v. Kelly, 2 Car. & K. 379. Uttering forged checks, Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564. 112 PARTIES CONCBKNED IN COMMISSION OF CRIMES (Ch. 6 committing an act in another state through an innocent agent, is liable, as having himself committed the act in the latter state.^* PRINCIPALS IN THE SECOND DEGREE 47. A principal in the second degree is one who is actually or constructively present, aiding and abetting an- other in the commission of the deed.^* (a) He must be present, actually or constructively, and (b) He must aid or abet the commission of the act. (c) There must be community of unlawful purpose at the time the act is committed. (d) Such purpose must be real on the part of the princi- pal in the first degree. Constructive Presence Though presence at the time the deed is done is essen- tial to make one a principal in the second degree,^' his pres- ence may be constructive.'" He need not be an eye and ear witness to the deed. Thus, if a person intends to as- sist, and is sufficiently near to do so, as where he is watch- ing outside a house, while another is committing a burglary or other felony inside, he is regarded as being present.^' 13 People V. Adams, 3 Denio (N. Y.) 190, 45 Am. Dec. 468. See Clark, Cr. Proc. 14. "4 Bl. Oomm. 34, 35; 1 Hale, P. C. 61.5. 15 Rex V. Soares, Russ. & R. 25; Wlxson v. People, 5 Parker, Cr. R. (JN. y.) 129. 16 Fost. Crown Law, 349, 350; U. S. v. Boyd (0. C.) 45 Fed. 851, at page 867. 17 Com. V. Knapp, 9 Pick. (Mass.) 496, at page 516, 20 Am. Dec. 491 ; Tate v. State, 6 Blackf. (Ind.) 110 ; Doan v. State, 26 lud. 495; Mitchell V. Com., 33 Grat. (Va.) 845; Collins v. State, 88 Ga. 347, 14 S. E. 474; People v. Repke, 103 Mich. 459, 61 N. W. 861; Com. V. Clune, 162 Mass. 206, 38 N. B. 435. § 47) PRINCIPALS IN THE SECOND DEGREE 113 So, also, if he is within a convenient distance, with intent to aid in a murder if his aid is necessary.^' For the purpose of robbing a stage, a person signaled his confederates, to in- form them of its approach, by lighting a fire on a distant mountain. He was held to have been constructively pres- ent, and a principal in the second degree.^" So, also, where a person decoyed the owner of a house to another place, and detained him there while his confederates committed a bur- glary ini the house.^" A person, if present, must be a prin- cipal, if guilty at all. He cannot be an accessary; ^^ for, as we shall see, absence is essential to make one an accessary. Aiding and Abetting To aid or abet the commission of a crime is to assist or encourage the actual perpetrator. There must be some par- ticipation.^^ Mere presence and neglect to endeavor to 18 state V. Chastaln, 104 N. C. 900, 10 S. E. 519. i» State V. Hamilton, 13 Nev. 3S6. 20 Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340. 21 Williams v. State, 47 Ind. 5(38. 22 A boy was negligently sbot by one of several persons who went out together to shoot at a mark. The others were held liable aa principals in the second degree. Keg. v. Salmon, 6 Q. B. Dlv. 79. Picking of a pocket by one of several confederates, Com. v. For- tune, 105 Mass. 592. And see, for larceny from the person, People V. Sligh, 48 Mich. 54, 11 N. W. 782 ; encouraging obstruction of rail- road track, State v. Douglass (Kan.) 24 Pac. 1118 ; murder, com- manding another to shoot. State v. Noeninger, 108 Mo. 166, 18 S. W. 990; preparing to receive property to be stolen, and receiving the same (under statute), Watson v. State, 21 Tex. App. 598, 17 S. W. 550; Montgomery v. State (Tex. Cr. App.) 23 S. W. 693. And see Wlxson v. People, 5 Parker, Cr. E. (N. Y.) ,119. A female friend who accompanies the woman Is not an accomplice in abortion. Peo- ple V. McGonegal, 136 N. Y. 62, 32 N. E. 616. Aider actuated by threats and fear, danger must be to life or member, and must be pres- ent and Immediate. Burns v. State, 89 Ga. 527, 15 S. B. 748. But a prisoner who accepts the aid of another person in effecting an escape Claek CE.L.3D Ed. — 8 114 PARTIES CO|)JCERNED IN COMMISSION OF CRIMES (Ch. 6 prevent a felony will not of itself make one a principal in the second degree ; ^' and this is true even though the per- son so present is to be benefited by the deed. Presence, under such circumstances, however, might raise the pre- sumption of participation.^* Nor will mere mental approv- al or sympathy make one guilty.^' The assistance need not be physical. It may consist in mere encouragement to do the act.^' Thus, it is sufficient to make one a principal if does not aid and abet in his own escape, Asli v. State, 81 Ala. 76, 1 South. 558 ; nor Is a woman on whom an abortion is committed a principal in the crime, Peoples v. Ck>m., 87 Ky. 487, 9 S. W. 509. Where a statute forbids the sale of lottery tickets, one who buys such tickets does not aid and abet the sale, People v. Emerson (Sup.) 5 N. Y. Supp. 374; nor does a purchaser of liquor aid and abet the seller. People V. Smith, 28 Hun (N. Y.) 627; Com. v. Willard, 22 Pick. (Mass.) 476; State V. Baden, 37 Minn. 212, 34 N. W. 24. 23 Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370; Hilmes v. Stroebel, 59 Wis. 74, 17 N. W. 539 ; People v. Ah Ping, 27 Cal. 489 ; People V. Woodward, 45 Cal. 293, 13 Am. Rep. 176; Clem v. State, 33 Ind. 418 ; State v. E"an-, 33 Iowa, 553 ; State v. Hildreth, 31 N. C. 440, 51 Am. Dec. 369; State y. Douglass, 44 Kan. 618, 26 Pac. 476; Coins v. State, 46 Ohio St. 457, 21 N. E. 476; EBG. v. CONEY, 8 Q. B. Div. 534, Mikell Illus. Gas. Criminal Law, 5; State v. Wolf, 112 Iowa, 458, 84 N. W. 536. 24 Com. V. Stevens, 10 Mass. 181. A statute of Colorado (Gen. St 1883, § 701) provides thati one is an accessary during the fact who stands by, without interfering or giving such help as may be in his or her power, to prevent a criminal offense from being committed. 2 5 White v. People, 81 111. 333; State v. Cox, 65 Mo. 29; Clem v. State, 33 Ind. 418 ; True v. Com., 90 Ky. 651, 14 S. W. 684. 2 8 McMahon v. State, 168 Ala. 70, 53 South. 89; MitcheU v. Com. (Ky.) 14 S. W. 489. In People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. SL Rep. 857, the prisoner, desiring to obtain a divorce, agreed with one R. that R. should persuade the prisoner's wife to have intercourse with R. The prisoner concealed himself in an ad- joining room. R. failed to persuade the wife and so raped her ; the prisoner witnessing the wife's struggles. Held, the prisoner was a principal in the second degree. The court said: "The husband was not a mere passive looker-on. • • • When the wife screamed, and respondent did not interfere, he (R.) knew that the husband was § 47) PKINCIPALS IN THE SECOND DEGREE 115 he watches so as to warn the person actually committing the deed, or if he is present, or near by, to the actual perpe- trator's knowledge, with an intention of assisting him if necessary.^^ One may be guilty as principal in the second degree though he could not possibly perpetrate the deed himself. A woman, for instance, may be so guilty of rape if she encourages another to commit it.^' Community of Unlawful Purpose As stated in the black-letter text, there must also be a community of unlawful purpose at the time the act is com- mitted ; for one is not responsible for the act of another un- less he expressly or impliedly authorized the other to do that act.^° Acts done by one of a party, but not in pursu- ance of the arrangement, will not, therefore, render the oth- ers liable as principals.^" Thus, if two persons start out to commit a burglary or robbery, and on the way one of them kills a man,'^ or sets fire to a house, the other, not having contemplated such an act, is not a principal.** willing lie should succeed in the accomplishment of the intercourse by force, if necessary. ♦ » *. And the presence of the husband in the next room, waiting to catch the parties together, * ♦ • im- parted to him a confidence in his undertaking." »i See cases cited In foot notes 17 and 18. 2 8 State V. Jones, 83 N. C. 605, 35 Am. Eep. 586; Kessler v. Com., 12 Bush (Ky.) 18. 29 Intention not communicated to principal in first degree is not sufficient. White v. People, 139 111. 143, 28 N. E. 1083, 32 Am. St. Eep. 196. The common purpose need not be formed before con- vening at place of crime. Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Kep. 682; McCk)y v. State, 91 Miss. 257, 44 South. 815. 30 Ferguson v. State, 32 Ga. 658. Two joining to commit assault, one is not liable for robbery done by the other. People v. Foley, 59 Mich. 553, 26 N. W. 699; Omer v. Com., 95 Ky. 353, 25 S. W. 594; State V. May, 142 Mo. 135, 43 S. W. 637. 31 DufEey's Case, 1 Lewin, Cr. Cas. 194. 3 2 Rex V. White, Russ. & R. 99; Lamb v. People, 96 lU. 73; People 116 PARTIES CONCERNED IN COMMISSION OF CRIMES (Ch. 6 It is hot necessary, however, to show that one expressly authorized the other to do the act; if the act done by one were within the purview of the common design, or even, perhaps, if it were a natural and probable consequence of the common unlawful purpose, they are equally liable.^^ Thus, where two persons start out to commit a burglary or robbery, and, encountering resistance from the owner of the house or person to be robbed, one of them kills him, the V. Knapp, 26 Mich. 112. Where the defendant and others went armed to commit a burglary, but abandoned the plan, and on their way back met a policeman, who apparently undertook to arrest and search them, and in the mel6e which ensued the officer was killed, the court affirmed a conviction of murder in the first degree, holding that the evidence of preparations to kill made in connection with the proposed burglary was sufficient proof of deliberate purpose. People v. Woods, 147 Gal. 265, 81 Pac. 652, 109 Am. St. Rep. 151. as Martin v. State, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Williams v. State, 81 Ala. 1, 1 South. 179, 60 Am. Rep. 133 ; Statte v. Johnson, 7 Or. 210. Several defendants conspired with one another to upset a bakery wagon owned by a baker whose employfis were on strike, and destroy the contents, and that K., one of the conspira- tors, should beat the driver. On the arrival of the wagon K. shot and killed the driver. It was held that the other conspirators were guilty of murder, though they did not know that K. was armed. Peo- ple v, Gukouski, 250 111. 231, 95 N. B. 153, Ann. Gas. 1912B, 297. "The prisoners may be guilty of murder, though they neither took part in the killing, nor assented to any arrangement having for its object the death of [the deceased]. It is sufficient that they combined with those committing the deed to do an unlawful act, such as to beat or rob [the deceased], and that he was killed in the attempt to execute the common purpose." Brennan v. People, 15 111. 511. In ■ State V. Darling, 216 Mo. 450, 115 S. W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526, defendant conspired with his brother merely to whip the deceased. The brother struck deceased with a piece of iron which he had concealed in his hand. Defendant did not know that his brother intended to use the iron on deceased. The court held that defendant was guilty of homicide. See, further, 57 Univ. of Pa. L. Rev. 635. § 47) PEINCIPALS IN THE SECOND DEGREE 117 Other is a principal in the murder.''* So, also, where several persons start out to beat a man, and one of them kills him, they are all principals.^'' The community of unlawful pur- pose must exist at the time the felony is committed. If one joins in an agreement to murder, but, before the deed is committed, repents, and notifies his confederates of that fact,'° he is not a principal in the murder. Nor is one a principal who, after a robbery has been committed, and the stolen property has been carried some distance, is told of the robbery, and helps carry the property away, as the rob- bery is complete before he assists.*^ As stated in the black-letter text, the unlawful purpose must be real on the part of the principal in the first degree ; that is, it must be such that, when he perpetrates the deed, he himself will also be criminally liable. This question will arise where a person apparently enters into a confederacy for the purpose of entrapping his confederate, and is not guilty when he commits the act, because of his want of criminal intent.'* A person joining another for the pur- 8 4 Fost. Crown Law, 369; Reg. v. Jackson, 7 Cox, Cr. Cas. 357; Euloff V. People, 45 N. Y. 213? Miller v. State, 25 Wis. 384; Mitch- ell V. Com., 33 Grat. (Va.) 845; State v. Barrett, 40 Miiin. 77, 41 N. W. 463; Brennan v. People, 15 111. 511; State v. Jolmson, 7 Or. 210 ; Hamilton v. People, 113 111. 34, 55 Am. Rep. 396. S5 Peden v. State, 61 Miss. 268. Common purpose to kill one man; all guilty if one of them, in the attempt, kills the wrong man. State V. Johnson, 7 Or. 210. Person becoming involved in a fight not on that ground alone an aider and abettor of a homicide by another person. Woolweaver v. State, 50 Ohio St. 277, 34 N. E. 352, 40 Am. St. Rep. 667. 36 STATE V. ALLEN, 47 Conn. 121, Mikell lUus. Cas. Criminal Law, 75. B' Rex V. king, Euss. & R. 332. s s Ante, p. 12, and cases cited. People v. Collins, 53 Cal. 185 ; State V. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360; State V. Jansen, 22 Kan. 498. 118 PARTIES CONCERNED IN COMMISSION OF CRIMES (Ch. 6 pose of entrapping, as in the case of detectives, does not be- come a principal in the Second degree, nor accessary be- fore the fact, when the crime is committed by his confeder- ate.'* Where a specific intent is an essential ingredient of the crime with which one is charged as principal in the sec- ond degree, as, for instance, in assault with intent to mur- der, it must be shown that the accused knew that the prin- cipal in the first degree had such an intent. It is not enough to show that he aided him in his act.*" Punishment and Procedure This distinction between principals in the first and in the second degree has almost become obsolete. There are, however, in some states statutes prescribing different pun- ishments ; and, where such is the case, a principal in the second degree must be indicted and tried as such. In the absence of such a statute, the distinction need not be made, and one may be indicted as a principal in the first degree, and convicted as a principal in the second degree, and vice 89 People V. Bari-ic, 49 Cal. 342; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; Price v. People, 109 111. 109; Campbell v. Com., 84 Pa. 187 ; Com. v. Downing, 4 Gray (Mass.) 29 ; State v. Anone, 2 Nott & McC. (S. C.) 27; Com. v. Hollister, 157 Pa. 13, 27 Atl. 386, 25 L. R. A. 349; State v. McKean, 36 Iowa, 343, 14 Am. Rep. 530; State V. Beaucleigli, 92 Mo. 490, 4 S. W. 666. Policeman frequent- ing gaming house, and afterwards exposing it, not an accomplice. Com. V. Baker, 155 Mass. 287, 29 N. E. 512. Where A. received money from B. to make an illegal purchase of whisky from Y., and, at the request of the deputy sheriff, who promised him immunity, made the purchase in order to acquire evidence against Y., it was held that he might be convicted under a statute making it a crime to act as agent of the buyer in an unlawful sale of intoxicating liquor. Brantley v. State (Miss.) 65 South. 512^ *o Reg. V. Cruse, 8 Car. & P. 546; State v. Taylor, 70 Vt 1, 39 Atl. 447, 42 L. E. A. 673, 67 Am. St Rep. 648. And see Meister v. People, 31 Mich. 99. § 48) ACCESSAEIES BEFOBB THE FACT 119 versa. *^ A principal in the second degree may be pun- ished before the principal in the first degree has been tried ; *^ and it seems that he may be convicted of a higher offense than the principal in the first degree — of murder, for instance, where the latter has been convicted of manslaugh- ter only.** is ACCESSARIES BEFORE THE FACT 48. An accessary before the fact is one who was absent when the act was committed,, but who procured, covmseled, commanded, or abetted the principal or actual doer of the act to commit it.** To be an accessary before the fact the accused must have been absent when the crime was committed by the princi- pal. If he were even constructively present, he would be a principal in the second degree. *° To abet a crime is to incite or set another on to commit it, and includes procuring, counseling, and commanding its commission. There must be some participation or instiga- 41 Huffman v. Com., 6 Hand. (Va.) 6S5 ; Warden v. State, 24 Ohio St. 143 ; Williams v. State, 47 Ind. 568 ; Com. v. Fortune, 105 Mass. 592; Hill y. State, 28 Ga. 604; Leonard v. State, 77 Ga. 764; Ool- Uns V. State, 88 Ga. 347, 14 S. E. 474; State v. Ross, 29 Mo. 32; People V. Ab Fat, 48 Cal. 62 ; State v. Fley, 2 Brev. (S. C.) 338, 4 Am. Dec. 583 ; People v. Wright, 90 Mich. 362, 51 N. W. 517 ; Benge V. Com., 92 Ky. 1, 17 S. W. 146; Albritton v. State, 32 Fla. 358, 13 South. 955 ; Clark, Cr. Proc. 156. 42 Brown v. State, 28 Ga. 216; Searles v. State, 6 Ohio Cir. Ct. R. 331 ; State v. Anderson, 89 Mo. 312, 1 S. W. 135. 43 Goins V. State, 46 Ohio St. 457, 21 N. E. 476. 44 2 Hawk. P. C. c. 29, § 16; Reg. v. Bro^vn, 14 Cox, Cr. Cas. 144. 4 5 Williams v. State, 47 Ind. 568; Reg. v. Brown, 14 Cox, Cr. Cas. 144; Rex v. Kelly, Euss. & Ry. 421. Compare Atterberry y. State, 56 Ark. 515, 20 S. W. 411. 120 PARTIES CONCBKNBD IN COMMISSION OF CRIMES (Ch. 6 tion to make one an accessary. Mere previous knowledge and approval is not enough.*' The bare concealment of the fact that a felony is about to be committed,*^ or the failure to endeavor to prevent it, is not sufficient, although it may make one guilty of a substantive crime. But it is not es- sential that the accessary partake of the fruits of the crime.*' While there must be some communication between an ac- cessary and the principal, it need not be direct, but may be through a third person, as where one procures another to procure a third person to commit a crime ; and in such case it is not even necessary that he know who the third person is to be.** Nor does it make any difference how long a time may elapse between the counsel or command and the com- mission of the act, so long as the counsel or command insti- gates the commission. For What Acts Accessary Ansiverable A person is answerable as accessary before the fact for all probable consequences which ensue from his counsel or command to do an unlawful act, but he is not liable if the act done is essentially different from that counseled or com- manded.'*" Thus, if one counsel another to beat a person, and the beating results in death, the person so counseling is IRACX (Ch. 7 tent." The former conveys the idea of physical effort to ac- complish an act; the latter, the state of mind with which an act is done or contemplated.' It would be difficult to give a definition of "attempt" which would clearly draw the line between those acts done with intent to commit a crime and tending towards, but falling short of its com- mission, which the criminal law notices, and those acts done with like intent which it deems too trivial, or not suffi- ciently proximate to the result intended, to notice.' To constitute an attempt there must be an act done in pursu- ance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be in- explicable as a lawful act, and must be more than mere preparation. When this combination of intent and overt act falling short of the intended crime concurs, the sub- stantive crime of attempt is committed. Whether the act done goes beyond preparation to commit the crime, and amounts to an attempt to commit it, is a question of degree. If the act done comes very near to the accomplishment of the intended crime, the intent to com- plete it renders the crime so probable that public policy re- quires that it be punished, though there is still a locus pcjenitentiss, in that there is necessary a further act reqviir- ing a further exertion of the will to complete the crime.' Buying a gun for the purpose of killing another is a mere preparation, and is not an attempt to murder, but it would be diff. 895; People 156 ATTEMPTS, SOLICITATIONS, AND CONSPIRACY (Ch. 7 Under the statutes of some of the states, however, and un- der some of the federal statutes relating to conspiracies, an overt act is expressly required. Character of the Acts Contemplated Where the object of the combination is to commit any crime, or where the object is lawful, but is to be attained by committing a crime, which is virtually the same thing, th'e conspiracy is always criminal. It will be noticed that, in the second division of the crime, it is stated that it is a crim- inal conspiracy to combine for the purpose of effecting a lawful object by unlawful means. Where the means to be used amount to a crime, as has just been stated, there is no difficulty in pronouncing the conspiracy criminal. The dif- ficulty arises where the means amount merely to a civil wrong, and this applies equally to the third division of the crime. A combination of persons to commit a wrong, either as an end or as the means to an end, is so much more dan- gerous, because of the increased power to do the wrong, that the law, in some cases, regards it as criminal, whereas, if the wrong were attempted or even done by a single in- dividual, the act would not be punished as a crime, but the injured person would be left to his civil action for redress. The injury to the public generally would be regarded as too V. Mather, 4 Wend. (N. T.) 229, 21 Am. Dec. 122; Ochs v. People, 124 111. 399, 16 N. E. 662; STATE v. BUCHANAN, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell Illus. Cas. Criminal liaw, 95; State v. Noyes, 25 Vt. 415; People v. Richards, 1 Mich. 216, 51 Am. Dec. 75 ; People V. Arnold, 46 Mich. 268, 9 N. W. 406 ; State v. Pulle, 12 Minn. 164 (Gil. 99) ; U. S. v. Lancaster (C. C.) 44 Fed. 896, 10 L. R. A. 333. In conspiracy, "the confederation or agreement is itself the offense. The unlawful agreement makes the crime, and it is complete the moment the agreement is entered into. It may be followed by one overt act, or a series ; but, as an offense, it is complete without them." State V. Setter, 57 Conn. 461, 18 Atl. 782, 14 Am. St Rep. 121. See, also, Geist v. U. S., 26 App. D. C. 594. §§ 58-60) coNSPiEACY 157 trifling to be noticed. Most of the cases of conspiracy which arise are doubtl'ess cases in which the acts contemplated are indictable either at common law, as in case of conspiracies to murder, to rob, or to cheat by false weights and meas- ures, or under statutes, as in case of conspiracies to obtain property by false pretenses; but, according to the great weight of authority, acts need not necessarily be indictable at all, in order that a conspiracy to commit them be crim- inal. It is sufficient if they are unlawful. There are a few cases which require /the acts contemplated to be indicta- ble,"' but many of them have been overruled, and the great weight of authority is to the contrary. It has frequently been held a crime to conspire to defraud a person out of his property where the fraud amounted neither to a cheat at common law, nor to false pretenses under the statute."' It has also been held criminal to conspire to do many oth'er acts not punishable as crimes ; as, for instance, to seduce a female where seduction was not a crime; °° to procure a 6 7 Rex V. Turner, 13 East, 228 (to commit civil trespass); Kex v. Pywell, 1 Starkle, 402 (to sell unsound horse with warranty of sound- ness) ; Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; Com. v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; Com. v. Prlus, 9 Gray- (Mass.) 127 (to cheat insurance company by procuring over- Insurance) ; State v. Straw, 42 N.H. 393 (to commit civil trespass). 6 8 Reg. V. Warburton, L. R. 1 Cr. Cas. 274; State v. Rowley, 12 Conn. 101; State v. Bumham, 15 N. H. 396; Com. v. Warren, 6 Mass. 74 ; STATE v. BUCHANAN, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534, Mikell Illus. Cas. Criminal Law, 95 ; State v. Mayberry, 48 Me. 218; dictum in State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649. To cheat one out of his land, People v. Richards, 1 Mich. 216, 51 Am. Dec. 75 ; State v. Shooter, 8 Rich. (S. C.) 72. To make a per- son drunk, and cheat him at cards. State v. Younger, 12 N. C. 357, 17 Am. Dec. 571. To obtain property by false pretenses, Orr v. Peo- ple, 63 111. App. 305. To defraud a county by false pretenses, Peo- ple V. Butler, 111 Mich. 483, 69 N. W. 734. 69 Rex V. Lord Grey, 9 How. St Trials, 127; Smith v. People, 25 111. 17, 76 Am. Dec. 780; Anderson v. Com., 5 Rand. (Va.) 627, 16 158 ATTEMPTS, SOLICITATIONS, AND CONSPIRACY (Ch. T fraudulent and sham marriage ; '"' to effect the escape of a- female infant for the purpose of marriage, against her fa- ther's will; ^' to procure a fraudulent divorce; '^ to induce a woman to prostitute herself; '^ to slander a person, or oth- erwise injure him in his character or business ; ''* to charge a person with being the father of a bastard, in order to ex- tort money; '" to have a sane person declared insane. ''^ A conspiracy to procure others to commit a crime is a crime."" Am. Dec. 776 ; State v. Savoye, 48 Iowa, 562 (though in Iowa seduc- tion was a crime by statute). 70 State V. Murphy, 6 Ala. 765, 41 Am. Dee. 79. Ana see State v.. Sayoye, 48 Iowa, 562. ' 71 Mifflin V. C!om., 5 Watts & S. (Pa.) 461, 40 Am. Dec. 527. '2 Cole V. People, 84 111. 216 (under Illinois statute). '3 Eex V. Delavel, 3 Burrows, 1432; Keg. v. Mears, 4 Cox, Cr, Gas. 423 ; Reg. v. Howell, 4 Fost. & F. 160. ■n State V. Hickling, 41 N. J. Law, 208, 32 Am. Bep. 198 ; Crump'» Case, 84 Va. 927, 6 S. E. 620, 10 Am. St Rep. 895 ; Com. v. Tibbetts, 2 Mass. 536. A combination of persons to injure another without just cause, — such as an injury that is not an incidental effect of legitimate- ly prompting their business, — ^is a conspiracy to inflict malicious injury at common law. State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 I/. R. A. 700. An agreement by a prisoner with his bail to indemnify the latter is a criminal conspiracy, though the bail acted innocently, with no intent to allow the prisonr to escape justice. Rex V. Porter, 26 T. I* R. 200. But an agreement between theatre man- agers to exclude a critic from their theatres, the object being to pro- tect themselves from articles reflecting on their personal integrity and the religious faith of their patrons, is not a criminal conspiracy. People ex rel. Bumham v. Flynn, 189 N. Y. 180, 82 N. E. 169, 12 Ann. Cas. 420. 70 Reg. V. Best, 2 Ld. Raym. 1167, 1 Salk. 174. And see Johnson V. State, 26 N. J. Law, 313, but in the latter case the completed act would have been a crime, probably, and the conspiracy was indict- able by statute. However, see dictum. See, also, People v. Saun- ders, 25 Mich. 119. 7 8 Com. V. Spink, 137 Pa. 255, 20 Atl. 680. '7 Hazen v. Com., 23 Pa. 355. §§ 58-60) CONSPIEACT 159 ^ame — Prejudice to Public Generally — Monopolies — Trade Unions It has also been held criminal to conspire to do acts which will prejudice the public or the government generally ; as, for instance, to manufacture a spurious article to sell as genuine; '' to obtain a monopoly, and raise the price of a commodity, so as to compel consumers to purchase at an exorbitaiit price;" or, under some circumstances, to raise or lower wages. It is difficult to say to what extent it is criminal to combine for the purpose of raising wages. In England, it has been held indictable to make any combina- tion for such a purpose, but it seems that the weight of au- thority both in England and in this country, and 'both under statutes and at common law, requires that some unlawful means shall be contemplated or used, such as a breach of contract of employment, or force, or intimidation ; that wage earners may lawfully form a union, and agree among them- selves not to work for anybody for less than a certain price,, though there are cases to the contrary ; but that they are criminally liable for conspiracy if they combine to break their contract with an employer, or to prevent other wage 7 8 Com. V. Judd, 2 Mass. 329, 3 Am. Dec. 54. Combination by car- riers to destroy competition, Sayre v. Louisville Union Benev. Ass'n, 1 Duv. (Ky.) 143, 85 Am. Dec. 613. Conspiracy to defraud bank of issue, and thereby depreciate the securities for the circulation held by the public, is indictable. State v. Norton, 23 N. J. Law, 33. '» Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, at page 187, 8 Am. Rep. 159. Combination of dealers to prevent competition in sale of coal held a conspiracy, without regard to what was done, and though the object was protection from ruinous rivalry, and no attempt was made to charge excessive prices. People v. Sheldon, 66 Hun, 590, 21 N. Y. Supp. 859 ; Id., 139 N. Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690. Combination of sugar refineries to obtain monopoly, People v. North River Sugar Refining Co., 54 Hun, 354, 7 N. Y. Supp. 406, 5 U R. A. 386. See, also, post, p. 163, footnotes 97-99. 160 ATTEMPTS, SOLICITATIONS, AND CONSPIEACT (Ch. 7 earners from entering his employ by intimidation or other unlawful means.'" Under a statute making criminal con- spiracies to commit acts injurious to trade or commerce, it was held indictable for journeymen workmen to combine for the purpose of compelling master workmen to obey the rules regulating the price of their labor, the court, in the opinion, stating that a mechanic is not bound to work for any particular price, and may say that he will not make ar- ticles for less than a certain price, "but he has no right to say that no other mechanic shall make them for less. * * * If one individual does not possess such a right over the conduct of another, no number of individuals can possess such a right. All combinations, therefore, to effect such an object, are injurious, not only to the individuals particularly oppressed, but to the public at large." '^ Same — Against Public Justice and Public Peace It is also criminal to conspire to pervert or prevent pub- lic justice; as, for instance, to falsely charge another with a crime, or otherwise procure criminal process against an- other for oppression or private ends ; '^ to fabricate, destroy, 80 Reg. V. Brown, 12 Cox, Cr. Cas. 316; Com. v. Hunt, 4 Mete. 55 Fed. 149, 19 L. E. A. 403. 164 ATTEMPTS, SOLICITATIONS, AND CONSPIRACY (Ch. 7 quires some overt act to be done to effect the object of the conspiracy."' There are also other acts of Congress relat- ing to conspiracy.'" »» U. S. V. Reichert (C. C.) 32 Fed. 142. »» Conspiracy to injure, oppress, threaten, or intimidate any citi- zen in the free exercise or enjoyment of any right or privilege se- cured to liim by the constitution or laws of the United States, Rev. St § 5508. Who are "citizens," Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763, 30 L. Ed. 766. What acts within the statute, U. S. V. Lancaster (C. O.) 44 Fed. 885, 896, 10 L. R. A. 333. It is the right of a citizen to inform a marshal of a violation of the internal revenue laws; and a conspiracy to injure, oppress, threaten, or intimidate him in the exercise of this right, or because of having exercised it, is punishable under this section. In re Quarles, 158 TJ. S. 532, 15 Sup. Ct. 959, 39 L. E5d. 1080. By an act of congress, every contract or combination in the form of a trust or otherwise, or conspiracy in restraint of trade, or com- merce among the several states, and the monopolizing of, or com- bination with another to monopolize, trade or commerce among the several states, is declared a misdemeanor. Act Cong. July 2, 1890 (c 647, 26 Stat. 209). Combination to monopolize the coal market, U. S. V. Jellico Mountain Coal & Coke Co. (C. O.)' 46 Fed. 432, 12 L. R. A. 753; or lumber market, U. S. v. Nelson (D. C.) 52 Fed. 646. Ther6 are also similar statutes in the different states. Whisky trust in violation of federal statute, XJ. S. v. Greenhut (D. C.) 50 Fed. 469; In re Greene (C. C.) 52 Fed. 104. Right of state corporations to acquire and control products thereof. In re Greene (C. C.) 52 Fed. 104. Mean- ing of "monopolize," Id. The act of congress of July 2, 1890, applies to combinations 'between carriers. U. S. v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007 ; Id., 7 C. C. A, 15, 58 Fed. 58, 24 L. R. A. 73. Combination between Insurance com- panies to control and Increase rates is an unlawful trust and com- bination, in restraint of trade and products. State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 18 L. R. A. 657, 34 Am. St. Rep. 152. A con- tract between manufacturers of Iron pipe in different states, whereby free competition was restrained, and prices determined by a com- mittee, held unlawful. U. S. v. Add.vston Pipe & Steel Co., 29 C. C. A. 141, 85 Fed. 271, 46 L. R. A. 122 ; Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136. A combination Imposing restraint on interstate commerce Is unlawful, whether rea- sonable or unreasonable, and whether or not it actually raises prices. §§ 58-60) OONSPIEACY 165 U. S. V. Coal Dealers' Ass'n of California (C. C.) 85 Fed. 252; TJ. S. V. Trans-Mlssourl Freight 'Ass'n, supra. The act of July 2, 1890, ap- plies to combinations of laborers, as well as capitalists. D. S. y. Worklngmen's Amalgamated CouncU (C. C.) 54 Fed. 994, 26 L. R. A, 158. As to combinations to obstruct mails and Interstate commerce, in re Grand Jury (D. C.) 62 Fed. 840; TJ. S. v. Debs (C. C.) 64 Fed. 724 ; U. S. V. Cassidy (D. C.) 67 Fed. 69^ ; V. S. v. Elliott (C. C.) 62 Fed. 801; Thomas v. Cincinnati, N. O. & T. P. K. Co. (C. C.) 62 Fed. 803. 166 OFFENSES AGAINST THE PERSON (Ch. 8 CHAPTER VIII OFFENSES AGAINST THE PERSON 61-62. Homicide In General. 63-64. Distinction between Justifiable and Excusable Homicide. 65. Justifiable Homicide. * 66. Excusable Homicide in General. 67. Accident. 68. Excusable Self-Defense. 69. Felonious Homicide in General. 70. Murder. 71-72. Malice Aforethought. 73-74. Manslaughter in GeneraL 75. Voluntary Manslaughter. 76. Involuntary Manslaughter. HOMICIDE IN GENERAL 61. Homicide is the killing of a human being by a human being,^ and is either (a) Justifiable, (b) Excusable, or (c) Felonious. 62. To constitute homicide, (a) A human being must be killed. (b) The blow or other act miist have caused the death. (c) Death must follow the blow within a year and a day. Subject of the Homicide To constitute homicide it is essential that a human being be killed. The killing of a child in its mother's womb may be abortion ; but it is not a homicide, for until it is born it is 1 Stephen, Dig. Or. I^w, art. 218. §§ 61-62) HOMICIDE IN GENEEAL 167 not regarded in the law of crimes as a human being.* Not only must a child be wholly born to be the subject of this crime, but it must, at the time it died, have had a circulation independent of its mother.* It is not essential that it should have breathed,* or that the umbilical cord should have been severed at the time of its death. ° If the child was born and had an independent circulation at the time of its death, it is immaterial that the injury causing its death was inflicted while it was still in its mother's womb.' As a human being is the subject of homicide as soon as it has an independent circulation, so it continues to be until death. Therefore to kill a dying person, whether such per- son be dying a natural death or be dying from a wound in- flicted by another ' is murder, if the other elements of this crime are present. So of the killing of a criminal under sen- tence of death.' The Killing That one may commit homicide the first requisite is that he be the cause of the death of the deceased. The form of the death is immaterial. The cause of the death may be an act, or the death may result from an omission to act. Of course, the act or omission must have been the cause of the 2 Rex V. Brain, 6 Car. & P. 349. 3 Rex V. Enoch, 5 Car. & P. 539; Reg. v. Trilloe, 1 Car. & M. 650; Reg. V. Sellis, 7 Car. & P. 850 ; State v. Winthrop, 43 Iowa, 519, 22 Am. Rep. 257; Wallace v. State, 10 Tex. App. 255. * Rex V. Brain, 6 Car. & P. 349. 6 Reg. V. Reeves, 9 Car. & P. 25 ; Reg. v. Trilloe, 2 Moody, 260. \8 3 Inst. 50; 1 Hale, P. C. 433; Reg. v. West, 2 Car. & K. 784. ^ People v. Ah Fat, 48 Cal. 61. 8 4 Bl. Comm. 178 ; 1 Hale, P. C. 407 ; Com. v. Bowen, 13 Mass. 356, 7 Am. Dec. 154 ; Evans v. People, 49 N. Y. 86. If one inflicts a mortal wound, which, however, is not the immediate cause of the death, he is not guilty of homicide. Walker v. State, 116 Ga. 537, 42 S. E. 787, 67 L. R. A. 426. 168 OFFENSES AGAINST THE PERSON (Ch. 8 death.' It need not, however, be the sole cause ; ^^ it is suf- ficient if it were a contributing cause. ° Where, in preventing a riot, soldiers shoot at the rioters and ac- cidentally kill a bystander, the rioters are not guilty of any degree of homicide. Com. v. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705. So, where the occupant of a house fired at a burglar and accidentally killed an innocent third person, it was held that the burglar was not liable for the death. Cpm. v. Moore, 121 Ky. 97, 88 S. W. 10S5. Where a householder, in repelling burglars, shoots and kills an in- nocent third party, the burglars are not guilty of the homicide. Com. V. Moore, 121 Ky. 97, 88 S. W. 1085. Where a train robber forced the engineer to occupy a position where it was likely that he would be shot by a passenger resisting the robbery, and he was so shot, it was held that the robber was the cause of the resulting death. Taylor v. State, 41 Tex. Cr. K. 564, 55 S. W. 961. One who, in a quarrel, knocks his opponent down, whereupon a bystander kicks the latter, so as to cause death, is not guilty of such death jointly with the bystander, unless he had reason to expect or induced his inter- ference. People V. Elder, 100 Mich. 515, 59 N. W. 237. Cf. People V. Carter, 96 Mich. 583, 56 N. W. 79. Where road trustees, charged with the duty of making contracts for repair of a road, neglected to do so, whereby the road got out of repair, and a traveler was killed, they were not guilty of manslaughter. Reg. v. Pocock, 5 Cox, Cr. Cas. 172. Imprisoning a man where he may catch smallpox, if death 10 In Com. V. Costley, 118 Mass. 1, defendant shot B., giving her a mortal wound, and the body of B. was afterward found with a rope tied tightly about the neck. The court held that an instruction that "if any other cause intervened, so as to hasten her death in any de- gree, then the pistol wound was not the cause of the death," was erroneous. In State v. Hambright, 111 N. C. 707, 16 S. E. 411. A. gave B. a wound in the thigh. B. was taken next day by his own wish by railroad to another town, where he soon afterward died. It was held that "if it be conceded that the removal of the deceased * * * caused the wound — a dangerous one — to produce death, the dying is by law attributed to the wound, and the guHt is imputed to him who inflicted it." Where an officer is endeavoring to arrest one who by reason of his insanity is incapable of committing murder, and the defendant frees the lunatic's hand from the grasp of the officer, thereby enabling the lunatic to shoot the officer, the defendant is criminally responsible for the lunatic's act. Johnson v. State, 142 Ala. 70, 38 South. 182, 2 L. B, A. (N. S.) 897. §§ 61-62) HOMICIDE IN GENEKAL 169 The fact that after the blow was given the person injured neglected or refused to take proper care of himself, or to submit to an operation by which he could have been cured, is no defense ; nor is it a defense to show that the wound was improperly treated by the surgeon, and that, if it had been properly treated, the deceased might have recovered.^^ results, may be murder. Castell v. Bambridge, 2 Strange, 854. So of procuring conviction and execution by false testimony, — doubtful. (See Steph. Dig. Cr. Law, art. 221.) Rex v. Macdaniel, Leach (4tli Ed.) 44. Assaulting mother with nursing child, thereby causing her to scream, and bringing on convulsions, causing the child's death, may be manslaughter. Reg. v. Towers, 12 Cox, Cr. Cas. 530. In Ex parte Heigho, 18 Idaho, 566, 110 Pac. 1029, 32 L. R. A. (N. S.) 877, Ann. Cas. 1912A, 138, accused attacked another and a fight ensued, accused drew a pistol, and the mother-in-law of the assailed saw the pistol, became greatly excited, and died of a rupture of an aneurism of the aorta. It was held that the fact that her death was caused by fright, fear, or terror alone, without any hostile or overt act directed against her by accused, did not, as matter of law, prevent the homicide from being manslaughter. Taking advantage of or creating a panic in a theater, and obstructing a passage, whereby persons are crushed and killed, may be manslaughter (semble). Reg. v. Martin, 14 Cox, Cr. Cas. 633. Cf. Reg. v. Halliday, 61 Law T. (N. S.) 701. Where, after a fight between defendant and his wife, she left the house, and he barred the door, and she was found dead the next morning in the snow, the court charged that, if defendant used such force and vio- lence as to cause her to leave the house from fear of death or great bodily harm, and "from exposure to cold her death was produced by the said act," he was guilty of manslaughter. This was held errone- ous, as authorizing conviction although her fear was not well-ground- ed or reasonable; and the jury should have been charged that, to con- vict, they must believe that death by freezing was the natural and probable consequence of leaving the house at the time and under the circumstances. Hendrickson v. Com., 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596. Where an engineer, in violation of his duty, left his engine unattended, and another wrongfully set it in motion, and a third person was killed thereby, it was held that the engineer was not liable for the resulting death. Hilton's Case, 2 Lew. C. C. 214. Ill Hale, P. C. 428 ; Rex v. Rew, Kelyng, 26 (ntgligence in case of wound); Reg. v. Holland, 2 Moody & R. 851 (refusing to submit to 170 OFFENSES AGAINST THE PERSON (Ch. 8 If, however, the wound was not mortal, and death resulted solely from improper treatment, the accused is not liable." So, also, if a person has been mortally wounded by another, a third person who afterwards kills him by an independent act commits a homicide, though he merely hastened a death which was bound to happen without his interference.^' In such case the person who struck the first blow, though it would have resulted in death, is not liable for the homi-^ cide.** If a wound causes disease or necessitates amputa- treatment); Reg. v. Davis, 15 Cox, Or. Cas. 174 (death caused by chloroform necessary to treatment) ; Com. v. Hackett, 2 Allen (Mass.) 136 ; Com. v. McPlke, 3 Gush. (Mass.) 184, 50 Am. Dee. 727 ; State V. Bantley, 44 Conn. 537, 26 Am. Eep. 486 ; People v. Cook, 39 Mich. 236, 33 Am. Rep. 380 ; Crum v. St&te, 64 Miss. 1, 1 South. 1, 60 Am. Rep. 44 ; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122 (lessening chances of recovery by use of intoxicants) ; State v. Smith, 73 Iowa, 32, 34 N. W. 597; State v. Landgraf, 95 Mo. 97, 8 S. W. 237, 6 ,Am. St. Rep. 20; Bowles v. State, 58 Ala. 335; State v. Baker, 46 N. C. 267; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. Rep. 27; Clark v. Com., 90 Va. 360, 18 S. E. 440 (unskillful treatment) ; Com. v. Eisenhower, 181 Pa. 470; 37 Atl. 521, 59 Am. St. Rep. 670. But see Coffman v. Com., 10 Bush (Ky.) 405. 12 Crum V. State, 64 Miss. 1, 1 South. 1, 60 Am. Eep. 44; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; Parsons v. State, 21 Ala. 300; Smith v. State, 50 Ark. 545, 8 S. \V. 941. IS Reg. V. Plummer, 1 Car. & K. 600; People v. Ah Fat, 48 Cal. 61. Where accused shot deceased in necessary self-defense, and then shot him again as he was fleeing, both wounds being mortal, it was held that if the second shot was fired when it was not necessary for de- fendant to further defend himself, and it contributed in any degree to the death of the deceased, defendant was guilty of felonious homi- cide. Caughron v. State, 99 Ark. 462, 139 S. W. 315. 1* State V. Scates, 50 N. C. 420 ; State v. Wood, 53 Vt. 500. But where A. shot B. in the abdomen, giving him a mortal wound, and B. within a few minutes cut his own throat, giving himself a wound from which he would have died within ^ve minutes, it was held that A, was guilty of homicide, since' the wound given by A. contributed to the deatli. The court said: "When the throat was cut Farrell was not merely languishing from a mortal wound. He was actually ;§§ 61-62) HOMICIDE IN GENERAL 171 tion of a limb, and death results from the disease or am- putation, the wound is the cause of death, in the eye of the law, and the person who inflicted it must answer for the homicide; ^^ but it is otherwise if the disease is not con- nected with the wound in the relation of cause and effect.^' It is immaterial that without the act or omission the death would have resulted from another cause ; for example, that the person killed was diseased, or already wounded by an- other, and was likely, or even sure, to die when the blow was given. ^^ Time of Death The death must have resulted within a year and a day after the blow was given, or other act done which is alleged •as the cause of death ; otherwise, the law conclusively presumes that death resulted from some other cause.^* •dying, and after the throat was cut he continued to languish from both wounds. Drop by drop the life current went out from both wounds, and at the very instant of death the gunshot wound was con- tributing to that event." Temple, J., in PEOPLE v. LEWIS, 124 Cal. 551, 57 Pac. 470, 45 L. R. A. 783, Mikell Illus. Oas. Criminal I^aw, 98. i5Denman v. State, 15 Neb. 138, 17 N. W. 347; Powell v. State, 13 Tex. App. 244 ; Burnett v. State, 14 Lea (Tenn.) 439 (where death resulted from pneumonia, for jury whether assault contributed to •pneumonia). 16 Livingston v. Com., 14 Grat. (Va.) 592; Bush v. Com., 78 Ky. 268. "1 Hale, P. O. 428; Reg. v. Haines, 2 Cai;. & K. 368; Com. v. Fox, 7 Gray (Mass.) 585 ; People v. Ah Fat, 48 Cal. 61 ; State v. Cas- tello, 62 Iowa, 404, 17 N. W. 605 ; State v. Smith, 73 Iowa, 32, 34 N. W. 597 ; State v. Morea, 2 Ala. 275; People v. Lanagan, 81 Cal. 142, 22 Pac. 482; Smith v. State, 50 Ark. 545, 8 S. W. 941; State v. ■O'Brien, 81 Iowa, 88, 46 N. W. 752. Although the first shot was in self-defense, if the second was not excusable, and contributed to or accelerated death, defendant was guilty of homicide. Rogers v. State, 60 Ark. 76, 29 S. W. 894, 31 L. R. A. 465, 46 Am. St Rep. 154. 18 State V. Orrell, 12 N. C. 139, 17 Am. Dec. 563. 172 OFFENSES AGAINST THE PERSON (Ch. 8 Proof of Death The rule is that there can be no conviction of a felonious homicide on circumstantial evidence unless the body of the person alleged to have been killed has been found, or at least accounted for. It is not enough to merely show that it is missing/" but there must be direct proof of death. This requirement is satisfied if, for example, parts of the body are found, and marks and indications point to the iden- tity of the deceased.^" Even the confession of the accused made out of court is not alone sufficient,^^ but it is admis- sible, and may be sufficient if corroborated by the circum- stances and the other evidence. ^^ 18 2 Hale, P. C. 290; Eulofie v. People, 18 N. T. 179. But see State V. WilUams, 46 Or. 287, 80 Pae. 655, where it was heW that, though there is no direct evidence, in a prosecution for murder that the person alleged to have been murdered was in fact dead, circumstantial evi- dence, if convincing beyond a reasonable doubt, is sufficient to prove the corpus delicti. 2 Rex V. Clewes, 4 Oaf. & P. 221 ; People v. Beckwith, 108 N. Y. 67, 15 N. E. 53 ; People v. Palmer, 109 N. Y. 110, 16 N. B. 529, 4 Am. St. Rep. 423; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711 ; State r. Williams, 52 N. C. 446, 78 Am. Dec. 248 ; State v. Smith, 9 Wash. 341, 37 Pac. 491. 21 State V. German, 54 Mo. 526, 14 Am. Rep. 481; People v. Lane, 49 Mich. 340, 13 N. W. 622; People v. Hennessey, 15 Wend. (N. T.) 147 ; Stringf ellow v. State, 26 Miss. 157, 59 Am. Dec. 247 ; State v. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404 ; State v. Laliyer, 4 Minn. 368 (Gil. 277). 22 People V. Beckwith, 108 N. T. 67, 15 N. E. 53; People v. Dea- cons, 109 N. T. 374, 16 N. B. 676 ; State v. Coats, 174 Mo. 396, 74 S. W. 864. § 65) JUSTIFIABLE HOMICIDE 173 DISTINCTION BETWEEN JUSTIFIABLE AND EX- CUSABLE HOMICIDE 63. A homicide is justifiable where the person committing it is not in favilt, but kills in strict performance of a legal duty. 64. A homicide is excusable where the person committing it is to some degree in fault, but the circumstances are such that he does not deserve punishment, The distinction between justifiable and excusable homi- cide was once of importance, due to the fact that excusable homicide was punished by forfeiture of goods, while no pun- ishment of any kind followed justifiable homicide. At the present day the exemption from any punishment is as full in the one case as in the other. Neither entails any respon- sibility ; so the distinction is no longer of any practical im- portance. The terms have, however, become engrafted in our juris- prudence and are still used by text-writers and judges to distinguish homicides committed under different circum- stances. JUSTIFIABLE HOMICIDE 65. A homicide is justifiable,^* (a) Where the proper officer executes a person legally sentenced to death, in strict conformity with his sentence. (b) Where an officer, or one acting in his aid, in the due execution of his office, kills one who is forcibly re- sisting his attempt to arrest, provided there is ap- parent necessity for the killing to protect the life 53 Fost. Crown Law, 267. • 174 OFFENSES AGAINST THE PERSON (Ch. 8- of the one making the arrest or to save him from serious bodily harm. (c) Where a person lawfully imprisoned or under arrest for a serious crime, or another in his behalf, as- saults the officer having him in charge, and the of- cer, to prevent the prisoner's escape, kills him or such other person, provided there is apparently no other way to prevent the escape or rescue. (d) Where an officer or a private person, having legal au- thority to arrest for a felony, attempts to do so, and, on the flight of the person sought to be ar- rested, kills him in pursuit, provided, however, there is no other way in which the arrest can be made. (e) Where an officer or private person, in endeavoring to disperse the mob in a riot, kills one or more of the parties, not being able otherwise to suppress the riot. (f) Where the homicide is necessarily committed in pre- venting one from committing a felony by force or surprise. In all the cases above mentioned the killing is done in .compliance, with a legal duty, and is therefore said to be justifiable, rather than excusable, in that no fault whatever attaches. If this legal duty is absent, there can be no justi- fication, though, as will presently be seen, there may be an excuse. Executing Criminals To justify execution of a criminal sentenced to death, the execution must be by the proper officer, the prisoner must have been legally convicted and sentenced by a com- petent court, and the sentence must be strictly carried out. § 65) JUSTIFIABLE HOMICIDE 175 If an officer who is not charged with the duty of executing a criminal under sentence of death were to execute the sen- tence, he would be guilty of murder ; and, if the court which tries and convicts the prisoner and sentences him is with- out jurisdiction, both the judge and the officer executing the sentence will be guilty of murder. The sentence must be strictly executed. An officer would be guilty of a feloni- ous homicide in beheading, shootini^ or executing by elec- tricity a criminal sentenced to be nuilg7* . Homicide in Making Arrest or Preventing EscapA If a legal arrest by an officer, or one aiding him, is forci- bly resisted, he may overcome such force by the use of greater force in order to complete the arrest, whether the arrest be for a felony, a misdemeanor, or even in a civil suit.^° If the resistance is such that the officer's life is put in danger or' he is menaced with serious bodily harm, he need not desist from making the arrest, but may kill in self- defense.^" It has been held that even where the arrest was for a misdemeanor the officer might kill to effect the arrest.'" The better view is, however, that he cannot kill merely to effect an arrest for a civil wrong or for a misdemeanor. In these cases, if the force used against the officer does not threaten him with serious bodily harm, he may not kill, even though the person he is attempting to arrest thereby 24 4 BI. Comm. 178, 179; 1 Hale, P. C. 433, 501 ; 1 Hawli. P. C. 70. 25 1 Hale, P. C. 494; 4 Bl. Comm. 179; 1 Euss. Crimes (9tli Am. Ed) 893; State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. Rep. 380 ; State v. Anderson, 1 Hill (S. C.) 827 ; , State v. Garrett, 60 N. C. 144, 84 Am. Dec. 359 ; Clements v. State, 50 Ala. 117 ; State of North Carolina v. Gosnell (C. C.) 74 Fed. 734 ; Lynn v. People, 170 111. 527, 48 N. E. 964. 26 u. S. V. Kice, 1 Hngbes, 560, Fed. Cas. No. 16,153. 27 state V. Garrett, 60 N. C. 144, 84 Am. Dec. 359. 176 OFFENSES AGAINST THE PERSON (Ch. 8 effects his escape; it being considered better that a mere misdemeanant escape for the time being than that his life be taken. ^^ After an arrest has once been made, and the offender is in custody, the officer having him in charge may kill him to prevent his escape, if the arrest is for a felony, or if the of- ficer's life is endangered, or he is threatened with serious bodily harm by the prisoner; and he may, under like cir- cumstances, kill others who are seeking to rescue the pris- oner.^^ By the better view, if the arrest is for a misde- meanor only, and the prisoner attempts to avoid arrest by flight, the officer cannot kill.^" In those jurisdictions where it is held that an officer cannot kill to effect an arrest for a misdemeanor, it is also held that he cannot kill to pre- vent the escape of one in custody for a misdemeanor, as this is virtually a rearrest.^^ In civil cases and in cases of misdemeanor, where a per- son sought to be arrested does not assault the officer and forcibly resist the attempt to arrest, but flees, the officer cannot kill him in pursuit, but he must rather suffer him to escape.^'' It is otherwise in case of felonies. A fleeing felon 28 Head v. Martin, 85 Ky. 480, 3 S. W. 622; Dilger v. Com., 88 Ky. 550, 11 S. W. 651; Smith v. State, 59 Ark. 132, 26 S..W. 712, 43 Am. St. Rep. 20. 2 9 Fost. Crown Law, 321; 1 Hale, P. C. 496; 2 East, P. C. 821; 4 Bl. Comm. 179 ; Jackson v. State, 76 Ga. 473. There must be neces- sity, and the officer is not the arbitrary judge as to whether it ex- ists. State V. Bland, 97 N. C. 438, 2 S. E. 460. soReneau v. State, 2 Lea (Tenn.) 720, 31 Am. Rep. 026; Handley V. State, 96 Ala. 48, 11 South. 322, 38 Am. St. Rep. 81 ; U. S. v. Rice, 1 Hughes, 560, Fed. Cas. No. 16,153 ; Lewis v. Com., 140 Ky. 652, 131 S. W. 517 ; Sossamon v. Cruse, 133 N. O. 470, 45 S. E. 757. 31 See cases in previous note. szFost. Crown Law, 291; State v. Moore, 39 Conn. 244; Dilger v. Com., 88 Ky. 550, 11 S. W. 651. § 65) JUSTIFIABLE HOMICIDE 177 may be killed if he cannot otherwise be taken." In all of these cases it must be borne in mind that the killing must be apparently necessary."* Whenever an officer would be justified under the rules above stated, a private person hav- ing authority to arrest will be justified. Suppression of Riot or Affray An officer is charged with the duty of suppressing riots and affrays. A private person has the right to suppress them, and is probably even bound to do so as well as the officer. In order to suppress a riot, life may be taken, if necessary, either by an officer or by a private person, but it must not be needlessly taken.'" A person is not justified, however, in taking life to suppress an affray, as it cannot be necessary to go to such an extreme.'* Of course, if a person's life is put in imminent danger while he is engaged in an attempt to stop an affray, or grievous bodily harm is imminent, at the hands of the wrongdoers, he may kill to save himself ; but his justification under these circumstanc- es stands on a higher ground than the mere right to sup- press an affray. He will be justified in ta,king life to save himself in such case, and not merely excused, for he is in no fault, but is performing a legal duty in interfering. ss 1 East, P. C. 302; Rex v- Finneity, 1 Craw. & D. 167; Jackson V. State, 66 Miss. 89, 5 South. 690, 14 Am. St Rep. 542; State v. Roane, 13 N. C. 58. 8*4 Bl. Oomm. 180; Rex v. Allen, 7 Car. & P. 153; Reneau v. State, 2 Lea (Tenn.) 720, 31 Am. Rep. 626; Clements v. State, 50 Ala, 117; Wright v. State, 44 Tex. 645. 35 1 Hale, P. C. 495; 4 Bl. Comm. 179; 2 P.ish. Cr. Law, § 655; Pond V. People, 8 Mich. 150. But see Patten v. People, 18 Mich. 314, 100 Am. Dec. 173. 36 People V. Cole, 4 Parker, Cr. R. (N. T.) 35 ; Conaer v. State, 4 Yerg. (Tenn.) 137, 26 Am. Dec. 217. Claek Cb.L.3d Ed.— 12 178 OFFENSES AGAINST THE PERSON (Ch. 8 Homicide in Prevention of Felony It is said that it is not only every person's right, but it is his legal duty, to prevent a felony, even though he must go to the extreme of taking the life of the person attempting to commit if If, therefore, it is necessary to take the life of a person attempting to comrhit a felony in order to pre- vent him from consummating his design, the homicide is justifiable, not excusable merely.^* But one cannot justify a killing on the ground that it was done to prevent a felony, if he himself has provoked the fel- ony with the object of killing the felon.'' Since the justification for the homicide is based on the necessity of preventing a felony, if the felony can be pre- vented by any less violent means, the homicide will not be justifiable, or even excusable.*" It is in this dense only that it is essential, in order to make the homicide justifiable, or at least excusable, to show that the killing was necessary. Under the doctrine of mistake of fact it is not necessary to show in defense that the de- ceased was in fact about to commit a felony and that there- fore it was necessary to kill him to prevent the felony -from being actually committed. It is sufficient to show that the defendant reasonably thought the deceased was about to commit a felony, and, that, thinking so, there was no other means of preventing it.*^ »T 1 East, P. C. 271 ; State v. Harris, 46 N. C. 190; State v. Moore, 31 Conn. 4T9, 83 Am. Dec. 159: State v. Rutherford, 8 N. C. 457, 9 Am. Dee. 658; State v. Thompson, 9 Iowa, 188, 74 Am. Dec. 342; Staten v. State, 30 Miss. 619; People v. Payne, 8 CaL 341; State 7. Turlington, 102 Mo. 642, 15 S. W. 141. as 1 Hale, P. C. 485, 486 ; 4 Bl. Comm. 180. 89 Mitchell V. State, 22 Ga. 211, 68 Am. Dec. 493. *o Mitchell V. State, 22 Ga. 211, 68 Am. Dec. 403. «i Rex V. Scully, 1 Cai;. & P. 319; RuloIC v. People, 45 N. T. 215; § C5) JUSTIFIABLE HOMICIDE 179 'The justification is not limited to the person upon whom the felony is attempted, but extends to every person who may te in a position to prevent it. If the belief that the felony is about to be committed is negligently adopted, the killing will be manslaughter.*^ From the nature of things, it cannot be necessary to kill to prevent a felony unless the felony is attempted by force or surprise, as in case of a sud- den and violent assault with intent to kill or to rape, or in case of burglary, robbery, or arson. Larceny is a felony committed without force, generally by stealth, or at most by a mere trespass without violence, for a forcible attempt to steal would amount to an attempt to commit robbery, and an attempt at larceny is therefore no justification for killing the thief.*' A woman is justified in killing a man who attempts to rape her, and a man is justified in killing one who is attempting to ravish his wife, daughter, or sis- ter, or any other woman.** Here the felony is forcibly at- tempted. A husband or brother would not be justified in killing a man who is attempting to seduce and debauch his wife or sister by fraudulent means, and not by force.*" If People V. Angeles, 61 Cal. 18S. See, also, cases cited in following notes. 42 Levet's Case, 1 Hale, P. C. 474.- *3 Reg. V. Murphy, 2 Craw. & D. 59 ; State v. Vance, 17 Iowa, 138; STOREY v. STATE, 71 Ala. 329, Mikell IDus. Cas. Criminal Law, 103. **4 Bl. Comm. 181; People v. Angeles, 61 Cal. 188. *6 People V. Cook, 39 Mich. 236, 33 Am. Rep. 380. Not wholly jus- tifiable or excusable, in the absence of statute, for a husband to kill his wife's paramour while in the act of adultery. Hooks v. State, 99 Ala. 1(>6, 13 South. 767. See, also, post, p. 224, notes 6, 7. In Georgia, a husband or intended husband may kill to prevent the debauching of bis daughter, wife, or Eiffianced wife. Futch v. State, 90 Ga. 472, 16 S. B. 102 ; Biggs v. State, 29 Ga. 723, 76 Ain. Dec. 630; Gossett V. State, 123 Ga. 431, 51 S. E. 394. But there must be urgent danger. Jackson v. State, 91 Ga. 271, 18 S. B. 298, 44 Am. St Rep. 180 OFFENSES AGAINST THE PERSON (Ch. 8 the felony can be otherwise prevented, a homicide is not justified. It is therefore a felonious homicide to kill one who is attempting a felony if there is an opportunity to ar- rest him.*° The killing must be in the prevention of a fel- ony, and therefore killing in pursuit, without a warrant, of one who has abandoned his attempt to commit the felony, and fled, is not justifiable.*' It has been held that a person is not justified in killing one who is at the time in the act of committing a felony, if he does not know that he is so engaged, and does not kill him for that reason.*' But this seems to be contrary to the general principle that a defend- ant may rely on any fact which justifies him in law, though he was ignorant of it when the transaction occurred.*' 22; Farmer v. State, 91 Ga. 720, 18 S. E. 987. But see Biggs v. State, supra. A father cannot kill to prevent fornication with, or seduction of, his daughter.^ Bone v. State, 86 Ga. 108, 12 S. E. 205. But in a recent ease in Georgia it was held that a man who, upon finding' that another man had been having sexual intercourse with the for- mer's daughter with her consent, shot and killed the man, was justi- fied if the killing was necessary to prevent further acts of fornica- tion, where the circumstances indicated that the Ulicit relationship would be continued. Miller v. State, 9 Ga. App. 599, 71 S. E. 1021. But see Vamell v. State, 26 Tex. App. 56, 9 S. W. 65. A son is not justified in killing a man because of adultery with his mother. State V. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289. *6 Eex V. Scully, 1 Car. & P. 319 ; State v. Roane, 13 N. C. 58. In State v. BonofigUo, 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423, it is held that a person upon whom an attempt to rob is being made is justified in taking the life of his assailant, even when other and less radical means would render the attempt abortive. His right to kill, it is said, is absolute. *7 1 Whart Gr. Law, § 497 ; State v. Rutherford, 8 N. O. 457, 9 Am. Dec. 658 ; Bowman v. State (Tex. Cr. App.) 21 S. W. 48. Contra, under Texas statute, in case of burglary and theft by night under certain circumstances. Whitten v. State, 29 Tex. App. 504, 16 S. W. 296. 48 Reg. V. Dadson, 4 Cox, Or. Cas. 358; People y. Burt, 51 Mich. 200, 16 N. W. 378. *» See 1 Bish. New Cr. Law, § 441. § 65) JUSTIFIABLE HOMICIDE 181 Justifiable Defense of Person A homicide may be justifiable on more than one ground. We have just seen that a homicide is justifiable when com- mitted for the purpose of preventing a felony attempted by force. If the felony attempted be directed against the per- son, the killing of the person attempting the felony may be justifiable/, not only on the ground of preventing the felony but also on the ground of self-defense. In the course of a sudden affray between two persons, both being in the eye of the law in fault in engaging in the affray, neither can kill the other, though it be necessary to save his own life, without first retreating as far as he can with safety. If he kills without retreating, he is guilty of at least manslaughter.^" On the other hand, if he is entirely without fault, as where he is attacked with murderous intent or with intent to do him serious bodily harm, the authorities are in con- flict as to whether he must retreat before taking the life of his adversary, or whether he may stand his ground and kill when he might, by retreating, save his life without taking the life of his antagonist."^ In some jurisdictions it is held that there is no duty to retreat in these circumstances."^ In others it is held that even in the case of a murderous assaulf the person assaulted must retreat under all circumstances, BO Keg. V. Hewlett, 1 Fost. & F. 91 ; State v. Thompson, 9 Iowa, 192, 74 Am. Dec 342 ; and see eases cited, post, p. 199, footnotes 15, 16. Bi See a discussion of the necessity to retreat from a murderous assault in 16 Harv. L. Rev. 567. B2 La Rue v. State, 64 Ark. 144, 41 S. W. 53 (but see Elder v. People, 69 Ark. 648, 65 S. W. 938, 86 Am. St. Rep. 220) ; McOlurg v. Com., 36 S. W. 14, 17 Ky. Law Rep. 1339 ; Ragland v. State, 111 Ga. 211, 36 S. E. 682; Ritchey.v. People, 23 Colo. 314, 47 Pac. 272, 384; State V. Kennedy, 7 Nev. 374 ; E}rwin v. State, 29 Ohio St 186, 23 Am. Repi 733 ; Runyan T. State, 57 Ind. 80, 26 Am. Rep. 52. 182 OFFENSES AGAINST THE PERSON (Ch. 8 except when he is attacked in his dwelling, if he can safely do so.°^ Others hold that he need not retreat from a mur- derous attack in the immediate vicinity of his dwelling, in his curtilage."* In others he is allowed to stand his ground and kill his assailant anywhere on his own premises."' The right of self-defense is not limited to defense of life. A person may kill another to prevent gri-evous bodily harm."" In no case, however, can the plea of justifiable or excusable self-defense be sustained unless the killing was apparently necessary to save life or pre- vent grievous bodily harm."' If one is attacked with a deadly weapon, he may assume that the intention is to kill him, and may act on that assumption;"' but he has no 8s Davison v. People, 90 111. 221; Com. v. Drum, 58 Pa. 9; Henson V. State, 120 Ala. 316, 25 South. 23; Pond v. People, 8 Mich. 150; State V. Zeigler, 40 W. Va. 593, 21 S. B. 763. S4 Fitzgerald v. State, 1 Shan. Cas. (Tenn.) 505 ; Haynes v. State, 17 Ga. 465 ; State v. Gushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 883. " Beard v. U. S., 158 U. S. 550, 15 Sup. Ct. 962, 39 U Ed. 1086; Allen V. U. S., 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528 ; Baker v. Com., 93 Ky. 302, 19 S. W. 975. "State V. Benham, 23 Iowa, 154, 92 Am. Dec. 416; State v. Burke, 30 Iowa, 331 ; State v. Sloan, 47 Mo. 604 ; People v. Camp- bell, 30 Cal. 312; Young v. State, 11 Humph. (Tenn.) 200. This will also appear from the cases cited in the other notes. 67 May not take life to prevent unlawful arrest Creighton v. Com., 84 Ky. 103, 4 Am. St. Rep. 193; State v. Cantieny, 34 Minn. 1, 24 N. W. 458. A person attacked or fonnidably threatened by three persons acrting in concert may avail himself of the right of self-de- fense by using commensurate force against the nearest assailant, although it is not from him, but from the others, that 'great bodily harm is apprehended. Hoy v. State, 69 Neb. 516, 96 N. W. 228. The right of self-defense does not belong alone to persons engaged in the pursuit of their lawful business ; It is available to every person, regardless of the nature of his business, who is assaulted, or who, upon just grounds, apprehends an immediate unlawful attack. Id. ssKingen v. State, 45 Ind. 518; State v. Donnelly, 69 Iowa, 705, 27 N. W. 369, 58 Am. Rep. 234. § 65) JUSTIFIABLE HOMICIDE 183 right to kill one who strikes him with his fist, or with an instrument not likely to cause grievous bodily harm." Nor is he justified in killing a person who has threatened him, and who he supposes intends to take his life, until some overt act is done by the latter evincing a purpose to carry out such intention immediately.^" It is not meant by this that he must actually wait for the blow before acting in his defense,'^ nor even that his assailant must be within actual striking distance.''' It is held by most of the courts that it is sufficient if the attack is apparently imminent, though some courts require actual danger. The rules as to im- minence of danger will be discussed in treating of excusable homicide. °' It is not necessary to repeat them here. One who seeks a person who intends to kill him, or otherwise brings the danger upon himself, cannot avail himself of the plea of self-defense; "* but it is not to be inferred from this that he is bound to keep in hiding, or otherwise give up his freedom, in order to keep out of the other's way.*° He sim- Stewart v. State, 1 Ohio St. 66; Scales v. State, 96 Ala. 69, 11 South. 121 ; Smith v. State, 142 InU. 288, 41 N. E. 595. 60 2 East, P. C. 271; Dj'son v. State, 26 Miss. 362; People v. Lombard, 17 Cal. 316; People v. Scoggins, 37 Cal. 676; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; State v. Thompson, 83 filo. 257; Stoneman v. Com., 25 Grat. (Va.) 887; Henderson v. State, 77 Ala. 77; Barnards v. State, 88 Tenn. 183, 12 S. W. 431, at page 443; State V. Jackson, 32 S. C. 27, 10 S. E. 769 ; State v. Jackson, 44 La. Ann. 160, 10 South. 600 ; State v. Howard, 35 S. G. 197, 14 S. E. 481; McDuffie V. State, 90 Ga. 786, 17 S. E. 105 ; Craig v. State (Tex. Cr. App.) 23 S. W. 1108. 61 State V. McDonald, 67 Mo. 13 ; Bohannon v. Com., S Bush (Ky.) 481, 8 Am. Kep. 474. 62 Fortenberry v. State, 55 Miss. 403. 6 3 Post, p. 194. , 64 Wallace v. U. S., 162 U. S. 466, 16 Sup. Ct. 8.59, 40 L. Ed.' 1039. 6B Oder V. Com., 80 Ky. 32; Philips v. Com., 2 Vuv. (Ky.) 328, 87 Am. Dec. 499 ; Bohannon v. Com., 8 Bush (Ky.) 481, 8 Am. Eep. 474 ; Com. V. Barnes (Ky.) 16 S. W. 457; People v. Gonzales, 71 Cal. 569, 184 OFFENSES AGAINST THE PERSON (Ch. 8 ply must not seek the danger. If self-defense is required, and the person assailed is not in the wrong, the fact that he entertains malice and ill feeling towards his assailant is im- material/' We have already stated that, if a murderous as- sault is made on a person, he is not bound to retreat, but may stand his ground. This is not the case where the as- sault is not murderous or with intent to kill. Here the per- son assaulted must do what he can, by retreat or otherwise, to avoid the necessity of taking life. He may resist the as- sault by opposing force to force,''' but he cannot take his assailant's life until he has retreated "to the wall," or as far as his safety will allow."* His duty and liability under such circumstances will be discussed in treating of excusable homicide. A person may resist an attempt to unlawfully ar- rest him, or to falsely imprison him, just as he may re- sist any other assault or trespass, by opposing force to force; but he cannot go to the extreme of taking life or using a deadly weapon, unless it becomes necessary to save his life or prevent grievous bodily harm."' Mr. Bishop 12 Pac. 783; Smith v. State, 25 Pla. 517, 6 South. 482; People v. Lyons, 110 N. Y. 618, 17 N. E. 391. An instruction that defendant could not avail himself of the plea of self-defense if, apprehending danger from the conduct of the deceased when he drove by him, he returned by the same way, which was the proper and conven- ient road home, having armed himself in the meantime, is errone- ous. Thompson v. U. S., 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146. See, also, Allen v. U. S., 157 U. S. 675, 15 Sup. Ct 720, 39 L. Ed. 854 ; State v. Evans, 124 Mo. 397, 28 S. W. 8. 66 People v. Macard, 73 Mich. 15, 40 N. W. 784. s'Post, p. 272. "sPost, p. 199. 60 Creighton v. Com., 83 Ky. 142, 4 Am. St. Eep. 143, Id., 84 Ky. 103, 4 Am. St. Eep. 193 ; State v. Bow, 81 Iowa, 138, 46 N. W. 872 ; Palmer v. People, 138 111. 356, 28 N. E. 130, 32 Am. St Eep. 146; Noles V. State, 26 Ala. 31, 62 Am. Dec. 711 ; Jones v. State, 26 Tex. App. 1, 9 S. W. 53, 8 Am. St. Rep. 454. But see State v. Davis, 53 S. C. 150, 31 S. E. 62, 69 Am. St. Rep. 845. § 65) JUSTIFIABLE HOMICIDE 185 states that it would be otherwise where he would be taken beyond the reach of the lawsJ^ We have in another con- nection considered the right of a person to take the life of an innocent third person to save his own.'^ Defense of Habitation A man's house is his castle, and he is never bound to re- -treat from it if he is attacked therein, whether the attack be a felonious one or amount only to a misdemeanor. He may stand his ground there and resist the attack, and, if necessary, kill his assailant to save himself from death or serious bodily injuryj^* A distinction must be made here between an attack on the house and an attack on the inmates of the house. If the attack is on an inmate of the house, it is a case of self-de- fense, and the rules of self-defense apply, except that in all jurisdictions the inmate need not retreat, even though the attack is not a felonious one, and though he might, by re- treating, save his life without taking the life of his assail- ant; ^^ "whereas, as we have seen, in sorne jurisdictions in the ordinary case of self-defense the assailed must retreat if the attack is not felonious and he can safely do so before killing his assailant. 7 1 Bish. New Cr. Law, § 868. ti Ante, p. 104. 72 1 Hale, P. C. 458 ; Wright ▼. Com., 85 Ky. 123, 2 S. W. 904; Pond V. People, 8 Mich. 150, at page 177; State v. Peacock, 40 Ohio St. 333 ; Corey v. People, 45 Barb. (N. Y.) 262 ; State v. Taylor, 82 N. C. 554; OAKROLL t. STATE, 23 Ala. 28, 58 Am. Dec. 282, Mikell lUus. Cas. Criminal Law, 105 ; Baker v. Com., 93 Ky. 302, 19 S. W. 975. Necessity for killing. State v. Scheele, 57 Conn. 307, 18 Atl. 256, 14 Am. St Rep. 106. Root house or outdoor cellar a part of dwelling. People V. Coughlin, 67 Mich. 466, 35 N. W. 72. Room used as store, where man slept under arrangement with tenant, not his dwelling. State T. Smith, 100 Iowa, 1, 69 N. W. 269. Guest may resist as If in his own house. Crawford v. State, 112 Ala. 1, 21 South. 214. 's See authorities cited In note 72. 186 OFFENSES AGAINST THE PERSON (Ch. 8 If, however, the attack is not directed against the person of an inmate, but only against the house as property, the better opinion is that the trespasser cannot be killed merely to prevent the trespass.'* If the trespasser is attempting to enter by force or surprise for the purpose of committing a felony, whether upon the inmates or upon property, the rules governing the right to kill to prevent a felony apply. Thus, if the entry is sought to be made for the purpose of committing larceny, or rape, or murder, or any other felony, the attempt to enter is an attempt to commit burglary, which is a felony, and the killing of the intruder may be jus- tified on the ground of the prevention of a felony.' ° But if one should throw stones into a dwelling, or attempt to en- ter for the purpose merely of annoying or insulting the in- mates, this would be only a misdemeanor, and a killing of the trespasser would not be justifiable.'" After a person has entered, an assault by him may be re- sisted to the death. There is no duty to retreat in order to avoid the necessity to kill." Here, though, as well as in T4 CARROLL V. STATE, 23 Ala. 28, 53 Am. Dec. 282, Mikell Illus. Cas. Criminal Law, 105; Greschia v. People, 53 111. 295. See, also, State V. Patterson, 45 Vt. 308, 12 Am. Rep. 200. Cf. State v. Country- man, 57 Kan. 815, 48 Pac. 137. '5 People V. Lilly, 38 Mich. 270. '6 See State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. 77 Hstep V. Com., 80 Ky. 39, 4 S. W. 820, 9 Am. St. Rep. 260; People V. Dann, 53 Micli. 490, 19 N. W. 159, 51 Am. Rep. 151; State V. Middleham, 62 Iowa, 150, 17 N. W. 446; Brinkley v. State, 89 Ala. 34, 8 South. 22, IS Am. St. Rep. 87; Bledsoe v. Com. (Ky.) 7 S. W. 884; Willis v. State, 43 Neb. 102, 61 N. W. 254; place of business Is within the rule, Perry v. State, 94 Ala. 25, 10 South. 650; as is also a rented room occupied as a bedroom, Harris v. State, 96 Ala. 24, 11 South. 255. The rule does liot apply outside the curtilage, Lee v. State, 92 Ala. 15, 9 South. 407, 25 Am. St Rep. 17, nor to the yard when retreat into the house is possible, Watkins V. State, 89 Ala. 82, 8 South. 134 ; nor does the rule apply after re- treating from house, Martin v. State, 90 Ala. 602, 8 South. 858, 24 § 65) JUSTIFIABLE HOMICIDE 187 Other cases, no unnecessary force can be used.'" The life of the assailant cannot be taken except to save life or to avoid grievous bodily harm, or to prevent a felony. Where a person has by force, actual or constructive, entered an- other's house, the latter may eject him, and may use all necessary '» force in doing so, at least short of taking life ■or doing serious bodily harm, and if in so doing the in- truder resists and places .the owner's life in danger, the latter may kill in self-defense. In such case, as the entry v^ras by force, no request to leave is necessary before pro- ceeding to expel the intruder. If, however, a person, either expressly or impliedly, permits another to enter his house, he cannot eject him without having previously requested him to leave, and can use no unnecessary force.*" Am. St Rep. 844. Stable yard not within the rule, Perry v. State, 94 Ala. 25, 10 South. 650. Need not retreat when in "yard." Ever- sole V. Com., 95 Ky. 623, 26 S. W. 816 ; State v. Gushing, 14 Wash. 027, 45 Pac. 145, 53 Am. St. Rep. 883. Person assailed need not retreat when on his own premises, near his dwelling house. Beard v. U. S., 158 U. S. 550, 15 Sup. Ct. 902, 39 L. Ed. 1086. Cf. Rowe v. U. S., 164 U. S. 546, 17 Sup. Ct. 172, 41 L. Ed. 547. One finding a man trying to ■obtain access to his wife's room in the night by opening a window may employ necessary force, and, if put in fear of life or great bodily haiTn, need not retreat, but may use necessary force to repel assault. Alberty v. U. S., 162 U. S. 499, 16 Sup. Ct. 864, 40 L. Ed. 1051. One who is attacked at his own dwelling dees not have the right to stand and kill his assailant, unless he is free from fault in bringing on the difficulty. Sanford v. State, 2 Ala. App. 81, 57 South. 134. Where a father, who was attacked by his son in a house where both resided, shot and killed his assailant without attempting to escape, it was held to be excusable homicide. "The owner of a dwelling at- tacked therein is not bound to flee, but may stand his ground and kill Ms assailant" People v. Tomlins, 213 N. T. 240, 107 N. E. 496. 7 8 State V. Middleham, 62 Iowa, 150, 17 N. W. 446; State v. Murphy, 61 Me. 56; Pond v. People, 8 Mich. 150. See, also, cases •cited in preceding note. '8 Cannot use unnecessary force; death caused by an unnecessary Jiick is manslaughter. Wild's Case, 2 Lewin, Cr. Cas. 214. 80 State V. Martin, 30 Wis. 216, 11 Am. Rep. 567; State v. Smith, 188 OFFENSES AGAINST THE PERSON (Ch. 8 Defense of Property A person may use all reasonable and necessary force, short of taking life, in defense of his property, real or per- sonal, and to prevent another from dispossessing him of it ; but he cannot under any circumstances be justified in kill- ing merely to defend his property.'^ If a man attack me, ' and tries to take my property by force, he attempts a rob- bery, and I may kill him to prevent the felony. The jus- tification does not rest on my right to defend my property. If a man attempts to set fire to my dwelling house by sur- prise, and I can only prevent it by killing him, I may do so; but the reason is because I may prevent the fel- ony, and not because, if I do not kill him, I will lose my property. If the house were uninhabited, and therefore not the subject of arson, I would have no right to kill him, though my loss of property would be as great. If an as- sault is made on a person without felonious intent, he may resist the attack, and return blow for blow; and if, during the difficulty, his life is sought to be taken, or grievous bodily harm is sought to be inflicted, he may kill his adver- sary to prevent it. In such case, as he is engaged in mutual combat, which he could have avoided, he is in some degree in fault, in the eye of the law, and is merely excused, not 20 N. O. 117; Lyon v. State, 22 Ga, 399; GrescMa v. People, 53 111. 295 ; State v. Partlow, 90 Mo. 60.8, 4 S. W. 14, 59 Am. Eep. 31. 81 Keg. V. Archer, 1 Fost. & F. 351 ; U. S. v. Wiltberger, 3 Wash. C. 0. 515, Fed. Gas. No. 16,738 ; STATE v. MORGAN, 25 N. C. 186, 38 Am. Dec. 714, Mikell lUus. Gas. Criminal Law, 107; State v. Mc- Donald, 49 N. C. 19 ; McDaniel v. State, 8 Smedes & M. (Miss.) 401, 47 Am. Dec. 93; State v. Gilman, 69 Me. 169, 31 Am. Rep. 257; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; State v. Vance, 17 Iowa, 138; State v. Kennedy, 20 Iowa, 569; Kunkle v. State, 32 Ind. 220; Combs v. Com. (Ky.) 9 S. W. 655; State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70; Davison v. People, 90 111. 221; State V. Donyes, 14 Mont. 70, 35 Pac. 455 ; Wallace v. U. S., 162 U. S. 466, 16 Sup. Ct. 859, 40 L. Ed. 1039 (repelling trespass on land). § 65) JUSTIFIABLE HOMICIDE 189 justified. This consideration subjects him to the rules of excusable homicide. The same principle applies to defense of property. A person may resist a trespass on his prop- erty, real or personal, not amounting to a felony, or a re- moval or destruction of his property not feloniously at- tempted, by the use of any reasonable or necessary force, short of taking or endangering life; but if he is unable to prevent it, and there is no felony attempted, he must sufifer the trespass and the loss of the property, and seek redress at the hand of the law, rather than commit a homicide. °^ If, in the course of the struggle, the trespasser seeks to take the owner's life, the latter ,wiU be excused if he kills him.*^' He will not be justified, but merely excused, and the rules of excusable homicide requiring retreat will apply. Same — Setting Spring Guns It is said by many text-writers that a man may set a spring gun in his dwelling, so that it will kill a person at- tempting to enter to commit a felony. The reason given is that, since a person is justified in killing one who is attempt- ing to commit a felony by force or surprise in order to pre- vent the felony, he may do the same thing indirectly — by means of a spring gun or other mechanical contrivance oper- ated by. the felon himself. Dicta in a few cases maintain the same view.** But the rule that a person is justified in 82 KendaU r. Com. (Ky.) 19 S. W. 1T3; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Kep. 242; State v. Smith, 12 Mont. 378, 30 Pae. 679 ; Powers v. People, 42 111. App. 427 ; Drew v. State, 136 Ga. 658, 71 S. E. 1108. 8 3 White V. Washington Territory, 3 Wash. T. 397, 19 Pae. 37. 8 4 State V. Moore, 31 Conn. 479, S3- Am. Dec. 159; Gray v. Combs, 7 J. J. Marsh. (Ky.) 478, 23 Am. Dec. 431. See, also, Johnson v. Pat- terson, 14 Conn. 1, 35 Am. Dec. 96 ; Aldrich v. Wright, 53 N. H. 398, 16 Am. Bep. 339. A statute In England allows the setting of spring guns in dwelling houses. 190 OFFENSES AGAINST THE PERSON (Ch. S killing one who is attempting to commit a felorly by force or surprise is limited to cases in which such killing is neces- sary to prevent the felony. If the owner of the house were present at the place of entry, he could not kill the burglar if he could with safety to himself prevent, otherwise, the entry. This being so, it would seem that he cannot do indirectly what he could not do directly; and it would also seem that he cannot enlarge his rights by being absent.'" It is now admitted that a person cannot set spring guns on his premises outside of his dwelling, so as to kill per- sons who may merely trespass, as he would have no right to resist a mere trespass to the death. In any event, he must not place them where they will endanger the lives of persons passing along the public street or road adjoining the premises.'* 80 See Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96. »8 StatJe V. Moore, 31 Conn. 479, 83 Am. Dec. 159. B., who was- boarding with C, placed a spring gun in tiis trunls in such a position as to kill any one who opened the trunk. C, though warned by B. of these facts, moved by curiosity and without right, sought to open the trunk and was killed by the spring gun. On an indictment of B. for murder it was held that one may not take life by indirect mean» under circumstances that would not justify him in taking life directly, and that one may not take life to prevent a mere trespass to or theft of property. The court further held that B.'s warning to C of the presence of the spring gun would be no defense, unless- it were brought home to the deceased in such a manner that her act In opening the trunk was a deliberate attempt on hur part to take her own life, but that, if defendant warned the only person who had a lawful right to enter his room, such warning would have a ma- terial bearing on the question of malice. State v. Marfaudille, 48 Wash. 117, 92 Pac. 93^, 14 L. E. A. (N. S.) 346, 15 Ann. Cas. 584. On the question of notice this case does not go so far as a dictum in. U. S. V. Gilliam, Fed. Cas. No. 15,205a, where it was said: "Where notice is given, the sufferer is held to have brought the calamity up- on himself — to be his own executioner if life is lost, and to have- himself pulled the trigger." § 65) JUSTIFIABLE HOMICIDE 191 Defense of Others We have seen that the right and duty to prevent a felony- are not limited to the person upon whom it is attempted^ but extend to every person who is in a position to prevent it. The principle of justification is broader than the mere idea of self-defense.*' The right of third persons to inter- fere is not, however, limited to cases of attempted felony. Bystanders may interfere to prevent an assault or a larceny, or any other crime. The members of a family may protect and defend each other,** and a man's guests or neighbors may interfere to resist an attack on his house. *° The rule as generally expressed is that one may do for another whatever another may do for himself,"" though there are cases casting some doubt on the rule so broadly stated. The right to defend another is said to be no greater than the latter's right to defend himself.'^ 87 Defense of justice of the United States Supreme Court by a United States marshal. In re Neagle (C. C.) 39 Fed. 833, 5 L. R. A. 78 ; Id., 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. Rescue of friend from kidnappers. Com. v. Delaney (Ky.) 29 S. W. 616. 88 4 Bl. Comin. 186; Rex v. Harrington, 10 Cos, Cr. Cas. 370; Estep V. Com., 86 Ky. 39, 4 S. W. 820, 9 Am. St. Rep. 260; Crowder V. State, 8 Lea (Tenn.) 669; Pond v. People, 8 Mich. 150; Patten V. People, 18 Mich. 314, 100 Am. Dee. 173 ; Sharp v. State, 19 Ohio 379; Com. v. Malone, 114 Mass. 295; State v. Bullock, 91 N. C. 614; Smurr v. State, 105 Ind. 125, 4 N. E. 445; State v. Westfall, 49 Iowa, 328; State v. Brittain, 89 N. C. 481; Staten v. State, 30 Miss. 619; Saylor v. Com., 97 Ky. 184, 30 S. W. 390 (attempt by force and threats to abduct wife.) A husband has the legal right to the company and custody of his wife and child, and may defend such custody by force, if necessary, against the wife's father to prevent the latter taking them from him. Cole v. State, 45 Tex. Cr. H, 225, 75 S. W. 527. 8 9 Cooper's Case, Cro. Car. 544; Semayne's Case, 5 Coke, 91; Pond V. People, 8 Mich. 150. 90 1 Bish. New Cr. Law, § 877 ; Stanley v. Com., 86 Ky. 440, 6 S. W. 153, 19 Am. St. Rep. 305. 81 Son's right to kill another In defense of his father Is no greater than the father's right to kill in self-defense under the same circum- 192 OFFENSES AGAINST THE PERSON (Ch, 8 EXCUSABLE HOMICIDE IN GENERAL 66. Excusable homicide may be either: (a) Accidental, or (b) In self-defense, on a sudden affray. ACCIDENT 67. Excusable homicide by accident is where the killing is the result of an accident or misfortune in doing a lawful act in a lawful manner.'^ stances. Morris v. State (Ala.) 39 South. 608. In Guffee v. State, 8 Tex. App. 187, tlie trial court charged: "When one person interferes on behalf of another, he becomes responsible for the acts of the per- son in whose behalf he interferes ; and if the acts and circumstances would not justify the killing by the person in whose behalf be inter- feres, neither wiU the law justify btm in taking life in behalf of such person." The appellate court said: "The inherent vice of this ex- tract from the charge of the court is that it bound appellant to his brother with hooks of steel, and made him answerable for the acts of his brother, as well as for bis own, without regard to the motive or intent which may have been totally dissimilar in the breast of each. Throughout tbe transaction John Guffee may have been actuated by a malicious motive, * * * while the intent of appellant may have been of a wholly different nature and character. Can it be said that in that event the same degree of culpability must attach to him as if his purpose had been the same as that of his brother? If so, one of the fundamental principles of criminal jurisprudence must be ignored and set at naught. If my brother seeks out his enemy on the public highway with a view to slay him, and I, Ignorant of his design as well as the cause of the difficulty and how it originated, but seeing him hotly engaged knd the fortune of tlie fight turning against him, and realizing that he is in imminent danger of life or limb, rush to his rescue, and strike down his antagonist in order to save his life, must I, under such circumstances, be adjudged guilty of murder with express malice, merely because my brother would be so ad- judged in case he had inflicted the mortal blow? If the law is so written in the books, we have failed to discover it" 82 4 Bl. Comm. 182. § 67) OCCIDENT 193 To excuse a homicide on tlie ground of accident, the ac- cused must have been engaged in a lawful act, and he must have been performing it with due care.°' If he was en- gaged in an unlawful act, malum in se, or if the accident was the result of culpable negligence, he is criminally lia- ble for the consequences.** It is a lawful act for a parent to chastise his child, and he is not liable if death results to the child if the punishment was moderate. If, however, he uses an instrument likely to cause serious injury, or in- flicts punishment to an immoderate extent, he is criminally liable. °'' If a workman on a building throws material there- from, and it kills a passer-by, the homicide is excusable if persons were not in the habit of passing, and there was no reason to suppose that they woqld pass. It would be otherwise, though, if he knew that people were passing, or it was likely that they were passing."' So also, if a person / accidentally kills another in mutual combat, where he is voluntarily fighting, he is guilty of manslaughter, as the fighting is an unlawful act;' but if he does not wish to fightj and is merely defending himself, as the law permits him to do, he is excused, on the ground of accident."^ And if two persons engage in a friendly wrestling match, with- out unlawful violence, and one is thrown, and chances to fall in such a way that he is killed, or in such a way as to »s state V. Benham, 23 Iowa, 154, 92 Am. Dec. 416; People v. Lyons, 110 N. X. 618, 17 N. E. 391. The killing of a person by the accidental discharge of a pistol by one engaged in no unlawful act, and without negligence, is homicide by misadventure. U. S. v. Mea- gher (C. O.) 37 Fed. 875. »* Post, p. 229 et sea. osFost. Crown Law, 262; 4 Bl. Comm. 182; 1 Hale, P. C. 473, 474; Reg. v. Griffin, 11 Cox, Cr. Cas. 402. Post, p. 231, footnotes 34, 35 ; page 270. •• Post, p. 232. »7 Beg. V. Knock, 14 Cox, Cr. Oas. 1. Clabk Ce.L.3d Ed. — 13 194 OFFENSES AGAINST THE PERSON (Ch. 8 knock down a bystander, who is killed, the killing, being accidental, is excusable." If a man shoots at a person, and accidentally kills a bystander, he will be in the same position as if he had killed the person intended. The kill- ing will be murder, manslaughter, justifiable, or excusable, according as it would have been one or the other if the per- son intended had been killed." But to render one liable ■for an accident in the doing of an unlawful act, the act must be malum in se, and not merely malum prohibitum, and, therefore, a person is not criminally liable for running over a person while driving at a speed prohibited by a city ordinance, but not recklessly, since the excessive speed is" only wrong beca!use of the ordinance,^ EXCUSABLE SELF-DEFENSE 68. Excusable homicide in self-defense is where a person from necessity kills another upon a sudden affray, to save himself from death or serious bodily harm. (a) The danger nfUst reasonably appear to be imminent. (b) The person taking life must believe the danger to be imminent. (c) He must have retreated as far as safety would allow, except that EXCEPTION — A man is not bound to retreat when attacked in his own habitation. »8 Reg. V. Bruce, 2 Cox, Cr. Cas. 262. »» Agnes Gore's Case, 9 Coke, 81; Saunders' Case, 2 Plowd. 473; Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; Finder v. State, 27 Pla. 370, 8 South. 837, 26 Am. St Rep. 75. See, also, post, pp. 206, 212, note 55. 1 COM. V. ADAMS, 114 Mass. 823, 19 Am. Rep. 362, Mikell Illus. Cas. Criminal Law, 30. § 68) EXCUSABLR SELF-DEFENSE 195 (d) He must not have been the aggressor, and provoked the difficulty himself, except that EXCEPTIONS— (1) A few courts seem to hold that this does not apply unless he had a felonious intent. (2) His acts must have been calculated and in- tended to provoke a difficulty. (3) If, after provoking the difficulty, he withdraws in good faith, and his adversary .follows, he is no longer the aggressor, and may defend him- self. In explaining justifiable homicide, we have already shown the difference between justifiable and excusable self- defense. It will be remembered that they are alike dispun- ishable. We saw that in justifiable self-defense no fault whatever attaches to the person committing the homicide ; as, for instance, where the killing is of one who is making an unprovoked murderous assault, or attempting any other forcible felony. Excusable homicide in self-defense is where the person committing it is regarded by the law as being to some extent to blame; as, for instance, where he resists an attack on his persOn or property not made with felonious intent, so as to give him the right to take his as- sailant's life, and thereby becomes involved in a combat or sudden affray. Where, after the difficulty has begun, the other party attempts to take his life, or inflict grievous bodily harm, he will be excused if he kills him as a neces- sary means of saving his own life. He is regarded as hav- ing been to some extent in fault in resisting the nonfelo- nious attack, instead of seeking redress and protection at the hand of the law, and is therefore merely excusable, in- stead of being regarded as justified. Where an assaiilt is not made in such a way as to threaten death or grievous 196 OFFENSES AGAINST THE PERSON (Ch. 8 bodily harm, or where a mere trespass upon property is at- tempted, or an unlawful arrest sought to be made, the per- son whose rights are thus assailed may repel force by force; but, as we have seen, he cannot go to the extreme of taking the aggressor's life, or using a deadly instrument in his defense, unless his life is in imminent danger at the hands of the aggressor, or unless grievous bodily harm is imminent. If his life or grievous bodily harm is threatened, and he can apparently prevent it only by taking his assail- ant's life, he will be excused for the homicide.^ No other danger than of death or grievous bodily harm will excuse him. In the absence of a statute, a man is not even ex- cused where he kills another while the latter is in the act of adultery with his wife ; he will be guilty of manslaugh- ter at least.' Imminence of Danger and Necessity Before self-defense can be available as an excuse, it must appear that the danger was imminent, and that the only ap- parently possible way in which to escape death or grievous bodily harm was to kill the assailant.* The danger must be imminent, impending, and present, and not prospective, or even in the near future." When it is said that the danger must be imminent, it must be remembered that the doctrine of mistake of fact applies 2 Jones V. State, 26 Tex. App. 1, 9 S. W. 53, 8 Am. St. Rep. 454 ; White V. Washington Territory, 3 Wash. T. 397, 19 Pac. 37. s Hooks V. State, 99 Ala. 166, 13 South. 767. See ante, p. 179, note 45 ; post, p. 224. * State V. Decklotts, 19 Iowa, 447; Meurer v. State, 129 Ind. 587, 29 N. B. 392 ; Greschia v. People, 53 111. 295. Cannot infer danger from ill will of adversary in prior contests, State t. Sullivan, 51 Iowa, 142, 50 N. W. 572. 5 Dolan V. State, 81 Ala. 11, 1 South. 707; State v. Jump, 90 Mo. 171, 2 S. W. 279; Burgess v. Territory, 8 Mont 57, 19 Pae. 558, 1 L. R. A. 808. § 68) EXCUSABLE SELF-DEFEN8B 197 here as elsewhere in the criminal law. That doctrine is that, if one would have been justified or excused in doing an act if the facts had actually been as he thought they were, then he is excused for doing such act if he had rea- sonable grounds to believe and did believe that the facts were as he thought them, and he used reasonable efforts to ascertain the facts. If to the accused there was a reasonably apparent neces- sity to kill to save himself, he will be excused, though to some one else there might not have seemed to be any such necessity, and though in fact there was no such necessity.' Most of the cases are to the effect that the circumstances must have been such as to excite the fears of a reasonable 6 State V. Collins, 32 Iowa, 36; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286 ; People v. Moilne, 61 CaL 367 ; State v. Matthews, 78 N. C. 523 ; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173 ; Camp- bell V. People, 16 111. 17, 61 Am. Dec. 49; State v. Shippey, 10 Minn. 223 (GU. 178) 88 Am. Dec. 70; Steinmeyer v. People, 95 111. 383; Stanley v. Com., 86 Ky. 440, 6 S. W. 155, 9 Am. St. Rep. 305 ; Patillo V. State, 22 Tex. App. 586, 3 S. W. 766; State v. Eaton, 75 Mo. 586; People V. Gonzales, 71 Cal. 569, 12 Pac. 783; Patterson v. People, 46 Barb. (N. Y.) 625; Radford v. Com. (Ky.) 5 S. W. 343; Oder v. Com., 80 Ky. 32 ; Oakley v. Com. (Ky.) 11 S. W. 72 ; Bang v. State, 60 Miss. 571; State v. Donahoe, 78 Iowa, 486, 43 N. W. 297; People V. Williams, 32 Cal. 280; Barnards v. State, 88 Tenn. 183, 12 S. W. 431, at page 442; Smith v. State, 25 Fla. 517, 6 South. 482 ; Pinder V. State, 27 Fla. 370, 8 South. 837, 26 Am. St. Rep. 75; Brown v. Com., 86 Va. 466, 10 S. E. 745; State v. Evans, 33 W. Va. 417, 10 S. E. 792; Murray v. Com., 79 Pa. 311; Pistorius v. Com., 84 Pa. 158; Stoneman v. Com., 25 Grat. (Va.) 887; Abemethy v. Com., 101 Pa. 322; Schnier v. People, 23 111. 17; Cahill v. People, 106 111. 621; Barr v. State, 45 Neb. 458, 63 N. W. 856; Enright v. People, 155 111. 32, 39 N. E. 561 ; Allen v. U. S., 164 U. S. 492, 17 Sup. Ct 154, 41 L. Ed. 528. A homicide is justifiable where the circumstances are such as to induce a reasonably cautious man to believe that the killing was necessary to save his own life or protect him from great personal Injury, though in fact an actual necessity to kill did not exist Lane V. State, 44 Pla. 105, 32 South. 896; Fantroy v. State, 166 Ala. 27, 51 South. 931. 198 OFFENSES AGAINST THE PERSON (Ch. 8 man, and that the accused must have acted as an ordinarily cautious and courageous man would have acted ; or, in oth- er words, there must have been a reasonable appearance of danger, or reasonable grounds to believe there was dan- ger.' But the court and jury must look at the circumstanc- es from the standpoint of the accused. A coward will fear danger unreasonably, and the mere fear of a coward, with- out reason therefor, is not enough.* A person must not be guilty of negligence in coming to the conclusion that he is in danger. Under such circumstances, the homicide- will be manslaughter." If a deadly weapon is presented or at- tempted to be presented, whether there is any intention to use it or not, and though it may not be loaded, the person so threatened may reasonably assume that there is an intent to use it, and may act on the assumption; ^° but a person cannot repel the attack of an unarmed man, not his superior in physical power, by killing him, and then successfully set up the plea of self-defense ; ^^ nor can he kill an assailant who has turned away, and manifested an intention to aban- T Creek v. State, 24 Ind. 151 ; State v. Crawford, 66 Iowa, 318, 23 N. W. 684 ; Kendrick v. State, 55 Miss. 436 ; Shorter v. People, 2 N. T. 193, 51 Am. Dec. 286 ; People v. Austin, 1 Parker, Cr. R. (N. T.) 154, at page 164 ; State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70; Field V. Com., 89 Va. 690, 16 S. E. 865 ; Askew v. State, 94 Ala. 4, 10 ■South. 657, 33 Am. St Rep. 83; State v. Parker, 106 Mo. 217, 17 S. W. 180; State v. Morey, 25 Or. 241, 35 Pac. 655, 36 Pac. 573 ; Peo- ple V. Lynch, 101 Cal. 229, 35 Pac. 860 ; State v. Symmes, 40 S. C. 383, 19 S. E. 16 ; Amos v. Com. (Ky.) 28 S. W. 152. And see cases cited In preqeding note. 8 Golden v. State, 25 Ga. 527, at page 533 ; Gallery v. State, 92 Ga. 463, 17 S. E. 863. But see Grainger v. State, 5 Yerg. (Tenn.) 459, 26 Am. Dec. 278. B U. S. V. Heath (D. C.) 19 Wash. Law Rep. 818. 10 People V. Anderson, 44 Cal. 65. But see State v. Bodie, 33 S. C. 117, 11 S. E. 624. 11 Hall V. State (Miss.) 1 South. 35L § 68) EXCUSABLE SELF-DEFENSE 199 don the conflict.^* In all cases there must be an actual bona fide belief in danger. If a person kills an assailant when he does not believe he is in danger of death or griev- ous bodily harm, it has been held that he will not be ex- cused because it afterwards appears that there was such danger.^" There can be no such thing as accidental self- defense.^* Duty to Retreat and Avoid Danger The law in regard to self-defense on a sudden affray does not consider the wounded pride which may result from de- clining to fight, or the sense of shame a man may feel in be- ing denounced as a coward,^' but requires that, to bring a homicide within the excuse of self-defense, the accused must show that he endeavored to avoid any further strug- gle, and retreated.^" He must have retreated if there was a way of escape open to him, and have done all in his power to avert the necessity of killing his adversary. The law, however, only requires a man to retreat when he can safely do so. He is not bound to retreat if to do so would prob- ably render him liable to death or grievous bodily harm be- 12 Meurer v. State, 129 Ind.' 587, 29 N. E. 392 ; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286. 13 People V. Gonzales, 71 Cal. 569, 12 Pac. 783 ; Trogdon v. State, 133 Ind. 1, 32 N. E. 725; State v. Jackson, 32 S. C. 27, 10 S. E. 769. i< State V. Smith, 114 Mo. 406, 21 S. W. 827. IB Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Eep. 85. 18 Duncan v. State, 49 Ark. 543, 6 S. W. 164; People v. Cole, 4 Parker, Cr. R. (N. Y.) 35; STATE v. HILL, 20 N. C. 629, 34 Am. Dec. 396, Mikell lUus. Cas. Criminal Law, 125; Squire v. State, 87 Ala. 114, 6 South. 303 ; Carter v. State, 82 Ala. 13, 2 South. 766 ; Com. y. Ware, 137 Pa. 465, 20 Atl. 806; Sullivan v. State, 102 Ala. 135, 15 South. 264, 48 ion. St. Rep. * 22; State v. Jones, 89 Iowa, 182, 56 N. W. 427 ; Allen v. U. S., 164 U. S. 492, 17 Sup. Ot. 154, 41 L. Ed. 528; People V. Constantino, 153 N. Y. 24, 47 N. E. 37. Retreat is not neces- sary under the Texas statute. WUliams v. State, 80 Tex. App. 429, 17 S. W. 1071. 200 OFFENSES AGAINST THE PBESON (Ch. 8 cause of the fierceness of his assailant's attack.^' The mere fact that retreat will not place him in less peril, or on bet- ter vantage ground than before, does not excuse him from the performance of this duty.'^' As has already been said, one who is assaulted in his own house is not bound to re- treat, but may stand his ground.^* Accused as the Aggressor Self-defense is no excuse for a homicide if the accused brought on the difficulty, and was himself the aggressor."" If, however, after bringing on the difficulty, a person in good faith withdraws, and shows his adversary that he does not desire to continue the conflict, and his adversary pursues him, he has the same right to defend himself as if he had 17 state V. Thompson, 9 Iowa, 188, 74 Am. Dec. 342 ; Creek v, State, 24 Ind. 151; Eunyan v. State, 57 Ind. 80, 26 Am. Rep. 52 State V. Donnelly, 69 Iowa, 705, 27 N. W. 369, 58 Am. Rep. 234 ; Peo pie V. Macard, 73 Mich. 15, 40 N. W. 784 ; Duncan v. State, 49 Ark 543, 6 S. W. 164; State v. Sorenson, 32 Minn. 118, 19 N. W. 738 State V. Eheams, 84 Minn. 18, 24 N. W. 302. 18 Carter v. State, 82 Ala. 13, 2 South. 766. 19 Ante, p. 186, note 77. 20 1 Hale, P. C. 482; Stewart v. State, 1 Ohio St. 66; Stoffer v. State, 15 Ohio St 47, 86 Am. Dec. 470 ; State v. Lane, 26 N. C. 113 ; State V. Scott, 41 Minn. 365, 43 N. W. 62; People v. Robertson, G7 Cal. 646, 8 Pac. 600; Helm v. State, 67 Miss. 562, 7 South. 487; Allen V. State, 66 Miss. 385, 6 South. 242 ; ClifEord v. State, 58 Wis. 477, 17 N. W. 304; Hasson v. Com. (Ky.) 11 S. W. 286; State v. Neeley, 20 Iowa, 108; State v. Murdy, 81 Iowa, 603, 47 N. W. 867; State V. Jump, 90 Mo. 171, 2 S. W. 279 ; Thompson v. State (Miss.) 9 South. 298; Atkins v. State, 16 Ark. 568; Gaines v. Com., 88 Va. 682, 14 S. B. 375 ; Gibson v. State, 89 Ala. 121, 8 South. 98, 18 As. St Rep. 96; State v. Hawkins, 18 Or. 476, 23 Pac. 475; State v. Brittain, 89 N. C. 481; Kinney v. People, 108 lU. 519; Fussell v. State, 94 Ga. 78, 19 S. E. 891. Aiming oneself in anticipation of a difficulty, if done for purposes of defense and not of aggression, does not deprive one of the right to invoke the defense of self-defense. Lett V. State, 1 Ala. App. 18, 56 South. 5 ; Radford t. Com. (Ky.) 5 S. W. 343. § 68) EXCUSABLE SELF-DEFENSE 201 not originally provoked the difficulty,^^ but the withdrawal must be in good faith, and must not be for the purpose of securing an advantage in the fight." If he withdraws, and gives his adversary reasonable ground for believing that he has withdrawn, it is sufficient.'^ It is not required of him that he at all hazards make it actually known to his antagonist that he has withdrawn; if his acts are such as would notify a reasonable man under the circumstances of the withdrawal, it is all that is required of him. If the passion or cowardice of the adversary blind him to the ac- tions of the accused showing his intention to withdraw, this cannot be charged against the accused, so as to deprive him of the right secured by his withdrawal to defend his life."* "If the party assailed has eyes to see he must see, and if he has ears to hear he must hear. He has no right to close his eyes or deaden his ears." ^° If, however, the party assailed was deprived by the nature or violence of the orig- inal attack by the accused of the ability of a reasonable man to perceive the withdrawal of the accused, the accused must 21 STOREY V. STATE, 71 Ala. 330, Mikell Illus. Cas. Criminal Law, 103; Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470; Hittner v. State, 19 Ind. 48 ; Parker v. State, 88 Ala. 4, 7 South. 98 ; STATE v. HILL, 20 N. 0. 629, 34 Am. Dec. 396, Mikell Illus. Cas. Criminal Law, 125; Brazzil v. State, 28 Tex. App. 584, 13 S. W. 1006; Oakley v. Com. (Ky.) 11 S. W. 72; Hash v. Com., 88 Va. 172, 13 S. E. 398; Bar- nard V. Com. (Ky.) 8 S. W. 444 ; Crane v. Com. (Ky.) 18 S. W. 1079; State V. Thompson, 45 La. Ann. 969, 13 South. 392 ; Wills v. State (Tex. Cr. App.) 22 S. W. 969 ; Johnson v. State, 58 Ark. 57, 23 S. W. 7 ; Kowe v. U. S., 164 U. S. 546, 17 Sup. Ct. 172, 41 L. Ed. 547. 22 1 Hale, P. C. 479, 480; StotCer v. State, 15 Ohio St 47, 86 Am. Dec. 470; Parker v. State, 88 Ala. 4, 7 South. 98; People v. Wong^ Ah Teak, 63 Cal. 544. 2 3 State V. DUlon, 74 Iowa, 653, 38 N. W. 525. 24 PEOPLE V. BUTTON, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St Rep. 259, Mikell Illus. Cas. Criminal Law, 116. 2B PEOPLE V. BUTTON, 106 Cal. 628, 39 Pac. 1073, 28 L. R. A. 591, 46 Am. St. Rep. 259, Mikell Illus. Caa Criminal Law, 116. 202 OFFENSES AGAINST THE PERSON (Ch. 8 at his peril bring home to the assailed the knowledge of his intention to withdraw from the fight.^" The authorities are not in accord on the question whether the right of self-defense revives on the part of one who has assaulted another with malice and then has withdrawn from the encounter before killing to save his life. All agree that if the withdrawal were only colorable and the killing were done in pursuance of the original malice the killing is not excusable. But when the killing was admittedly done solely to preserve life and not in pursuance of an orig- inal malicious design, some of the authorities hold that the killing is not excusable if the accused attacked the deceased with felonious design, or maliciously. As said by Gaston, J. : " "If the first assault was made with this purpose [to kill deceased or to do him great bodily harm], the malice of that assault, notwithstanding the violence with which it was returned by the deceased, communicates its character to the last act of the prisoner. It is laid down as settled law that if a man assault another with malice prepense, even though he should be driven to the wall, and kill him there to save his own life, he is yet guilty of murder in respect of his first intent." On the other hand, it is held in other jurisdictions that there is always a place for repentence, and that, though the attack may have been made originally with malicious intent, if this intent was abandoned and the accused bona fide re- treated and sought to evade the necessity for killing, his right of self-defense revives.^* 2(8 PEOPLE V. BUTTON, 106 Oal. 628, 39- Pac. 1073, 28 L. R. A. 591, 46 Am. St Rep. 259, Mikell Illus. Gas. Criminal Law, 116. 2T In STATE V. HILL,. 20 N. O. 629, 34 Am. Dec. 396, Mikell Illus. Cas. Criminal Law, 125. See, also, Hash v. Com., 88 Va. 172, 13 S. E. 388. 28 StofCer V. State, 15 Ohio St 47, 86 Am. Dee. 470. In this case Ranney, J., said: "When this is made to appear [that accused bona § 68) EXCUSABLE SELF-DEFENSE 203 Where the accused brings on the difficulty, he must in all cases retreat before killing in order to make the killing ex- cusable homicide. If he continues in the fight after being himself the aggressor, whether he brought on the difficulty with felonious intent, or some less culpable intent, he is guilty of some degree of felonious homicide. It is generally held that, if the intent of the accused in bringing on the difficulty was felonious, the subsequent killing is murder; if not felonious, manslaughter.^* fide retreated and notified deceased of his withdrawal], we know of no principle, however criminal the previous conduct of the accused may have been, which allows him to be hunted down and his life put in jeopardy, and denies him the right to dct upon that instinct of self- preservation which spontaneously arises alike in the bosoms of the just and the unjust." 2» State V. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31; State V. Parker, 96 Mo. 382, 9 S. W. 728; State v. McDaniel, 94 Mo. 301, 7 S. W. 634; State v. Parker, 106 Mo. 217, 17 S. W. 180; Hash v. Com., 88 Va. 172, 13 S. E. 398 ; Polk v. State, 30 Tex. App. 657, 18 S. W. 466; Sum van v. State, 31 Tex. Cr.'R. 486, 20 S. W. 927, 37 Am. St Rep. 826. In State v. Hunter, 82 S. C. 153, 63 S. E. 685, the court said : "If a man picks a quarrel with his fellow and kills his fellow, the law denies him the plea of self-defense. If the de- fendant used language toward the deceased that a reasonable man would expect to bring on a fight, then the law denies him the plea of self-defense." See, also, Baldwin v. State, 111 Ala. 11, 20 South. 528. This doctrine is denied in Smith v. State, 8 Lea (Tenn.) 402, and State v. Culler, 82 Mo. 623. In the case last cited the court said : "Were it the rule (as held in State v. Hunter, supra), then a person who, without any ulterior or malicious purpose, should, on the street, begin some sudden wrangle, altercation, or dispute, • • • the party assailed, either with tongue or fist, could draw a deadly weap- on and take his life, and he be defenseless before his adversary, or a murderer if he successfully resisted the murderous assault. * • * It is only when the wordy quarrel or the actual nonfelo- nious combat is provoked by the commencer or aggressor, in order to afford opportunity for him to kUl his adversary, that the right of self-defense ceases." State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912; State V. Hardy, 95 Mo. 455, 8 S. W. 410 ; State v. Davidson, 95 Mo. 155, 8 S. W. 413. ^04 OFFENSES AGAINST THE PERSON (Ch. 8 A person may be the aggressor, in the eye of the law, by doing wrongful acts provoking another to attack him.^* Some courts hold that a man who is caught in adultery with another's wife is so far the aggressor that he cannot defend himself against an attack by the husband, and, after killing him, set up the plea of self-defense; he will be guilty of manslaughter at least.^^ A man will not be deemed the ag- gressor, within this rule, merely because his acts provoked the difficulty, unless they were calculated or intended to have that effect.^^ It follows from what has already been said that where the original aggressor ceases the attack, and shows that he has abandoned it, and the person assailed renews the difficulty, he becomes in turn the aggressor, and 30 One who provokes an attack by the use of abusive language cannot justify the use of violence on the ground of self-defense. Shaw V. State (Tex. Or. App.) 73 S. W. 1046. If the defendant is at fault in striking the horse of the deceased with a whip, and thereby brings on the difficulty, he cannot avail himself of the plea of self- defense. Rose V. State, 144 Ala. 114, 42 South. 21. It has been held in a recent case that if defendant went armed to a certain place, knowing deceased to be there and that he would be likely to attack defendant, the latter could not avail himself of the defense that he killed deceased in self-defense. Valentine v. State, lOS Ark. 5&4, 159 S. W. 26. But see Nash v. State, 73 Ark. 399, 84 S. W. 497. 31 Reed v. State, 11 Tex. App. 509, 40 Am. Eep. 795; Drysdale v. State, 83 Ga. 744, 10 S. E. 358, 6 h. E. A. 424, 20 Am. St. Rep. 340. It is otherwise where the circumstances are such that the husband has no right to attack the adulterer. Wilkerson v. State, 91 Ga. 729, 17 S. E. 990, 44 Am. St. Rep. 63. A man may defend himself against an attack by the father of a girl with whom he has been having Intercourse with her consent. Varnell v. State, 26 Tex. App. 56, 9 S. W. 65. A person who goes to another's house merely to se- cure a place to sleep, and, not finding the husband, lies down, by permission of the wife, in an adjoining room until 2 o'clock in the morning, when the husband returns, and attacks him, may defend himself. Franklin v. State, 30 Tex. App. 628, 18 S. W. 468. 82 White V. State, 23 Tex. App. 154, 8 S. W. 710 ; Johnson v. State, 26 Tex. App. 031, 10 S. W. 235; Saens v. State (Tex. Cr. App.) 20 S. W. 737. § 69) FELONIOUS HOMICIDE IN GENEEAL 205 cannot plead self-defense if he kills the original aggressor to save his life.'* Defense of Person in Family Relation The killing of a person in defense of those standing in the relation of husband and wife, parent and child, master and servant, or guest and host, is regarded in law as the act of the person defended, and is excused to the same ex- tent as if in fact committed by him.'* Some of the cases even go so far as to say that any person can defend an- other, whether he is bound to protect him or not, — that whatever a person may do for himself he may do for an- other.^' It is said that the right to defend another, how- ever, can be no greater than the right of the other to de- fend himself ; '* so that if a person brings on a difficulty, so that he could not, if he killed his opponent, set up the plea of self-defense, his brother, if he kills him, cannot set up the plea.*' FELONIOUS HOMICIDE IN GENERAL 69. Felonious homicide is the killing of a human being without justification or excuse, and may be (a) Murder, or (b) Manslaughter. S3 Allen V. State, 24 Tex. App. 216, 6 S. W. 187. SI Reg. V. Rose, 15 Cox, Cr. Cas. 540; Elstep v. Com., 86 Ky. 39, 4 S. W. 820, 9 Am. St. Eep. 260 ; Chittenden v. Com. (Ky.) 9 S. W. 386; Pond v. People, 8 Mich. 150; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173 ; Hathaway v. State, 32 Fla. 56, 13 South. 592. See, also, ante, p. 191 ; Tapscott v. Com., 140 Ky. 578, 131 S. W. 487. 35 Ante, p. 191. 8« A parent has no right to protect a child in the commission of a crime. State v. Herdina, 25 Minn. 161. ii State V. Melton, 102 Mo. 683, 15 S. W. 139; Saens t. State (Tex. 206 OFFBNSBS AGAINST THB PERSON (Ch. 8^ MURDER 70. Murder at common law is unlawful homicide with mal- ice aforethought." MALICE AFORETHOUGHT 71. Malice aforethought may exist whether the act is pre- meditated, or unpremeditated. It is present when a felonious homicide has been committed with : (a) An intention to cause the death of, or grievous bod- ily harm to, any person, whether such person is the person actually killed or not (except when ^death is inflicted in the heat of sudden passion, caused by adequate provocation, as hereafter ex- plained). (b) Knowledge that the act or omission which causes the death will probably cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not, al- though such knowledge is accompanied by indif- ference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. (c) When the homicide has been cammitted in the com- mission of or the attempt to commit a felony. (d) When the homicide was committed in resisting a lawful arrest, or in obstructing a lawful preven- tion of a riot or affray, whether the killing were in- tentional or not, provided the offender had notice Or. App.) 20 S. W. 737; State v. Brlttain, 89 N. C. 482. And see Jones V. Fortune, 128 lU. 518, 21 N. B. 523. 88 Steph. Dig. Cr. Law, art. 223. See 4 Bl. Comm. 194. §§ 71-72) MALICE AFOEETHOUGHT '207 that the person he was obstructing was lawfully authorized to make the arrest or suppress the riot or affray.'* 72. Murder is a felony at common law, and was punishable by death. Malice Aforethought *' To constitute the crime of murder, the killing must be with "malice aforethought." Where malice aforethought exists, every homicide is murder.*^ "Malice" does not nec- essarily mean hatred or personal ill will towards the per- son killed, nor an actual intent to take his life, or even to take any one's life. If the killing was for the purpose of robbery, without any hatred or ill will against the person killed ; , or if the killing of the person was done in an at- tempt to kill another, it is said to be done of malice afore- thought. The killing may be unintentional, and done in the commission of some other crime, or while merely doing a reckless and dangerous act ; and in either case the person causing the death may have what the law deems "malice aforethought." It is impossible to give a satisfactory defi- nition of the term. Thus it has been said: "The words 'malice aforethought' long ago acquired in law a settled meaning, somewhat different from the popular one. In their legal sense they do not import an actual intention to kill the deceased. The idea is not spite or malevolence to the deceased in particular, but evil design in general; the dictate of a wicked, depraved, and malignant heart; not premeditated personal hatred or revenge towards the per- 88 Following Steph. Dig. Cr. Law, art. 223. < 3, 6 L. R. A. 495, 15 Am. St. Rep. 430. Under the statutes of Illinois it is held that suicide is not a crime. Royal Circle v. Achterrath, 204 111. 549, 68 N. E. 492, 63 L. R. A. 452, 98 Am. St. Rep. 224. Although the courts of Illinois hold that suicide is not a crime under their statutes, yet it is intimated that one who procures another to commit the act of self-destruction may be held liable as a principal to the crime of murder. Burnett v. People, 204 111. 208, 68 N. E. 505, at page 511, 66 L. R A. 304, 98 Ana. St. Rep. 206. "It is not a violation of the law of Texas for a person to take his own life. * • • So far as the law is concerned the suicide is innocent ; therefore the party who furnishes the means to the suicide must also be innocent of violating the law." Grace v. State, 44 Tex. Or. R. 193, 69 S. W. 529. Under a common form of statute abolishing the distinction be- tween principals and accessaries, one who abets a suicide may be convicted, though he was absent when the suicide occurred. Mc- Mahan v. State, 168 Ala. 70, 53 South. 89. 7s See 4 Bl. Comm. 194. And see State v. Levelle, 34 S. O. 120, 13 S. E. 319, 27 Am. St Rep. 799. §§ 71-72) MALICE AFOEETHODGHT 217 those that declare suicide not a crime, recognize this in holding that one who counsels another to commit suicide, and is present when the act is committed, is guilty of mur- der, as a principal in the second degree.''* If the adviser is absent at the time of the suicide, he cannot be punished at common law, as he is an accessary before the fact, and an accessary before the fact cannot be punished until convic- tion of the principal.'" If two persons agree together to commit suicide, and only one of them kills himself, the other is guilty of murder.'* An attempt to commit suicide is a misdemeanor, all attempts to commit felonies being misdemeanors." Such an attempt has been held in Mas- sachusetts and Texas not to be punishable; in Texas be- cause suicide was not a crime, and in Massachusetts be- cause of a statute defining felonies.'* Statutory Degrees of Murder At common law there are no degrees of murder. All felonious homicides other than manslaughter are simply murder, and punishable by death. Beginning with Penn- sylvania, in 1794, however, most of the states have divided murder into two, and some have divided it into three, de- grees, according to the heinousness of the deed ; murder in the first degree being generally where there is a premeditat- ed design to effect the death of the person killed, or of some 7* Rex V. Tyson, Euss. & R. 523 ; Com. v. Bowen, 13 Mass. 356, 7 Am. Oec. 154; Com. v. Utennis, 105 Mass. 162. 7B Reg. V. Leddington, 9 Car. & P. 79 ; ante, p. 118. 7 8 Reg. V. Alison, 8 Car. & P. 418; McMahan y. State, 168 Ala. 70, 53 South. 89. ^^ Reg. v. Doon, caused by the provocation, and not from mal- Te4Bl. Comm. 101. § 75) VOLDNTAEY MANSLAUGHTER 219 ice, he may strike a blow before he has had time to control himself, and therefore does not in such acase punish him as severely as if he were guilty of a deliberate homicide.*" Homicide thus committed is manslaughter. It is distin- guished from murder by the absence of malice aforethought. The killing need not be unintentional.*^ Intentional killing is only manslaughter if it is committed under and by reason of a passion caused by sufficient provocation. The law does not merely look to see if a man was provoked and en- raged, and, if so, reduce his crime to manslaughter, but it also looks at the provocation, to see if it was adequate to excite his passion. The provocation must be sufficient in the eye of the law, or the crime is murder.*^ It has been said that the provocation must be such as is calculated to give rise to irresistible passion in the mind of a reasonable man.** It is also necessary that the act causing death shall be committed because of the provocation,** for otherwise 8 STATH V. HILL, 20 N. C. 629, 34 Am. Dec. 396, Mikell lUus. €as. Criminal Law, 125 ; Slaughter v. Com., 11 Leigh (Va.) 681, 37 Am. Dec. 638. , 81 Maher v. People, 10 IMich. 212, 81 Am. Dec. 781 ; People v. :^reel, ,48 Cal. 436; Dennison v. State, 13 Ind. 510; State v. McDonnell, 32 Vt 491, 541; Er'B'in v. State, 29 Ohio St 186, 23 Am. Kep. 733 ; People V. LUley, 43 Mich. 521, 5 N. W. 982 ; Nye v. People, 35 Mich. 16. 82 Reese v. State, 90 Ala. 624, 8 South. 818. 83 Territory v. Catton, 5 Utah, 451, 16 Pac. 902. "The law con- templates the case of a reasonable man, and requires that the provo- cation shall be such that such a man might naturally be induced, in the anger of the moment, to commit the act." Per Keating, J., in Reg. V. Welsh, 11 Ctox, Cr. Gas. 336. It is said in a, Michigan case ■that the reason should at the time of the act be disturbed or ob- scured by passion, to an extent which might render ordinary men, of fair average disposition, liable to act rashly, or without due delib- eration or reflection, and from passion rather than judgment. Maher V. People, 10 Mich. 212, 81 Am. Dec. 781. Rejection of a suitor by a woman is not sufficient. State v. Kotovsky, 74 Mo. 247. 8* Reg. V. Kirkham, 8 Car. & P. 45; Slaughter v. Com., 11 Leigh 220 OFFENSES AGAINST THE PERSON (Ch. 8 the homicide will be committed with malice aforethought, and the crime will be murder. A killing with malice afore- thought cannot be manslaughter.'" The provocation must deprive one of the power of self-control,*" but it need not "entirely dethrone reason." ''^ Whether or not this was so in any given case is a question for the jury, to be deter- mined from the particular circumstances, having regard to the nature of the act by which death was caused, the time which elapsed between the provocation and the act, and the conduct of the accused during that time.'* The blow must not only have been inflicted while the accused was under the influence of the provocation, but it must have been in- flicted before the passion caused by such provocation had cooled. If there was sufficient time for his passion to cool, he is guilty of murder, though his passion has not in fact subsided." Nor is the provocation available as a (Va.) 681, 37 Am. Dec. 638;. State v. Spaulding, 34 Minn. 361, 25 N. W. 793 ; Collins v. U. S., 150 XJ. S. 62, 14 Sup. Ct 9, 37 L. Ed. 998. 85 State V. Johnson, 23 N. G 354, 35 Am. Dec. 742; State v. Hil- dreth, 31 N. C. 429, 51 Am. Dec. 364 ; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97 ; Miller v. State, 32 Tex. Or. R. 319, 20 S. W. 1103 ; State V. Spaulding, 34 Minn. 361, 25 N. W. 793; l^eople v. Lilley, 43 Mich. 521, 5 N. W. 982 ; Collins v. U. S., 150 U. S. 62, 14 Sup. Ct 9, 37 L. Ed. 998; Slaughter v. Com., 11 Leigh (Va.) 681, 37 Am. Dec. 638; Brown v. Com., 86 Va. 466, 10 S. E. 745; State v. Green, 37 Mo. 466; Riggs v. State, 30 Miss. 635; State v. Gooch, 94 N. C. 987; State V. Hensley, Id. 1021. 88 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645 ; Davis v. People, 114 111. 86, 29 N. E. 192. 8 7 Smith V. State, 83 Ala. 26, 3 South. 551. 8 8 Reg. V. Welsh, 11 Cox, Cr. Cas. 336; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781 ; State v. Hoyt, 13 Minn. 132 (Gil. 125). 8 8 Reg. V. Young, 8 Car. & P. 644; State v. McCants, 1 Speer (S. O.) 384 ; State v. Jacobs, 28 S. C. 29, 4 S. E. 799 ; People v. Ulley, 43 Mich. 521, 5 N. W. 982 ; State v. Grayor, 89 Mo. 600, 1 S. W. 365; McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196 ; State v. Moore, § 75) VOLUNTARY MANSLAUGHTER 221 defense if it was sought for and induced by the accused with intent to resent it."" Adequacy of Provocation An assault and battery of such a nature as to inflict actual bodily harm or great insult is deemed in law sufficient prov- ocation to the person assaulted ; and if, in a passion caused by the provocation, he at once kills his assailant, he is guilty of manslaughter only.'^ For a child, however, or a woman, to strike a man, might not be sufficient; "'' certainly a blow by a little child would not be, for it could inflict neither harm nor insult. Under some circumstances as assault may be provocation to others than the person assaulted ; as, for instance, where a father is provoked by seeing his child whipped."' It has even been held that the beating of a wife by her husband is provocation to her father."* On the other hand, it has been held that a sister's seduction is not 69 N. C. 267 ; KDpatrick v. Com., 31 Pa. 198; State v. Hoyt, 13 Minn. 132 (Gil. 125) ; Com. v. Alello, 180 Pa. 597, 36 Atl. 1079. »o Stewart v. State, 1 Oliio St. 66; STATE v. HILL, 20 N. C. 629, 34 Am. Dec. 396, Mikell lUus. Cas. Criminal Law, 125; Melton v. State, 24 Tex. App. 47, 5 S. W. 652 ; State v. McDaniel, 94 Mo. 301, 7 S. W. 634 ; People v. Robertson, 67 Cal. 647, 8 Pac 600. oiFost Crown Law, 292; Com. v. Webster, 5 Cush. (Mass.) 2S5, 52 Am. Dec. 711 ; WilUams v. State, 25 Tex. App. 216, 7 S. W. 666 ; Hurd V. People, 25 Mich. 405 ; Schlect v. State, 75 Wis. 486, 44 N. W. 509. 92 A blow by a woman with an iron patten, drawing blood, was held sufficient in Stedman's Case, Fost. Crown Law, 292. "If a man should kill a woman or a child for a slight blow, the provocation would be no justification; and I very much question whether any blow Inflicted by a wife on a husband would bring the killing of her below murder. Upon this view I have always doubted Sted- man's Case. * * * Where a blow is cruel or unmanly, the provo- cation will not excuse it" Gibson, C. J., in Com. v. Mosler, 4 Pa. 268. S3 McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196. »* Campbell v. Com., 88 Ky. 402, 11 S. W. 290, 21 Am. St Rep. 34&. 222 OFFENSES AGAINST THE PERSON (Ch. 8 such provpcation as will reduce the killing of the seducer by the brother to manslaughter,*' and that anger and re- sentment because deceased killed defendant's friend or cous- in is not sufficient.'" Rejection by a suitor is not suffi- cient provocation to reduce the killing of the suitor to man- slaughter.*' If two persons quarrel and fight upon equal terms, and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other, and it is im- material which is right in the quarrel, or which struck the first blow.'* It must be remembered, however, that the killing of a person in mutual combat must be caused by the provocation, and that otherwise the crime is murder; and the mere fact of struggle is not enough to raise the presump- tion of passion, where the circumstances are as consistent with premeditated malice as with heat of passion."' An un- lawful imprisonment is provocation to the person impris- oned; and it has been held, even to bystanders.^ So, also,. 8 6 state V. Hockett, 70 Iowa, 442, 30 N. W. 742. »e State V. Gut, 13 Minn. 341 (Gil. 315) ; Reese v. State, 90 Ala. 624, 8 South. 818. Contra, where defendant saw his friend shot down by deceased. Moore v. State, 26 Tex. App. 322, 9 S. W. 610. o' State V. Kotovsky, 74 Mo. 247. » 8 State V. Massage, 65 N. O. 480; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dee. 711; Gann v. State, 30 Ga. 67;- State v. McOants, 1 Speer (S. C.) 384; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; State v. McDonnell, 32 Vt. 491; Battle v. State, 92 Ga. 465, 17 S. E. 861 ; State v. Hildreth, 31 N. C. 429, 51 Am. Dec. 364; STATE v. HILD, 20 N. C. 629, 34 Am. Dee. 396, MiUell Illus. Cas. Criminal Law, 125; State v. Roberts, 8 N. C. 349, 9 Am. Dec. 643; Schlect v. State, 75 Wis. 486, 44 N. W. 509. If the slayer uses concealed weapons, or otherwise takes an undue advantage, the homi- cide is murder. Price v. State, 36 Miss. 581, 72 Am. Dec. 195 ; State V. Ellick, 60 N. C. 450, 86 Am. Dec. 442. Quarrel, abusive language, and excitement, Perkins v. State, 78 Wis. 551, 47 N. W. 827. 8 9 State V. Jones, 98 N. O. 651, 3 S. E. 507. 1 Reg. V. Tooley, 2 Ld. Raym. 1296. See, also. Rex v. Adey, 1 Leach,. C. C. (4th Ed.) 206. But see Huggett's Case, Kel. 59 ; Steph. Dig. Or. Law, art. 226, and note Ix, p. 390. § 75) VOLUNTAET MANSLADGHTEK 223 is an attempt to arrest by officers of justice whose character as such is unknown,^ or whose character is known, but who are acting without a warrant where a warrant is necessary, or under a warrant which is so irregular as to make the ar- rest illegal.' Some courts have apparently held that killing in resistance of an unlawful arrest is justifiable or excusable, and does not even amount to manslaughter, but this was no doubt where life or grievous bodily harm was threat- ened.* The fact, however, that an attempted arrest is ille- gal will not reduce the killing in resisting it to manslaugh- ter, unless the accused knew it was illegal ; for, as stated in the black-letter text, the killing must have been because of adequate provocation, and, if the accused did not know the arrest was unlawful, there was no provocation. = The sight 2Yattes V. People, 32 N. T. 509; Mockabee v. Com., 78 Ky. 380; Oroom V. State, 85 Ga. 718, 11 S. E. 1035, 21 Am. St. Kep. 179; Dren- nan v. 'People, 10 Mich. 169. 3 Reg. V. Thompson, 1 Moody, Or. Cas. 80 ; Com. v. Drew, 4 Mass. 391; Kafferty v. People, 69 111. Ill, 18 Am. Rep. 601; Id., 72 111. 37; Jones V. State, 26 Tex. App. 1, 9 S. W. 53, 8 Am. St. Rep. 454; Peo- ple V. Burt, 51 Mich. 200, 16 N. W. 378 ; Briggs v. Com., 82 Va. 554 ; State V. Scheele, 57 Conn. 307, 18 Atl. 256, 14 4.m. St Rep. 106; Creighton v. Com., 84 Ky. 103, 4 Am. St. Rep. 193; .Ex parte Sher- wood, 29 Tex. App. 334, 15 S. W. 812; State v. Spaulding, 34 Minn. 361, 25 N. W. 793. If accused without warning an officer to desist from the attempt to arrest him, in cool blood, and with malice, in- tentionally kills the officer, he is guilty of murder, though the of- ficer acted illegally in attempting to make the arrest. Com. v. Phelps, 209 Mass. 396, 95 N. B. 868, Ann. Cas. 1912B, 566. Where a sherifC In pursuit shot at a fleeing misdemeanant, and the fugitive thereupon fir- ed in return, the sheriff being killed in the Interchange of shots which followed, it was held that the lower court was right in charging that the defendant must be convicted of manslaughter at least, on the theory that it was the commission of homicide while engaged in an act malum in se — armed resistance to the process of the state. State V. Durham, 141 N. O. 741, 53 S. E. 720, 5 L. R. A. (N. S.) 1016. 4 Simmerman v. State, 14 NeU. 568, 17 N. W. 115. BEx parte Sherwood, 29 Tex. App. 334, 15 S. W. 812. And see 224 OFFENSES AGAINST THE PERSON (Ch. 8 by a husband of the act of adultery committed by his wife is provocation to him on the part both of the wife and her paramour; and, if he kills either or both, he is guilty of manslaughter only." It is generally held that he must see the act however, and that mere knowledge of his wife's in- fidelity is not sufficient.'' That circumstances are so compromising as to induce a Graham v. State, 28 Tex. App. 582, 13 S. W. 1010. But see Reg. v. Tooley, 2 Ld. Eaym. 1296: "They say, likewise, that in the case at bar it could not be a provocation to the prisoners, because they knew not she was illegally arrested ; but surely' ignorantia f acti will excuse, but never condemn, a man. Indeed, he acts at his peril in such a case; but he must not lose his life- for his ignorance, when he happens to be in the right." 8 Pearson's Case, 2 Lewin, Or. Cas. 216 ; State v. Samuel, 48 N. C. 74, 64 Am. Dec. 596; Hooks v. State, 99 Ala. 166, 13 South. 767; Mays v. State, 88 Ga. 399, 14 S. B. 560; State v. Pratt, Houst. Cr. Cas. (Del.) 265 ; Jones v. People, 23 Colo. 276, 47 Pac. 275. One who is merely the husband's agent for the purpose of detecting the ^wife's adultery is not within the rule. People v. Ilorton, 4 Mich. 67; nor is a brother seeing a man in adultery with his sister, Lynch v. Com., 77 Pa. 205. 7 1 Hale, P. C. 486; Fost. Crown Law, 206; State v. Samuel, 48 N. C. 74, 64 Am. Dec. 596 ; State v. Neville, 51 N. C. 423 ; State v. Johii, 30 N. C. .330, 49 Am. Dec. 396; State v. Anderson, 98 Mo. 461, 11 S. W. 981; Sawyer v. State, 35 Ind. 83; State v. Avery, 64 N. C. 609; State v. Harman, 78 N. C. 519; Bugg v. Com. (Ky.) 38 S. W. 684. But see Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, State V. Holme, 54 Mo. 153, and Keg. v. Eothwell, 12 Cox, Cr. Cas. 145. In the latter case Blackburn, J., instructed the jury that although, ui general, mere words are not enough, they may be under special cir- cumstances; as, IE a husband, being told by his wife that she had committed adultery, and having no idea of it before, wei-e thereupon to kill her. Under statutes in some states, the killing is reduced to manslaughter if it occurs as soon as the fact of adultery is discovered. Pickens v. State, 31 Tex. Cr. R. 554, 21 S. W. 362. Where a husband killed his wife in a passion, because, to vex and insult him, she told him he was not the father of her children, this was held not to be sufficient provocation. Fry y. State, 81 Ga. 645, S S. B. 308. See, also, ante, p. 179, note 45. ^ § 75) VOLUNTARY MANSLAUGHTER 225 reasonable belief that adultery is being committed has been held sufficient, on the doctrine of mistake of fact, to reduce the killing of the supposed paramour from murder to man- slaughter.* This, however, seems erroneous, for the defini- tion of voluntary manslaughter requires that there be provo- cation from the person killed, and in the case supposed the person killed furnished no provocation. There was the req- uisite passion in the husband, it is true; but all the cases agree that such passion is not sufficient. There must be passion induced by provocation on the part of the person killed.' Trespasses or other injuries to property^' or breaches of contract ^^ do not, of themselves, amount to sufficient provo- cation for an act of resentment likely to endanger life. It is generally said in the text-books and cases that as a matter of law neither insulting nor abusive words or gestures are sufficient provocation.^^ But the tendency now is to regard the adequacy of the provocation as a matter of fact for the 8 State V. Yanz, 74 Conn. 177, 50 Atl. 37, 54 L. R. A. 780, 92 Am. St. Eep. 205. » See Shufflin v. People, 62 N. T. 229, 20 Am. Rep. 48.3. 10 State V. Hoyt, 13 Minn. 132 (Gil. 125); State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70 ; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; Sellers v. State, 99 Ga. 689, 26 S. E. 484, 59 Am. St. Rep. 253. See, also, ante, p. 188. 11 State V. Berkley, 109 Mo. 665, 19 S. W. 192. 12 Lord Morly's Case, J. Kelyng, 53; State v. Levelle, 34 S. C. 120, 13 S. E. 319, 27 Am. St. Rep. 799; People v. Butler, 8 Cal. 435 ; People V. Murback, 64 Cal. 369, 30 Pac. 608; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Lane v. State, 85 Ala. 11, 4 South. 730 ; Frledericli v. People, 147 111. 310, 35 N. E. 472 ; State v. Hock- ett, 70 Iowa, 442, 30 N. W. 742 ; State v. Elliott, 90 Mo. 350, 2 S. W. 411; State v. Sansone, 116 Mo. 1, 22 S. W. 617; State v. Berkley, 109 Mo. 665, 19 S. W. 192; Ex parte Sloane, 95 Ala. 22, 11 South. 14; People v. Olsen, 4 Utah, 413, 11 Pac. 577: State v. Bethune, 86 S. C. 143, 67 S. E. 466. Defamatory newspaper article not sufficient provocation. State v. Mliott (Ohio Com. PI.) 26 Wkly. Law Bui. 116. Clakk Cb.L.3d Ed. — 15 226 OFFENSES AGAINST THE PERSON (Ch. 8 jury, and not a matter of law for the court. "There are cir- cumstances where words do amount to a provocation in law ; i. e., a reasonable provocation to be submitted to the determination of the jury, and, if found by them to exist, then the crime is lowered to the grade of manslaughter." ^' In several states statutes make insults to a man's female relatives sufficient provocation to reduce a killing to man- slaughter.^* In all cases the mode of resentment must bear a reasonable proportion to the provocation. A homicide is not reduced to manslaughter where a deadly weapon is used, unless the provocation was extreme.^" 18 Sherwood, J., In STATE v. GRUOIN, 147 Mo. 39, 47 S. W. 1058, 42 L. R. A. 774, 71 Am. St. Rep. 553, Mikell lUus. Gas. Criminal Law, 127. See, also, Reg. v. Rotliwell, 12 Cox, Cr. Cas. 145. In Duthey V. State, 131 Wis. 17S, 111 N. W. 222, 10 L. R. A. (N. S.) 1032, where a wife had eloped, returned, and become reconciled to her husband, and later was seen by the husband with her old paramour under conditions that led the husband to believe they were ridiculing him. It was held that there was sufficient provocation. But in Rex v. Palmer, [1913] 2 K. B. 29, it was held that a killing by defendant of his betrothed in a passion caused by her confession of illicit in- tercourse during their engagement was murder, not manslaughter. 1* Norman v. State, 26 Tex. App. 221, 9 S. W. G06. What are in- sults, Simmons v. State, 23 Tex. App. 653, 5 S. W. .208; Granger v. State, 24 Tex. App. 45, 5 S. W. 648. Insult to one's affianced wife, Lane v. Siate, 29 Tex. App. 310, 15 S. W. 827. The killing in such case must be the result of passion caused by the insult, Norman v. State, ,26 Tex. App. 221, 9 S. W. 606; and. must occur as soon as the words are uttei'ed, or at the first meeting after being informed of the insult, Bx parte Jones,, 31 Tex. Cr. R. 422, 20 S. W. 983 ; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811; Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Howard v. State, 23 Tex. App. 265, 5 S. W. 231; Orman v. State, 22 Tex. App. 604, 3 S. W. 468, 58 Am. Rep. 662; Melton v. State, 24 Tex. App. 47, 5 S. W. 652; Williams v. State, 24 Tex. App. 637, 7 S. W. 333. Similar statutes have been enacted in Delaware, Laws 1893, c. 127, § 5; and Utah, Rev. St. ISOS, § 4168. 10 Brooks V. Com., 61 Pa. 352, 100 Am. Dec. 645; State v. Hoyt, 13 Minn. 132 (Gil. 125). § 76) VOLUNTAEY MANSLAUGHTEB 227 Distinguished from Self-Defense Manslaughter resulting from provocation must not be confounded with homicide in self-defense. In the latter the blow is excused, because necessary to save the life of the person striking it, or to prevent grievous bodily harm ; while in manslaughter there is no such necessity, and the blow is only partially, excused, because given in the heat of pas- sion. When it is said that the killing to be voluntary man- slaughter must be done in the "heat of passion," the word "passion" has usually been construed to mean the passion of anger. The passion of the definition may however, be the passion of fear.^° Hot Blood A voluntary felonious killing, to be reduced from murder to manslaughter, must have been done in the heat of pas- sion, or as it is sometimes expressed, in "hot blood." It is the existence of hot blood that negatives the malice of mur- der. The heat of passion, or hot blood, need not be so great as to make the accused unconscious that he was about to kill, or strip the act of killing of an intent to commit it. It need not be so overpowering as for the time to "shut out knowledge and destroy volition." ^' It is sufficient "if it rendered him deaf to the voice of rea- son, so that the act, though intentional of death, was not the result of malignity of heart, but imputable to human infirm- ity." ^* As otherwise expressed the heat of passion is suffi- cient if the reason was at the time of the act "disturbed or 18 U. S. V. King (C. C.) 34 Fed. 302; Com. v. Colandro, 231 Pa. 343, 80 AU. 571. 17 STATE V. HILL, 20 N. C. 629, 34 Am. Dec. 396, MIkell lUus. Oas. Criminal Law, 125. 18 STATE V. HILL, 20 N. C. 629, 34 Am. Dee. 396, Mikell lUus. Cas. Criminal Law, 125. 228 OFFENSES AGAINST THE PERSON (Ch. 8 obscured by passion to an extent which might render ordi- nary men, of fair average^ disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment." ^° Not only must there have been hot blood, but the killing must have been done while the heat of blood existed. If the provocation was sufficient to cause hot blood, and did in fact cause it, yet if the blood had in fact cooled before the killing, the killing is murder, not manslaughter.^" But it is not necessarily manslaughter only, even though the blood has not cooled before the killing. If there was time before the killing for the blood to have cooled, the killing is mur- der, not manslaughter. The test is: Was there time be- tween the provocation and the killing for the ordinarily rea- sonable man under the circumstances to have cooled? "He who has received a sufficient legal provocation, such as might have mitigated to manslaughter a mortal blow pro- ceeding from it and given instantly, would not be less than a murderer if he should remain in apparently undiminished fury for a length of time, unreasonable under the circum- stances, and then kill. By lashing himself into greater fury by outward demonstrations of passion, no one should obtain upon trial any advantage over another who, in like circum- stances, should in reasonable time master his passions." ^^ Whether in a given case there was sufficient length of time between the provocation and the fatal stroke for the blood of a reasonable man under the circumstances to have cooled is by some courts held to be a question of law for the court to determine.^^ But the better rule and the one i» Maher v. People, 10 Mich. 212, 81 Am. Dec. 781. 2 1 Bast, P. C. 251. 21 Wardlaw, J., in State v. McCants, 1 Speer (S. O.) 384. 2 2 Rex V. Oneby, 1 Li Raymd. 1485; Reg. v. Fisher, 8 Car. & P. 182. § 76) INVOLUNTARY MANSLAUGHTER 229 applied by the more modern cases is that it is a question of fact to be determined by the jury.*' INVOLUNTARY MANSLAUGHTER 76. Involuntary manslaughter is homicide unintentionally caused,^* (a) In the commission of an unlawful act not amounting to a felony, nor likely to endanger life, or (b) By culpable negligence (1) In performing a lawful act, or (2) In omitting to perform a legal duty. Unlawful Act Manslaughter while engaged in an unlawful act is dis- tinguished from excusable homicide by accident, by the fact that in manslaughter the act is unlawful; and it is distin- guished from murder by killing another in committing an- other felony, or inflicting bodily .injury likely to cause death, by the fact that in manslaughter the unlawful act does not amount to a felony, and is not likely to cause death.'"' It must also be distinguished from murder in perpetrating a reckless or wanton act endangering the life of another. The act must be malum in se, and not merely malum, pro- hibitum. To run over a person while driving at a speed 23 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; Rex v. Lynch, 5 C. & P. 324 ; Rex v. Howard, 6 C. & P. 157. "The court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reason- able under all the circumstances of the particular case. I do not mean to say that the time may not be so great as- to enable the court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error ; .but the case should be very clear." Christiaucy, J., in Maher y. People, supra. 24 4 Bl. Comm. 192. 2 6 See Fray's Case, 1 East, P. O. 236. 230 OFFENSES AGAINST THE PERSON (Ch. 8 prohibited by a city ordinance, but not furiously or reckless- ly, would not render one guilty of manslaughter, as the ex- cessive speed is wrong only because it is prohibited by the ordinance, and is not malum in se.^° A prize fighter or other person voluntarily engaged in mutual combat, if he unint,eiitionally kills his adversary, is guilty of manslaugh- ter, because fighting is wrong and unlawful in itself. He must, however, be willingly fighting. The law permits a man to defend himself against an assault, and to defend his property, so long as he does not carry the defense so far as to endanger his assailant's life, or to inflict greivous bod- ily harm ; and if, while keeping within proper limits, he ac- cidentally kills his assailant, he is excused on the ground of accident.^' He is pot in such case engaged in doing an unlawful act. The law allows persons to engage in lawful athletic sports, such as football, sparring, and wrestling; and, if one participant is accidentally killed by another while playing the game lawfully, the homicide is excusable.^'' If, however, the game is played in an unlawful manner, as where unlawful force is used, the killing is at least man- slaughter.^* If an act is so unlawful as to amount to an assault and battery, a killing caused thereby will amount 26 COM. V. ADAMS, 114 Mass. 323, 19 Am. Eep. 362, Slikell Illus. Cas. Criminal Law, 30. And see Estell v. State, 51 N. J. Law, 182, 17 Atl. 118 ; ante, p. 194. 2 7 Reg. V. Knock, 14 Cox, Cr. Cas. 1. 2 8 Reg. V. Bradsliaw, 14 Cox, Cr. Cas. 83; Reg. v. Knock, 14 Cox, Cr. Cas. 1. 2 9 Reg. V. Bradshaw, 14 Cox, Cr. Cas. 83. If a man Is playing accord- ing to the rules and practice of tbe game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury. But inde- pendently of the rules, if the prisoner intended to cause serious hurt to the deceased, or if he knew that in charging as^he did he might produce serious injury, ani-was indifferent and recldess as to wheth- § 76) INVOLUNTABT MANSLAUGHTEB 231 to manslaughter, at least, and under some circumstances it may amount to murder.'" Suicide is at least malum in se, even when it is not re- garded as a crime, and to kill another in an attempt to commit suicide would be manslaughter at least.'^ In those jurisdictions where suicide is still regarded as a felony, as it has always been regarded at common law, to kill another in an attempt to commit suicide is murder.'^ To assault a person being an unlawful act, it has been held that a man who strikes a woman while she is nursing an infant, and frightens the infant, so as to cause its death, is guilty of manslaughter, provided, of course, it is shown that the ' death of the infant was caused by the fright.^' A parent may moderately punish his child, but, if he\ punishes it im- moderately, he commits an unlawful act — an assault — and, if death is caused, he is guilty of manslaughter.'* If a ■ deadly weapon is used, or immoderate correction likely to cause death is willfully inflicted, the crime is murder.'° To commit an abortion is a misdemeanor at common law, and to procure a miscarriage where the child has not quickened in the womb is at least wrong per se, if not a crime ; and therefore, if the mother is killed, the homicide is manslaugh- ter. In some states the homicide is expressly declared manslaughter by the statute." So, also, where a drug is er he would produce serious injury or not, then the act would be un- lawful." Bramwell, L. J., in Reg. v. Bradshaw, snp'ra. 3 People V. StubenvoU, 62 Mich. 320, 28 N. W. 8S3. 31 Com. V. Mink, 123 filass. 422, 25 Am. Rep. 109. 82 Ante, p. 212, footnote 58. 3 3 Reg. V. Towers, 12 Ck)x, Cr. Cas. 530. 34 1 East, P. G. 261; Powell v. State, 67 Miss. 119, 6 South. 646. See, also, ante, p. 193, footnote 95 ; post, p. 270. 3 5 Grey's Case, J. Kelyng, 64; Powell v. State, 67 Miss. 119, 6 South. 646 ; ante, p. 211. 3 People V. Olmstead, 30 Mich. 4.31; Tuncit v. People, 65 111. 372; Willey V. State, 46 Ind. 363 ; Peoples v. Com., 87 Ky. 487, 9 S. W. 232 OFFENSES AGAINST THJ! PERSON (Ch. 8 administered to a female for unlawful purposes, and she dies therefrom, the killing is manslaughter.^' In all cases the death must be sufificiently connected with the unlawful act in the relation of cause and effect.'* Thus, it has been held that if an officer fires his pistol at persons who are resisting arrest and attacking him, and accidentally kills a bystander, the persons so resisting, though engaged in an unlawful act, are not guilty of the homicide.'" Negligence If a person, in doing a lawful act, neglects to take precau- tions that a reasonable n>an would take to prevent injury, and by reason of such neglect another is killed, he is guilty of involuntary manslaughter. Such is the case where a workman, without looking, throws stones or other material from a building into a street along which persons are likely to pass, and causes the death of a passer-by. If he knows that persons are passing, the act is wanton, so as to supply malice, and he is guilty of murder. If it is at a place where there is no reason to suppose people may be passing, the homicide is excusable.*" A person who turns out a vicious animal where it may do harm is guilty of manslaughter if it attacks and kills a person.*^ A person who causes another's death by the negligent use of a pistol or gun, where the 509, 810 ; state v. Fitzporter, 93 Mo. 390, 6 S. W. 223. For the cases in wbich the crime is held to be murder, see ante, p. 213, note 59. ST State V. Center, 35 Vt. 378. 38 Reg. V. Towers, 12 Cox, Or. Cas. 530; Com. v. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705; Estell v. State, 51 N. J. Law, 182, 17 Atl. 118. One who knocks another down with his fist is not liable for his death caused by being struck by a horse, while lying where he fell. People v. Rockwell, 39 Mich. 503. See, also, ante, p. — . 39 Butler V. People, 125 111. 641, 18 N. E. 338, 1 L. B. A. 211, 8 Am. St Rep. 423. 40 Rex V. Hull, Kel. J. 40. *i Reg. v. Dant, 10 Cox, Cr. Cas. 102. g 76) INVOLUNTARY MANSLAUQHTEB 233 negligence is not so wanton as to make the killing murder,*'' or who causes death by negligently leaving powder or poi- son where it may endanger life, or by reckless driving,*' or a physician of other person who causes death by gross negligence in treating disease or performing an operation,** is guilty of manslaughter. So, also," ignorance or negli- gence may render the engineer of a railroad train or steam- boat guilty of manslaughter, where death is caused there- by.*" As has already been stated in another connection, if a person, acting in self-defense against an assault, negli- *2 People V. Fuller, 2 Parker, Cr. R. (N. Y.) 16; Reg. v. Salmon, 14 Cox, Cr. Cas. 494, 6 Q. B. Div. 79 ; Rex v. Eampton, Kel. J. 40 ; State V. Vance, 17 Iowa, 138 ; State v. Hardie, 47 Iowa, 647, 26 Am. Rep. 496; Sparks v. Com., 3 Bush (Ky.) Ill, 96 Am. i:)ec. 196 ; Mur- phy V. Com. (Ky.) 22 S. W. 649; GoUiher v. Com., 2 Duv. (Ky.) 163, 87 Am. Dec. 493; Com. v. McLaughlin, 5 Allen (Mass.) 507; State V. Morrison, 104 Mo. 638, 16 S. W. 492; People v. Slack, 90 Mich. 448, 51 N. W. 533 ; Com. v. Matthews, 89 Ky. 287, 12, S. W. 333 ; Stiite V. Emery, 78 Mo. 77, 47 Am. Rep. 92 ; State v. Vines, 93 N. C. 493, 53 Am. Eep. 466; Studstill v. State, 7 Ga. 2; State v. Roane, 13 N. C. 58; Collier v. State, 39 Ga. 31, 99 Am. Dee. 449; Robertson v. State, 2 Lea (Tenn.) 239, 31 Am. Rep. 602. «3 Rex V. Grout, 6 Car. & P. 629; Rex v. Knight, 1 Lewin, Cr. Cas. 168; Reg. v. Dalloway, 2 Cos, Cr. Cas. 273; Lee v. State, 1 Cold. (Tenn.) 62 ; Belk r. People, 125 111. 584, 17 N. E. 744. ** Reg. V. Chamberlain, 10 Cox, Cr. Cas. 486 ; State v. Reynolds, 42 Kan. 320, 22 Pac. 410, 16 Am. St. Rep. 483; Com. v. Thompson, 6 Mass. 134 ; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Rice V. State, 8 Mo. 561 ; State v. Schulz, 55 Iowa, 628, 8 N. W. 469, 39 Am. Rep. 187. For a review of the cases on this point, see 1 Ben. & H. Lead. Cas. 55-59. *6 U. S. T. Taylor, 5 McLean, 242, Fed. Cas. No. 16,441; U. S. v. Famham, 2 Blatchf. 528, Fed. Cas. No. 15,071 ; D. S. v. Keller (C. C.) 19 Fed. 633 ; State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 10 Am. St. Rep. Ill; Com. v. Cook (Pa. Quart. Sess.) 8 Pa. Co. Ct. R. 486. Brakeman not liable under Texas statute. Anderson v. State, 27 Tex. App. 117, 11 S. W. 33, 3 L. R. A. 644, 11 Am. St. Rep. 189; STATE y^ O'BRIEN, 32 N. J. Law, 169, Mikell lUus. Cas. Criminal Law, 34. 234 OFFENSES AGAINST THE PERSON (Ch. 8 gently comes to the erroneous conclusion that his life is in imminent danger, and kills his assailant, he is guilty of man- slaughter, and the "homicide is not excused on the ground of self-defense, as would be the case were he not guilty of negligence.*' Same — Failure to Perform Legal Duty If the law requires a person to do an act, and he cul- pably neglects his duty, so as to cause the death of another, he is guilty of involuntary manslaughter. Thus, a parent is required to furnish food and medical attendance to a child who is dependent upon him, if he is able to do so; and if he neglects this duty, and the child dies, he is guilty of man- skughter.*' Of course, if he willfully and maliciously fails to furnish such support, he is guilty of murder. So, also, if a person fails to furnish food and medicine to a sick per- son under his charge and care,** or exposes one whom he *« CARROLL V. STATE, 23 Ala. 28, 58 Am. Dec. 282, Mikell Illus. Cas. Criminal Law, 105 ; U. S. v. Heath (D. C.) 19 Wash. Law Rep. 818. . 47 Reg. V. Friend, Russ. & R. 20 ; Reg. v. Conde, 10 Cox, Cr. Cas. 547; Reg. V. Nichols, 13 Cox, Cr. Cas. 75; Reg. v. Bubb, 4 Cox, Cr. Cas. 455; Reg. v. Morley, 8 Q. B. Div. 571; Reg. v. Downes, 13 Cox, Cr. Cas. 111. *8 Self's Case, 1 East, P. C. 226 ; Reg. v. Instan, 1 Q. B. Div. 450. Where a person having custody of a child fails, by reason of reli- gious belief, to furnish medical aid, and its death is thereby caused or accelerated, he is guilty of manslaughter, a statute in the jurisdic- tion making it a misdemeanor for one standing in loco parentis to "willfully neglect" a child. Reg-jj^Senior, [ISOO] 1 Q. B. 283, 19 Cox, Cr. Cas. 219. Defendant, standing in loco parentis to a boy of 15 years, failed to furnish medical attendance and food during the child's sickness, and the child died. The defendant believed that such treatment of the disease was not efficacious, and that prayer and fasting was the correct method of treating disease, but he failed to do either. No statute of the state made the furnishing of medical aid necessary. Defendant was indicted for manslaughter. The court held that the defendant was excused from doing what he honestly § 76) INVOLXINTAET MAN8LAUGHTEB 235 is bound to protect to the weather,*" and thereby causes his death, he is guilty of manslaughter. A railroad employe charged with the duty of signaling trains or managing sw^itches, or of warning persons at railroad crossings of the approach of trains, is charged with a legal duty, and may be guilty of manslaughter if he neglects to perform it, and a death results.'" So, also, an employe in a mine, charged with the duty of ventilating it so as to protect his fellow servants from deadly gases, or an employe charged with the duty of managing the appliances in a mine, is guilty of man- slaughter if he neglects his duty, and thereby causes the death of a fellow servant."^ In all cases, however, there must be a legal, as distinguished from a moral, duty to act. Notwithstanding the statements in some of the books that Christianity is a part of our common law, the law does not punish the neglect of a mere moral duty."^ The Bible teaches US' to feed the hungry, to clothe the naked, and to take in strangers and warm them; but the law does not punish a man for failure to take in a starving waif, and feed and clothe him, even though he may know that if the child believed should not be done, and that to convict the defendant it must be found that death resulted from a neglect to do whnt he honestly believed should have been done, but that, inasmuch as whether the defendant's neglect to pray caused the death of the de- ceased was not a competent question for the jury, the defendant must be excused. State v. Sandford, 99 Me. 441, 59 Atl. 597. 4» Territory v. Man ton, 8 Mont. 95, 19 Pac. 387; State v. Hoit, 23 N. H. 855; State v. Smith, 65 Me. 257. 00 SX ATE V. O'BRIEN, 32 N. J. Law, 169, Mikell Illus. Cas. Crim- inal Law, 34. Where a gatekeeper at a railroad crossing negligently failed to close the gates and a pedestrian was killed by a passing train the gatekeeper was guilty of manslaughter. Rex v. Pitwood, 19 T. L. E. 37. 61 Reg. V. Haines, 2 Car. c& K. 368; Reg. v. Lowe, 3 Car. & K. 123, 4 Cox, Cr. Cas. 449 ; Reg. v. Hughes, 7 Cox, Cr. Cas. 301. 62 Ante, p. 25. 236 OFFENSES AGAINST THE PERSON (Ch. 8 is left exposed to the weather, and not fed, he will freeze or starve to death ; and, indeed, he would not be punished should he fon some reason even wish such result. A per- son who is under no legal duty to render care and attention to another, whatever may be his moral duty, is not guilty of manslaughter if death is the result of his neglect/' Thus it has been held that a mother does not owe to her daughter, a girl of eighteen years of age and emancipated, any duty to procure a midwife for the daughter, who had returned to the mother's home, and while there was brought to bed with an illfegitimate child, and that the mother was therefore not guilty of manslaughter for neglecting to pro- cure the services of such midwife. ^'^ So it has been held that a woman who is about to become a mother is not guilty of manslaughter in neglecting to take precautions before the child's birth to preserve the life of the infant.^^ It has recently been held that a man does not owe such a le'gal duty to a woman accustomed to debauchery and assigna- t . tions, whom he has taken to his rooms for carousal, as to render him guilty of manslaughter in neglecting to summon medical aid for her, in consequence of which neglect she died.'^ If a legal duty exists, it is immaterial whether it arose from the natural relationship of the parties or from con- tract. Thus, when the accused contracted to take care of an old woman in return for a sum of money, it was held that he was guilty of manslaughter it she died through his neglect to furnish her with necessaries."*^ 63 Reg. V. Smith, 2 Car. & P. 447 ; Reg. v. Shepherd, 9 Cox, Cr. Gas. 123. And see Thomas v. People, 2 Colo. App. 513, 31 Pac. 349. »* Reg. V. Shepherd, 1 Leigh & Cave, 147. Be Reg.,v. Knights, 2 Foster & Fin. 46. 08 People V. Beardsley, 150 Mich. 206, 113 N. W. 1128, 13 L. R. A (N. S.ri020, 121 Am. St. Rep. 617, 13 Ana Cas. 39. »7 Reg. V. Marriott, 8 Car. & P. 425.- § 76) INVOLUNTARY MANSLAUGHTEB 237 Not every omission of a legal duty, causing death, will amount to manslaughter. The duty must be one "connect- ed with life, so that the ordinary consequence of neglecting it would be death." ^* No matter how gross the negligence in performing a duty may be if the neglect to perform it would not reasonably result in death or serious injury, the killing is not manslaughter. Thus, where trustees of a road, legally bound to keep it in repair, omitted to do so, so that it became so ruinous that a cart which deceased was driving fell into a hole, and deceased was thrown out and killed, it was held that the trustees were not guilty of man- slaughter, as the death was not the ordinary consequence of the neglect of duty."* The extent of the negligence required to make one guilty of manslaughter is sometimes described as "gross" negli- • gence; sometimes as "clear" negligence."" These terms are not very helpful. It seems better to describe negli- gence in terms of care or caution, and to say that one is guilty of manslaughter if the death was caused by such an act or omission on his part as a reasonable man under the circumstances would have known would be likely to result in death or serious bodily harm.*^ He is not guilty merely because he did not adopt the safest mode of doing the act, even though he could easily have adopted that mode ; "^ on the other hand, to be guilty he iieed not have adopted a clearly unsafe mode. The test is: Did he exercise such care as a reasonable man under the circumstances would have exercised? B8 iDrle, J., in Reg. v. Pocock, 5 Cox, Cr. Cas. 172. B9 Reg. V. Pocock, 5 Oox, Cr. Cas. 172. ooReg^v. Macleod, 12 Cox, Cr. Cas. 534. 81 See Rlgmaidbn's Case, 1 Lewin, C. C. 180; STATE v. O'BRIEN, 32 N. J. Law, 169, Mikell lUus. Cas. Criminal Law, 34. 62 Rigmaidon's Case, supra. 238 OFFENSES AGAINST THE PERSON (Ch. 8 The omission to perform the duty must, of course, be the cause of the death, to make the person derelict guilty of manslaughter; if the criminal or negligent act of another intervenes between the negligent act of the accused and the death, and is the direct cause of the death, the accused is not liable." Contributory Negligence Where the culpably negligent acts of two or more per- sons concur in causing another's death, all of them are guilty."* There are some cases which hold that on a prose- cution for manslaughter by negligence, as, for instance, by careless driving, contributory negligence on the part of the- deceased is a good defense, it being said in one case that a person will not be held criminally liable for negligence,, where he would not be held liable therefor in an action,"" but the weight of authority is to the effect that contributory negligence is no defense. °° Principals cmd Accessaries It is not certain that there can be accomplices in man- slaughter. It has been said that there cannot." There- certainly could not be an accessary before the fact to man- slaughter by negligence, nor to manslaughter in the heat of passion caused by provocation ; since, to constitute one an accessary, he must be absent when the act is committed, and there must, in the nature of things, be some premedi- tation, and both absence and premeditation are inconsistent / 63 Reg. V. Bennett, Bell, 1. 81 Eeg. V. Swlndall, 2 Car. & K. 230 ; Com. v. Cook (Pa. Quart Sess.) 8 Pa. Co. Ct. R. 486 ; Belk v. People, 125 111. 584, 17 N. E. 744. OB Reg. V. Birchall, 4 Fost. & F. 1087. 8 Reg. V. Kew, 12 Cox, Cr. Cas. 355; REG. v. LONGBOTTOM, 3- Cox, Cr. Cas. 439, Mikell Illus. Cas. Criminal Law, 10. 87 Bowman v. State (Tex. Cr. App.) 20 S. W. 558. § 76) INVOLUNTARY MANSLAUGHTEB 239 with manslaughter so committed. There seems no good reason, however, why there might not be accessaries before the fact to manslaughter in doing an unlawful act. A prize fighter is guilty of manslaughter if he unintentionally kills his adversary. Why should not all those who advised and abetted the fight be held liable as accessaries? There may be principals in the second degree to manslaughter. Thus, it has been held that a man who, without any predeter- mined purpose, but under the influence of a momentary ex- citement, aids and abets his friend in an affray, is not guilty of murder if his friend kills his adversary, but is liable as an aider and abetter for the manslaughter."' Statutory Degrees of Manslaughter In some of the states manslaughter, like murder, has been by statute divided into degrees. The student should con- sult the statute of his state. If he understands murder and manslaughter at common law, he will have no difficulty in understanding the statute. 8 8 State V. Coleman, 5 Port. (Ala.) 32. See, also, Hag-an v. State, 10 Ohio St. 459; Going v. State, 46 Ohio St 457, 21 N. E. 476; Wool- weaver V. State, 50 Ohio St. 277, 34 N. B. 352, 40 Am. St. Eep. 667. See People v. Holmes, 118 Cal. 444, 50 Pac. 675. 240 OFFENSES AGAINST THE PERSON (Ch. 9 CHAPTER IX OFFENSES AGAINST THE PEKSON (Continued) 77-78. Mayhem. 79-80. Rape. 81-83. Assault and Battery. 84. False Imprisonment. 85. Kidnapping. 86-87. Abduction. MAYHEM 77. Mayhem, at common law, is a "hurt of any part'of a man's body, whereby he is rendered less able, in fighting, either to defend himself or annoy his adversary.^ By statute it is extended so as to cover injuries merely disfiguririg. 78. Mayhem is a felony in some jurisdictions, and a misde- meanor only in others. At comm.on law the injury must be such as renders the victim less able physically to fight, or to defend himself in a fight. If the injury merely disfigures him, without im- pairing his corporal abilities, it is not mayhem. Thus, it is mayhem at common law to put out a man's eye,^ to cut off his hand or his foot or finger, or even to knock out a front tooth, as these are members which he may use in fighting; but it is otherwise where the ear or nose is cut off, or a back tooth knocked out, as these injuries merely disfigure him.' Statutes, however, have been passed in most of the 1 1 East, P. C. 393; 4 Bl. Comm. 205. 2 Chick V. State, 7 Humph. (Tenn.) 161. 3 A count charging malicious biting of ear with Intent to maim §§ 77-78) MAYHEM 241 states making it mayhem to maliciously disfigure a person ; as, for instance, by cutting off an ear or part of an ear.' Under the statutes in some of the states a specific intent to disfigure is an essential element of the crime,' while in oth- ers no specific intent is necessary." Mayhem is not justifi- able or excusable because it was inflicted in a sudden fight. It is only excused where it is necessarily inflicted on an as- sailant to prevent grievous bodily harm or death.'' Some cannot be supported as to the intent charged, as biting an ear Is not mayhem. State v. Johnson, 58 Ohio St. 417, 51 N. E. 40, 65 Am. St. Rep. 769. * Foster v. People, 50 N. Y. 598 ; Godfrey v. People, 63 N. T. 207; Riflemaker v. State, 25 Ohio St. 395; State v. Brown, 60 Mo. 141; Ksbridge v. State, 25 Ala. 30 ; Com. v. Hawkins, 11 Bush (Ky.) 603. Throwing corrosive fluid into another's eyes. State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414. Injuring private parts of woman, with intent to disfigure, is mayhem under statute. Kitchens V. State, 80 Ga. 810, 7 S. E. 209. Kicking person while his thumb is in another's mouth, causing it to be torn ofC. Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901. Knocking out front tooth. High V. State, 26 Tex. App. 545, 10 S. W. 238, 8 Am. St. Rep. 488. Biting piece out of lip. State y. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895. Biting ofC ear. People v. Wright, 93 Gal. 564, 29 Pac. 240; State v. Green, 29 N. C. 39; State v. Abram, 10 Ala. 928. If the member is replaced and grows again, the injury is nevertheless mayhem- Slattery v. Stater 41 Tex. 619. B State V. Jones, 70 Iowa, 505, 30 N. W. 750 ; State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895; Davis v. State, 22 Tex. App. 45, 2 S. W. 630; State v. Evans, 2 N. C. 281; State v. Hair, 37 Minn. 351, 34 N. W. 893; U. S. v. Gunther, 5 Dak. 234, 38 N. W. 79; People v. Wi-ight, 93 Cal. 564, 29 Pac. 240 ; State v. Simmons, 3 Ala. 497 ; State V. Girkin, 23 N. O. 121. Premeditation necessary in New York. God- frey V. People, 63 N. Y. 207. Intent need not exist any length of time. Godfrey v. People, 63 N. Y. 207 ; Molette v. State, 49 Ala. 18 ; Slattery v. State, 41 Tex. 619. 6 Terrell v. State, 86 Tenn. 523, 8 S. W. 212; People v. Wright, 93 Cal. 564, 29 Pac. 240. 7 People V. Wright, 93 Cal. 564, 29 Pac. 240; State v. Evans, 2 N. 0. 281 ; State v. Crawford, 13 N. C. 425. CiAEK CB.L.3D Ed. — 16 242 OFFENSES AGAINST THE PERSON (Ch. 9 of . the states have "statutes punishing the infliction of wounds less than mayhem.* It is said by Wharton that mayhem is a felony at common law, because anciently the ofifender had judgment for -the loss of the same member as that the loss of which he occasioned to the sufferer." It is not a felony at common law in Massachusetts, nor in Geor- gia, except in case of castration.^" RAPE 79. Rape is the having unlawful carnal knowledge by a man, of a woman forcibly without her consent,^ ^ as in the following cases: ' (a) Where her resistance is overcome by actual force. (b) Where no actual force is used, but because of her condition, known to the man, she cannot con- sciously consent. (c) Where she is below tlie age, at common law or xm- der statutes, at which she can consent. (d) Where her consent is extorted by fear of immediate bodily harm. (e) Where (according to some authorities) her submis- sion is induced by fraud without her intelligent consent; as, where induced by fraud she submits /to connection believed to be a surgical operation, or to connection with a man fraudulently imper- sonating and believed to be her husband. 80. Rape is a felony at common law and under the statutes. 8 State V. Watson, 41 La. Ann. 598, 7 South. 125. » 1 Whart Cr. Law, § 583. And see 2 Bish. Cr. Law, § 1008. 10 Com. V. Newell, 7 Mass. 245 ; Adams v. Barrett, 5 Ga. 401. And see Canada v. Com., 22 Grat. (Va.) 890; State v. Tliojupson, 30 Mo. 470 ; State v. Brown, 60 Mo. 141, 11 2 Bl^op, Cr. Law, § 1115 (2). §§ 79-80 RAPE 243 Rape is generally defined as the act of having unlawful carnal knowledge of a woman by force and against her will ; ^^ but, as we shall see, the definition does not get us very far in detefmining what is and what is not rape. Force on the part of the man, and want of consent on the part of the woman, are in a sense essential elements of the crime of rape, but the force may be supplied by what is not force at all, and the woman may, under some circumstances, ac- tually consent to the intercourse and it yet be rape. Even where such is the case, however, there is force in law, and there is want of consent in law. As was said in an English case, "the word 'forcibly' does not necessarily mean 'vio- lently,' but with that description of force which must be ex- ercised in order to accomplish the act." ^' "" Consent — Actual Force When actual force is employed, it must be such as to overcome resistance. If a woman is capable in the eye of the law of consenting to sexual intercourse, carnal knowl- edge of her with her consent is not rape, provided, however, as we shall presently see, her consent is not extorted by threats and fear of immediate bodily harm.^* Under such circumstances, to constitute the crime of rape, it is said in some of the cases, she must resist to the uttermost.^* 12 1 East, P. C. 434 ; 4 Bl. Comm. 210. IS Per May, C. J., Reg. v. Dee, L. B. 14 Ir. at page 476. 14 Eeg. V. Hallett, 9 Car. & P. 748. IB Oleson V. State, 11 Neb. 276, 9 N. "W. 38, 38 Am. Rep. 366; State V. Btirgdorf, 53 Mo. 65; DON MORAN v. PEOPLE, 25 Mich. 356, 12 Am. Rep. 283, Mikell Illus. Cas. Criminal Law, 133; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Conners v. Siate, 47 Wis. 523, 2 N. W. 1143; Strang v. People, 24 Mich. 1; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856; People v. Morrison, 1 Parker, Cr. R. (N. Y.) 625 ; Whitney v. State, 35 Ind. 506 ; Anderson V. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711 ; Taylor v. State, 50 244 OFFENSES AGAINST THE PERSON (Gh. 9 Many cases lay down the rule without qualification.*" The importance of resistance, however, is to show two elements of the crime — carnal knowledge by force, and nonconsent. The test of resistance to the limit of physical capacity is difficult, if not impossible, to apply; and it seems that if the resistance, although short of the extreme limit of which the woman is physically capable, is of such a character as clearly to show nonconsent, and is persisted in to the end the requirement is satisfied.^' Where, from incapacity, there is no resistance, the mere force of penetration is sufficient. Opposition by mere words is not enough.^* If the woman voluntarily gives her consent to the act, it is immaterial Ga. 79; People v. Brown, 47 Cal. 447; O'Boyle v. State, 100 Wis. 296, 75 N. W. 989. The circumstances may show that no force was used; as, for instance, where a girl of 15, weighing 150 pounds, claims that she was raped by a boy weighing 115 pounds, while she was sitting on the top step of a steep stairway. Brown v. Com., 82 Va. 653. Failure to make outcry not alone enough to show want of re- sistance. Bberhart v. State, 134 Ind. 651, 34 N. E. 637. And see oth- er cases cited. i« People V. Dohring, supra. 17 "Tiie importance of resistance is simply to show two elements of the crime — carnal knowledge by force * * * and nonconsent. * * * The jury must be fully satisfied of their existence in every case by the resistance of the complainant, if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the use of brutal force. So far resistance by the com- plainant is important and necessary ; but to make the crime hinge on the uttermost exertion the woman was physically capable of making would be a reproach to the law as well as to common sense. * * * The fallacy lies in the assumption that the deficiency in such cases necessarily shows consent. If the failure to make ex- treme resistance was intentional, in order that the assailant might accomplish his purpose, it would show consent ; but without such Intent it shows nothing important whatever. The whole question is one of fact." State v. Shields, 45 Conn. 256; State v. Sudduth, 52 S. C. 488, 80 S. E. 408. 18 Huber v. State, 126 Ind. 185, 25 N. E. 904. §§ 79-80) EAPB 245 how tardily it is given or how much force has previously- been employed.^" If rape is committed, subsequent condo- nation on the part of the woman is no defense.^" Same — Woman Incapable of Consent In order that the w-oman's consent may prevent the act from being rape, her consent to the act of intercourse must be consciously given. The consent must be tljie act of the woman as a rational and intelligent being. It must proceed from the will, not when the will is acting without the con- trol of reason, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being.^^ There is no consent in law if a woman is so drunk that she does not know what she is doing, and a man takes advantage of her unconscious condition to have carnal knowledge of her. Under such circumstances, he is regard- ed as accomplishing the act by force — the force being the force necessary for penetration — and without her consent.'' So, also, where the woman is insane, or imbecile, or asleep ;" but where she is merely weak-minded, and has sufficient 19 Reynolds v. State, 27 Neb. 90, 42 N. W. 903, 20 Am. St. Eep. 659; Mathews v. State, 101 Ga. 547, 29 S. B. 424. 20 State V. Newcomer, 59 Kan. 668, 54 Pac. 685 ; State v. Welsh, 191 Mo. 179, 89 S. W. 945, 4 Ann. Oas. 681. Ante, p. 9, note 26. 21 Eeg. V. Dee, L. R. 14 Ir. at page 487. 22 Reg. V. Champlin, 1 Car. & K. 749; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531. But see People v. Quin, 50 Barb. (N. Y.) 128. Cantharides cannot overcome woman's mental or physical power to resist. State v. Lung, 21 Nev. 209, 28 Pac. 235, 37 Am. St. Rep. 505. 2 3 Reg. V. Fletcher, 8 Cox, Cr. Cas. 131; State v. Atberton, 50 Iowa, 189, 32 Am. Rep. 134 ; State v. Cunningham, 100 Mo. 382, 12 S. W. 376. Contra, Crosswell v. People, 13 Mich. 427, 87 Am. Dec. ^74 (woman insane, but not idiot); Charles v. State, 11 Ark. 389; Com. V. Fields, 4 Leigh (Va.) 648. Carnal knowledge of a woman while she is asleep, by one other tian her husband, is rape. Brown v. State, 138 Ga. 814, 76 S. E. 379, 246 OFFENSES AGAINST THE PERSON (Ch. 9 mental capacity to know what she is doing, her consent pre- vents the act from being rape.^* In these cases, however, the man must know the condition of the woman, and take advantage of it to carnally knovv her. The mere fact that her mental powers are so impaired that she is unconscious of the nature of the act will not make the' act rape, if the man does not know her condition, and believes she is will- ingly submitting.^° At common law, a child under the age of 10 years is deemed incapable of consenting, as she can- not know the nature of the act, and her consent is therefore no defense.^* It has even been held that a girl of 12 is in- capable of consenting at common law.^' In most of the states there are statutes which fix an age below which a girl cannot consent to sexual intercourse, by providing that carnal knowledge of a female under that age shall be rape, whether she consents or not. Here, of course, consent is no defense.''* In some states the age is fixed as high as 18 years. 24 McQuirk v. State, 84 Ala. 4.35, 4 South. 775. 5 Am. St Rep. 3S1. as Orosswell v. I'eorile, 13 Mkh. 427, 87 Am. Dec. 774. » 6 People V. McDonald, 9 Mich. 150; Crossvvel! v. I'eople, 13 Mich. 433,87 Am. Dec. 774; Com. v. Roosnell, 143 Mnss. 3:2, 8 N. K. 747. 27 Coates V. State, 50 Ark. 3.30, 7 S. W. 304; State v. Tiliiian, 30 La. Ann. 1249, 31 Am. Rep. 236; State v. Miller, 42 La. Ann. 11S6, 8 South. 309, 21 Am. St Rep. 418. 28 Ctom. V. Roosnell, 143 Mass. 32, 8 N. E. 747; Farrell v. State, 54 N. J. Law, 416, 24 Atl. 723; People v. Courier, 79 Miec. 322; Neal v. State, 54 Ga. 281. In Alabama it is held that excessive punishment does not render a parent liable, unless there is also legal malice or some permanent injury. Dean v. State, 89 Ala. 46, 8 South. 38; BOYD v. STATE, 88 Ala. 169, 7 South. 268, 16 Am. -St. Rep. 31, Jlikell lUus. Cas. Criminal Law, 144. Excessive punishment by teacher. Patterson v. Nutter, 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818 ; Vanvactor v. State, 113 Ind. 276, 15 N. EL 341, 3 Am. St. Rep. 645; BOYD v. STATE, 88 Ala. 1G9, 7 South. 268, 16 Am. St. Rep. 31, Mikell Illus. Cas. Criminal Law, 144. 33 state V. Vanderbilt, 116 Ind. 11, 18 N. E. 266, 9 Am. St. Rep. 820. 34 State V. Goold, 53 Me. 279 ; Com. v. Dougherty, 107 Mass. 243 (sexton in church) ; People v. Caryl, 3 Parker, Cr. R, (N. Y.) 326; Jardine v. Cornell, 50 N. J. Lavr, 485, 14 Atl. 590. 3 5 People V. McKay, 46 Mich. 439, 9 N. W. 486, 41 Am. Rep. 169; New Jersey Steam-Boat Co. v. Brockett, 121 U. S. 637^ 7 Sup. Ct 1039, 30 L. Ed. 1049. Ejecting person wrongfully on train before it has stopped is a criminal assault State v. Kinney, 34 Minn. 311, 25 N. W. 705. 3 6 Com. V. McAfee, 108 Mass. 458, 11 Am. Rep. 383; State v. OU- ver, 70 N. C. 60 ; Reg. v. Jackson, [1891] 1 Q. B. Div. C71. 87 Com. V. Wood, 97 Mass. 225. 272 OFFENSES AGAINST THE PERSON (Ch. 9 he cannot do so now without being guilty of an assault." There are exceptions to this statement in case of appren- tices/' and also in case of seamen while at sea.*" If a person is assaulted without felonious intent, he may defend himself, and use all necessary force for the purpose of repelling his assailant, provided he does not go to the ex- treme of taking his assailant's life or inflicting grievous bod- ily harm. He can only go to this extreme when necessary to save his life or prevent grievous bodily harm, and he cannot in any case use more force than is necessary, with- out himself becoming liable for assault and battery.*^ An unlawful attempt to arrest or a false imprisonment is an assault which may be resisted by necessary force, short of taking life or inflicting grievous bodily harm.*" One may also defend a person with whom he stands in a family rela- tion, without being guilty of an assault, whenever, under the circumstances, he would have the right to defend him- self, but not otherwise.*' A person is not bound to retreat to avoid an assault, but may stand his ground and return iblow for blow, and he need rfot wait for the intended blow to fall before striking to prevent it ; ** but, as we have seen, if, in the course of the difficulty, his assailant manifests a 3 8 Matthews v. Terry, 10 Conn. 455; Com. v. Baird, 1 Ashm. (Pa.) 267. 3 9 State V. Dickerson, 98 N. C. 708, 3 S. E. 687; Davis v. State, 6 Tex. App. 133. io Thompson v. The Stacey Clarke (D. C.) 54 Fed. 533 ; Gabrielson V. Waydell, 135 N. Y. 1, 31 N. E. 969, 17' L. R. A. 228, 31 Am. St. Rep. 793 ; U. S. v. Beyer (C. C.) 31 Fed. 35. *i FLOYD V. STATE, 36 Ga. 91, 91 Am. Dee. 760, Mikell Illus. Cas. Criminal Law, 143. *2 Massie v. State, 27 Tex. App. 617, 11 S. W. 638. *3 Jones V. Fortune, 128 111. 518, 21 N. B. 523; Drinkhom v. Bubel, 85 Mich. 532, 48 N. W. 710. ** Gallagher v. State, 3 Minn. 270 (Gil. 185). §§ 81-83) ASSAULT AND BATTEET 273 purpose to take his life or to inflict grievous bodily harm, he must retreat, if he can safely do so, before going to the extreme of killing his assailant to save himself.*' The prin- ciple that one who brings on a difficulty cannot defend him- self, which has been discussed in treating of homicide in iself-defense, applies likewise to assaults in self-defense.*" A person, while he cannot kill another, or use a deadly weapon, to prevent a trespass on his property *' not amount- ing to an attempt to commit a felony by force or surprise,** may use any necessary force short of this in resisting a for- cible trespass. If a person seeks to take or injure another's property, not by robbery, or to trespass on his premises oth- erwise than by forcibly attempting to enter his habitation, the latter may use all necessary force, short of force endan- gering life, to prevent the trespass or to eject the tres- passer.*' It is said that one cannot use force to recapture his property, nor attack a trespasser who has retreated, but 4B Ante, p. 199. 48 People V. Miller, 49 Mich. 23, 12 N. W. 895. See ante, p. 200. *7 State V. Oilman, 69 Me. 163, 31 Am. Rep.. 257; STATE v. MOR- GAN, 25 N. C. 186, 38 Am. Dec. 714, Mikell lUus. Gas. Criminal Law, 107; People v. Horton, 4 Micli. 67. *s Ante, p. 179. 49 Gom. V. Kennard, 8 Pick. (JIass.) 133 (resisting attempt to take chattel) ; Gom. v. Glark, 2 Mete. (Mass.) 23 (ejecting trespasser) ; People V. Payne, 8 Gal. 341; People v. Batchelder, 27 Gal. 69, So Am. Dec. 231 ; People v. Dann, 53 Mich. 490, 19 N. W. 159, 51 Am Rep. 151; Filkins v. People, 69 N. Y. 101, 25 Am. Eep. 143; Gom. v. Ribert, 144 Pa. 413, 22 Atl. 1031 ; Gircle v. State (Tex. Cr. App.) 22 S. W. 603 ; State v. Taylor, 82 N. G. 554; State v. Austin, 123 N. G. 749, 31 S. E. 731. May not use deadly weapon. Montgomery v. Com., 98 Va. 840, 36 S. E. 371. Defense of one's dog justifiable. State V. McDuffie, 34 N. H. 523, 69 Am. Dec. 516. A saloon being a house of public entertainment, the proprietor cannot eject one who is guilty of no misconduct, and is engaged in the business usually transacted there. Gonn9rs v. State, 117 Ind. 347, 20 N. E. 478. Oth- erwise in case of misconduct Burrell v. State, 129 Ind. 290, 28 N. Clark Gr.L.3d Ed.— 18 274 OFFENSES AGAINST THE PERSON (Ch. 9 must resort to the law for redress ; ""* but, if the owner's pos- session of property is only momentarily interrupted, he may use force to regain it.°^ In no case can more force be used than is necessary."" A person may eject a trespasser from his house ; but if he use more force than is necessary, as if he kicks him, he commits an assault and battery."^ Mere abusive words or malignant and taunting gestures are never a iustification, even for a common assault."* B. 699. In Texas it was held that the law recognizes no rules for the protection of a gambling room or games played in violation of law, and therefore a gambler cannot justify an assault on the ground that it was committed in ejecting the person assaulted fi-om the gambling room for disorder. Pierce v. State, 21 Tex. App. 540, 1 S. W. 463. BO state V. Conally, 3 Or. 69; Hendrix v. State, 50 Ala. 148; Eir- by V. Foster, 17 R. I. 437, 22 Atl. 1111, 14 L. R. A. 317. Cannot as- sault officer and retake animals Impounded under an invalid ordi- nance. State V. Black, 109 N. C. 856, 13 S. E. 877, 14 L. R. A. 205. =1 Com. V. Donahue, 148 Mass. 529, 20 N. E. 171, 2 L. ll. A. 623, 12 Am. St. Rep. 591; Com. v. Lynn, 123 Mass. 218; State v. Elliot, 11 N. H. 540, 545. The right of recapture is not lost, enough the property is temporarily out of sight, if pursuit is immediate. State V. Dooley, 121 Mo. 591, 26 S. W. 558. 02 State V. Tripp, 34 Minn. 25, 24 N. W. 290; State v. Burke, 82 N. C. 551. Unnecessary force in resisting unlawful arrest. People V. Murray, 54 Hun, 406, 7 N. T. Supp. 548. In Michigan it is held that a person violently and causelessly assaulted by another is not limited to the use of force so long only as the necessity for self- defense exists, but may chastise the aggressor within the natural limits of the provocation received. People v. Pearl, 76 Mich. 207, 42 N. W. 1109, 4 L. R, A. 709, 15 Am. St. Rep. 304. 53 Wild's Case, 2 Lewin, Cr. Cas. 214. 5* State V. Workman, 39 S. C. 151, 17 S, E. 694; Scott v. Fleming, 16 111. App. 540 ; State v. Martin, 30 Wis. 216, 11 Am. Rep. 567 ; Don- nelly V. Harris, 41 111. 126; Cross v. State, 63 Ala. 40; Rauck v. State, 110 Ind. 384, 11 N. El 450; Willey v. Carpenter, 64 Vt. 212, 23 AO. 630, 15 L. R. A. 853; Tatnall v. Courtney, 6 Houst. (Del.) 434 ; State v. Briggs (Tex. Cr. App.) 21 S. W. 46. Threats without hostile demonstration no defense. Martin v. State, 6 Ind. App. 453, §§ 81-83) ASSAULT AND BATTERY 275 Same— Consent of Person Assaulted . Consent of the person assaulted and beaten is a defense," provided the act consented to does not amount or tend to a breach of the public peace, and is not with intent to commit such a crime that, in case the crime were accomplished, con- sent would be no excuse; and provided the person is old enough and of sufficient mental capacity to be deemed in law capable of consenting; and provided, further, that the consent is not obtained by fraud or intimidation. The law recognizes as not necessarily unlawful manly sports calculated to give bodily skill, strength, and activity, such as playing at cudgels or foils or wrestling or sparring by consent, there being no motive or intention to do bodily 'harm on either side. But prize fights and encounters which are, or even tend to breaches of the peace, are unlawful, even when entered into by consent."* -' i , If persons voluntarily engage, in mutual combat in a pub- lic place, as in case of prize fighting, so as to commit a breach of the public peace, either may be prosecuted for an assault on the other, notwithstanding their mutual con- sent."' A wrestling match is a lawful sport, but if persons engage in a wrestling match for the purpose of doing each other injury, each endeavoring to do and doing all the in- jury in his power to the other, each may be convicted of as- 32 N. E. 594. This rule has been changed by statute in some states. See Spigner v. State, 103 Ala. 30, 15 South. 892 ; Wood v. State, 64 Miss. 761, 2 South. 247; Murphy v. State, 92 Ga. 75, 17 S. E. 845; Hodgkins v.' State, 89 Ga. 761, 15 S. E. 695. 8 STATE V. BECK, 1 Hill (S. C.) 363, 26 Am. Dec. 190, Mlkell H- lus. Gas. Criminal Law, 147 ; Champer v. State, 14 Ohio St. 437 ; Peo- ple V. Bransby, 32 N. Y. 525. 6 6 ck>m. V. CoUberg, 119 Mass. 350, 20 Am. Eep. 328. 57 Fost. Crown Law, 260; 1 East, P. C. 270 ; Rex. v. Bllllngham, 2 Car. & P. 234 ; State v. Burnham, 56 Vt. 445, 48 Am. Eep. 801 ; REG. V. CONEY, 8 Q. B. D. 534, Mikell lUus. Gas. Criminal Law, 5. 276 OFFENSES AGAINST THE PERSON (Ch. & sault and battery."' A person cannot consent to be killed or maimed/° or to suffer the infliction of a dangerous act which may result in severe bodily injury.'" If the act is not of a nature to inflict severe injury, consent !s a defense; at least if the act, under the circumstances, does not tend to a" breach of the peace. '^ Where the assault is with intent to commit a specific crime, and consent to the crime would be a defense on a prosecution therefor, consent will be a defense on a prosecu- tion for the assault. Thus, robbery is not committed if a person consents to his property being taken, and therefore his consent would prevent an assault with intent to take his property from being an assault with intent to rob. Rape cannot be committed if the woman consents, provided she is capable of consenting; and therefore her consent will be a defense on a prosecution' for assault with intent to rape. The consent, however, must be prior to the assault. If an assault with intent to rape is made, the fact that the woman afterwards consents to the intercourse will not prevent a prosecution for the assault."'' In all cases the person consenting must be capable of con- senting. A very young child cannot consent to an assault, nor can an insane person ; "' and, where the statute against »8 Com. V. Collberg, supra. »»1 Inst 107a, 107b; WRIGHT'S CASE, Co. Litt. 127a, Mikell lUus. Cas. Criminal Law, 5 ; Reg. v. Barronet, Dears. Cr. Gas. 51 ; Com. V. Parker, 9 Mete. (Mass.) 263, 43 Am. Dec. 396; People v. Clough, 17 Wend. (N. Y.) 351, 31 Am. Dec. 303. 6 Reg. V. Bradshaw, 14 Cox, Cr. Cas. 83. ei STATE v. BECK, 1 Hill (S. C.) 363, 26 Am. Dec. 190, Mikell IIlus. Cas. Cruninal Law, 147. 62 State V. Hartigan, 32 Vt. 607, 78 Am. Dec. 609 ; State v. Bagan, 41 Minn. 285, 43 N. W. 5; Diclcey v. McDonnell, 41 111. 62; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134; State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519. 63 Reg. V. Fletcher, 8 Cox, Cr. Cas. 131. §§ 81-83) ASSAULT AND BATTERY 277 carnal knowledge of girls under a specified age expressly or impliedly makes their consent unnecessary, they cannot con- sent to an assault with intent to have carnal knowledge of them.^* If consent is obtained by fraud, so that the act done, owing to the fraud, is a different act from that con- sented to, it is no defense to the assault. Thus, where a medical practitioner had connection with a young girl, who submitted from a bona fide belief that he was, as he repre- sented, treating her professionally, he was guilty of an as- sault. "^ So, where a person administers a deleterious drug mixed with food to one who takes it in ignorance that it contains the drug, he is guilty of assault and battery." Nor is consent induced by intimidation a defense.*' 84 state V. Kolllns, 8 N. H. 550; State v. Farrar, 41 N. H. 53; COM. V. NICKEKSON, 5 Allen (Mass.) 51S, Mikell Illus. Cas. Crim- inal Law, 148 ; Givens v. Com., 29 Grat (Va.) 830 ; Hadden v. Peo- ple, 25 N. Y. 378; State v. Grossheim, 79 Iowa, 75, 44 N. W. 541; Comer v. State (Tex. Cr. App.) 20 S. W. 547; Proper v. State, 85 Wis. 615, 55 N. W. 1035; In re Lloyd, 51 Kan. 501, 83 Pac. 307; Hays V. People, 1 Hill (N. Y.) 352 ; People v. McDonald, 9 Mich. 150; Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; Murphy v. State, 120 Ind. 115, 22 N. E. 106, overruling Stephens v. State, 107 Ind. 185, 8 N. E. 94; People v. Goulette, 82 Mich. 36, 45 N. W. 1124; Davis v. State, 31 Neb. 247, 47 N. W. 854 ; State v. Wray, 109 Mo. 594, 19 S. W. 86. Contra, State v. Pickett, 11 Nev. 255, 21 Am. Eep. 754; Smith V. State, 12 Ohio St 466, 80 Am. Dec. 855 ; Whiteher v. State, 2 Wash. 286, 26 Pac. 268; Reg. v. Woodhurst, 12 Cox, O. C. 443; Reg. v. Read, 2 Car. & K. 957. 6 5 Reg. V. Case, 4 Cox, Cr. Cas. 220. See, also. Rex v. Rosinskl, 1 Moody, Cr. Cas. 19. Ante, p. 249. 6 6 Com. V. Stratton, 114 Mass. 303, 19 Am. Rep. 350. Where a girl had intercourse with a man, who, unknown to her, had a venereal disease, which he communicated to her, though not guilty of rape because of consent, he was guilty of an assault. Reg. v. Bennett, 4 Fost. & F. 1105. See, also, Reg. v. Sinclair, 13 Oox, Cr. Cas. 28. Where, under similar circumstances, a man had intercourse with 6 7 See note 67 on following page. 278 OFFENSES AGAINST THE PERSON (Ch. & FALSE IMPRISONMENT 84. False imprisonment is any unlawful restraint of a per- son's liberty, and is a misdemeanor at common law. False imprisonment is an ofifense against the liberty of a person, and is indictable as a specific crime at common law.*° The crime necessarily includes an assault, however, and for this reason the prosecution is usually for assault, so that there are not many prosecutions for false imprisonment eo nomine. False imprisonment is also declared a crime by statute in many of the states, but some, if not all, of them, are merely declaratory of the common law."' The crime is committed whenever a person detains the body of another by force, actual or constructive, without his consent, and without legal cause. Two things are necessary : (1) There must be an imprisonment ; and (2) the imprisonment must be unlawful. Every confinement of a person is an imprison- ment, whether it be in a jail, or in a private house, or merely by detaining him for a moment in the street." No actual force need be used. There is an imprisonment if one is co- erced to submit to detention by threats. Any restraint of liberty is a detention, and therefore an imprisonment; as, for instance, where a man by threats and fear prevented an- other from going in a certain direction on a public road, and Ms wile, the majority of the court held it not an assault. Reg. v. Clarence, 16 Co.x, Cr. Cas. 511. 67 Reg. V. Woodhurst, 12 Ck)x, Cr. Cas. 443. 68 2 Inst. 589 ; 3 Bl. Comm. 127 ; 4 Bl. Comm. 218 ; 2 Bish. Cr. Law, § 749; People v. Ebner, 23 Cal. 158 ; Smith v. State, 63 Wis. 453, 23 N. W. 879; Da vies v. State, 72 Wis. 54, 38 N. W. 722. 6 Slomer v. People, 25 111. 70, 76 Am. Dec. 786 ; People v. Wheeler, 73 Cal. 252, 14 Pac. 796. 7 1 Russ. Crimes, 1024; 3 Bl. Comm. 127; Floyd v. State, 12 ArU. 43, 54 Am. Dec. 250. § 84) FALSE IMPRISONMENT 279 compelled him either to stop, or to turn back, or even to take another direction. ^"^ The imprisonment, however, to be criminal, must be false; that is, it must be without legal cause or excuse. There must be an unlawful detention, and such detention will be unlawful unless there be some suffi- cient authority for it,. arising either from some process from the courts of justice, or from some legal warrant of a legal officer having power to commit, or arising from special cause, sanctioned for the necessity of the thing either by the common law or by statute.^" An officer who arrests a per- son without authority, or a judicial officer who unlawfully orders his imprisonment, or a jailer who, without authority, confines him, is guilty of this ci;ime ; " and a person who procures the arrest of another without any legal cause or au- thority is guilty, though not present when the arrest is made.'* Even a father may be guilty of false imprisonment of his child, as, for instance, by cruelly confining him in a dark, damp, and dirty cellar, as this is unlawful correction." Ti Harlvlns v. State, 6 Tex. App. 452; Bloomer v. State, 3 Sneed (Tenn.) 66; SMITH v. STATE, 7 Humph. (Tenn.) 43, IMikell lUus. Cas. Criminal Law, 148; Slomer v. People, 25 111. 70, 76 Am. Dec. 786. Where a person is decoyed from home as a joke, and he goes willingly, there Is no false Imprisonment. State v. Lunsford, 81 N. C. 528. To stop a carriage In which a person is riding may be a false imprisonment. , State v. Edge, 1 Strob. (S. C.) 91. 72 1 Russ. Crimes, 1024. 73 Francisco v. State, 24 N. J. Law, 30 ; Vanderpool v. State, 34 Ark. 174; State v. Hunter, 106 N. C. 706, 11 S. E. 366, 8 L. R. A. 529. Person aiding an officer, at the latter's command, to make an arrest without authority, is liable, as he can have no greater rights than the officer. Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253. 74 Floyd V. State, 12 Ark. 43, 54 Am. Dec. 250. TO Fletcher v. People, 52 lU. 395. 280 OFFENSES AGAINST THE PERSON (Ch. 9 KIDNAPPING 85. Kidnapping with us is a false imprisonment aggravated by conveying, and, in some states, by a mere intent to convey, the person imprisoned to another place. It is a misdemeanor at common law.'" Under the old common law, kidnapping was "the forcible abduction or stealing away of a man, woman, or child from their own country, and sending them into another; " '''' but with us sending the person into a foreign country is not necessary.''* Statutes on the subject have been passed in many of the states, some' of which are declaratory of the common law. Under the Illinois statute it has been held that physical force and violence in the taking and carrying away is not necessary, but that threats and menaces co- ercing the will are sufficient. ''" Imprisonment of a person with intent to convey him out of the state, or away from his T6 2 Bisli. New Cr. Law, §§ 750, 755; 1 Bast, P. O. 430; Rose. Ev. 465. 77 4 Bl. Coram. 219; State T. Whaley, 2 Har. (Del.) 538; Click v. State, 3 Tex. 282. 78 State V. Rollins, 8 N. H. 550. And see People v. Ebncr, 23 Cal. 158 ; Smith v. State, 63 Wis. 453, 23 N. W. 879. Taking into another county. Ex parte Keil, 85 Cal. 309, 24 Pac. 742; People v. Pick, 89 Cal. 144, 26 Pac. 759. '» Moody V. People, 20 111. 315. And see Smith v. State, 63 Wis. 463, 23 N. W. 879 ; Hadden v. People, 25 N. Y. 373 ; People v. Mer- rill, 2 Parker, Cr. E. (N. Y.) 590; COM. v. NICKERSON, 5 Allen (Mass.) 518, Mikell Illus. Cas. Criminal Law, 148; State v. Farrar, 41 N. H. 53 ; Davenport v. Com., 1 Leigh (Va.) 588; Thomas v. Com., 2 Leigh (Va.) 741. Inveigling female to take passage for foreign port, under false pretenses, People v. De Leon, 109 N. Y. 226, 16 N. B. 46, 4 Am. St Rep. 444 ; Id., 47 Hun (N. Y.) 308. What constitutes In- veiglement, People V. Fitzpatrlck, 57 Hun, 459, 10 N. Y. Supp. 629. To inveigle another by false representations, with intent that he § 86) KIDNAPPING 281 residence is kidnapping in some states." The crime is not committed if the person taken consents, provided he or she is old enough, and of sufficient mental capacity, to be deem- ed in law capable of consenting, and the consent is not ob- tained by fraud'.'^ Under the New York statute a father who procures an adjudication that his daughter is insane, and publicly conveys her, without force, to an asylum, is not guilty of kidnapping, though the girl is in fact sane ; '^ nor is a father guilty if he in good faith, after consulting phys- cians, causes his sane child to be confined as insane.^^ It has also been held that it is not kidnapping at common law for a father to seize and carry away his child who has been shall be induced to leave tlie state of his apparent free will, is caus- ing him to be sent out of the state against his will, under the Oregon statute. In re Kelly (C. C.) 46 Fed. 653. 80 Click V. State, 3 Tex. 282 ; Com. v. Blodgett, 12 Mete. (Mass.) 56; State V. McEoberts, 4 Blackf. (Ind.) 178; Moody v. People, 20 111. 315; John v. State, 6 Wyo. 203, 44 Pac. 51. The intent must be alleged and proved. State v. Sutton, 116 Ind. 527, 19 N. H. 602. And see other cases cited. Negativing exceptions of statute, State V. Kimmerling, 124 Ind. 382, 24 N. E. 722; Pruitt v. State, 102 Ga. 688, 29 S. E. 437. Under the Indiana statute force or fraud are es- senUal. Eberling v. State, 136 Ind. 117, 35 N. B. 1023. Any place where the child has a right to be is its "residence." Wallace v. State, 147 Ind. 621, 47 N. B. 13. 81 State v. Farrar, 41 N. H. 53; Com. v. Robinson, Thatcher, Cr. Cas. (Mass.) 488 ; State v. Eollins, 8 N. H. 550; COM. v. NICKEB- SON, 5 Allen (Mass.) 518, 527, Mikell Ulus. Cas. Criminal Law, 148 ; People V. De Leon, 47 Hun (N. Y.) 308; Castillo v. State, 29 Tex. App. 127, 14 S. W. 1011; Higgins v. Com., 94 Ky. 54, 21 S. W. 231. A person may be too drunk to give consent. Hadden v. People, 25 N. T. 373. 82 Under Pen. Code, § 211, providing that one who willfully seizes, confines, inveigles, or kidnaps another, with intent to cause him without authority of law to be secretly confined or imprisoned with- in the state, is guilty of kidnapping. People v. Camp, 139 N. Y. 87, 34 N. E. 755. See In re Marceau, 32 Misc. Rep. 217, 65 N. Y. Supp. 717. 88 People V. Gamp, 66 Hun, 531, 21 N. Y. Supp. 741. 282 OFFENSES AGAINST THE PERSON (Ch. 9 placed in the custody of the mother by decree of court,'* but the weight of authority and reason is against this view."* It is none the less kidnapping, though the seizing was done under a lawful warrant, if the intent of the officer in making the arrest and transporting the person arrested was to take the person to a place other than the destinatioi;i named in the warrant." ABDUCTION 86. Abduction may be generally defined as the taking of a female without her consent, or without the consent of her parents or guardian, for the' purpose of mar- riage or prostitution. 87. It is probably not a crime at common law, unless as kid- napping, but is made so by statute in most of the states. The statutes in the different states defining the crime of abduction differ materially, and some of the statutory pro- visions are not included in the general definition given above. It will be well, therefore, for the student to consult his statute at this point. The statutes of most of the states are modeled after an old English statute which defined the crime substantially as the taking of a woman against her 8* Burns v. Com., 129 Pa. 138, 18 Atl. 756. A father, who, by con- tract, surrendered to his wife all his rights to the custody of their child, but later enticed the child away, cannot be convicted of kid- napping, the agreement with the mother not relieving him of the duty of maintaining the child. State v. Powe (Miss.) 66 South. 207. 85 State V. Farrar, 41 N. H. 53; COM. v. NICKBRSON, 5 Allen (Mass.) 519, MiUell lUus. Cas. Criminal Law, 148; In re Peck, 6G Kan. 693, 72 Paa 265. »« People V. Fick, 89 Cal. 144, 26 Pac. 759. ■§§ 86-87) ABDUCTION 283 will for lucre, and afterwards marrying her, or causing her to be married to another, or defiling her, or causing her to be defiled.*'' It seems never to have been decided whether this statute is a part of our common law, though it is old enough, if it is applicable to our conditions.*' Among the statutory definition? the following may be stated, as they -are very general, namely: For a person to take*' or de- tain "^ a female unlawfully, against her will,*^ ^yith intent to compel her to marry him or any other person, °^ or to be de- filed; to take *" or entice °* a female under a specified age, in some states as high as eighteen years, for the purpose of prostitution,*" or sexual intercourse,*" or, in some states, for 8 7 3 Hen. VII. c. 2 ; 4 Bl. CJomm. 208. 8 8 Ante, p. 21- 8 9 Inducing female by solicitations and presents to leave home is .« taking. State v. Johnson, 115 Mo. 480, 22 S. W. 463. »» For a man to go to the room of a sleeping girl, remove the bed clothes, and expose his person and hers, without awakening her, has been held a taking and a detention. Malone v. Com., 91 Ky. 307, 15 S. W. 856. And see Payner v. C!om. (Ky.) 19 S. W. 927; Couch v. •Com. (Ky.) 29 S. W. 29. Detention necessary. Krambiel v. Com. 22 State V. May, 20 Iowa, 305 ; Com. v. Coffee, 9 Gray (Mass.) 139. 2 3 Com. V. Rourke, 10 Cush. (Mass.) 397. 312 OFFENSES AGAINST PROPERTY (Ch. 11 ing property which is attached to the soil or, freehold, such as trees, doors, window blinds, mantels, pipes, and the like.''* If a thing attached to the realty is severed, thereby becoming personal property, it may be stolen.^" Neither ore before it has been mined nor ice before it has been cut is the subject of larceny; but it is otherwise if the ore has become detached or the ice cut and stored.^' Where, how- ever, the severance is by a trespasser, who carries the thing away, the taking and carrying away is mere trespass, and not larceny, if the severance and carrying away are one con- tinuous transaction.^' It was once held that the two acts must be separated by a day in order to make them distinct transactions;"* but no particular length of time is neces- 2* Anon., Y. B. 11, 12 Edw. Ill, 640. Eex v. Westbeer, 1 Leach, 14 ; 2 East, P. C. 596. A key may be stolen, Hoskins v. Tarrence, 5 Blackf. (Ind.) 417, 35 Am. Dee. 129, so, also, chandeliers attached to the freehold, as they remain furniture, and do not become part of the realty, Smith v. Com., 14 Bush (Ky.) 31, 29 Am. Rep. 402. Valves attached to pump and boiler used as a permanent improvement for Irrigating purposes, but removable, not part of freehold, Langston V. State, 96 Ala. 44, 11 South. 334 ; otherwise where they are screwed to pipes attached to the side of a building. Id. Wire fastened to posts for the purpose of fencing a pasture for live stock is personal property, and a subject of larceny. Junod v. State, 73 Neb. 208, 102 N. W. 462, 119 Am. St. Rep. S90. 25 Reg. V. Wortley, 1 Denison, Cr. Gas. 162; People v. Williams, 35 Oal. 671 (ore); State v. Burt, 64 N. 0. 619; State v. Berryman, 8 jSTev. 262 ; Holly v. State, 54 Ala. 238. Turpentine after being tak- en from tree, State v. Moore, 33 N. C. 70. 2 8 People V. Williams, 35 Cal. 671; Ward v. People, 3 Hill. (N. Y.) 395; State v. Burt, 64 N. C. 619; State v. Berryman, 8 Nev. 262; COM. V. STEIMLING, 156 Pa. 400, 27 Atl. 297, Mlkell Illus. Cas. Criminal Law, 162 ; ■ Ward v. People, 6 Hill (N. Y.) 144. 27 4 Bl. Comm. 232; Reg. v. Townley, 12 Cox, Cr. Cas. 59; State v. Hall, 5 Har. (Del.) 492; State v. Burt, 64 N. C. 619; Jackson v., State, 11 Ohio St 104; Bradford v. State, 6 Lea (Tenn.) 634; People v. Williams, 35 Cal. 671. 28 2 Bish. New Cr. Law, § 766. §§ 94^98) LAECENT 313 sary. It is enough if the two acts do not constitute one transaction.^* The technical reason why the two acts must be distinct is that, if the thing severed is carried away as part of one continuous transaction, it never comes into the possession of the owner as personal property, and hence there is no taking of personal property out of his posses- sion. It is essential that the thing severed and carried away should come into the intervening possession of the owner. If the trespasser leaves the thing upon the owner's premises, and abandons it, it then comes into the posses- sion of the owner as personal property, and if the trespasser returns and carries it away he is guilty of larceny.^" But it has been held that merely leaving the thing on the own- er's premises does not of itself vest possession in the own- er, so as to make the reoccupation by the trespasser lar- ceny. Thus, where trespassers hid the thing on the prem- ises with the intention of returning for it, and returned .after several hours and carried it away, it was held that the transaction was continuous and did not amount to lar- ceny.^^ In many states it is by statute made larceny to ftake and carry away fixtures, growing trees, and other 29 See cases generally cited under this paragraph. 30 Eeg. V. Foley, 26 L. E. Ir. 299. 31 Reg. V. Townley, 12 Cox, Cr. Cas. 59 ; Reg. v. Fetch, 14 Cox, Cr. Cas. 116. These cases related to rabbits killed and concealed on the premises by poachers, but the same principles are applicable. Where defendant gathered coal which had been deposited by a stream on the prosecutor's land, sifted the coal, and deiwsited It and carried it away in a flatboat, he was guilty of larceny. COM. v. STEIM- LING. 156 Pa. 400, 27 Atl. 297, Rlikell Illus. Cas. Criminal Law, 162. In Reg. V. Foley, 26 L. R. Ir. 299, accused, a former tenant, re-entered the premises and cut grass belonging to the landlord ; three days later he again entered, raked the grass and carted it away. It was held that Foley's possession of the grass was not continuous, and the fact that he intended, when he cut the grass, to return for it, did not prevent his act of carrying it away from being larceny. 314 OFFENSES AGAINST PROPERTY (Ch. 1 1 things attached to realty, although the severance and car- ryingaway are one and the same transaction. Illuminating gas and water, when collected for supply, are such property as may be stolen.*'' Same — Property of Another Although, as stated in the black-letter text, the owner- ship of the stolen property must be in another than the thief,'' it is not necessary that the owner shall be known.'* Nor is it necessary that the stealing shall be from the hold- er of the legal title. The ownership may be special as well as general,'^ as in case of bailment. Thus, property may be stolen from a bailee and it may be charged in the indict- ment to have been his, property; '° property may be stolen 3 2Ferens v. O'Brien, 11 Q. B. Div. 21; Com. v. Shaw, 4 Allen cket of a person forcibly held by a confederate commits robbery. Wheeler v. Com., 86 Va. 658, 10 S. E. 924. The violence need not intimidate. People v. Glynn, 54 Plun, 332, 7 N. Y. Siipp. 555. See, also, note 59. Where A, pretending to be a policeman, takes hold of B., who is intoxicated, and tells B. he must go to jail and it is necessary to search him before going, and goes through his pockets and takes money from him, this constitutes rc^bbery, it being sufficient "that the person assaulted was intimidated "Sind yielded up his property because of the force used and threatened, be the same ever so slight." State v. Parsons, 44 Wash. 299, 87 Pac. 349, 7 L. R. A. (N. S.) 566, 120 Am. St. Rep. 1003, 12 Ann. Cas. 61. 68 Shlnn V. State, 64 Ind. 13, 31 Am. Rep. 110; State v. Jliller, S3 Iowa, 291, 49 N. W. 90; Doyle v. State, 77 Ga. 513; Territory v. MoKern, 3 Idaho (Hash.) 15, 20 Pac. 123; Panning v. State, 66 Ga. 167; Spencer v. State, 100 Ga. 002, 32 S. E. 849. Ante, p. 317, note 46. §§ 105-107) KOBBEBY 375 if it is detached by force, as, for instance, where a watch chain is broken in snatching a watch, for in the first case force is used to overcome the resistance of the person, and in the second case to overcome the resistance offered by the .object taken."* Intimidation, or putting in fear, will supply the place of force. "'' Thus, where several persons surrounded the prose- cutor, so as to make resistance appear useless to him, and took away his watch, without force, it was held to be rob- bery."^ The intimidation need not have been engendered originally with the object of stealing from the prosecutor. Thus, where a, man assaulted a woman with the object of committing rape, and she without any demand from him of- fered him money, which he took, this was held to be rob- bery, for the money was given, not voluntarily, but because of fear.°* The fear need not necessarily be of personal violence; fear of haying one's house burned,"^ or of being accused of an unnatural crime,"* is sufficient. No other threat to in- jure merely the reputation is sufficient intimidation in law 59 2 Euss. Crimes, 419; Eex v. Lapier, 2 East, P. C. 557; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176; State v. Trexler, 4 N. C. 188, 6 Am. Dec. 558. 60 2 East, P. C. 711. "Violence may be used for four purposes: (1) To prevent resistance. (2) To overcome the iiarty. (3) To obtain possession of the property. (4) To effect an escape. Either of the first two makes the offense robhery. The last, I presume it will be conceded, does not. The third is a middle ground. In genei-al it does not make the offense robbery, but sometimes, according to some of the cases, it does." Pearsen, J., in State v. John, 50 N. C. (5 Jones, Law) 167, 69 Am. Dec. 777. «i HUGHES' CASE, 1 Levvin, 301, Hikell Illus. Cas. Criminal Law, 195. «2 Rex V. Blockham, 2 East, P. C. 711. 83 Rex V. Astley, 2 East, P. C. 729. 84 Donolly's Case, 2 East, P. C. 715. 376 OFFENSES AGAINST PROPERTY (Ch. 11 \ • to constitute robbery, even though the prosecutor part with his property because of such threat ; "" and it has been held that the threat to accuse of sodomy must be made directly to the person from whom the property is demanded to sup- ply this element of robbery."* The threat of violence must be such as to create a rea- sonable apprehension of danger or it is not sufficient to make the taking robbery.'^ The force, or intimidation sup- plying force, must be in the taking, and therefore to take money from another without force, and afterwards resist when the owner seeks to retake it, is not robbery; nor would a struggle to get away after the taking supply force in the taking/* To take one's own property by force is not robbery, for, as in larceny, the property must be anoth- er's; °° and for a person to take property by force under a bona fide belief that it belongs to him is not robbery, for there must be the same felonious intent as in case of lar- ceny.'° Felonious intent is always essential, and an in- 66 2 Blsh. New Cr. Law, § 1173. ■■ 66 Rex V. Edward, 1 Moo. & K. 257. In this case the threat was made to the prosecutor that the defendant would accuse her husband of sodomy. 6 7 Long V. State, 12 Ga. 293. 68 2 East, P. C. 707; SMnn v. State, 64 Ind. 13, 31 Am. Rep. 110; Fanning v. State, ee'ca. 167 ; Thomas v. State, 91 Ala. 34, 9 South. 81; Jones v. Com-, 115 Ky. 592, 74 S. W. 263, 103 Am. St. Rep. 340; Dawson v. Com. (Ky.) 74 S. W. 701. But see Sherman v. State, 4 Ohio Cir. Ct. R. 531, holding that it is robbery to snatch property without using force or intimidation, and, immediately after seizing it, to strike the owner, and run. The ground of the decision was that the violence was concomitant with the taking. 6 8 Barnes v. State, 9 Tex. App. 128. Where, by law, the winner of money at gaming is not entitled even to possession, it is not rob- bery for the loser to forcibly take it from him. Thompson v. Com. (Ky.) 18 S. W. 1022; Sikes v. Com. (Ky.) 34 S. W. 902. See, also, ante, p. 314. 7 Rex V. Hall, 3 Car. & P. 409; People v. Hall, 6 Parker, Cr. E. §§ 105-107) ROBBERY 377 struction ignoring that element is ground for reversing a conviction.' 1 As said above, it has been held not to be rob- bery to extort money through false imprisonment or threats of a criminal prosecution, except where the threat is to prosecute for an unnatural crime, for in that case the mere accusation, though false, would so injure a person that fear of it would naturally cause him to give up his property ; '^ 'but it is otherwise if the threats are accompanied by force, actual or constructive, and the property is given up because of the force.''* As in the case of larceny, the person robbed need not own the property. Possession is sufficient.'* Consent tp taking will prevent it from being robbery, fbr the intent must be to take the property under such circum- stances that the taking, in the absence of force or intimida- tion, would be larceny.'" (N. T.) 642; People v. Hughes, 11 Utah, 100, 39 Pac". 492. For a person to compel anotlier by threats to pay him money which he believes to be justly due him Is not robbery. State v. HoUyway, 41 Iowa, 200, 20 Am. Rep. 5S6. And see State v. Brown, 104 Mo. 365, 16 S. W. 406 ; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Eep. 242. See, also, ante, p. 343. 71 Com. V. White, 133 Pa. 182, 19 Ati. 350, 19 Am. St Kep. 628: Woods V. State (Aliss.) 6 South. 207; State v. O'Connor, 105 Mo. 121, 16 S. W. 510. 72 1 Russ. Crimes, 118, 119 ; Long v. State, 12 Ga. 293, at page 319; Britt v. State, 7 Humph. (Tenn.) 45; People v. MeDaniels, 1 Parker, Cr. R. (N. Y.) 198 ; Thompson v. State, 61 Neb. 210, 85 N. W. 62, 87 Am. St. Rep. 453. 73Bussey v. State, 71 Ga. 100, 51 Am. Bep. 256; McCormick v. State, 26 Tex. App. 678, 9 S. W. 277 ; Sweat v. State, 90 Ga, 315, 17 S. B. 273. 7* Stegar v. State, 39 Ga. 583, 99 Am. Dec. 472; Durand v. Peo- ple, 47 Mich. 332, 11 N. W. 184; Com. v. ClifEord, 8 Gush. (Mass.) 215; State v. Hobgood, 46 La. Ann. 855, 15 South. 406. See, also, ante, p. 314. 7 5 Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L. E. A. 341, 36 Am. St. Rep. 295. See, also, ante, p. 320. 378 OFFENSES AGAINST PROPEETT (Ch. 11 RECEIVING STOLEN GOODS 108. Receiving stolen goods is possibly a substantive mis- demeanor at common law, but this is doubtful. It is very generally made a crime by statute. 109. To constitute the crime (a) The property must have been stolen, and must re- tain such character' when received. (b) It must be taken into the possession, though, not necessarily manual possession, of the receiver, with the consent of the person from whom it is received. (c) The receiver must know that it was stolen. (d) The receiver must have felonious intent. It seems probable that at common law one who received stolen goods knowing them to have been stolen was only guilty of a misprison or compounding of a felony, and aft- erwards, under an English statute, as accessary after the fact to the larceny,'* though there is authority for saying that the reception of stolen goods was a substantive mis- demeanor at common law." There are now, however, in England, and doubtless in all the states, statutes making the receiving a substantive offense if the recipient knows the goods were stolen. To constitute this crime, not only must the goods have once been stolen, but the character of the goods as stolen goods must exist at the time they are received.'^ If the goods were not in fact stolen, or if they have come again into the owner's possession, and thus cease to have the 7 8 2 Bish. New Cr. Law, § 1137. i T7 1 Hale, P. C. 620; Fost. Cr. Law, 373; 1 Whart. Cr. Law, S 982 •. People V. Keynolds, 2 Mich. 422. 's Com. V. White, 123 Mass. 430, 25 Am. Rep. 116. §§ 108-109) EECEIVING STOLEN GOODS 379 character of stolen goods, and are then given to another to sell, for the purpose of entrapping, or any other purpose, one who receives them is not guilty, though he may believe them stolen.''" As has been seen, one who takes stolen goods from one who has himself stolen thern commits lar= ceny from the thief if the requisite elements of intent and trespass are present. The receiving, therefore, must be with the consent of the person from whom the goods are received.*" Receiving goods from one who guiltily received them from the thief has been held not to be receiving stolen goods, as in the first receiver's hands the goods are not stolen goods.*^ But this does not mean that the receiver must receive the stolen goods directly from the thief. If he receives them from an innocent agent of the thief, know- ing them to be stolen, he is guilty of receiving, for in such case he is regarded as receiving them from the thief.'^ And under the statutes in some states it seems that he may be convicted of receiving from a receiver.*^ The fact that one 10 Reg. V. Dolan, 6 Cox, Cr. Cas. 449; U. S. v. Pe Bare, 6 Biss. 358, Fed. Cas. No. 14,935; People v. Montague, 71 Mich. 318, 39 N. W. 60; Reg. v. Schmidt, 10 Cox, Cr. Cas. 172; Reg. v. Villensky, [1892] 2 Q. B. 597; Reg. v. Hancock, 14 Cox, Cr. Cas. 119. A clerk, while stealing goods for the purpose of selling them to the defendant, was apprehended; but the owner, after recovering the goods, redelivered them to the clerk to sell to the defendant, in order tliat he might be entrapped. Defendant bought the goods, believing them to be stolen. He was indicted for receiving stolen goods. It was held that a con- viction of an attempt to commit the crime charged was error. PKO- PLB V. JAFFE, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263, 7 Ann. Cas. 348, Mikell lllus. Cas. Criminal Law, 86. so Reg. V. Wade, 1 Car. & K. 739. 81 State V. Ives, 35 N. C. 338; U. S. v. De Bare, 6 Biss. 358, Fed. Cas. No. 14,935. Contra, Levi v. State, 14 Neb. 1, 14 N. W. 543. And see Reg. v. Reardon, D. R. 1 Cr. Cas. 31; Smith v. State, 59 Ohio St. 350, 52 N. B. 826 ; 2 Bish. New Cr. Law, § 1140. 82 Com. V. White, 123 Mass. 430, 25 Am. Rep. lia 83 See Anderson v. State, 38 Fla. 3, 20 South. 705. 380 OFFENSES AGAINST PROPERTY (Ch. 11 who receives stolen goods also assisted in the theft does not prevent his punishment for receiving.'* Some statutes make it a crime to receive not only stolen goods, but good? embezzled or obtained by false pretenses.'^ A wife does not commit the crime by receiving stolen goods from her husband, at least if she receives them directly from him be- cause, in such case, the act being done in his presence is presumed to be done under coercion by him." But there seems no reason in principle why she should not be guilty of the crime if she should receive them in the absence of her husbandj^or where she receives them through an inno- cent agent. The husband may commit the crime by re- ceiving from the wife.'^ The goods must be received into the possession of the recipient, but need not be received into his manual posses- sion.** Taking them into his constructive possesion is suf- ficient.'* Where stolen ^oods were delivered, in the de- fendant's absence, to his wife, who paid 6d. on account, but the amount to be paid was not fixed until the thief and the defendant met and agreed thereon, when the defendant paid the balance, he was held guilty of receiving; the re- 84 Jenkins v. State, 62 Wis. 49, 21 N. W. 232. See, also, WMting V. State, 48 Ohio St. 220, 27 N. E. 96. 8 5 In Massachusetts, receiving property knowing it to have been stolen is an offense distinct from receiving property knowing it to have been embezzled. Com. v. Leonard, 140 Mass. 473, 4 N. E. 96, 54 Am. Rep. 485. 8 8 Eeg. V. Brooks, 1 Dears. 184; Reg. v. Wardraper, 8 Cox, Cr. Gas. 284. 8 7 REG. V. WOODWARD, 9 Cox, Gr. Gas. 95, Mikell lUus. Cas. Criminal Law, 198. 88 Reg. V. Smith, 1 Dears. Cr. Cas. 494, 6 Cox, Cr. Gas. 554; Reg. V. Wiley, 14 Cox, Cr. Cas. 412; State y. St. aair, 17 Iowa, 149; Com. V. light, 195 Pa. 220, 45 Atl. 933. 8 9 Reg. V. Miller, 6 Cox, Cr. Cas. 353 (receipt by servant by com- mand of master). §§ 108-109) EEOEIVING STOLEN GOODS 381 ceipt, until the thief and the defendant agreed, not being complete."" So, also, where one partner, without his co- partner's knowledge, receives stolen goods, knowing them to be stolen, and his copar;tner afterwards, with like knowl- edge, takes charge of them, both are guilty."^ As in case of larceny, and the other crimes which we have discussed in this chapter, so, also, in case of receiving stolen goods, there must be felonious intent. One who re- ceives goods, though knowing them to have been stolen, is, not guilty, if his purpose is to return them to the owner, or merely to detect the thief."^ It is not necessary, however, that the recipient shall reap, or expect to reap, any benefit to himself from the goods. It is sufficient if he merely in- tends to aid the thief by concealment."^ In all cases, knowl- edge at the time the goods are received that they have been stolen is absolutely essential ; ®* but knowledge may always be inferred from the circumstances, and is sufficiently 8 REG. V. WOODWAUD, 9 Cox, Cr. Cas. 95, MIkell lUus. Cas. Criminal Law, 198. It was said by WUde, B., that hy ratifying the defendant made the first act of receiving by the wife his act, but it is doubtful whether the decision can be sustained on that ground. Ante, p. 129. ' 81 Sanderson v. Com. (Ky.) 12 S. W. 136. 8 2 People V. Johnson, 1 Parker, Cr. B. (N. Y.) 564; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685. Otherwise with intent to require a reward for return. Baker v. State, 58 Ark. 513, 25 S. W. 603. 83]Elex V. Richardson, 6 Car. & P. 335; Com. v. Bean, 117 Mass. 141; State v. Rushing, 69 N. O. 29, 12 Am. Rep. 641. Otherwise under statutes requiring receipt for "gain" of receiver. Aldrich v. People, 101 111. 16. In Michigan, and probably in other states, the crime is enlarged to include aiding the thief to conceal the property. People V. Reynolds, 2 Mich. 422. In Iowa it is held not to be nec- essary to show guilty intent further than to show knowledge that goods were stolen. State v. Smith, 88 Iowa, 1, 55 N. W. 16. 8* Reg. v. Adams, 1 Fost. & F. 86; Com. v. Leonard, 140 Mass. 473, 4 N. B. 96, 54 Am. Rep. 485 ; Tolliver v. State, 25 Tex. App. 600, 8 S. W. 806 ; People v. Levison, 16 Cal. 98, 76 Am. Dee 505. 382 OFFENSES AGAINST PROPERTY (Ch. 11 shown if the circumstances proven are such as must have made the recipient believe they were stolen."" It has been held that the fact that the goods were stolen in another state is immaterial on the ground that, the orig- inal taking being felonious, every act of possession contin- ued under it by the thief is a felonious taking."'" In Eng- land it has been held that the crime of receiving is not com- mitted if the goods were stolen outside the kingdom."' In some states there are statutes making it a crime to receive goods brought into the state from another state where they were stolen. MALICIOUS MISCHIEF 110. Malicious mischief is a misdemeanor at common law,, and, though there is much conflict in the author- ities, may be generally defined as any willful physi- cal injury to property from ill will or resentment towards the owner, or, as held by some courts,, from wantonness, and not animo furandi, as in case of larceny."* There is no doubt that malicious mischief is a common- law crime, except where the common law has been super- 8 5 Collins V. State, 33 Ala. 434, 73 Am. Dec. 426; Beg. v. White,. 1 Fost. & F. 665 ; Murio v. State, 31 Tex. Cr. R. 210, 20 S. w". 356. Knowledge, not suspicion. State v. Goldman, 65 N. J. Law, 394, 47 Atl. 641. «6 Com. V. Andrews, 2 Blass. 14, 3 Am. Dec. 17; Com. v. White, 123 Mass. 430, 25 Am. Rep. 116. 07 Reg. V. Madge, 9 Car. & P. 29; Reg. v. Carr, 15 Cox, Cr. Cas. 129. Post, p. 4C0. 8 8 State V. Robinson, 20 N. C. 130, 32 Am. Dec. 661. For an ex- haustive review of this subject, and the cases, see Benn. & Heard,. Cr. Cas. 22 et seq., and monographic note on malicious mischief at common law and by statute In 32 Am. Dec. 662-671. § 110) MALICIOUS MISCHIEF 383 seded by statute. It has been so superseded in England by- statutes protecting almost every conceivable article of prop- erty; and this is so, though to much less extent, in this country. There are, however, with us numerous cases rec- ognizing the common-law crime,°° but they are in irrecon- cilable conflict. Some Of the courts hold that the property must be personal and in most cases it is personal ; but Lord Coke states that it is a common-law crime to deface tombs and monuments, though they are real estate;^ and it has been held a common-law crime to maliciously injure trees,'' and to tear off and carry away copper attached to the freehold-^ It has been held that a dog has money value and that a person may therefore be made criminally liable for killing it.* Malicious mischief is distinguished from larceny by the absence of the animus furandi essential to that crime. To constitute the^ crime, malice is essential, but the cases are not in accord as to whether the malice must be directed against the owner or whether it is suffi- cient if directed against the property injured. It has been said that the injury must be done "either out of a spirit of wanton cruelty or wicked revenge," and that the mere will- 9 People V. Moody, 5 Parker, Cr. R. (N. Y.) 588 ; State v. Watts, 48 Ark. 56, 2 S. W. 342, 3 Am. St Rep. 216; Respublica v. Teischer, 1 Dall. (Pa.) 335, 1 L. Ed. 163 ; People v. Smith. 5 Cow. (N. Y.) 258. In State v. Manuel, 72 N. C. 201, 21 Am. Rep. 455, it was held that to maliciously wound au animal, and not kill it, was not indictable at common law; that an indictment would lie for no malicious in- jury to property short of its destruction, any injury short of this being a mere civil trespass. See, also, State v. Beekman, 27 N. J. Law, 124, 72 Am. Dec. 352, and Reg. v. Wallace, 1 Craw. & D. 403. 1 3 Co. Inst. 202. 2 Com. V. Eckert, 2 Browne (Pa.) 249. 3 Rex V. Joyner, J. Kel. 29. 4 Nehr v.- State, 35 Neb. 638, 53 N. W. 589, 17 U R. A. 771 ; State V. Latham, 35 N. C. 33. Contra, U. S. v. Gideon, 1 Minn. 292 (GiL 226). 384 OFFENSES AGAINST PROPERTY (Ch. 11 ful infliction of injury is not enough without further proof, to show "malice" as the term is used in the statutes defin- ing "malicious mischief." " A person may under some cir- cumstances, be justified in injuring animals, as, for instance, where it is necessary to protect his property ; and, if he has ineffectually used ordinary care otherwise to protect his property the injury will not be deemed willful or wanton.* Nor can a person be deemed to have acted maliciously where he acted in good faith, under an honest claim of right ; as, for instance, when he destroys another's crop, be- lieving in good faith that he owns the land, and intending » Com. V. Walden, 3 Gush. (Mass.) 558, citing 4 Bl. Comm. 244 ; Garrett v. Greenwell, 92 Mo. 120, 4 S. W. 441; State v. Wilcox, 3 Yerg; (Term.) 278, 24 Am. Dec. 569 ; State v. Robinson, 20 N. C. 130, 32 Am. Dec. 661. Contra, Territory v. Crozier, 6 Dak. 8, 50 N. W. 124. Malice may sometimes he inferred from the nature of the In- jury, and the manner in which it is inflicted. People v. Burkhardt, 72 Mich. 172, 40 N. W. 240; State v. Williamson, 68 Iowa, 351, 27 N. W. 259; People v. Keeley, 81 Cal. 210, 22 Pac. 593; People v. Olsen, 6 Utah, 284, 22 Pac. 163 (where it was held that the accused need not have known the owner of the property). And see, to same effect, State v. Linde, 54 Iowa, 139, 6 N. W. 168 ; State v. Phipps, 95 Iowa, 491, 64 N. W. 411. In prosecution for malicious mischief in in- juring a house, malice against the owner was not essential, where the purpose was to commit a crime against one who had taken refuge therein. Funderburk v. State, 75 Miss. 20, 21 South. 658. See State v. G-illlgan, 23 R. I. 400, 50 Atl. 844. Wright V. State, 30 Ga. 325, 76 Am. Dec. 656 ; Farmer v. State, 21 Tex. App. 423, 2 S. W. 767; Woods v. State, 27 Tex. App. 586, 11 S. W. 723; People v. Kane, 131 N. Y. Ill, 29 N. E. 1015, 27 Am. St. Rep. 574. Mere trespass by an animal, however, without more, Is no excuse for killing it. Snap v. People, 19 111. 80, 68 Am. Dec. 582. The accused, owner of a flock of turkeys, found a dog running back and forth in the street, outside the inclosure in which the tur- keys were confined, barking and snapping at the turkeys inside, and frightening them. The accused thereupon killed the dog. It was held that accused was guilty of "willfully killing a useful animal," as the killing was not necessary to prevent the destruction of the turkeys. State V. Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R. A. (N. S.) 910. §§ 111-113) FORGEKT 385 to plant a crop for himself ; for, as said in an Indiana case, the machinery of the criminal law is not to be set in motion to redress merely private grievances, or to settle questions of property, where honest differences of opinion are in- volved.^ FORGERY 111. Forgery, at common law, is the fraudulent making or alteration of a writing to the prejudice of another man's right.' 1 12. To constitute the crime (a) The making or alteration must be false. (b) It must be with intent to defraud. (c) The instrument, as made or altered, must be of appar- ent legal efficacy to impose a liability, or, in case of alteration, to change a liability. (d) The alteration must therefore be material, 113. Forgery is a misdemeanor at common law, but is very generally made a felony by statute.* The Making The instrument may be written with pen or pencil,^" or it may be wholly printed or engraved, as in case of a rail- road or theater ticket.^^ The crime may be committed by 7 Barlow v. State, 120 Ind. 56, 22 N. B. 88 ; Woodward v. State, 33 Tex. Cr. K. 554, 28 S. W. 204; State v. Foote, 71 Conn. 737, 43 AU. 488. But see Heron v. State, 22 Fla. 86. 8 4 Bl. Comm. 247. "Forgery, at common law, Is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability." 2 Bish. New Cr. Law, § 523. » 2 Bish. New Cr. Law, § 609. 10 Baysinger v. State, 77 Ala. 63, 54 Am. Rep. 46. 11 Com. V. Ray, 3 Gray (Mass.) 446; In re Benson (O. C.) 34 Fed. 649. Clakk Ce.L.3d Ed. — 25 386 OFFENSES AGAINST PEOPBRTT (Ch. 11 writing or printing matter over another's genuine signature, as well as by signing another's name.^* Making another's mark, instead of signing his name, may be a forgery.^^ The crime may also be committed by signing one's own name in such a way as to make the writing purport to be by another person of the same or a similar name,^* or by ,signing the name of a fictitious^^ or deceased person,^" or person with- out legal capacity,^' as the name of such person. It is not forgery for one to sign a fictitious name if he signs it as his own, and the person injured thereby relied upon and gave credit to the person himself.^* Where, however, i2Caulkins v. Whisler, 29 Iowa, 495, 4 Am. Rep. 236; Koberts v. State, 92 Ga. 451, 17 S. E. 262. 13 Rex V. Dunn, 2 East, P. C. 962. There may be forgery, though place for mark left blank. Lemasters v. State, 95 Ind. 367. m Com. V. Foster, 114 Mass. 311, 19 Am. Rep. 353 ; People v. Pea- cock, 6 Cow. (N. Y.) 72 ; Barfield v. State, 29 Ga. 127, 74 Am. Dec. 49; U. S. V. Long (C. C.) 30 Fed. 678; State v. Farrell, 82 Iowa. 553, 48 N. W. 940 ; People v. Rushing, 130 Cal. 449, 62 Pac. 742, 80 Am. St. Rep. 141. 15 Rex V. Lockett, 1 Leach, 110; Sasser v. State, 13 Ohio, 453; People V. Davis, 21 Wend. (N. Y.) 309; State v. Wheeler, 20 Or. 192, 25 Pac. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119 ; Brewer v. State, 32 Tex. Or. R. 74, 22 S. W. 41, 40 Am. St. Rep. 760; People v. War- ner, 104 Mich. 337, 62 N. W. 405. W^hen name fictitious, Lascelles V. State, 90 Ga. 347, 16 S. E. 945, 35 Am. St. Rep. 216. i« Henderson v. State, 14 Tex. 503; Billings v. State, 107 Ind. 54, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; Brewer v. State, 32 Tex. ^r. R. 74, 22 S. W. 41, 40 Am. St Rep. 760. Name of corporation no longer In existence, Buckland v. Com., 8 Leigh (Va.) 734 ; White V. Com., 4 Bin. (Pa.) 418. 17 Brewer v. State, 32 Tex. Cr. R. 74, 22 S. W. 41, 40 Am. St Rep. 760 ; People v. Krummer, 4 Parker, Cr. R. (N. Y.) 217 ; King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St Rep. 792. 18 "If a person give a note entirely as his own, his subscribing it by a fictitious name will not make it a forgery, the credit thus being given to himself without any regard to the name or without any re- lation to a third person." Cockbum, C. J., in Reg. v. Martin, 14 Cox, Or. Cas. 375, 5 Q. B. Div; 34. §§ 111-113) FOEGEEY 387 the credit is given, not in reliance on the accused himself, but on the genuineness of the instrument, it is forgery.^* Signing one's own name as agent of another without au- thority, or signing another's name with an addition showing that it is signed by accused as agent,"" is not forgery, since the making or alteration must be false, and this is a mere assumption of authority. Hence it has been he^d not for- gery for a person falsely to sign his own name and the name of another as a pretended partnership."^ Signing by mak- ing art impression with a stamp is such a signature as may constitute the crime."" There must be some making or al- teration of an instrument, and therefore it would not be for- gery to make use of an instrument, such as an order for the payment of money, or a check, which is genuine, but by mis- take is drawn for more money than is intended."' So, also, it has been held not to be forgery to fraudulently write out 19 State V. Wheeler, 20 Or. 192, 25 Pac. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119. 2 Reg. V. White, 2 Cox, Cr. Gas. 210; State v. Willson, 28 Minn. 52, 9 N. W. 28 ; In re TuUy (C. C.) 20 Fed. S12 ; State v. Taylor, 46 La. Ann. 1332, 16 South. 190, 25 L. R. A. 591, 49 Am. St. Rep. 351. Where a bounty inspector made a bounty certificate, certifying that a third person had exhibited skins to him and filed the necessary affidavits, both of which facts were false and known to be false by the inspector, he was held guilty of forgery under a statute providing that any person who shall falsely make a certificate relating to boun- ties on wild animals shall be guilty of forgery. In re Terrett, 34 Mont. 325, 86 Pac. 266 (1906). Other states contra, construing the "falsely making" in similar statutes as having reference, not to the contents of the instrument, but as to its genuineness, the falsity con- sisting in its purporting to be the instrument of some person other than the one actually signing. Com. v. Foster, 114 Mass. 319, 19 Am. Rep. 353 (1873) State v. Young, 46 N. H. 266, 88 Am. Dec. 212 (1865) ; U. S. V. Moore (D. C.) 60 Fed. 738 (1894). 21 1 Hawk. P. C. c. 70, § 5 ; COM. v. BALDWIN, 11 Gray (Mass.) 197, 71 Am. Dec. 703, Mikell lUus. Cas. Criminal Law, 203. 22 In re Benson (C. C.) 34 Fed. 649. 2s Bell V. State, 21 Tex. App. 270, 17 S. W. 155. 388 OFFENSES AGAINST PEOPERTX (Ch. 11 a note or deed for an illiterate person for more than he in- tends, and then, by falsely reading it over to him, obtain his signature." On the same principle it is not forgery to alter a receipt which has been read to' the prosecutor and procure his signature thereto in ignorance of the altera- tion.^' A person may be authorized to sign another's name, or fill in blanks over his signature, and yet may do so fraud- ulently, so as to be guilty of forgery ; as, for instance, where a person authorized to sign another's name to certificates signs a false certificate,^" or where a person who is author- ized to fill up checks signed in blank, and use them in his principal's business for a particular purpose, fills them up for an arbitrary amount, and appropriates it.^'' In the latter case it would not be forgery if the agent had a general au- thority to fill up the checks, but would be embezzlement.^* The fact that the forged instrument does not resemble the genuine, provided the instrument can reasonably deceive, is immaterial except so far as the fact of dissimilarity may bear on the question of intent.^" A person who directs the forging of an instrument by an innocent agent, and utters 2* Wells V. State, 89 Ga. 788, 15 S. E. 679; Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441; COM. v. SANKEY, 22 Pa. 390, 60 Am. Dec. 91, Mlkell Illus. Cas. Criminal Law, 206. But see State v. Sliurt> lifE, 18 Me. 368 ; Clay v. Schwab, 1 Mich. N. P. 168. 26 Reg. V. Chadwick, 2 Moody & R. 545. 2 8 Moore v. Com., 92 Ky. 630, 18 S. W. 833. 2 7 Reg. V. Hart, 7 Car. & P. 652; Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926; People v. Dickie, 62 Hun, 400, 17 N. Y. Supp. 51. And see State v. Maxwell, 47 Iowa, 454; Biles V. Com., 32 Pa. 529, 75 Am. Dec. 568 ; State v. Kroeger, 47 Mo. 552 ; State v. Flanders, 38 N. H. 324. 2 8 Reg. V. Richardson, 2 Fost & F. 343; People v. Eeinitz (Gen. Sess.) 6 N. Y. Supp. 672. 28 Com. V. Stephenson, 11 Gush. (Mass.) 4S1, 59 Am. Dec. 154; State V. Gryder, 44 La. Ann. 962, 11 South. 573, 32 Am. St. Rep. 358 ; Hess V. State, 5 Ohio, 5, 22 Am. Dec. 767. §§ 111-113) FORGEKT 389 the same, and receives the proceeds, is a principal forger. ^ Thus forgery may be committed by procuring an instru- ment to be signed by another with that other's own name, if it is done for the purpose of using it as the signature of another person qiJhe same name as the signer.'^ Character of Instrument According to the weight of authority the subject of a forgery must be some writing or document, but beyond this the character of the instrument is not material, provided that, if genuine, it might be of apparent legal efficacy and might prejudice another's rights. The subject of forgery may be a deed ^^ or a mortgage,'^ a check or note or bill of exchange,** an order for goods or money,*° a duebill,'* a so Territory v. Barth, 2 Ariz. 31D, 15 Pac. 673 ; Elmore v. State, 92 Ala. 51, 9 South. 600; Hughes v. Com., 89 Ky. 227, 12 S. W. 269; Com. V. Foster, 114 Mass. 311, 19 Am. Rep. 353 ; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St Rep. 848; Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774. 81 Reg. V. Mitchell, 1 Denison Cr. Cas. 282, note. 52 Allgood V. State, 87 Ga. 668, 13 S. E. 569. 53 People V. Sharp, 53 Mich. 523, 19 N. W. 168. Si Rex V. Birkett, Russ. & R. 86; Com- v. Stephenson, 11 Cush. (Mass.) 481, 59 Am. Dec. 154; Butler v. Com., 12 Serg. & R. (Pa.) 237, 14 Am. Dec. 679 ; ' State v. Coyle, 41 Wis. 267 ; Com. v. Ward, 2 JSIass. 397. 35 Stewart v. State, 113 Ind. 505, 16 N. E. 186 ; Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; Rollins v. State, 22 Tex. App. 548, 3 S. W. 759, 58 Am. St. Rep. 659; Craw- ford V. State, 31 Tex. Cr. R. 51, 19 S. W. 766; Roddick v. State, 31 Tex. Cr. R. 587, 21 S. W. 684; State v. Jefferson, 39 La. Ann. 331, 1 South. 669; State v. Stephen, 45 La. Ann. 702, 12 South. 883; Smith V. State, 29 Fla. 408, 10 South. 894; Hale v. State, 1 Cold. (Tenn.) 167, 78 Am. Dec. 488; Baysinger v. State, 77 Ala. 63, 54 Am. Rep. 46. The fact that order is signed at beginning is imma- terial. Crawford v. State, 31 Tex. Cr. R. 51, 19 S. W. 766. Failure to name drawee and payee immaterial. State v. Bauman, 52 Iowa, 68, 2 N. W. 956. 3 6 Nelson v. State, 82 Ala. 44, 2 South. 463. 390 OFFENSES AGAINST PEOPEnTY (Ch. 11 recommendation," a testimonial of good character," en- tries in account books,'" receipts,*" settlements,*^ a diplo- ma,*^ an examination certificate,*' and the like. It is not forgery for one seller of goods to imitate the labels of an- other,** nor for a person to falsely paint the name of a well- known artist in the corner of a picture, so as to make it ap- pear to have been painted by him.*° In the latter case, Cockburn, C. J., said: "If you once go beyond a writing, where are you to stop? Could there be a forgery of sculp- ture? * * * ^ forgery must be of some document or writing." 8 7 Keg. V. Sharman, Dears. Crown Cas. 2S5; Ames' Case, 2 Greenl. (Me.) 365; Com. v. Coe, 115 Mass. 481. Contra, Waterman v. People, 67 111. 91 (false letter of introduction to hospital). A letter directed to "any employs of the Western Union Telegraph Company," stating that X. was a personal friend of the management, and any favors shown him would be duly appreciated," is the subject of forgery. People V. Abeel, 45 Misc. Rep. 86, 91 N. Y. Supp. 699. 88 Reg. V. Toshack, 1 Denison, Cr. Cas. 492. so Biles V. Com., 32 Pa. 529, 75 Am. Dec. 568 ; In re TuUy (C. C.) 20 Fed. 812. Entry in baijk pass book, Reg. v. Smith, Leigh & C. 168. False charge in oile's own account books not forgery. State v. Young, 46 N. H. 266, 88 Am. Dec. 212. ■10 isnell V. State, 2 Humph. (Tenn.) 347; State v. Floyd, 5 Strob. (S. C.) 58, 53 Am. Dec. 689; State v. Smith, 46 La. Ann. 1433, 16 South. 372. Indorsement of receipt on back of note, State v. Davis, » 53 Iowa, 252, 5 N. W. 149. Not forgery to erase acquittance indorsed on bond. State v. Thornburg, 28 N. C. 79, 44 Am. Dec. 67. *i Settlement of book account, Barnum v. State, 15 Ohio, 717, 45 Am. Dec. 601. 4 2 Reg. V. Hodgson, 7 Cox, Cr. Cas. 122. *3 Reg. V. Toshack, 1 Denison, Cr. Cas. 492. 4* REG. V. SMITH, 8 Cox, Cr. Cas. 32, Mikell Illus. Cas. Criminal Law, 207. See White v. Wagar, 185 111. 195, 57 N. E. 26, 50 L. R, A. 60. 4 6 Reg. T. Closs, 7 Cox, Cr. Cas. 494. §§ 111-113) FORGEBT 391 Legal EMcacy of Instrument The instrument must be of apparent legal efficacy,*' since otherwise it has no legal tendency to defraud. If an instru- ment does not appear on its face to be of legal efficacy, it cannot be punished as a forgery without proof of extrinsic facts to show that, if genuine, it would have such efficacy. Making a writing which is invalid on its face, as in case of a will not signed by the requisite number of witnesses,*' or writing the name of a witness on a paper not required to be witnessed,*' is not forgery. Nor is it forgery to coun- terfeit a bank note which the statute declares void, as no one could be defrauded, all persons being presumed to know the law.*" It is on this ground of legal efficacy that it has been held not to be forgery to counterfeit labels used by another in wrapping goods. °'' As said by Bramwell, B., in the case last cited : "Forgery presupposes the possibility of a genu- ine document, and that the false document is not as good as the genuine document, and that the one is not as efficacious for all purposes as the other. In the present case one of 48 Com. V. Hinds, 101 Mass. 209; People v. Shall, 9 Cow. (N. Y.) 778 ; People v.' Drayton, 168 N. Y. 10, 60 N. E. 104S. Cases holding a. letter of recommendation or testimonial of good character (see notes 37, 38) subjects of forgery are, to say the least, extreme cases. 4 7 Rex V. Wall, 2 Bast, P. C. 953; State v. Smith, 8 Yerg. (Tenn.) 150. 4 8 State V. Gherkin, 29 N. C. 206. •«9 2 Bish. New Cr. Law, § 538. Bond not execute^ in conformity with statute. Cunningham v. People, 4 Hun (N. Y.) 455. Instru- ment prohibited under penalty not void, and may be subject of forgery. Nelson v. State, 82 Ala. 44, 2 South. 463. See, also, Thomp^ son V. State, 9 Ohio St. 354 ; Butler v. Com., 12 Serg. & R. (Pa.) 237, 14 Am. Dec. 679 ; Brown v. People, 8 Hun (N. Y.) 562. But see, con- tra, Outchina v. People, 21 111. 642. 00 REG. 7. SMITH, 8 Cox, Cr. Cas. 32, Miljell Illus. Cas. Criminal Lnw, 207. 392 OFFENSES AGAINST PROPERTY (Ch. 11 these documents is as good as the other — the one asserts what the other does ; the one is as true as the other, but the one is improperly used. * * * j cannot see any false character in the document." If, however, an instrument is valid on its face, and is ren- dered invalid only because of extrinsic facts, it may be the subject of forgery, as people are not presumed to know the facts." Thus forgery may be committed by signing the name of a fictitious person, or of a deceased person, or of a person without legal capacity.^" On the other hand, al- though an instrument does not, on its face, appear to be of legal efficacy, it may yet be shown to be a forgery by aver- ment in the indictment and proof of such extrinsic facts as may show that, if it were genuine, it would possess legal efficacy.^^ To make or alter a note which on its face ap- pears to be, or to alter a note that is, barred by the statute of limitations, would be a forgery, as the maker of a note is not bound to plead the statute; and, in the absence of such a plea, a judgment could be rendered against him.°* 01 People V. Galloway, 17 Wend. (N. Y.) 540; State v. Hilton, 35 Kan. 338, 11 Pac. 164;' State v. Johnson, 26 Iowa, 407, 96 Am. Dec. 158. Insurance premium note to be valid when policy issued, policy not issued. State v. McMackin, 70 Iowa, 281, 30 N. W. 635. Usurious bill of exchange, People v. Wheeler, 47 Hun (N. Y.) 484. 6 2 Ante, p. 386. esRembert v. State, 53 Ala. 467, 25 Am. Rep. 639; Com. v. Ray, 3 Gray (Mass.) 441 ; State v. Wheeler, 19 Minn. 98 (Gil. 70). 6* State V. Dunn, 23 Or. 562, 32 Pac. 621, 37 Am. St Eep. 704. Other cases, not forgery. Contract invalid for want of considera- tion, People V. Shall, 9 Cow. (N. Y.) 778; married woman's deed void for want of acknowledgment, Roode v. State, 5 Neb. 174, 25 Am. Rep. 475 ; note appearing on its face not to be executed by per- son represented, Rudicel v. State, 111 Ind. 595, 13 N. E. 114 ; mistake in name intended to be signed, People v. Elliott, 90 Cal. 586, 27 Pac. 433 ; but forgery where name is misspelled. State v. Covington, 94 N. C. 913, 55 Am. Rep. 650. Unintelligible writing not forgery, Ter- §§ 111-113) rORGEET 393 Alterations and Erasures Forgery may be committed by making alterations or eras- ures in an instrument, as well as by the making of the in- strument itself. But not all alterations or erasures are for- gery. To be forgery the alterations must be material, for otherwise they cannot be prejudicial. ^° Erasures may be forgeries, but not erasures of immaterial matter. Nor is it forgery to add immaterial matter, such, for instance, as words which, if absent, would be implied by law,^° or to add- the name of a witness to a paper to which witnesses are not ry V. C!om., 87 Va. 672, 13 S. E. 104; otherwise where orthography merely had, Williams v. State, 24 Tex. App. 342, 6 S. W. 531; or pen- manship bad, Hagar v. State, 71 Ga. 164. Failure of a forged ticket to express consideration or promise is immaterial. In re Benson (C. C.) 34 Fed. 649. Affldavits not required by law not forgery. U. S. V. Barnhart (D. C.) 33 Fed. 459. Making false tax receipts, where taxes have in fact been paid, not forgery. Cox v. State, 66 Miss. 14, 5 South. 618 ; nor in case of void city warrants, Raymond v. People, 2 Colo. App. 329, 30 Pac. 504; nor contract for purchase of goods, providing for future delivery and payment. Shirk v. People, 121 111. 61, 11 N. E. 888. 6 Immaterial alteration of receipt. State v. Dorrance, 86 Iowa, 428, 53 N. W. 281 ; State v'. Rlebe, 27 Minn. 315, 7 N. W. 262; of note. State v. Stratton, 27 Iowa, 420, 1 Am. Rep. '282 ; alteration by drawer of satisfied and returned order for goods. People v. Fitch, 1 Wend. (N. X.) 198, 19 Am. Dec. 477 ; unsigned indorsement of money re- ceived, on back of note. State v. Davis, 53 Iowa, 252, 5 N. W. 149. It was held forgery to alter satisfied mortgage. State v. Adamson, 43 Minn. 196, 45 N. W. 152 ; instrument signed in blank. State v. Kroe- ger, 47 Mo. 552. Under a statute providing that where the sum payable in a check is expressed both in words and in figures, and there is a discrepancy between the two, the sum expressed by the words is that payable, where a check recited in words that the sum payable was "twenty-five hundred and no/100 dollars," and the sum in figures was "$25/00," the alteration of the figures so as to read "$2500/00," was not forgery, since the alteration did not change the legal effect of the instrument. People v. Lewinger, 252 111. 332, 96 N. m 837, Ann. Cas. 1912D, 239. 6 6 Hunt V. Adams, 6 Mass. 519. 394 OFFENSES AGAINST PROPERTY (Ch. 11 required.*/ Examples of forgery by alteration are where the date,"' or amount, or place of payment °° of a note is changed, or signatures are erased and substituted,"" or where the condition of a note is torn oflf, so as to render it negotiable.'^ Altering one's own note after it has been de- livered may be a forgery."'' Of course, it is not forgery to alter an instrument which is not the subject of forgery, and therefore what has been said in the preceding sections is also applicable here. Intent Fraudulent intent is essential to constitute this crime." It is no forgery for one carelessly to write another's name without any purpose, or to insert in a contract which has been signed, a provision which he understands the other party to have agreed to."* On the other hand, if a fraudu- lent intent is shown, it is no defense that, as in case of a note, the accused intended to take up the instrument him- 07 state V. Gherkin, 29 N. C. 206. 6 8 State V. Kattlemann, 35 Mo. 105 ; Allen v. State, 79 Ala. 34. 58 Rex V. Treble, Russ. & R. 164, 2 Taunt. 328; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548. 60 Rex V. Treble, 2 Taunt. 328; State v. Robinson, 16 N. J. Law, 507. Indorsement on note, Powell v. Com., 11 Grat. (Va.) 822; Com. V. Welch, 148 Mass. 296, 19 N. E. 357; State v. Davis, 53 Iowa, 252, 5 N. W. 149 ; Pennsylvania v. Misner, Add. (Pa.) 44. Change of middle initial. State v. Higgins, 60 Minn. 1, 61 N. W. 816, 27 L. R. A. 74, 51 Am. St. Rep. 490. ■61 State v. Stratton, 27 Iowa, 420, 1 Am. Rep. 282. 62 State V. Young, 40 N. H. 266, 88 Am. Dee. 212 ; Com. v. My call, 2 Mass. 136. 63 Com. V. Connolly, 11 Pa. Co. Ct. R. 414. 64 Pauli V. Com., 89 Pa.. 432. Signing name of witness to fee bill in belief witness had agreed to give him fee. Kotter v. People, 150 111. 441, 37 N. E. 932. §§ 111-113) FORGERY 395 self before it became due, and so prevent injury." Nor is it any defense, on a prosecution for forgery by a creditor on his debtor, to show that defendant intended to devote the money obtained thereby to the payment of the debt/" It is not necessary that the forger shall intend to reap the ad- vantage from the forgery himself, but one may commit a forgery for the benefit of another." A general intent to de- fraud is sufficient to render a person guilty; there need be no intent to defraud any particular person.*' Nor is it nec- essary that the forgery shall be successful, and actually de- fraud.*' Thus a check may be a forgery, though the person whose name is signed to it has no account with the bank on which it is drawn.'* «5 Reg. V. Geach, 9 Car. & P. 499; Reg. v. Birkett, Russ. c& R. 86; Com. V. Henry, 118 Mass. 460. 66 Reg. V. Wilson, 2 Car. & K. 52T; Claiborne v. State, 51 Ark. 88, 9 S. W. 851. 6 7 State V. Cross, 101 N. O. 770, 7 S. E. 715, 9 Am. St. Rep. 53. 6 8 Arnold v. Cost, 3 Gill & J. (Md.) 219, 22 Am. Dec. 302; Barnes v. Com., 101 Ky. 556, 41 S. W. 772. It is held by some courts that the indictment must allege an intent to defraud some particular person. Barnum v. State, 15 Ohio, 717, 45 Am. Dec. 601 ; Williams v. State, 51 Ga. 535. "In order to find the intent to defraud a particular person, it is not necessary that there should be evidence that the accused had that particular person in contemplation at the time of the for- gery." Speer, J., in U. S. v. Long (C. C.) 30 Fed. 678. 69 Com. V. Ladd,'15 Mass. 526; Hale v. State, 1 Cold. (Tenn.) 167, 78 Am. Dec. 488; State v. McMackin, 70 Iowa, 281, 30 N. W. 635; State V. Cross, 101 N. C. 770, 7 S. B. 715, 9 Am. St. liep. 53; Hawkins V. State, 28 Fla. 363, 9 South. 652 ; State v. Washington, 1 Bay (S. C.) 120, 1 Am. Dec. 601; People v. Fitch, 1 Wend. (N. Y.) 198, 19 Am. Dec. 477. Nonacceptance of forged order is immaterial. Craw- ford V. State, 31 Tex. Cr. R. 51, 19 S. W. 760. 10 Com. V. Russell, 156 Mass. 196, 30 N. E. 763. 396 OFFENSES AGAINST PEOPERTI (Ch. 11 UTTERING FORGED INSTRUMENT 114. To utter a forged instrument is to offer it, directly or indirectly, by words or actions, as good. This, if done with intent to defraud, and with knowledge of the falsity of the instrument, being an attempt to cheat, is a misdemeanor at common law.'^ i Uttering is in the nature of an attempt to cheat by means of a forged instrument. To constitute the crime of utter- ing, there must be, not merely intent to defraud, but knowl- edge that the instrument is a forgery.''^ The forgery is ut- tered when there is an attempt to make use of it. It is not necessary that there be anything more than the declaration that the instrument is good ; it need not be actually accept- ed and passed.'* Mere exhibition of the forgery may be enough, as by producing a forged receipt for inspection, in order to lead the person to whom it is produced to believe that the other has paid, and to gain credit. ''* Thus, to offer 711 Whart. Cr. Law, §§ 703, 713; Com. v. Searle, 2 Bin. (Pa.) 332, 4 Am. Dec. 446; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Wash V. Com., 16 Grat. (Va.) 530. 7 2 State V. Warren, 109 Mo. 430, 19 S. W. 191, 32 Am. St. Rep. 681; Elsey V. State, 47 Ark. 572, 2 S. W. 337. A representation made by a person in negotiating a forged note that he is the payee of the note is sufficient to justify the inference that he knew the note to be forged. State v. Williams, 66 Iowa, 573, 24 N. W. 52; State V. Beasley, 84 Iowa, 83, 50 N. W. 570. 73 People V. Caton, 25 Mich. 392. 7* Reg. V. Radford, 1 Denison, Cr. Cas. 59; Reg. v. Ion, 2 Denison, Or. Cas. 475 (forged receipt exhibited by proposed surety to establish his credit). Exhibiting or delivering to an accomplice in order that he may make use of it is not uttering. Reg. v. Heywood, 2 Car. & K. 352. Pledging forged instrument held an uttering. Thurmond V. State, 25 Tex. App. 366, 8 S. W. 473. Recording forged discharge of mortgage an uttering, as "an acquittance and discharge for mon- § 114) DTTEEING FORGED INSTEUMENT 397 to pass a forged check has been held to be an uttering there- of, though it was not only not accepted, but was payable to the order of a third person, and had not been indorsed.'^ There must, however, be some attempt to cheat or offer of the instrument. It is not at common law a crime to have a forged note in one's possession with intent to pass it, though there are statutes now in the different states changing the common law in this respect. The representation that the in- strument is good need not necessarily be in words. A mere silent offer of an instrument, knowing that it is forged, is a representation that it is genuine.''" A person in one coun- ty or state is guilty of uttering* a forged instrument in an- other county or state if he procures it to be taken into the latter by an innocent agent, and there collected or passed." And placing a forgery in the mail for transmission to an- other jurisdiction is uttering. ''' Uttering and forgery are not different degrees of the same offense, but are distinct offenses; although in some states by statute uttering is declared to be forgery. ey." People v. Swetland, 77 Mich. 53, 43 N. W. 779. Aiding in ob- taining probate of forged will an uttering. Corbett v. State, 5 Obio Cir. Ct. R. 155. Presenting forged deed for record. Espalla v. State, 108 Ala. 38, 19 South. 82. 7s Smith V. State, 20 Neb. 284, 29 N. W. 928, 57 Am. Rep. 832. 7 6 u. S. V. Long (C. C.) 30 Fed. 678; State v. Calkins, 73 Iowa, 128, 34 N. W. 777. 7 7 Reg. V. Taylor, 4 Fost. & F. 511. 7 8 Reg. V. Finkelstein, 16 Cox, Cr. Cas. 107. 398 PUBLIC HEALTH, SAFETY, COMFORT, AND MOEALS (Ch. 12 CHAPTER XII OFFENSES AGAINST THE PUBLIC HEALTH, SAFETY, COJIFORT, AND MORALS 115. ' Nuisance in General. 116-117. Bigamy or Polygamy. 118-119. Adultery. 120^121. Fornication. 122. Lewdness and Illicit Cohabitation. 123. Incest. 124. Miscegenation. 125-127. Sodomy, Bestiality, and Buggery. 128. Seduction. 129-131. Abortion. NUISANCE IN GENERAL 115. A common or public nuisance, which is a misdemeanor at common law, is a condition of things which is prejudicial to the health, comfort, safety, proper- ty, sense of decency, or morals, 'of the citizens at large, resulting either (a) From an act not warranted by law, or (b) From neglect of a duty imposed by law. To constitute a public nuisance, the condition of things must be such as injuriously affects the community at large, and not merely one or even a very few individuals. To take an illustration, already used, it is not a public nuisance to maintain a filthy pond, or to dam up and render stagnant the waters of a creek, in the country, where the odors can reach a single neighbor or a few neighbors only, as his or their health and comfort only are affected ; but it is other- § 115) NUISANCE IN GENERAL 399 wise if it be maintained in a thickly-settled community, or near a public highway.^ Whatever tends to endanger life, or generate disease, and afifect the health of the community; whatever shocks the public morals and sense of decency; whatever shocks the religious feelings of the community, or tends to its discom- fort — is generally, at common law, a public nuisaace, and a crime. Thus, it is a public nuisance to set spring guns in such a way as ,to endanger the lives of persons passing along a highway ; ^ to manufacture or keep gunpowder in a settled locality in such a way as to endanger life ; ' to sell or expose for sale putrid, diseased, or unwholesome food ; * running railroad trains across a highway in a reckless man- 1 4 Bl. CoDam. 166 ; COM. v. WEBB, 6 Rand. (Va.) 726, Mikell Illus. Cas. Criminal Law, 1; State v. Close, 35 Iowa, 570; People v. Townsend, 3 Hill (N. Y.) 479; Douglass v. State, 4 Wis. 387; Stough- ton V. State, 5 Wis. 291; State v. Gainer, 3 Humph. (Tenn.) 39; State V. Kankin, 3 S. C. 438, 16 Am. Rep. 737 ; Neal v. Henry, Meigs (Tenn.) 17, 33 Am. Dec. 125; Delaware Division Canal Co. v. Com., 60 Pa. 367, 100 Am. Dec. 570 ; State v. Wolf, 112 N. C. 889, 17 S. E. 528. 2 State V. Moore, 31 Conn. 479, 83 Am. Dec. 159. 3 Anon., 12 Mod. 342 ; Bradley v. People, 56 Barb. (N. Y.) 72 ; Cheatham v. Shearon, 1 Swan (Tenn.) 213, 55 Am. Dec. 734. It has been held that it is not a crime unless the powder is negligently kept. People v. Sands, 1 Johns. (N. Y.) 78, 3 Am. Dec. 296. This Is too broad a statement, however, for in all cases the danger to the public is the test, and not the intent or the action of the accused, except as bearing on the question of danger. Myers v. Malcolm, 6 Hill (N. Y.) 292, 41 Am. Dec. 744; Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654; PEOPLE v. DETROIT WHITE LEAD WORKS, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722, Mikell Illus. Cas. Criminal Law, 215. i 4 Bl. Comm. 162 ; Rex v. Dixon, 3 Maule & S. 11; Goodrich v. People, 19 N. Y. 574, affirming 3 Parker, Cr. R. (N. Y.) 622; State v. Norton, 24 N. C. 40; Hunter v. State, 1 Head (Tenn.) 160, 73 Am. Dec. 164; State v. Snyder, 44 Mo. App. 429. 400 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 ner ; " to pollute drinking water ; " to expose either a live person or a corpse or a beast that is infected with a con- tagious disease ; ^ to disturb public rest on Sunday ; * to ex- hibit disgusting or indecent books or pictures ; ° to maintain an offensive trade or industry, such as a tannery, distil- lery, or slaughter house, in a populous community.^" There are also nuisances in personal deportment, such as common Louisville, C. & L. E. Co. v. Com., 80 Ky. 143, 44 Am. Rep. 468. 6 State V. Buckman, 8 N. H. 203, 29 Am. Dee. 646 ; State v. Tayior, 29 Ind. 517. 7 Rex V. Burnett, 4 Maule & S. 272 ; REX v. VANTANDILLO, 4 Maule & S. 73, Mikell lUus. Cas. Criminal Law, 213. 8 Parker v. State, 16 Lea (Tenn.) 476, 1 S. W. 202. Keeping shop open on Sunday not a nuisance. State v. Lorry, 7 Baxt. (Tenn.) 95, 32 Am. Rep. 555. Contra, Com. v. Jacobus, 1 Leg. Gaz. R. (Pa.) 491; Phillips V. Innes, 4 Clark & F. 234. See note in 32 Am. Rep. 557. Playing baseball on Sunday at an isolated place not a nuisance. Com. V. Meyers (Pa. Com. PI.) 8 Pa. Co. Ct. R. 435. Interrupting a speaker at a political meeting by asking him questions, and refusing to cease such interruptions when requested to do so by the chairman, is a "willful disturbance of a public assembly." People v. Malone, 156 App. Div. 10, 141 N. Y. Supp. 149. 9 Com. V. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632 ; Reg. V. Grey, 4 Fost. & F. 73. Under statutes declaratory of common law, Com. V. Dejardin, 126 Mass. 46, 30 Am. Rep. 652; People v. Muller, 96 N. Y. 408, 48 Am. Rep. 635. 10 Rex V. Cross, 2 Car. & P. 483 ; Com. v. Upton, 6 Gray (Mass.) 473; Ashbrook v. Com., 1 Bush (Ky.) 139, 89 Am. Dee. 616; State V. Kaster, 35 Iowa, 221 ; State v. Neidt (N. J.) 19 Atl. 318 ; Com. V. Miller, 139 Pa. 77, 21 Atl. 138, 23 Am. St. Rep. 170; PEOPLE V. DETROIT WHITE LEAD WORKS, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722, Mikell Illus. Cas. Criminal Law, 215. Coal shed, noise and coal dust, Wylie v. EI wood, 134 111. 281, 25 N. E. 570, 9 L. R, A. 726, 23 Am. St. Rep. 673. It is not necessary that the smell be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable. Rex v. White, 1 Burrows, 333 ; Catlin v. Valentine, 9 Paige (N. Y.) 575, 38 Am. Dec. 567; Ashbrook v. Com., 1 Bush (Ky.) 139, 89 Am. Dec. 616 ; State v. Rankin, 3 S. C. 438, 16 Am. Rep. 737 ; Gay v. State, 90 Tenn. 645, 18 S. W. 260, 25 Am. St. Rep. 707. § 115) NUISANCE IN GENERAL 401 brawlers, common scolds,^^ common barrators/'' open and notorious drunkenness,^' indecent and public exposure of the person, or open and notorious lewdness,^* eavesdrop- ping,^" and profane language, ribald songs, and blas- phemy.^* Disorderly houses, including houses of ill fame and drinking or tippling houses, kept in such a way as to annoy and scandalize the public, are nuisances at common law,^' though now they are very generally regulated by 114 Bl. Comm. 168; James v. Com., 12 Serg. & R. (Pa.) 220; Com. V. Mohn, 52 Pa. 243, 91 Am. Dec. 153. 12 Post, p. 432. 13 state V. Waller, 7 N. C. 229. Private drunkenness not a crime. State V. Locker, 50 N. J. Law, 512, 14 Atl. 749 ; Hutchinson v. State, 5 Humph. (Tenn.) 142. 14 Reg. V. Farrell, 9 Cox, Cr. Cas. 446 ; Grlsham v. State, 2 Yerg. (Tenn.) 589; Knowles v. State, 3 Day (Conn.) 103, 108; State v. Rose, 32 Mo. 560; State v. Roper, 18 N. C. 208. Indecent exposure by a man to one woman only has been held "open and gross lewdness and lascivious behavior," within meaning of statute, for which an in- dictment will lie. State v. Millard, 18 Vt. 574, 46 Am. Dec. 170; Com. V. Warden, 128 Mass. 52, 35 Am. Rep. 357 ; Fowler v. State) 5 Day (Conn.) 81. Contra, doubtless, at common law. Reg. v. Wat- son, 2 Cox, Cr. Cas. 276; Reg. v. Webb, 1 Denison, Cr. Cas. 338. Indecent exposure in public place need not be actually seen. It is enough if persons were present and might have seen it. Van Hou- teni V. State, 46 N. J. Law, 16, 50 Am. Rep. 397 ; Reg. v. Holmes, 6 Cox, Cr. Cas. 216. 15 4 Bl. Comm. 168 ; State v. Pennington, 3 Head (Tenn.) 299, 75 Am. Dec. 771 ; State v. Williams, 2 Overt (Tenn.) 108. 16 State V. Appling, 25 Mo. 315, 69 Am. Dee. 469; State v. Powell, 70 N. C. 67; State v. Toole, 106 N. C. 736, 11 S. E. 168; BELL v. STATE, 1 Swan (Tenn.) 42, Mikell Illus. Cas. Criminal Law, 211; State V. Graham, 3 Sneed (Tenn.) 134 ; Com. v. Linn, 158 Pa. 22, 27 Atl. 843, 22 L. R. A. 353. Single act of profanity not enough. Gaines V. State,, 7 Lea (Tenn.) 410, 40 Am. Rep. 64. 17 State V. Berthed, 6 Blackf.' (Ind.) 474, 39 Am. Dec. 442; State V. Haines, 30 Me. 65; King v. People, 83 N. Y. 587; Thatcher v. State, 48 Ark. 60, 2 S. W. 343 ; Price v. State, 96 Ala. 1, 11 South, 128. Barroom and dance hall. Beard v. State, 71 Md. 275, 17 AtL 1044, 4 L. R. A. 675, 17 Am. St Rep. 536. Claek Ck.L.3d Ed.— 26 402 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 statute. Private gambling is not a nuisance at common law, but a gambling house becomes so if it is conducted openly and notoriously.'* In most, if not all, the states, there are particular statutes covering the subject and prohibiting gaming. Obstructing a public highway is a nuisance,'" and 18 Lord V. State, 16 N. H. 325, 41 Am. Dec. 729 ; C!om. v. Tilton, 8 Mete. (Mass.) 232; Com. v. Stahl, 7 Allen (Mass.) 305; People v. Jackson, 3 Denlo (N. Y.) 101, 45 Am. Dec. 449 ; Bloomhuff v. State, 8 Blaekf. (Ind.) 205; State v. Crummey, 17 Minn. 72 (Gil. 50). Place where public may bet on horse racing held a common nuisance at common law. McClean v. State, 49 N. J. Law, 471, 9 Atl. 681; Haring v. State, 51 N. J. Law, 386, 17 Atl. 1079. Stock gambling house a disorderly house. Kneffler v. Com., 94 Ky. 359, 22 S. W. 446. A "suit club," whose members pay to a tailor one dollar a week, 'and which holds weekly drawings, as a result of which the member holding the lucky number receives from the tailor a suit of clothes, and then ceases to be a member of the club, is a scheme in the nature of a lottery ; and this, though the member who continues to pay his one dollar weekly for thirty weeks is entitled to a thirty dollar suit of clothes regardless of the result of the drawings. De Florin v. State, 121 Ga. 593, 49 S. E. 699, 104 Am. St. Rep. 177. 19 Hall's Case, 1 Vent. 169; People v. Cunningham, 1 Denio (N. Y.) 524, 43 Am. Dec. 709 ; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123. Even a public officer may be indicted for obstructing a highway ; as, for instance, where a constable blocks up the side- walk with goods which he is selling at public auction. Com. v. Milli- man, 13 Serg. & R. (Pa.) 403. It is not a nuisance for a merchant to temporarily obstruct the sidewalk in receiving or sending out goods, or for a person to place building materials in the street while he is building a house, but the street must be used in a reasonable man- ner, so as to cause as little inconvenience to the public as possible. Com. V. Passmore, 1 Serg. & R. (Pa.) 219. Unreasonable obstruc- tions, Cohen v. City of New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506. Running traction engine to and fro on highway a nuisance. Com. v. Allen, 148 Pa. 358, 23 Atl. 1115, 16 L. R. A. 148, 33 Ata. St. Rep. 830. Bill board on sidewalk a nuisance. City of Wilkes Barre v. Burgunder (Pa. Com. PI.) 7 Kulp. 63. Dis- play of fireworks in street in a dangerous way a nuisance. Speir v. City of Brooklyn, 139 N. Y. 6, 34 N. E. 727, 21 L. R. A. 641, 36 Am. St. Rep. 664. Obstructing alley in rear of store not a nuisance. § 115) NUISANCE IN GENEKAL 403 this includes navigable rivers, which are considered high- ways.^" As was stated in the black-letter text, a nuisance may be caused by an omission to perform a legal duty.^^ Such is the case where a person charged with the duty of repairing a highway neglects to do so.^" The intent of the person maintaining a nuisance whiph is dangerous or ofifensive to the public is entirely immaterial. If he causes or suffers the nuisance, and the public is so prejiSdiced, the offense is complete ; for every man is presumed to intend the natural and probable consequences of his acts.^* Jicstification It is, as a rule, no justification that the public is benefited as well as injured by the thing alleged to be a nuisance; as Bagley v. People, 43 Mich. 355, 5 N. W. 415, 38 Am. Rep. 192; Beech- er V. People, 38 Mich. 289, 31 Am. Rep. 316. Bay window project- ing over sidewalk held a public nuisance. Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373. Private bridge across street a public nuisance, though high enough for passage under it. Bybee v. State, 94 Ind. 443, 48 Am. Rep. 175. Turnpike a public highway. Com. v. Wilkin- son, 16 Pick. (Mass.) 175, 26 Am. Dec. 654. For criminal liability of corporations, see ante, p. 82. Continuing obstruction erected by others is indictable. State v. Hunter, 27 N. C. 369, 44 Am. Dec. 41. 20 Reg. V. Stephens, D. R. 1 Q. B. 702; Hart v. Mayor, etc., of City of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165 ; Stump v. McNairy, 5 Humph. (Tenn.) 363, 42 Am. Dec. 437; State v. Narrows Island Club, 100 N. C. 477, 5 S. E. 411, 6 Am. St. Rep. 618. 21 Municipal corporation indictable for neglect to remove a nui- sance which it has power to remove. People v. Corporation of Al- bany, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95. And see State v. City of Portland, 74 Me. 268, 43. Am. Rep. 586. As to liability of cor- porations generally, see ante, pp. 82-86. 22 4 Bl. Comm. 167 ; People v. Corporation of Albany, 11 Wend, (N. y.) 539, 27 Am. Dec. 95 ; State v. King, 25^ N. C. 411 ; 2 Whait Cr. Law, § 1485 et seq.; Hill v. State, 4 Sne€d*(Tenn.) 443; State v. Inhabitants of Madison, 63 Me., 546. 23 Seacord v. People, 121 111. 623, 13 N. E. 194. 404 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 that the business itself is useful or necessary, or that it con- tributes to the wealth and prosperity of the commu- nity.''* Thus the fact that the business of rendering dead animals is a great public convenience is no defense; ^° nor is it a defense to an indictment for discharging the sewage of a town into a river that there was no other practicable way to drain the town, and the health of the inhabitants depended upon maintaining this outlet for its sewage;^" nor to an indictment for maintaining shipping yards that they were a great and essential accommodation to the pub- lic, and that they were less offensive than any other an- swering the same public demand.^' "The law does not balance conveniences, and it makes no difference if the work is really in the interest of society or necessary for the preservation of the public health. It is now well settled 'that the circumstance that the thing complained of fur- nishes, upon the whole, a greater convenience to the public than it takes away, is.no answer to an indictment for nui- sance.' " ^' "The public health, the welfare and safety of the community, are matters of paramount importance, to which all pursuits, occupations, and employments of indi- viduals inconsistent with their preservation must yield.'.' ^" 2 4 Anon., 12 Mod. 342; Rex v. Ward, 4 Adol. & E. 384; Eespublica V. Caldwell, 1 Dall. (Pa.) 150, 1 L. Ed. 77; State v. Kaster, 35 Iowa. 221. 2 6 Seacord v. People, 121 111. 623, 13 N. E. 194. 2 6 Atty. Gen. v. Leeds, 39 L. J. 354. 27 State V. Kaster, 35 Iowa, 221. 2 8 StLope.-J., in Seacord v. People, 121 111. 623, 13 N. E. 194. 28 Com. V. Upton, 6 Gray (Mass.) 473 ; People v. Cunningham, 1 Denio (N. T.) 524, at page 536, 43 Am. Dec. 709; Rung v. Shone- berger, 2 Watts (Pa.) 23, 26 Am. Dec. 95 ; Ashbrook v. Com., 1 Bush (Ky.) 139, 89 Am. Dec. 616 ; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731 ; Pittsburgh & Allegheny Bridge Co. v. Com. (Pa.) 8 Atl. 217; ■ PEOPLE V. DETROIT WHITE LEAD WORKS, 82 Mich. 471, 46 N. § 115) NUISANCE IN GENERAL 405 Nor does mere lapse of time give a right to maintain a nui- sance; ^^ nor, it seems, the fact that it was first established away from the population and that the population has ap- proached," although on this point there is a conflict of au- thority.'^ On the other hand, in determining whether a particular business is a nuisance, the character of the surroundings must be considered. The distinction is between justify- ing an admitted nuisance and showing that the business is not a nuisance to the surrounding population. The charac- ter of the business complained of must be determined in view of its own peculiar location and surroundings, and not by the application of any abstract principle; for what would not be a nuisance in a manufacturing city might be such in a small town or village. "People who live in great cities that are sustained by manufacturing enterprises," it was said in a well-considered case,'' "must necessarily be subject to many annoyances and positive discomforts, by reason of noise, dirt, smoke, and odors, more or less dis- W.'735, 9 li. E. A. 722, Mikell lUus. Cas. Criminal Law, 215. See Whart. Or. Law, §§ 1415, 1437-1440. 8 See cases cited in preceding note. 81 See cases cited in note 29. 32 Eex V. Cross, 2 Car. & P. 483. See Ellis v. State, 7 Blackf. (Ind.) 534. 33 Where defendants were charged with maintaining a public and common nuisance by operating an oil refinery in the city of Alleghe- ny, which emitted noxious vapors, and in which were stored and used inflammable and explosive oils and gases, it being denied that the business was such nuisance, the character and location when the refinery was established, the nature and importance of the business, the length of time which it had been operated, the capital invested, and the influence of the business on the growth and prosperity of the community were proper matters for the consideration of the jury in determining whether it was a public nuisance. Com, y. Miller, 139 Pa. 77, 21 Atl. 138, 23 Am. St Eep. 170. 406 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 agreeable, produced by and resulting from the business that supports the city. They can only be relieved from them by going into the open country. The defendants have a right to have the character of their business determined in the light of all the surrounding circumstances, including the character of Allegheny as a manufacturing city, and the manner and use of the river front for manufacturing pur- poses. If, looked at this way, it is a common nuisance, it should be removed; if not, it may be conducted without subjecting the proprietors to the pecuniary loss which its removal would involve." Since the essence of a crime is that it is an infringement of the law of the state, if the state authorize what would otherwise be a nuisance, such authorization is a defense.^* But such authorization by the state will be strictly con- strued, and if the business authorized can be conducted so as not to constitute a nuisance, conducting it otherwise is indictable.'" The fact that it was the custom in the state to conduct such business as the accused is indicted for is no defense.^' BIGAMY OR POLYGAMY 116. Bigamy or polygamy is a statutory, and not a common- law, crime. It is committed where one, being le- gally married, marries another person during the life of his or her wife or husband. • 117. EXCEPTIONS— The statutes generally except from their operation a person whose husband or wife «* Com. V. Reed, 34 Pa. 275, 75 Am. Dec. 661; Garrett v. State, 49 N. J. Law, 94, 7 Atl. 29, 60 Am. Rep. 592. »o See Garrett v. State, supra. 88 Com. V. Perry, 139 Mass. 198, 29 N. E. 656. §§ 116-117) BIGAMY OE POLYGAMY 407 has been absent for a certain number of years without being known by such person to be living within that time. In England, prior to the passage of the statute of James I, in 1604," bigamy or polygamy was punished in the ec- clesiastical courts only. By that statute it was made a crime punishable in the civil courts. With us all of the states have statutes defining and punishing this crime, and, while they may differ slightly, they are substantially cov- ered by the definition given above. Some of the statutes call the crime "polygamy," while others, substantially the same, call it "bigamy." It is the. second marriage that constitutes the crime, and it need not be proved that there was marital cohabitation and intercourse between the parties to the second mar- riage.' ' On a prosecution for bigamy, it is no defense that the second marriage was defective or voidable, or even that it was void, as, for instance, because of consanguinity ; for, because of the first marriage, the second marriage is al- ways necessarily void. It is the undertaking to con- tract the second marriage by procuring the ceremony to be performed, or what is equivalent thereto in a common- law marriage, that is punishable. *° There must, how- 87 1 Jac. I, c. 2. 3 8 Nelms V. State, 84 Ga. 466, 10 S. B. 1087, 20 Am. St Rep. 377; U. S. V. Cannon, 4 Utai, 122, 7 Pac. 369. 39 2 Whart. Cr. Law, § 16S9; People v. Brown, 34 Mich. 339, 22 Am. Rep. 531 ; Reg. v. Brown, 1 Car. & K. 144 ; Reg. v. Allen, L. R. 1 Cr. Cas. 367 ; Carmichael v. State, 12 Ohio St. 553 ; Hayes v. Peo- ple, 25 N. Y. 390, 82 Am. Dec. 364. A marriage by consent followed by "mutual assumption of marital rights, duties, or obligations'' un- der Civ. Code, § 55, is sufficient basis for prosecution for bigamy. People V. Beevers, 99 Cal. 286, 33 Pac. 844. Where a person contracts a common-law marriage, lacking the formalities prescribed by stat- 408 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 ever, be an undertaking to do something which could under some circumstances amount to a valid marriage. Merely living in adultery with the second woman would not be bigamy. It is a good defense, however, that the first marriage was absolutely void, for in such case there was no husband or wife living when the second marriage was contracted ; but the fact that the first marriage was voidable is no defense, so long as it had not been actually avoided.*" The statutes of some of the states expressly make the competent party to the bigamous marriage criminally liable if he or she knew of the first marriage, and, even in the absence of such a stat- ute for solemnization of majriages, it is bigamy. People v. Menden- liall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. Rep. 408. ' *o Shafher v. State, 20 Ohio, 1; State v. Barefoot, 2 Rich. (S. C.) 209; People v. McQuaid, 85 Mich. 123, 48 N. W. 161. On prosecu- tion for bigamous third marriage, where it appears that defendant had married his second wife during his first wife's life, but was di- vorced from the first wife before the alleged bigamous marriage, he cannot be convicted, since, at the time of the last marriage, he is not legally married to another. Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State, v. Goodrich, 14 W. Va. 834. See, also, People V. Corbett, 49 App. Div. 514, 63 N. Y. Supp. 460; Keneval v. State, 107 Tenn. 581, 64 S. W. 897. Belief that the first marriage was void is no defense, being a mistake of law. Medrano v. State, 32 Tex. Or. R. 214, 22 S. W. 684, 40 Am. St. Rep. 775; State v. Sherwood, 68 Vt 414, 35 Atl. 352. Nor is it any defense that the other party to the first marriage was under the age of consent, where there was no separation by consent before she reached the age of consent, or re- fusal to consent on arriving at that age. People v. Slack, 15 Mich. 193. See, also. People v. Beevers, 99 Cal. 286, 33 Pac. 844. While reputation of being married is not sufficient proof of marriage to sup- port a conviction of bigamy, proof that defendant had lived with B., a woman, that they had children, that they were regarded in the community in which they lived as husband and wife, and that de- fendant had declared both before and after his second marriage that B. was his wife, justifies a conviction. Bryan v. State, 63 Tex. Cr. "R. 200, 139 S. W. 981. §§ 116-117) BIGAMY OK POLYGAMY 409 ute, he or she should be liable as a principal in the second degree, on principle. It has been held that a third person present, aiding one of the principals in contracting the mar- riage was guilty as a principal in the second degree.*^ By the terms of most, if not all, the statutes, a person who has been legally divorced a vinculo matrimonii does not commit bigamy by marrying again ; but it is otherwise where the decree, as it may in some states, prohibits a sec- ond marriage, and such second marriage takes place in the state in which the decree was given ; *^ or where the divorce is only a mensa et thoro, or where it was granted by a court having no jurisdiction ; *^ or where the divorce was obtained subsequent to the second marriage.** Where there has been no valid divorce from the first marriage, an honest be- lief to the contrary, even founded on advice of counsel, is generally held to be no defense.*^ Under the statutes, a person whose husband or wife has been absent for a certain number of years, specified in the statute, without being known by such person to be living 41 Boggus V. State, 34 Ga. 275. 42 People V. Faber, 92 N. Y. 146, 44 Am. Rep. 357; Baker v. People, 2 Hill (N. Y.) 825 ; Com. *. Putnam, 1 Pick. (Mass.) 136 ; Com. v. Lane, 113 Mass. 458, 18 Am. Kep. 509. 43 Thompson v. State, 28 Ala. 12 ; People v. Dawell, 25 Mich. 247, 12 Am. Kep. 260; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Eep. 507 ; Hood y. State, 56 Ind. 263, 26 Am. Rep. 21. 44 Baker v. People, 2 Hill (N. Y.) 325. 4B State V. Goodenow, 65 Me. 30; Davis v. Com., 13 Bush (Ky.) 318; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; State v. Hughes, 58 Iowa, 165, 11 N. W. 706 ; State v. Armington, 25 Minn. 29 ; State V. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800 (belief that marriage had been annulled by agreement) ; Russell V. State, 66 Ark. 185, 49 S. W. 821, 74 Am. St. Rep. 78 ; People v. Hartman, 130 Cal. 487, 62 Pac. 823. The contrary has been held in Indiana, where such belief was on reasonable grounds, after due care and inquiry. Squire v. State, 46 Ind. 459. See, also, Reg. T. Tolson, 23 Q. B. Div. 168. 410 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 within that time, does not commit bigamy by marrying again, as it may be presumed that the absent spouse is dead ; but until the expiration of this time a person marries at his peril. Whether an honest, but erroneous, belief that the absent spouse was dead, is a defense, is a question concern- ing which, as we have seen,*" there is some conflict of au- thority.*' It is no defense that the religious belief of one who has committed bigamy required him to do so, as in case of Mormonism, and that the marriage ceremony was performed in good faith, and from a sense of religious duty, according to the rites of his church.** ADULTERY 118. Some courts have recognized adultery as a common- law misdemeanor. Others hold that it is not a crime unless made so by statute. 119. The definitions of the crime vary. (a) III some states it is voluntary sexual intercourse be- tween persons one of whom is lawfully married to another, both parties being guilty. (b) In other states it is such intercourse by a married person with one who is not his or her wife or hus- band, the married person only being guilty. (c) In other states it is such intercourse with a married woman by one not her husband, both parties being guilty. «« Ante, p. 95. 4' No defense, CJom. v. Mash, 7 Mete. (Mass.) 472; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2. Contra, Reg. v. Tolson, 23 Q. B. Div. 168. 48 Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244. |§ 118-119) ADULTEEY 411 Under the old Roman law, it was essential to the crime of adultery that the woman should be married to another, and the crime was not committed where a married man had sexual intercourse with a single woman, the gist of the of- fense being the danger of putting spurious offspring up- on a man. Both parties were guilty. Under the English ecclesiastical law, it makes no difiference which party is mar- ried, whether the man or the woman; and, if one is mar- ried, both are guilty.*' In many of the states the statutes ■particularly define this crime, so as to leave no room for doubt or construction ; while in others they merely declare that "adultery" shall be punished, thus leaving the definition of adultery to the courts, and the courts have diffei'ed in their defining. Thus, some have followed the definition of the English ecclesiastical law, and hold that the crime is committed by both parties where either is married to a third person. °'' Others, on the contrary, follow the old Roman law, and hold that the woman must be married, in which case both parties are guilty ; and that the crime is not com- mitted by either party where a married man has inter- course with a single woman. °^ In some states this defini- 48 2 Whart. Cr. Law, §§ 1718, 1719; Bish. St. Crimes, § 659. 60 State V. Hinton, 6 Ala. 864; State v. Wilson, 22 Iowa, 364; State V. Weatherby, 43 Me. 258, 69 Am. Dec. 59 (by statute). In Texas there must be either a "living together" and having carnal inter- course, or "habitual" intercourse without living together. Mere proof of carnal intercourse vrithout living together is not enough. Mitten , V. State, 24 Tex. App. 346, 6 S. W. 196. So, also, in South Carolina, State V. Carroll, 30 S. C. 85, 8 S. E. 433, 14 Am. St. Eep. 883 ; and in Illinois, Miner v. People, 58 111. 59. See post, p. 416. 61 State V. Lash, 16 N. J. Law, 380, 32 Am. Dec. 397 ; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21 ; State v. Wallace, 9 N. H. 515 ; State v. Pearce, a Blackf. (Ind.) 318; State v. Armstrong, 4 Minn. 335 (Gil. 251); Com. v. Call, 21 Pick. (Mass.) 509, 32 Am. Dec. 284; State v. Weatherby, 43 Me. 261, 69 Am. Dec. 59. But in Maine it Is changed by statute in accord with preceding note. Id. 412 PDBUIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 tion is declared by statute."^ In other states the crime is defined, either by statute or by the courts, as voluntary sexual intercourse by a married person with a person who is not his or her wife or husband, the participant in the act, if single, not being guilty."' Adultery was not a common-law crime in England, but was regarded as a crime against the ecclesiastical law only, and was therefore punished exclusively in the ecclesiastical courts. With us some of the courts have recognized this portion of the ecclesiastical law as part of our common law, and regard adultery as a common-law crime. ^* Other courts have taken the contrary view, and hold that, if adul- tery is not made a crime by statute, it cannot be punished at all as a distinctive crime, unless it amounts to open and notorious illicit cohabitation."" In some of these states it has been made a statutory crime. To constitute the crime, one of the parties at least must be lawfully married to an- other; and, on a prosecution for the crime, the marriage must be proved."" Unlawful sexual intercourse by a di- 52 Com. V. Elwell, 2 Mete. (Mass.) 190, 35 Am. Dec. 398; Com. v. Reardon, 6 Gush. (Mass.) 79. 63 Com. V. Lafferty, 6 Grat. (Va.) 672; Miner v. State, 58 111. 59 ; Cook V. State, 11- Ga. 54, 56 Am. Dec. 410 ; Helfricli v. Com., 33 Pa. 68, 75 Am. Dec. 579; Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686; Hunter v. U. S., 1 Pin. (Wis.) 91, 39 Am. Dec. 277. Hi State V. Avery, 7 Conn. 267, 18 Am. Dec. 105; State v. Cox, 4 N. C. 597. OB State V. Cooper, 16 Vt. 551; State v. Lash, 16 N. J. Law, 380, 32 Am. Dec. 397; State v. Brunson, 2 Bailey (S. C.) 149; Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776 ; Com. v. Isaacs, 5 Rand. (Va.) 634 ; Carotti v. State, 42 Miss. 33^, 97 Am. Dec. 465 ; Ex parte Thomas, 103 Cal. 497, 37 Pac. 514. 66 State V. Armstrong, 4 Minn. 335 (Gil. 251); State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; Miner v. State, 58 111. 59; Webb v. State, 24 Tex. App. 164, 5 S. W. 651 ; Banks v. State, 96 Ala. 78, 11 South. 404. The single state, being the natural state, will be pre- §§ 118-119) ADULTERY 413 vorced person is not adultery, if the status of the other party does not make it so, provided, of course, the divorce is val- id ; and this question is to be determined by the law of the forum." It is otherwise if the divorce is invalid ; and hon- est belief in its validity, even on advice of counsel, is, in general, no defense.'* It has been held that if a man from whom his wif.e has obtained a divorce for his fault, or a woman from whom her husband is so divorced, marries again, in violation of a statute prohibiting marriage under such circumstances, he or she does not commit adultery, if the other party to the marriage is single, by cohabiting with her or him ; for the reason that, to constitute adultery, one of the parties must be married."' But cohabitation with another before the entry of the final decree of divorce is adultery.^" It is never a defense that the accused, because of his reli- gious belief, did not believe in the marriage vow ; or that the act was in accord with local customs'; or, in case of a foreign- er, with foreign customs, as in case of adulterous intercourse under the free-love system in some localities ; or in case of sumed until a marriage is proved. Gaunt v. State, 50 N. J. Law, 490, 14 Atl. 600. When marriage is proved, the continuance of the mar- ried state will be presumed until the contrary appears. People v. Stokes, 71 Cal. 263, 12 Pac. 71. If the accused was married to wo- man under legal age, it must be shown that she acquiesced in the marriage on arriving at the age of consent and before the offense. People V. Bennett, 39 Mich. 208. B7 State V. Weatherby, 43 Me. 258, 69 Am. Dec. 59. B8 2 Whart. Cr. Law, § 1726; State v. Whitcomb, 52 Iowa, 85, 2 N. W. 970, 35 Am. Rep. 258 ; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144; Gordon v. Gordon, 141 111. 160, 30 N. B. 446, 21 L. R. A. 387, 33 Am. St. Rep. 294; State v. Goodenow, 65 Me. 30; Com. v. Mash, 7 Mete. (Mass.) 472. 59 State v. Weatherby, 43 Me. 258, 69 Am. Dec. 59. 60 Pratt V. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97; Com. V. Thompson, 6 Allen (Mass.) 591, 83 Am. Dec. 653. 414 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 adultery by foreigners who, when at home, are not required to regard the sanctity of the marriage vows.'^ It seems that honest belief in the death of the party's spouse is a good defense in case of absence for a length of time, and under circumstances warranting an inference of death, but not otherwise."^ Where a formal marriage is duly cele- brated, but one of the parties has a husband or wife living at the time, the marriage, of course, is unlawful; but the other party, if ignorant of the facts and acting in good faith,, commits no wrong if the cohabitation is not continued after acquiring such knowledge, and is not guilty of adultery."* It would probably be otherwise if no marriage were cele- brated, particularly if fornication were a crime in the par- ticular jurisdiction; as the principle that, in order that ig- norance of fact may exempt one from punishment, the orig- inal intention must not have been wrongful, would apply."* If force is used in accomplishing the intercourse, it is of course a defense to the party ravished, for the intercourse must be voluntary ; but it is not a defense to the ravisher."'' Emission need not be proved."® In some states it is ex- 61 Bankus v. State, 4 Ind. 114. 6 2 Com. V. Thompson, 6 Allen (Mass.) 591, 83 Am. Dee. 653. It is no defense where the other party to the intercourse was the de- serting siwuse, since in such case the presumption of death does not arise. Com. v. Thompson, 11 Allen (Mass.) 23, 87 Am. Dec 685;* Whippen v. Whippen, 147 Mass. 294, 17 N. E. 644. 63 Vaughan v. SUte, 83 Ala. 55, 3 South. 530; Banks v. State, 96 Ala. 78, 11 South. 404. 64 Ante, pp. 95, 96 ; Bish. St Crimes, § 665 ; Owens v. State, 94 Ala. 97, 10 South. 669 ; Com. v. Elwell, 2 Mete. (Mass.) i90, 35 Am. Dec. 398. 6 6 state V. Summers, 98 N. C. 702, 4 S. E. 120; State v. Sanders, 30 Iowa, 582. Under such circumstances, if rape is proved, and adul- tery Is a misdemeanor only, it would at common law merge, and the rape only could be punished. See ante, p. 45. 66 Com. v. Hussey, 157 Mass. 415, 32 N. E. 3^2. §§ 120-121) FOENIOATION 415 pressly provided that no prosecution for adultery can be commenced except on complaint of the husband or wife of the accused. If he or she does not object in these states, no one else can." It has been held under such a statute that if the injured party withdraws a complaint after filing it the accused cannot be convicted."* FORNICATION 120. Fornication is voluntary unlawful sexual intercourse, under circumstances not constituting adultery. 121. A single act of fornication is not a crime at common law, but is made so in some states by statute. Fornication is not punishable at common law, unless it amounts to public lewdness or notorious illicit cohabita- tion,** though some doubt has been expressed as to this 6' state V. Stout, 71 Iowa, 343, 82 N. W. 372; State v. Breoht, 41 Minn. 50, 42 N. W. 602 ; People v. Knapp, 42 Mich. 267, 3 N. W. 927, 36 Am. Rep. 438. This does not make complainant a party in the case. The people and the defendant are the only parties. Parsons V. People, 21 Mich. 509. Complaint ,for adultery between married woman and unmarried man is properly made by the woman's hus- band. Bayliss v. People, 46 Mich. 221, 9 N. W. 257; People v. Davis, 52 Mich. 569, 18 N. W. 362. «8 People V. Dalrymple, 55 Mich. 519, 22 N. W. 20. Under similar statutes, a husband does not, by remarrying his wife after being di- vorced from her with knowledge of adultery committed by her during their former marriage, condone the offense, so as to bar a prosecu- tion against her partner in adultery. State" v. Smith, 10§ loiwa, 440, 70 N. W. 115. 89 Bish. St Crimes, § 691 ; State v. Cooper, 16 Vt 551; Anderson V. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776; Com. v. Isaacs, 5 Rand. (Va.) 634; Com. v. Jones, 2 Grat. (Va.) 555; Brooks v. State, 2 Xerg, (Tenn.) 482. 416 PUBLIC HEALTH, SAFETY, COMPORT, AND MORALS (Ch. 12 statement/" A single act of fornication has, however, been made a crime by statute in many of the states. The defini- tion will vary in the different states, as in case of adultery. What is adultery in one state may be fornication in another. Voluntary sexual intercourse between two unmarried per- sons is fornication ; ^^ but the crime may also be committed where the intercourse is between a married man and an un- married woman, both being guilty of fornication in some states, while in others the man is guilty of adultery and the woman of fornication, and in others, again, both may be guilty of adultery. So also, where the intercourse is be- tween a single man and a married woman bdth may be guilty of adultery, or the man may be guilty of fornication only, according to the law of the particular state. The stat- utes and decisions of the particular state must be consulted. LEWDNESS AND ILLICIT COHABITATION 122. For a man and woman to illicitly cohabit together, openly and notoriously, or for a person to be guilty of any open and notorious lewdness and indecency, is a crime at common law, as it constitutes a pub- lic scandal and nuisance. While the common law does not punish acts of adultery or fornication committed privately, it is otherwise where they are committed openly, for they then become a public 70 2 Whart. Cr. Law, § 1741 ; State v. Cox, 4 N. O. 597. Ti Territory v. Jaspar, 7 Mont. 1, 14 Pac. 647. That a person Is un- married will be presumed until the contrary appears. Gaunt v. State, 50 N. J. Law, 490, 14 Atl. 600. In some states fornication Is only committed where there is a living together and having carnal intercourse, or habitual carnal intercourse without living together. Jones V. State, 29 Tex. App. 347, 16 S. W. 189. See post, p. 416. § 122) LEWDNESS AND ILLICIT COHABITATION 417 scandal, and shock and corrupt the morals of the whole community. Therefore any open and notorious lewdness, or illicit cohabitation, is a common-law crime. In almost all, if not in all, of the states, there are statutes covering this subject. They are directed against "lewd and lascivious co- habitation," "illicit cohabitation," "living in" adultery or fornication, or "prostitution." To constitute a "living" to- gether or "cohabitation," there must be more than a single act, or even occasional acts, of intercourse.''^ There must be a living together, though it is said that it may be for a single day only.'^ The offense is committed by a man who, at stated periods, goes openly to spend the night with a woman, not his wife, though during other nights he lives at home with his wife. He need not take up his abode with the strange woman.'* As in adultery, this crime is not committed, by proof of cohabitation under an honest belief in marriage.'" TzMcLeland v. State, 25 Ga. 477; Smith v. State, 39 Ala. 554; State V. Orowner, 56 Mo. 147 ; State v. Osborne, 39 Mo. App. 372 ; People V. Gates, 46 Cal. 52 ; Richardson v. State, 37 Tex. 346 ; Car- otti V. State, 42 Miss. 334, 97 Am. Dec. 465 ; Liister v. State, 23 Ma. 339, 2 South. 690; Pinson v. State, 28 Pla. 735, 9 South.- 706; Pruner V. Com., 82 Va. 115 ; Brown v. State (Miss.) 8 South. 257. An abid- ing together in the same house or joint residing place must be shown. Bird V. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St Rep. 214. An instruction that occasional acts of adultery do not make out the offense, but if there was adulterous intercourse, and such a condition of the minds of the parties that, when opportunity offered, the act would be repeated, defendant was guilty, and that this condition makes a "living in adultery," was held proper. Bodiford v. State, 86 Ala. 67, 5 South. 559, 11 Am. St. Rep. 20. They must dwell openly together. Thomas v. State, 39 Fla. 437, 22 South. 725; Penton v. State, 42 Fla. 560, 28 South. 774. 73 HaU V. State, 53 Ala. 463. 7 4 Collins V. State, 14 Ala. 608. Mormonism, U. S. v. SNOW, 4 Utah, 280, 9 Paa 501, Mikell Illus. Cas. Criminal Law, 226. 7 5 Com. V. Mmason, 127 Mass. 459, 34 Am. Rep. 411. Clark Or.L.3d Ed.— 27 418 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 INCEST 123. It is doubtful whether incest is a crime at common law, but it is generally declared so by statute. It may be defined as illicit sexual intercourse between per- sons who are related within the degrees of consan- guinity or affinity wherein marriage is prohibited by law.'* This crime is committed whenever sexual intercourse is had by a man and woman who are so nearly related that the law prohibits them from marrying, as in case of father and daughter, or brother and sister. Of course, they must know of their relationship, or be charged by law with such knowledge. If a brother and sister were to separate when children, and afterwards meet, and innocently marry, as has sometimes happened, they would not be guilty." A mar- 78Bish. St Crimes, §§ 727, 728; Daniels v. People, 6 Mich. 381; State V. Herges, 55 Minn. 4G4, 57 N. W. 205; Nations v. State, 64 Ark. 467, 43 S. W. 396. Between stepfather and stepdaughter, prior death of mother a defense. Johnson v. State, 20 Tex. App. 609, 54 Am. Eep. 535. Incest does not depend on the legitimacy of the par- ties. People V. Jenness, 5 Mich. 305; Baker v. State, 30 Ala. 521; People V. Lake, 110 N. Y. 61, 17 N. B. 146, 6 Am. St. Kep. 344 ; Clark V. State, 39 Tex. Cr. R. 179, 45 S. W. 576, 73 Am. St. Eep. 918 ; Brown V. State, 42 Fla. 184, 27 South. 869 ; Cecil v. Com., 140 Ky. 717, 131 S. W. 781, Ann. Cas. 1912B, 501 ; nor upon whether they are rela- tives of the whole' or of! the half blood, People v. Jenness, 5 Mich. 305 ; Shelly v. State, 95 Tenn. 152, 31 S. W. 492, 49 Am. St Rep. 926. Half-brother is a brother within meaning of statute. State v. Wy- man, 59 Vt. 527, 8 Atl. 900, 59 Am. Eep. 753. Half-brother of per- son's father is ^n "uncle." State v. Reedy, 44 Kan. 190, 24 Pae. 66. Half-niece, State v. Guiton, 51 I.a. Ann. 155, 24 South. 784. Step- daughter, Taylor v. State, 110 Ga. 150, 35 S. E. 161. What is "af- finity." Chinn v. State, 47 Ohio St. 575, 26 N. E. 986, 11 U R. A. 630. 77 1 Hume, Comm. 448; STATE v. ELLIS, 74 Mo. 385, 41 Am. Rep. 321, Mikell Illus. Cas. Criniinal Law, 229. But see State v. Wyman, § 123) INCEST 419 riage betweeri the parties accused of incest is no defense if it was absolutely void, but it is otherwise where the mar- riage was merely voidable, and had never been annulled.'* Consent of the female is no defense." Some courts hold that this crime can only be committed by mutual consent of the parties ; that if the intercourse is accomplished by force, it is punishable as rape only.*" Other courts hold that mu- tual consent is not a necessary element.*^ One act of inter- course is enough to constitute the crime.*^ The reputation or character of the woman as chaste or unchaste is imma- terial.** 59 Vt. 527, 8 Atl. 900, 59 Am. Hep. 753; State v. Dana, 59 Vt 623, 10 Atl. 727. If one of the parties knows of th.e relationship, he or she Is guUty. STATE v. ELLIS, 74 Mo. 385, 41 Am. Rep. 321, Mlkell lUus. Cas. Criminal Law, 229. In some states knowledge is required by statute. Baumer v. State, 49 Ind. 544, 19 Am. Eep. 691. 7 8 Bish. St Crimes, § 727; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Attorney General v. Broaddus, 6 Munf. (Va.) 116; Baker v. State, 30 Ala. 521. 7 9 Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640. 80 People V. Harriden, 1 Parker, Cr. R. (N. Y.) 344; De ISroat v. People, 39 Mich. 124; State v. Jarvis, 20 Or. 437, 26 Pac. 302, 23 Am. St. Rep. 141; People v. Skutt, 96 ]\Ii(*h. 449, 56 N. W. 11; People V. Burwell, 106 Mich. 27, 63 N. W. 986 ; State v. Eding, 141 Mo. 281, 42 S. W. 935. 81 State V. Chambers, 87 Iowa, 1, 53 N. W. 1090, 43 Am. St Eep. 349; Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. Rep. 954 ; Smith v. State, 108 Ala. 1, 19 South. 306, 54 Am. St Rep. 140; State V. Nugent, 20 Wash. 522, 56 Pac. 25, 72 Am. St Rep. 133. If the female is under the age of consent, the crime is not incest. De Groat V. People, 39 Mich. 124. 8 2 state V. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St Eep. 790; Mathis v. Com. (Ky.) 13 S. W. 360. 83Mathis V. Com. (Ky.) 13 S. W. 360; People v. Benoit, 97 CaL 249, 31 Pac. 1128. 420 PUBLIC HEALTH, SAFETY, COMFORT, AND* MORALS (Ch. 12 MISCEGENATION 124. Miscegenation, or intermarriage between persons of the white and negro races, or the living together of such persons in adultery or fornication, is a stat- utory crime in some of the states, A mulatto is a negro, within the meaning of these stat- utes.** On a prosecution for miscegenation, the female's character and reputation for chastity is immaterial, and can- not be attacked.'" Ignorance of the law is no defense.*" Proof that the parties lived together for a single day in adultery or fornication is sufficient; it is not necessary to show any agreement or understanding between them that sexual intercourse should be continued.*' It has been held that these statutes are constitutional.** SODOMY, BESTIALITY, AND BUGGERY 125. Sodomy is carnal copulation against the order of nature by man with man; or in the same unnatural man- ner with woman ; or by man or woman in any man- ner with a beast.*' »i Linton v. State, 88 Ala. 216, 7 South. 261. Contra, where there is less than one-fourth negro blood. McPherson t. Com., 28 Grat. (Va.) 939. 8B Linton V. State, 88 Ala. 216, 7 South. 261. 8 8 Hoover v. State, 59 Ala. 57. 8 7 Linton v. State, 88 Ala. 216, 7 South. 261. 8 8 2 Whart. Cr. Law, § 1754; State v. Gibson, 36 Ind. 404, 10 Am. Kep. 42 ; Pace v. State, 69 Ala. 231, 44 Am. Rep. 513, affirmed in 106 U. S. 583, 1 Sup. Ct 637, 27 L. Ed. 207. 89 Russ. Crimes, 937 ; 3 Inst 58, 59; 1 Hawk. P. C. c. 4 ; 1 Hale, P. C. 669 ; 4 Bl. Comm. 215. §§ 125-127) SODOMY, BESTIALITY, AND BUGGEET 421 126. Bestiality is carnal copulation by a man or woman with a beast. 127. Buggery is sodomy. These three terms are generally used synonymously, but it is not entirely clear that they can be correctly so used. There is some doubt whether the crime committed by man or woman with a beast is sodomy, as the term was originally understood,'" but it is probably now so regarded. If so, then sodomy includes bestiality. Sodomy, however, is not synonymous with bestiality. The latter term applies only to copulation with a beast, and would not include unnatural copulation by man with man or woman. Buggery includes both sodomy and bestiality. The crimes are generally spo- ken of as the "abominable and detestable crime against na- ture." In Texas it was held that a statute punishing the crime against nature was not sufficiently definite to refer specifically to sodomy,*^ but this was probably because of a statute in that state providing that no person shall be pun- ished for any crime unless the same shall be "expressly de- fined" in the statute punishing the same. In Louisiana a statute punishing the "abominable and detestable crime against nature committed with mankind or beast" was held sufficient, the court stating : "The books satisfy us that the crime referred to by the statute is known in the common law by the convertible and equivalent names of 'crime against nature,' 'sodomy,' and 'buggery.' " ^^ Sodomy is named from the prevalence of the sin in the city of Sodom, 80 Code Ga. §§ 4352, 4354 ; Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331. 91 Fennell v. State, 32 Tex. 378. 9 2 State V. Williams, 34 La. Ann. 87; Honselman v. People, 168 111. 172, 48 N. E. 304. Woman included under "mankind." Lewis v. State. 36 Tex. Cr. R. 37, 35 S. W. 372, 61 Am. St. Rep. 831. See, 422 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 which the Bible tells us was destroyed by fire because of its wickedness. A fowl is not regarded as a beast, within the meaning of these definitions,"^ though this has in some ju- risdictions been changed by statutes substituting the word "animal." "* Both penetration and emission are necessary at common law,"" but in some jurisdictions there are stat- utes declaring proof of emission unnecessary."" The act in a person's mouth is not enough."' It must be per anum. Both parties are guilty, and consent is therefore no de- fense."' These crimes were felonies under the old English common law."" Mr. Bishop states that it is doubtful whether under the common law with us it is a felony or a misdemeanor, but it is probably a felony.^ also, Com. v. Snow, 111 Mass. 411; Com. v. Dill, IfiO JIass. 530, 30 N. E. 472; State v. Romans, 21 Wash. 284, 57 I'lic. Sl'J. 88 Rex V. Mulreaty, cited in 1 Riis.s. Crimes, 938. 0* Reg. V. Brown, 16 Co.K, Cr. Cas. 715. 06 See 2 Bish. New Cr. I^aw, § 1127 et seq.; People v. Iloflffkin. "J4 Mich. 27, 53 N. W. 794, 34 Am. St. Kep. 321; State v. liia.v, :>:; N. C. 170; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 530. Contra, Com. V. Thomas, 1 Va. Cas. .307; I'ennsyivania v. Sullivan, Add. (I'a.) 143. May be inferred from circumstances, I'eople v. ilodgUiu, 94 SJicli. 27, 53 N. W. 794, 34 Am. St. Rep. 321. 88 Rex V. Reekspear, 1 Jlood.v, Cr. Cas. 342 ; and see cases In pre- ceding note; State v. Vlckuair, 52 La. Ann. 1921, 2« South. 273. 07 Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 300, 37 Am. St. Rep. 833 ; Rex v. Jacobs, Russ. & K. 331 ; People v. Boyle, 110 Cal. 658, 48 Pac. 800. 08 2 Bish. Cr. Law, § 1193; 1 East, P. C. 480; Reg. v. Jellyuiau, 8 Car. & P. 604; Reg. v. Allen, 1 Deulson, Cr. Cas. 304. »»4 Bl. Comm. 215. 1 1 Bish. New Cr. Law, §§ 503 (1), 1196. See SUte v. La Forrest. 71 Vt 311, 45 AtL 225. \ § 128) SEDUCTION 423 SEDUCTION 128. Seduction is probably not a crime at common law," but it is made so by statute in most of the states. It may be defined generally as the act of a man in en- ticing an unmarried woman of previous chaste character, by means of persuasion and promises, to have sexual intercourse with him. It is very doubtful whether there was any such offense as seduction at common law, but it was declared a crime by a very early English statute, and has been very generally de- clared a crime in this country. The statutes of the differ- ent states defining and declaring the crime of seduction dif- fer somewhat. Some of them make it a crime to "seduce and debauch" an unmarried female of previous chaste char- acter, saying nothing at all as to the means to be employed. Others make it a crime for any unmarried man, by promise of marriage, or for any married man, to seduce such a fe- male. Condition and Charater of Female Under these statutes, it is necessary to show that the fe- male was unmarried.' It is also essential that the woman shall have been of previous chaste character when seduced.* 2 Bish. St Crimes, § 625. 8 State V. Wheeler, 108 Mo. 658, 18 S. W. 924 ; People v. Krusick, 93 Cal. 74, 28 Pac. 794. There is a conflict in the cases as to whether a divorced woman is "an unmarried female of previous chaste char- acter." In Jennings v. Com., 109 Va. 821, 63 S. E. 1080, 21 L. R. A. (N. S.) 265, 132 Am. St. Kep. 946, 17 Ann. Cas. 64, it was held tliat she was not; while in People v. Weinstock (Mag. Ct.) 140 N. Y. Supp. 453, it was held that she was. * Kenyon v. People, 26 N. T. 203, 84 Am. Dee. 177 ; Munkers v. 424 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 The courtg differ as to what is meant by previous chaste character. Some courts say that it means actual personal virtue, and not reputation, and that it is therefore only com- petent t-o show, in defense, specific acts of lewdness on the part of the woman." It is further said that the statute is for the protection of the pure in mind and innocent in heart, who may be led astray ; and that, therefore, a woman of lewd conversation and manners, and who is guilty of lascivious acts and indecent familiarity with men, is not protected, though she may never have been guilty of sexual inter- course.® A statute using the words "virtuous unmarried female" was held to apply to a woman who has never had sexual intercourse, and not to one who has.'' In some of the states it is held that the law presumes that a woman was chaste until the contrary appears, and that the burden of proving want of chastity is on the accused.* Other courts State, 87 Ala. 94, 6 South. 357; State v. Primm, 98 Mo. 368, 11 S. W. 732 ; Sraith v. Milburn, 17 Iowa, 35. And see cases In following notes. 6 Kenyon t. People, 26 N. Y. 203, 84 Am. Dec. 177 ; Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708 ; Lyons v. State, 52 Ind. 427. See, also, ante, p. 285, note 4. 8 Andre v. State, 5 Iowa, 389, C8 Am. Dec. 708. And see Wood v. State, 48 Ga. 192, 15 Am. Rop. 664. Tlie fact that the girl allowed men to embrace and kiss her was held not to indicate such a want of chastity as to overcome a verdict of guilty of seduction against the man. State v. Mclntire, 89 Iowa, 139, 56 N. W. 419. See, also, Peo- ple V. Kehoe, 123 Cal. 224, 55 Pac. 911, 69 Am. St Rep. 52, in which the court says: "Chastity as here employed means, in the case of an unmarried female, simply that she is virgo Intacta, and though one woman may permit liberties, or even indecencies, * • • so long as that woman has not surrendered her virtue, she is not put without the pale of the law." 7 O'Neill V. State, 85 Ga. 383, 11 S. E. 856 ; People v. Nelson, 153 N. T. 90, 46 N. E. 1040, 60 Am. St. Rep. 592. « Wood V. State, 48 Ga. 192, 15 Am. Rep. 664 ; McTyier v. State, 91 Ga. 254, 18 S. E. 140 ; People v. Brewer, 27 Mich. 134 ; People v. § 128) SEDUCTION 425 hold' that, while chastity is generally presumed, the inno- cence of the accused is also presumed, and require the state to show affirmatively that the female was chaste. ° In some states the statute is silent as to the character of the woman, but it is held that the legislature intended to protect chaste women only, and that the state must prove chaste char- acter." The fact that a woman has been unchaste does not deprive her of the protection of the statute, if she has re- formed and is chaste when seduced. ^^ The Seduction The statute in some states requires that the seduction shall be under promise of marriage. In others it says noth- ing about the character of the promises, but merely punish- es a man who seduces and debauches an unmarried female of previous chaste character. To seduce, however, implies the use of promises and persuasions. Where the statute does not so require, the promise need not necessarily be of marriage. Any other subtle device or deceptive means in accomplishing the intercourse is sufScient.^^ There must Squires, 49 Mich. 487, 13 N. W. 828; Andre v. State, 5 Iowa, 3S9, 68 Am. Dec. 708; State v. Hemm, 82 Iowa, 609, 48 N. W. 971; Mills V. Com., 93 Va. 815, 22 S. E. 863. 8 Zabriskie v. State, 43 N. J. Law, 640, 89 Am. Eep. 610 ; Oliver v. Com., 101 Pa. 215, 47 Am. Rep. 704 ; State v. Eckler, 106 Mo. 585, 17 S. W. 814, 27 Am. St Rep. 372; State v. McCaskey, 104 Mo. 644, 18 S. W. 511 ; State v. Lockerby, 50 Mimi. 363, 52 N. W. 958, 36 Am, St. Rep. 656 ; People v. Wallace, 109 Cal. 611, 42 Pac. 159. 10 Polk V. State, 40 Ark. 482, 48 Am. Rep. 17. 11 State V. Carron, 18 Iowa, 372, 87 Am. Dec. 401 ; State v. Moore, 78 Iowa, 494, 43 N. W. 273; State v. Timmens, 4 Minn. 325 (Gil. 241) ; People v. Squires, 49 Mich. 4S7, 13 N. W. 828 ; People v. Clark, 33 Mich. 112; People v. Gibbs, 70 Mich. 425, 38 N. W. 257; Suther V. State, 118 Ala. 88, 24 South. 43. 12 People y. Gibbs, 70 Mich. 425, 38 N. W. 257; Anderson v. State, 104 Ala. S3, 16 South. 108; Bracken v. State, 111 Ala. 68, 20 South. 636, 56 Am. St Rep. 23. Coaxing language enough. State v. Hayes, 426 PUBLIC HEALTH, SAFETY, COMFORT, AND MORALS (Ch. 12 in all cases be some sufficient promise or inducement, and the woman must yield because of the promises. If she con- sents merely from carnal lust, and the intercourse is from mutual desire, there is no seduction.^^ A promise of com- pensation merely is not enough.^* In some states a promise of marriage alone is enough,^' while in others some addi- tional persuasion is necessary/" A promise of marriage, however, even in those states where such a promise alone is sufficient, if made and understood as a mere matter of form, is not enough.^' The promise of marriage need not be val- id and binding, provided the woman believed in it and con- 105 Iowa, 82, 74 N. W. 757. In State v. Donovan, 128 Iowa, 44, 102 N. W. 791, where the artifices alleged to have been used were flattery and hypuotism, the court said : "Aliout all that may be exacted by the law is that the false arts practiced be somewhat calculated to, and in fact do, accomplish the purpose alleged. From the evidence in the instant case the jury might well have found that the defend- ant had persistently sought, by flattery and "love-making, and by pretending to exercise an occult influence over the prosecutrix, to acquire control over her, and that he so did with the design of gain- ing possession of her person." 13 People v. De Fore, t)4 Mich. 693, 31 N. W. 585, 8 Am. St Rep. 863; Stsite v. Primm, 98 iMo. 368, 11 S. W. 732. " People V. Clark, 33 Mich. 112. 16 Phillips V. State, 108 Ind. 406, 9 N. E. 345; State v. Abrisch, 41 Minn. 41, 42 N. W. 543. 18 Putman v. State, 29 Tex. App. 454, 16 S. W. 97, 25 Am. St Rep. 738; O'Neill v. State, 85 Ga. 383, 11 S. E. 856. What constitutes, Jones V. State, 90 Ga. 616, 16 S. E. 380; McTyier v. State, 91 Ga. 254, 18 S. E. 140. , 17 People V. Clark, 33 Mich. 112. To promise to marry if she be- comes pregnant is not to "seduce under promise of marriage." State T. Adams, 25 Or. 172, 35 Pac. 36, 22 L. R. A. 840, 42 Am. St Rep. 790. Contra, State v. Hughes, 106 Iowa, 125, 76 N. W. 520, 68 Am. St Rep. 288; People v. Van Alstyne, 144 N. Y. 361, 39 N. E. 343. Promise to marry when old enough sufficient People v. Kehoe, 123 OaL 224, 55 Pac. 911, 69 Am. St Rep. 52. § 128) SEDUCTION 427 sented in reliance on it;^' but manifestly a promise by a man whom the woman knows to be already married is not such persuasion as will make him guilty of seduction under a statute requiring a promise of marriage.^^ If a chaste wo- man is undone under a promise of marriage, it will be no defense for the man to show that he made the promise in good faith. ^^ For a man to represent to a girl that there is nothing wrong in the act, and that no one will find out, is to use artifice or fraud, and amounts to seduction.^^ Rape or Seduction Seduction is distinguished from rape by the fact that no force is used to accomplish the purpose. The woman is persuaded to consent in seduction, while the act is by force and against her will in rape. Consent therefore is no de- fense on a prosecution for seduction, as it is in case of rape.^' If the woman does not consent, and force is used, the crime is rape, and there can be no conviction as for seduction ; ^' but if consent was in fact obtained, the fact that force was also used is immaterial, as there cannot be rape with con- sent.^* 18 Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177 ; Callahan t. State, 63 Ind. 198, 30 Aui. ,Rpp. 211. 1 9 Wood V. State, 48 Ga. 192, 15 Am. Rep. 664. 2 People V. Samonset, 97 Cal. 448, 32 Pac. 520; State v. Bierce, 27 Cotin. 319 ; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 Am. St. Rep. 362. 21 State V. Hemm, 82 Iowa, 609, 48 N. W. 971. 2 2 State V. Horton, 100 N. 0. 443, 6 S. E. 238, 6 Am. St Rep. 613. 23 People V. De Fore, 64 Mich. 693,, 31 N. W. 585, 8 Am. St. Rep. 863 ; State v. Lewis, 48 Iowa, 578, 30 Am. Rep. 407 ; State v. Hor- ton, 100 N. C. 443, 6 S. K 238, 6 Am. St. Rep. 613 ; Oroghan v. State, 22 Wis. 444. 2 4 Jones V. State, 90 Ga. 616, 16 S. E. 380; People v. De Fore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. Rep. 863. Ante, p. 243. 428 PUBLIC HEALTH, SAFETY, COMFORT, AND liORALS (Ch. 12 Marriage of the Parties Under most of the statutes the marriage of the parties after the seduction is declared a defense.''" In the absence of such a provision, it would be otherwise.^' Mere promise of marriage after the seduction is not enough,^'' and in some, if not in all, states, an ofifer by the man to marry the woman does not relieve him from liability.^' If the marriage takes place, the good or bad faith of the man in going through the ceremony is immaterial. He escapes punishment, even if he marries solely for that purpose.^' ABORTION 129. To procure an abortion is to cause or procure the mis- carriage or premature delivery of a woman. 130. To procure an abortion, though with the mother's con- sent, after the child has quickened, is a misdemean- or at common law, but it is doubtful whether it is a crime before the child has quickened. 131. There are statutes in most of the states making it a felony to procure an abortion, whether the child has quickened or not. 2 State V. Otis, 135 Ind. 267, 34 N. E. 954, 21 L. R. A. 733; People Y. Gould, 70 Mich. 240, 38 N. W. 232, 14 Am. St. Rep. 493 ; Wright V. State, 31 Tex. Or. B. 354, 20 S. W. 756, 37 Am. St. Kep. 822 ; Com. V. Wright (Ky.) 27 S. W. 815 ; In re Lewis, 67 Kan. 562, 73 Pac. 77, 63 L,. R. A. 281, 100 Am. St. Rep. 479. 2« Ante, p. 9. 2 7 State V. Mackey, 82 Iowa, 393, 48 N. W. 918. 2 8 State V. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 Am. St. Rep. 362. 20 See cases cited in note 25. Under a statute providing that, if the offense of seduction is committed under promise of marriage, no prosecution shall be instituted when the person charged shall have married the girl seduced, the defendant cannot claim an acquittal §§ 129-131) ABOETION 429 Without a doubt, the destruction of an unborn infant aft- er it has quickened in the womb is a misdemeanor at com- mon law.^" At an early period it seems to have been deem- ed a homicide, though, as we have seen, this is no longer the case.^^ In Pennsylvania it was held a crime at common law to procure an abortion before the child had quickened. The court said in that case: "It is not the murder of a liv- ing child which constitutes the offense, but the destruction of gestation by wicked means and against nature. The* mo- ment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated." "' Other courts have held the contrary.^* In almost all, if not in all, of the on the ground that the ptosecutrix had Intercourse with another sub- sequent to the seduction, so as to relieve liim from the necessity of ofCering to marry the prosecutrix. "The statute provides a certain penalty for a certain crime, and that penalty can be avoided only in the precise manner pointed out by the statute." COM. v. HODG- KINS, 111 Ky. 584, 64 S. W. 414, Mlkell lUus. Cas. Criminal Law, 231. But it has been held that, under a statute providing that sub- sequent intermarriage of the parties is a bar to the prosecution for seduction, one who has been convicted for seduction cannot be sen- tenced therefor if subsequent to such conviction, and previous to the imposition of sentence, he has married the seduced woman. People ex rel. Scharfe v. Frost, 198 N. Y. 110, 91 N. B. 376, 139 Am. St. Rep. 801. 30 1 Whart C5r. Law, § 592; MILLS v. COM., 13 Pa. 631, Mikell lUus. Cas. Criminal Law, 233; Com. v. Bangs, 9 Mass. 387. 81 Bracton says (folio 120, b) : "If there be some one who has struck a pregnant woman, or has given her poison whereby he has caused abortion, if the fcetus be already formed and animated, and particu- larly if it be animated, he commits homicide." See ante, p. 167. 3 2 MILLS V. COM., 13 Pa. 631, Mikell Illus. Cas. Criminal Law, 233 ; Com. V. Demain, 6 Pa. Law. J. 29 ; State v. Slagle, 82 N. C. 653. 33 Com. V. Parker, 9 Mete. (Mass.) 263, 43 Am. pec. 396 ; Com. v. Bangs, 9 Mass. 387 ; State v. Cooper, 23 N. J. Law, 52, 51 Am. Dec. 248; Abrams v. Foshee, 3 Clarke (3 Iowa) 274, 66 Am. Dec. 77; Mitchell V. Com,, 78 Ky. 204, 39 Am. Rep. 227 ; Smith v. State, 33 Me. 48, 54 Am. Dec. 607. 430 PUBLIC HEALTH, SAFETY, COMPORT, AND MORALS (Ch. 12 States, statutes have been passed defining and punishing abortion; and some of them do not require that the child shall have quickened.'* Many of the statutes call the crime "manslaughter" in derogation of the common law.'" There are also statutes in some of the states making it a crime to- have possession of, or to sell or give away, instruments or drugs used for the purpose of committing abortions,'' and statutes declaring it to be abortion to advise a woman to- take medicine to procure a miscarriage." The consent of the mother is no defense." Indeed, a woman is guilty of the crime if she commits the abortion on herself. She is not, however, regarded strictly as an accomplice of a person who procures her miscarriage, but is looked upon rather as the victim." If it is necessary to destroy a child in its moth- er's womb to save the mother's life, it may be- done on the »* People V. Stockham, 1 ParlcerJ Or. R. (N. Y.) 424 ; Com. v. Wood, 11 Gray (Mass.) 86 ; State v. Fitzgerald, 49 Iowa, 260, 31 Am. Eep. 148; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; People v. Olm- stead, 80 Mich. 431; Slattery v. People, 76 111. 217; Scott v. People,. 141 111. 195, 30 N. B. 329; Lamb v. State, 67 Md. 524, 10 Atl. 208; Navarro v. State, 24 Tex. App. 378, 6 S. W. 542 ; Hatchard v. State,. 79 Wis. 357, 48 N. W. 380; Holland v. State, 131 Ind. 568, 31 N. E. 359 ; Williams v. State (Tex. App.) 19 S. W. 897; Com. v. Surles, 165 Mass. 59, 42 N. E. 502. On a prosecution for attempt to commit an abortion by administering a drug, it was held no defense that the drug turned out to be harmless. State v. Fitzgerald, 49 Iowa, 200, 31 Am. Rep. 148. In prosecution for act done with intent to procure- miscarriage immaterial whether woman was enceinte. Eggart v. State, 40 Fla. 527, 25 South. 144. 36 A statute making administration of drugs, etc., to a pregnant woman for purpose of procuring abortion manslaughter in second degree held Invalid, as manslaughter cannot exist witliout death of woman or child. State v. Young, 55 Kan. 349, 40 Pac. 659. 8 8 State V. Forsythe, 78 Iowa, 595, 43 N. W. 548. 37 People V. Phelps, 133 N. Y. 267, 30 N. B. 1012. 88 1 Whart. Cr. Law, § 594. 89 1 Whart. Cr. tsiw, J 593; Com. v. Follansbee, 155 Mass. 274, 29- N. B. 471. §§ 129-131) ABORTION 431 ground of>the necessity. This necessity is also recognized by the statutes.*" As we have already seen, it is either murder or manslaughter if the mother is killed in attempt- ing to procure an abortion ; *^ and it is murder if the child is born alive, and dies from wounds received while in the womb, or dies because prematurely born by reason of the drug administered.*^ In some of the states, statutes have been enacted making it a crime to conceal the death of a bastard child. *oHatchard v. State, 79 Wis. 357, 48 N. W. 380; People v. Mc- Gonegal, 62 Hun, 622, 17 N. Y. Supp. 147. Indictiueiit must allege that miscarriage was not necessary to save life. State v. Stevenson, 68 Vt. 529, 35 Atl. 470; State v. Moothart, 109 Iowa, 130, SO N. W. 301. Presumption that miscarriage is not necessary is sutlicient to prove negative averment in absence of evidence. State v. Lee, 69 Conn. 186, 37 Atl. 75. Burden to negative exception on state. State V. Aiken, 109 Iowa, 643, 80 N. W. 1073. •*i Ante, p. 213, note 59;' p. 231, note 36. 42 Ante, p. 167. I 432 PUBLIC JUSTICE AND ADTHORITX (Ch. 13 CHAPTER XIII OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY 132-134. Common Barratry, Maintenance, and Cliamperty, 135. Obstructing Justice. 136. Embracery. 137-139. Escape, Prison Breach, and Rescue. 140. Misprision of Felony. 141. Compounding Crime. 142-143. Perjury and Subornation of Perjury. 144. Bribery. 145-147. Misconduct in Office. COMMON BARRATRY, MAINTENANCE, AND CHAMPERTY 132. Common barratry is the offense of frequently exciting and stirring up suits and quarrels either at law or otherwise.^ 133. Maintenance is the officious intermeddling in a suit that in no way belongs to one by maintaining or assisting either party with money or otherwise to prosecute or defend it.^ 134. Champerty is a bargain with a plaintiff or defendant to divide the land or other matter sued for be- tween them if they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense.^ 14 Bl. Comm. 134; 1 Hawk. P. C. 243; Com. v. Davis, 11 Pick. (Mass.) 433. 2 4 Bl. Comm. 134; 1 Hawk. P. C. 249. 3 4 Bl. Comm. 1^5 ; Hawk. P. C. 257. Though this is Blackstone's definition, it has been said that the champertor need not carry on the suit at his own expense; that it may be where an attorney §§ 13'2-134) BAKEATRT, MAINTENANCE, AND CHAMPERTY 433 These three offenses have some features in common, and are all old common-law crimes, because encouragement of strife and litigation is injurious to the public interests. An example of champerty is where an attorney agrees to carry on a suit, and take as compensation a part of what he may recover,* or where one purchases and takes an assignment of a chose in action or right to sue in equity,' or purchases land or personalty held adversely by another than the ven- dor at the time of the purchase.* A person who is in no way concerned in a suit is as a rule guilty of maintenance if he bears the expense or retains counsel for a party, but it is otherwise if he has an interest, as that of reversioner, or where he is related to the party he assists.' A landlord may assist his tenant, or a master his servant, and one may merely agrees to conduct tlie suit for a contingent compensation. Latlirop V. President, etc., of Amherst Bank, 9 Mete. (Mass.) 489. But see, contra, Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730; Phillips V. South Park Com'rs, 119 IlL 626, 10 N. E. 230. * Lathrop v. 3?resident, etc., of >.mherst Bank, 9 Mete. (Mass.) 489; Lancy v. Havender, 146 Mass. 615, 16 N. E. 464. B Illinois Land & Loan Co. v. Speyer, 138 111. 137, 27 N. E. 931. The purchase must be for the purpose of suing thereon. West v. Kurtz (Com. PI.) 2 N. Y. Supp. 110, and 3 N. ¥. Supp. 14; Burnham V. Heselton, 84 Me. 578, 24 AtL 955. - Bentley v. Childers (Ky.) 7 S. W. 628 ; Combs v. McQuinn (Ky.) 9 S. W. 495 ; Nelson v. Brush, 22 Fla. 374; Bleidorn v. Pilot Moun- tain Coal & Min. Co., 89 Tenn. 166, 204, 15 S. W. 737; Smith v. Price (Ky.) 7 S. W. 918. Conveyance under a contract made before land was held adversely is not champertous. Greer v. Wintersmith, 85 Ky. 516, 4 S. W. 232, 7 Am. St. Rep. 613 ; Thacker v. Belcher (Ky.) 11 S. W. 3. Does not apply in some states. In re Murray's Estate, 13 Pa. Co. Ct. R. 70. Sale of personalty in adverse possession. of an- other is champertous. Erickson v. Lyon, 26 111. App. 17 ; Foy v. Cochran, 88 Ala. 353, 6 South. 685. ' Lewis V. Broun, 36 W. Va. 1, 14 S. E. 444 ; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572 ; Davies v. Stowell, 78 Wis. 334, 47 N. W. 370, 10 L. R. A. 190; Williamson v. Sammons, 34 Ala. 691; Gra- ham V. McReynolds, 90 Tenn. 673, 18 S. W. 272. Clark Ce.L.3d Ed.— 28 434 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 assist a poor man to carry on his suit.* A single act is not sufficient to constitute the crime of common barratry, but there must be a series of acts, not less than three, the es- sence of the offense being that the offender shall be a "com- mon" barrator.' It is no crime for one to frequently bring unsuccessful actions in his own right, except probably where he brings ungrounded suits, merely for the purpose ' of annoying his adversary.^" A justice of the peace is guilty of this crime if he stirs up criminal prosecutions to be brought before himself, as magistrate, for the purpose of obtaining fees.^^ There is no certainty as to the extent to which these offenses as common-law crimes would be rec- ognized in this country. Very many of the courts have re- fused to recognize the crimes of champerty and mainte- nance, or have materially restricted the application of the old common-law doctrine.^* 8 4 Bl. Comm. 135. » Com. V. Davis, 11 Pick. (Mass.) 432; Com. v. McCuIloch, 15 Mass. 227. i» Com. V. McCullocli, 15 Mass. 227. - 11 State V. Chitty, 1 Bailey (S. C.) 379. 12 Sherley v. Riggs, 11 Humph. (Tenn.) 53 ; Danforth v. Streeter, 28 Vt 490; Manning v. Sprague, 148 Mass. 18, 18 N. B. 673, 1 L. R. A. 516, 12 Am. St. Rep. 508; Sedgwick v. Stanton, 18 Barb. (N. T.) 473, affirmed in 14 N. Y. 289; Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. 681, 59 Am. Rep. 99; Winslow v. Central Iowa Ry.' Co., 71 Iowa, 197, 32 N. W. 330; Dahms v. Sears, 13 Or. 47, 11 Pac. 891; Dunne v. Herrick, 37 111. App. 180; Lewis v. Broun, 36 W. Va. 1, 14 S. B. 444; Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 14 L. R. A. 745, 28 Am. St. Rep. 752. But see Key v. Vattier, 1 Ham. (1 Ohio) 132. Common law is virtually repealed by statute in many states. Wildey V. Crane, 63 Mich. 720, 30 N. W. 327 ; Bundy v. Newton, 65 Hun, 619, 19 N. Y. Supp. 734; Byrne v. Kansas City, Ft. S. & M. R. Co. (C. D.) 55 Fed. 44. § 135) OBSTEUCTING OXTSTIOB 435 OBSTRUCTING JUSTICE 135. It is a misdemeanor at common law to obstruct public or private justice, as by resisting or obstructing an officer in the exercise of his duty, or preventing at- tendance of witnesses. Any willful obstruction of justice by resisting an officer who is endeavoring to perform his official duty is a crime at common law,^^ and is also particularly made a crime by statute, in many • states. A perspn who resists or obstructs an attempt to make an arrest or maintain the peace,^* or one who prevents the execution pi civil process, as, for in- stance, the .levy of a writ of attachment or. replevin,^" is IS 1 Blsh. New Cr. Law, § 467 ; 2 Bish. Cr. Law, § 1009. A eon- stable was stationed at each end of an automobile trap for the pur- pose of detecting breaches of a motor car act. Defendant, an of- ficer of the Automobile Association, gave signals to the drivers of cars belonging to the association, who were driving beyond the speed limit, to reduce the speed of their cars. It was held that defendant was guilty of obstructing an officer in the execution of his duty. Betts V. Stevens, [1910] 1 K. B. — . Cf. Bastable v. Ldttle, [1907] 1 K. B. 59. One who prevented an ofiicer from taking goods was not guilty of obstructing an officer in the discharge of his duty, where the officer was acting without a writ and had no right to take the goods. STATE v. HARTLEY, 74 Conn. 64, 49 Atl. 860, Mikell Illus. Cas. Criminal Law, 235. 1* People V. Haley, 48 Mich. 495, 12 N. W. 671; People v. Hamil- ton, 71 Mich. 340, 38 N. W. 921 ; State v. Dula, 100 N. C. 423, 6 S. E. 89. Resisting unlawful arrest not punishable. See ante, pp. 2T'0, 272. People v. McLean, 68 Mich. 480, 36 N. W. 231 ; Merritt v. State (Miss.) 5 South. 386; Hamlin v. Cota. (Ky.) 12 S. W. 146. i6 Braddy v. Hodges, 99 N. C. 319, 5- S. E. 17; Com. v. McHugh, 157 Mass. 457, 32 N. E. 650 ; State v. Barrett, 42 N. H. 466. Resist- ing attempt to attach exempt property, where no unnecessary force Is used, is not punishable. People v. Clements, 68 Mich. 655, 36 N. W. 792, 13 Am. St. Rep. 373. See, also, ante, p. 272. Retaking prop- 436 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 guilty of obstructing justice. To tamper with witnesses or prevent their attendance is also a crime.^* EMBRACERY 136. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.^^ Any corrupt attempt to influence a jury to render their verdict for one side as against the other is a misdemeanor at common law. It may be by offering them money, by using illegitimate persuasions or entreaties, by treating them, or by making promises.^* Of course, arguments of counsel in open court at the trial of a cause are a legitimate use of influence, and are not within the definition ; but it would be a crime to take advantage of the opportunity af- forded, in order to corruptly influence the jurors.^" Where erty levied on and left by ofBcer with third person, not obstructing officer. Davis v. State, 76 Ga. 721. Preventing execution sale, State T. Morrison, 46 Kan. 679, 27 Pac. 1.33. i« 1 Bish. New Cr. Law, § 468. To forge documents for the purpose of securing a pardon is indictable as interfering with the adminis- tration of public justice. Eex v. White, 6 S. R. (N. S. W.) 398. So to attempt to mislead board of arbitration authorized by law. Reg. T. Vreones, [1891] 1 Q. B. 360. Under a statute making it a misde- meanor "to knowingly obstruct any officer in serving or attempting to serve any lawful process or order," one is not guilty who merely refuses, upon the demand of a levying officer, to unlock a door of a house in order to enable him to enter the same for the purpose of levying a lawful process upon goods contained therein. Vince v. State, 113 Ga.'1070, 39 S. E. 435. 17 4 Bl. Comm. 140; State v. Brown, 95 N. C. 685 ; 2 Bish. New Cr. Law, §§ 384-389; State v. Sales, 2 Nev. 268; Gibbs v. Dewey, 5 Cow. (N. Y.) 503. 18 People V. Myers, 70 Oal. 582, 12 Pac. 719. i» 1 Hawk. P. C. 466 ; Paul v. City of Detroit, 32 Mich. 108, 118. §§ 137-139) ESCAPE, PEISON BEEACH, AND RESCUE 437 an attempt to influence a jury amounting to embracery is made, it is immaterial whether they give any verdict or not, and, if they give a verdict, it is no defense that it is a true verdict. A juror may himself commit this crime if he cor- ruptly attempts to influence the other jurors. ESCAPE, PRISON BREACH, AND RESCUE 137. The crime of escape is committed (a) By an officer or other person, having lawful custody of a prisoner, where he voluntarily or negligently allows him to depart from such custody otherwise than in due course of law. (b) By a prisoner, where he voluntarily departs from lawful custody without breach of prison. 138. Prison breach is the breaking and going out of his place of confinement by one who is lawfully im- prisoned. 139. Rescue is the forcible delivery of a prisoner from law- ful custody by one who knows that he is in cus- tody. Escape "' — Liability of OfUcer An officer who voluntarily sufifers a prisoner to escape is at common law involved in the same guilt and liable to the same punishment as the prisoner. If the escape is due to the officer's negligence, he is guilty of a misdemeanor only. In order that he may be held criminally liable, however, the prisoner must have been in custody for some criminal matter, and the imprisonment must have been lawful.^^ A 20 2 Bish. New Cr. Law, § 1092 et seq. 21 Hitchcock V. Baker, 2 Allen (Mass.) 431. Under a statute de- 438 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 private person who has lawfully made an arrest is at com- mon law liable equally for an escape as if he were an of- ficer. Same — Liability of Prisoner A prisoner who escapes from lawful custody without breach of prison commits a misdemeanor only, whatever may have been the crime for which he was in custody. Consent of the officer having him in custody gives a pris- oner no right to escape, and furnishes him no defense. If the warrant of arrest or commitment was void, the pris- oner is not liable for escaping; but, if the imprisonment was lawful, his innocence or guilt is immaterial."* It is no defense that the jail was filthy and unhealthy."' Prison Breach '* Under the old common law, any prison breach was a felony, but this was changed by a statute which is part of our common law; "° and now it is a felony only where the imprisonment was for a felony, and a misdemeanor in other cases. The crime may be committed by one imprisoned on civil process, but in such case it is a misdemeanor only. The question of the prisoner's guilt or innocence is imma- terial, but the imprisonment must be lawful, as in case of escape. Where the imprisonment isjllegal, as, for instance. fining "escape" to be voluntarily or negligently permitting a person lawfully confined in jail to leave the prison before be is entitled to be released therefrom, a Jailer who permits a prisoner to go at large from time to time is guilty of an escape. Ex parte Shores (D. C.) 195 Fed. 627. 2 2 state V. Leach, 7 Conn. 452, 18 Am. Dec. 113; State v. Lewis, 19 Kan. 260, 27 Am. Rep. 113. 23 State V. Davis, 14 Nev. 439, 33 Am. Rep. 563. 24 2 Bish. New Cr. Law, § 1070 et seq. SB 1 Bdw. II, Stat 2. §§ 137-139) ESCAPE, PRISON BREACH, AND RESCUE 439 where it is under a void warrant, the offense is not com- mitted, provided no more than necessary force is used.^' It is otherwise where the process of commitment is merely- informal.^' There must be a breaking and an exit. Merely climbing over- a prison wall is not a prison breach, though It has been said that it is otherwise • if a loose stone is thrown from the top of the wall.^' The breaking need not necessarily be from a public prison, but may be from any place of confinement, and it seems that forcible breaking from an officer in the street is sufficient.^* If there is no breaking or force, the crime is merely an escape. Rescue °' Rescue is a felony or misdemeanor, according to the crime with which the prisoner is charged. Mere breach of the prison in an attempt to deliver a prisoner is not a res- cue, but there must be an actual exit by the prisoner. One who lawfully escapes from imprisonment under a void war- rant is not liable because other prisoners lawfully confined escape with him in consequence of his breaking out of the prison.'*- 2 6 state V. Leach, 7 Conn. 452, 18 Am. De& 113. 27 State V. Jlurray, 15 Jle. 100. 2 8 Rex V. Haswell, Russ. & R. 458. 29 2 Hawk. P. C. c. 18, § 4; -Rex v. Bootie, 2 Burrows, 864; Rex V. Stokes, 5 Car. & P. 148; Com. v. FUburn, 119 Mass. 297; State v. Beebe, 13 Kan. 589, 19 Am. Rep. 93. so 2 Blsh. New Cr. Law, § 1085 et seq.; State v. Garrett, 80 Iowa, 689, 46 N. W. 748. 81 State V. Leach, 7 Conn. 452, 18 Am. Dec. 113. 440 PUBLIC JUSTICE AND AUTHOUITT (Ch. 13 MISPRISION OF FELONY 140. Misprision of felony is a criminal neglect either to pre- vent a felony from being committed or to bring to justice the offender after its commission.^'' To constitute this offense there must be mere knowledge of the offense, and not an assent or encouragement; for, if the latter, the person becomes principal or accessary. The crime is a misdemeanor. Misprision of treason is explained in treating of treason. COMPOUNDING CRIME 141. The offense of compounding a crime is committed where one who knows that it has been committed agrees, for a consideration, not to prosecute it." Compounding a felony, or forbearing to prosecute a felon on account of some reward received, is a misdemeanor at common law. The reward need not be money, but any ad- vantage accruing from the felon to the person forbearing is sufficient, as where the owner of stolen goods agrees not to prosecute the thief on consideration of the goods being re- turned.'* The crime, however, is not confined to the per- son particularly injured by the felony, as in the case just mentioned, but any one who, knowing that a felony has been committed, receives a reward on his agreement not to prosecute the felon, is guilty. The mere taking back of S2 1 Bish. New Cr. Law, § 716 et seq. 33 4 Bl. Comm. 133; 1 Blsh. New Cr. Law, § 709 et seq.; Watson V. State, 29 Ark. 299. 8* Com. V. Pease, 16 Mass. 9L §§ 142-143) PEEJUET AND SUBOENATION OF PEEJTJEY 441 stolen goods, without any agreement or showing of favor, is no crime. The crime is complete when the reward is re- ceived, and the agreement not to prosecute is made, whether the agreement is carried out or not. In this respect it is something like conspiracy; indeed, it is a conspiracy to prevent public justice. To compound a misdemeanor is in- dictable at common law, only where the misdemeanor is of a public rather than a private nature.^" This does not therefore prevent settlements for assaults and private cheats ; but to agree not to prosecute for a riot^t%_3.-Grime.'* PERJURY AND SUBORNATION OF PERJURY 142. Perjury, at common law, is the willful and corrupt giv- ing, upon a lawful oath, or in any form allowed by law to be substituted for an oath, in a judicial pro- ceeding or course of justice, of false testimony ma- terial to the issue or matter of inquiry. Perjury is a misdemeanor. 143. Subornation of perjury is the procuring of another to commit perjury. Perjury must be actually com- mitted. The Oath The oath must be a lawful one ; that is, it must be legally administered by an officer duly authorized; ^^ but the form S6 Compounding a public misdemeanor (illegal sale of spirituous liquor) is indictable at common law. It is not essential that an of- fense was committed by the person from whom money is received. State V. Carver, 69 N. H. 216, 39 Atl. 973. 36 Jones V. Rice, 18 Pick. (Mass.) 440, 29 Am. Dec. 612; Keir v. Leeman, 6 Q. B. 308, 9 Q. B. 371. 37 Lambert v. People, 76 N. Y. 220, 32' Am. Rep. 293; Morrell v. People, 32 111. 499; U. S. v. Manion (D. C.) 44 Fed. 800; State t. 442 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 is immaterial, provided the witness professes it to be bind- ing on him.'' It need not necessarily be taken on the Scrip- tures. Affirmation, by one opposed to swearing on the Scriptures, or any other form of oath authorized by law, is sufficient. An oath in some form is essential, or false testi- mony will not be perjury.^' An oath taken on a book be- lieved to be the Scriptures, but not so in fact, will sustain a charge of perjury.*' The oath must be material ; other- wise there is no perjury, even though the facts stated may be material. Thus, where a person falsely swears to an an- swer in a suit, he does not commit perjury, if he was not required to swear to it, and his oath could not affect the is- sue or strengthen the answer.*^ The Proceeding' and Jurisdiction To constitute perjury at common law, the false testimony must be in a judicial proceeding or course of justice.*^ The making of a false affidavit in other than judicial proceed- Wilson, 87 Tenn. 693, 11 S. W. 792; U. S. v. Bedgood (D. C.) 49 Fed. 54 ; Walker v. State, 107 Ala. 5, 18 South. 393 ; U. S. v. Garcelon (D. C.) 82 Fed. 611. 88 People V. Tarvis, 4 Parker, Cr. R. (N. T.) 213; State v. Gates, 17 N. H. 373; Van Dusen v. People, 78 111. 645: State v. Wyatt, 3 N. C. 56; Blggerstaff v. Com., 11 Busb (Ky.) 169. 39 O'Reilly V. People, 86 N. T. 154, 40 Am. Rep. 525; Case v. People, 76 N. Y. 242. 40 People V. Cook, 8 N. T. 67, 59 Am. Dec. 451. 41 Beecher v. Anderson, 45 Mich. 543, 8 N. W. 539. Where de- fendant made an oath, for the purpose of obtaining a license, that he had never been charged with a violation of law, and the statute under which the license was granted required no such oath, It was held that he was not guilty of perjury. State v. Parrish, 129 La. 547, 56 South. 503, 39 L. R. A. (N. S.) 96. 42 2 Bish. New Cr. Law, § 1026; State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270; State v. Chamberlin, 30 Vt. 559; State v. Simons, 30 Vt 620; State v. Shupe, 16 Iowa, 36, 85 Am. Dec. 485; ■State V. Chandler, 42 Vt. 446. §§142-143) PEKJUET AND SUBORNATION OF PEEJTJEY 443 ings, it has been said, is not technically perjury, though it is a misdemeanor.*^ It is, however, generally held that to take a false oath as to an existing fact in any proceeding re- quired or authorized by law for the purpose of establishing a legal right is perjury.** To take a false oath to an affi- davit required by law is held to be perjury,*' but it is oth- erwise if the affidavit is not required by law.** Where the false testimony is given in a judicial proceeding, it need not be in reference to the principal issue, but it is sufficient if it is material to any inquiry in the course of the proceed- ing.*^ The court or tribunal must have jurisdiction of the proceeding in which the false oath is taken,*' but, if juris- diction exists, mere irregularities in the proceeding are im- material.** ^ 43 2 Whart. Cr. Law, § 1267. '44 Otherwise if tlie oath is merely promissory — as an oath of office. State V. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270. 4 5 State V. Dayton, 23 N. J. Law, 49, 53 Am. Dea 270; State v. EstalrooUs, 70 Vt. 412, 41 Atl. 499. 4 8 People V. Tarvis, 4 Parker, Cr. R. (N. T.) 213; Silver v. State, 17 Ohio, 365; People v. Gaige, 26 Mich. 30 (bill in equity not re- quired to be sworn); Davidson v. State, 22 Tex. App. 372, 3 S. W. 662 ; State v. McCarthy, 41 Minn. 59, 42 N. W. 59'9. 47 State V. Keeuan, 8 Rich. (S. C.) 456. False affidavit for con- tinuance. State V. Shupe, 16 Iowa, 36, 85 Am. Dee. 485; Sanders v. People, 124 111. 218, 16 N. E. 81. 4 8 State V. Furlong, 26 Me. 69; State v. Alexander, 11 N. C. 182; Pankey v. People, 1 Scam. (2 111.) SO ; State v. Jenidns, 26 S. C. 121, 1 S. E. 437 ; Renew v. State, 79 Ga. 162, 4 S. E. 19 ; State v. Wymber- ly, 40 La. Ann. 460, 4 South. 161. Where a police court has no juris- diction to try a person for a certain crime without a Jury, a false statement made by a witness on a trial by the court alone for such crime is not perjury. U. S. v. Jafckson, 20 D. 0. 424. 49 State V. Lavalley, 9 Mo. 834; Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Maynard v. People, 135 111. 416, 25 N. E. 740. Where perjury is charged against a witness in a trial of a criminal proceed- ing which was begun by warrant, it is. no defense that the warrant was issued without complaint or affidavit, even though such com- 4:4:4 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 Intent — Falsity of Testimony The false testimony must be willfully and corruptly giv- en. °° To testify rashly and inconsiderately according to be- lief, or inadvertently, or by mistake, is not perjury."^ It is said by Hawkins that no one ought to be found guilty without clear proof that the false oath was taken with some degree of deliberation; for if, upon all the circumstances of the case, it appear probable that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprise or inadvertency, or a mistake of the true state of the question, it cannot be but hard to make it amount to voluntary and corrupt perjury."^ To take an oath in good faith, under advice of counsel, is not perjury."' Though, the fact asserted may be true, it is perjury if the witness believed that it was not true, and corruptly made the assertion."* It has been held that it is perjury for a witness to swear that he thinks or believes a certain fact plaint or affidavit is necessary to the validity of the warranty. Eeg. V. Hughes, 14 Cox, Cr. Gas. 284; State v. Peters, 107 N. C. 876, 12 S. B. 74. Nor is it a defense that the jury trying the case in which the false testimony was given was not sworn. Smith v. State, 31 Tex. Cr. E. 315, 20 S. W. 707. 6 u. S. V. Babcock, 4 McLean, 113, Fed. Cas. No. 14,488; State v. Hascall, 6 N. H. 352 ; Gibson v. State (Tex. App.) 15 S. W. 118. 61 U. S. V. Atkins, 1 Spr. 558, Fed. Cas. No. 14,474; TJ. S. v. Pasa- more, 4 Dall. 372, Fed. Cas. No. 16,005 ; U. S. v. Moore, 2 Low. 232, Fed. Cas. No. 15,803 ; Tuttle v. People, 36 N. Y. 434. 6 2 1 Hawk. P. C. 429; 2 Bish. New Cr. Law, § 1045. 63 U. S. V. Stanley, 6 McLean, 409, Fed. Cas. No. 16,376; State v. McKinney, 42 Iowa, 205; U. S. v. Conner, 3 McLean, 573, Fed. Cas. No. 14,847 ; Com. v. Clark, 157 Pa. 257, 27 Atl. 723. 64 2 Bish. New Cr. Law, § 1043. If one corruptly swears to a fact as of his own knowledge, when he had not the Imowledge, it is per- jury. Nor does it matter that the statement be true, if the witness did not know it to be so. Com. v. Miles, 140 Ky. 577, 131 S. W. 385, 140 Am. St. Rep. 401. §§ 142-143) PEEJUET AND SUBOENATION OF PEEJUEY 445 when he thinks or believes the contrary,"' or to swear that a fact exists where he knows nothing about it.°* For a wit- ness to equivocally use words which in one sense are true, but which he intends to be, and which are, understood in another and an untrue sense, was held perjury in an old English case. According to the weight of authority, drunk- enness is a defense, as it may negative the existence of such a state of mind as is capable of giving "willfully corrupt," false testimony ; °^ but there are decisions to the con- trary.°* Materiality of Testimony The false testimony must be material to the issue or mat- ter of inquiry.'" To be material it must be of such a char- acter as would, if believed, tend to affect the verdict of the jury in the particular case. Thus false testimony given at a coroner's inquest, as to the whereabouts of a certain per- son at the time of the death, such person not being under suspicion as having caused the death, is not perjury;"" nor is it perjury to testify falsely that one lived near the place where a certain sale took place, the fact of the sale not being 6 5 Eex V. Pedley, 1 Leach, 327; Reg. v. Schlesinger, 10 Q. B. 670; Com. V. Edison (Ky.) J) S. W. 161. 5 6 state V. Gates, 17 N. H. 373. 67 2 Bish. New Cr. Law, § 1048; Lyle v. State, 31 Tex. Cr. R. 103, 19 S. W. 903 ; McCord v. State, 83 Ga. 521, 10 S. E. 437. 5 8 People V. Willey, 2 Parker, Cr. E. (N. Y.) 19. 59 People V. Collier, 1 Mich. 137, 48 Am. Dec. 699; State v. Hatta- way, 2 Nott & McC. (S. C.) 118, 10 Am. Dec. 580; State v. Wliltte- more, 50 N. H. 245, 9 Am. Rep. 196 ; Wood v. People, 59 N. Y. 117 ; Rump V. Com., 30 Pa. 475 ; Com. v. Pollard, 12 Mete. (Mass.) 225 ; State V. Smith, 40 Kan. 631, 20 Pac. 529; Jennings v. State (Miss.) 7 South. 462 ; People v. Perazzo, 64 Cal. 106, 28 Pac. 62 ; People v. Ah Sing, 95 Cal. 657, 30 Pac. 797 1 Martin v. Miller, 4 Mo. 47, 28 Am. Dec. 342; Leak v. State, 61 Ark. 599, 33 S. W. 1067; State v. Brown, 68 N. H. 200, 38 Atl. 731. 6 Nelson v. State, 32 Ark. 192. 446 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 material.'* So, if the question at issue is whether a certain person brought a certain number of sheep from one town to another, it is not perjury to testify that he brought them all at one time, when in fact he brought them partly at one time and partly at another.*^ So, when the question at is- sue was only whether A. beat B., it was not perjury for a Avitness to swear that A. drew his dagger and beat and wounded B.®' But the materiality of the testimony must in all cases de- pend on the facts and circumstances of the p'articular case.. If material, the extent of the materiality is unimportant. Thus, it is perjury to testify to facts affecting the credibility of the witness himself, as on cross-examination, or the cred- ibility of other witnesses."* It makes no difiference that the testimony was legally inadmissible if it was material ; '" nor that defendant was not a competent witness; *° nor that he could not have been compelled to testify;"" and it is not necessary that the testimony shall have been believed or have had any influence."* The testimony need not neces- sarily be material to the principal issue in the proceeding,, but it is sufficient if it is material to any collateral inquiry 81 State V. Hattaway, 2 Nott & McC. (S. C.) 118, 10 Am. Dec. 5S0. 62 Hawk. P. C. (6th Ed.) 323. 83 Hawk. P. C. (6th Ed.) 323. 64 Com. V. Grant, 116 Mass. 17; Wood v. People, 59 N. Y. 117; State V. "Brown, 79 N. C. 642; State v. Hattaway, 2 Nott & McO. (S. C.) 118, 10 Am. Dee. 580 ; Washington v. State, 22 Tex. App. 26,. 3 S. W. 228 ; Williams v. State, 28 Tes. App. 301, 12 S. W. 1103. 6 5 2 Whart Cr. Law, §§ 1279, 1280. 86 Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255. 8 7 Mackin v. People, 115 111. 312, 3 N. E. 222; Mattingly v. State,. 8 Tex. App. 345. One may be convicted of perjury in falsely testify- ing in his own behalf on the trial for a criminal offense. Allen v. U^ S., 194 Fed. 664, 114 0. 0. A. 357, 39 L. R. A. (N. S.) 385. 6 8Hoch V. People, 3 Mich. 552; Pollard v. People, 69 111. 148. § 144) BRIBERY 44T in the course of the proceeding." Thus a false affidavit, made to secure the continuance of a suit, is perjury.'" The materiality of the testimony must be proved by the prosecution ; it will not be presumed from the fact that the testimony was admitted in the trial.' ^ BRIBERY 144. Bribery at common law is defined by Blackstone to be where a judge or other officer connected with the administration of justice receives any undue re- ward to influence his behavior in office;'^ but high authorities define it as the giving or receiving of a reward to influence any official act, whether of a judicial officer or not.'^ Mr. Bishop states that the gist of the offense of bribery is the tendency of the bribe to pervert justice in any of the governmental departments, executive, legislative, or judi- cial, and defines the crime as "the voluntary giving or re- ceiving of anything of value in corrupt payment for an of- ficial act done or to be done." '* The crime is committed by 89 State V. Keenan, 8 Rich. (S. C.) 456; State v. Shupe, 16 Iowa, 36, 85 Am. Dec. 485. The crime of maliing a false oath in a bank- ruptcy proceeding in violation of Bankr. Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 (U. S. Comp. St. 1913, § 9013), is not of equal enor- mity with perjury, and the ancient rule of the coumion law requir- ing two witnesses to convict of perjury does not apply. Kahn v. U. S., 214 Fed. 54, 130 O. C. A. 494. '» State V. Shupe, supra. 71 Com. V. Pollard, 12 Mete. (53 Mass.) 225. 124 HI. Comm. 139. See, also, 3 Inst. 145; 2 Euss. Crimes, 122. 78 2 Bish. New Cr. Law, § 85 ; Har. Cr. Law, 84. 74 1 Bish. Cr. Law, § 85; STATE v. El-LIS, 33 N. J. Law, 102; 97 Am. Dec. 707, Mikell Illus. Oas. Criminal Law, 242. Bribery Is the 448 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 one who gives the bribe, as well as by him who receives it. A mere present to an officer after the act is not bribery if giving, offering, or receiving of anything of value, or any valuable service, intended to influence one in the discharge of a legal duty. 2 Am. & Eng. Encyc. Law (2d Ed.) 907. The thing offered as a bribe must be something of some value to the receiver, not something imaginary, illusive, or amounting to nothing more than the gratifi- cation of a wish or hope on his part. People v. Hyde, 156 App. Div. 618, 141 N. T. Supp. 1089. A., a city treasurer, requested a bank with which he had deposited city funds to loan anpther city deposi- tory sufficient money to tide It over an investigation. The bank ac- ceded to A.'s request under a threat by him to withdraw the city funds from it in case of a refusal. It was held that A.'s threat did not amount to a bribe, in the absence of proof that he was personally interested in the assisted bank. People v. Hyde, supra. The giving of entertainments for the purpose of unduly influencing legislation has been held not to constitute bribery. Randall v. Evening News Ass'n, 97 Mich. 136, 56 N. W. 361. The giving of a' present to an ofiicer after the act desired is not bribery, if not the result of a pre- vious understanding. Hutchinson v. State, 39 Tex. 293. If the thing offered is of some value, it is sufficient; the amount of its value is immaterial. State v. McDonald, 106 Ind. 233, 6 N. E. 607. Bribery cannot be predicated on an offer of a reward not to perform duties for the performance of which there is no legal or constitutional war- rant U. S. V. Boyer (D. 0.) 85 Fed. 425. A prisoner held under an Illegal arrest cannot be convicted of offering to bribe an ofiicer to allow him to escape. Ex parte Richards, 44 Tex. Or. R. 561, 72 S. W. 838; Moore v. State, 44 Tex. Cr. R. 159, 69 S. W. 521. Under a statute making it a crime to offer money to a public officer with in- tent to influence his decision "on any matter which may by law be brought before him in his official capacity," it was held that the de- fendant was not guilty of the crime where he offered a member of . the board of health a bribe to vote in favor of an award of a con- tract, the power to award which was committed to the board by an ordinance which was illegal and void; "for," said the court, "the matter could not legally come before Chapman in his official capac- ity." State V. Butler, 178 Mo. 272, 77 S. W. 560. Where the defend- ant offered the state's attorney a bribe if he would drop certain crim- inal proceedings, and the state's attorney, in order to trap the de- fendant, accepted the money, it was held that the defendant was not guilty of bribery, but could be convicted only for an attempt § 144) ' BBIBERT 449 there was no prior understanding/' An offer of a bribe, or an offer to accept a bribe, is a crime, though probably an attempt at bribery rather than bribery.''* A voter, in cast- ing his vote, performs an official act ; and bribery of voters is a crime at common law.'^ An offer by a candidate for a county office, made to the voters, that he would, if elected, return part of his salary into the county treasury, was held to constitute bribery ; ''* though it was held otherwise where a note was given to induce the people to vote for the re- moval of the county seat.'° One who conveys an offer to bribe from a third person is himself guilty, though the mon- ey is to be paid by the third person ; *° and the third person in such case is also guilty.*^ The offense is generally de- fined by statute. The Criminal Code provided that whoever corruptly gives money to a state's attorney with intent to influence him in his official capacity is guilty of bribery. People v. Peters, 265 111. 122, 106 N. B. 513. 7 5 Hutchinson v. State, 36 Tex. 293. '8 Walsh V. People, 65 111. 58, 16 Am. Rep. 569; STATE v. ELLIS, 33 N. J. Law, 102, 97 Am. Dec. 707, Mikell Illus. Cas. Criminal Law, 242. Cf. State v. Miles, 89 Me. 142, 36 Atl. 70. 77 Reg. V. Lancaster, 16 Cox, Cr. Cas. 737; State v. Jackson, 73 Me. 91, 40 Am. Rep. 342 ; Com. v. McHale, 97 Pa. 397, 39 Am. Rep. 808 ; State V. Ames, 64 Me. 386. Bribery of member of nominating con- vention. Com. v. Bell, 145 Pa. 374, 22 AU. 641, 644. Offer of money to legislator to vote for candidate for United States senator is bribery at common law. State v. Davis, 2 Pennewill (Del.) 139, 45 Atl. 394. 78 State ex rel. Newell v. Purdy, 36 Wis. 213, 17 Am. Rep. 485. ToDishon v. Smith, 10 Iowa, 212. 8 People V. Northey, 77 Cal. 618, .19 Pac. 805, 20 Pac. 120. 81 People V. Kerr (O. & T.) 6 N. X. Suijp. 674. Clabk CK.L.3D Ed.— 29 450 PDBLIC JUSTICE AND ATJTHOEITY (Ch. 13 MISCONDUCT IN OFFICE 145. MALFEASANCE — It is malfeasance and a misde- meanor at common law for any public officer, in the exercise of, or under the color of exercising, the duties of his office, to do any illegal act, or abuse any discretionary power with which he is invested by law, from an improper motive. Such malfeas- ance may be (a) EXTORTION— Extortion is the taking, under color of office, from any person, any money or valuable thing which is not due from him at the time when it is taken.''' (b) OPPRESSION — Oppression consists in inflicting upon any person any bodily harm, imprisonment, or other injury, not amounting to extortion.'^ (c) FRAUD AND BREACH OF TRUST— It is a mis- demeanor for any public officer, in the discharge of the duties of his office, to commit any fraud or breach' of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person.'* 8 2 Steph. Dig. Cr. Law, art. 119; Com. v. Bagley, 7 Pick. (Mass.) 279 ; State v. Burton, 3 Ind. 93 ; People v. Calhoun, 3 Wend. (N. Y.) 420; Loftus V. State (N. J.) 19 Atl. 183; State v. Pritchard, 107 N. C. 921, 12 S. E. 50 ; Com. v. Saulsbury, 152 Pa. 554, 25 Atl. 610. Extortion distinguished from bribery. People v. McLaughlin, 2 App. Div. 419, 37 N. Y. Supp. 1005. See, also, Williams v. U. S., 168 U. S. 382, 18 Sup. Ct 92, 42 L. Ed. 509; Levar v. State, 103 Ga. 42, 29 S. E. 467. 88 Steph. Dig. Cr. Law, art. 119. 84 Steph. Dig. Cr. Law, art 121; State v. Glasgow, 1 N. 0. 264, 2 Am. Dec. 629. §§ 145-147) MISCONDUCT IX OFFICE 451 146. NONFEASANCE — It is nonfeasance and a misde- meanor for any public officer willfully to neglect to perform any duty which he is bound either by common law or by statute to perform, provided the discharge of such duty is not attended with greater danger than a mam of ordinary firmness and activ- ity may be expected to encounter,' ° 147. REFUSAL TO ACCEPT OFFICE— It is a misde- meanor for any person unlawfully to refuse or omit to take upon himself and serve any public of- fice which he is by law required to accept if duly appointed, provided no other penalty is imposed by law for such refusal or neglect, or the law or cus- tom does not permit composition in place of serv- ing.*' The above text applies as well to de facto as to de jure officers, for if one claims an office, and assumes to exercise the duties thereof, he must comply with the law; but it seems that it does not apply to executive officers of the gov- ernment so far as they are clothed with discretion, or to the legislature, or to judges of courts of record performing ju- dicial, as distinguished from ministerial, acts, so as to ren- der them liable to indictment, and that the remedy against them is by impeachment. In case of abuse of discretionary power, whether there was an improper motive may be in- ferred either from the nature of the act or 'from the cir- cumstances of the case. An illegal exercise of authority, caused by a bona fide mistake as to the law, is not criminal. 8 5 Steph. Dig. Cr. Law, art. 122; State v. Kem, 51 N. J. Law, 259, 17 Atl. 114. 80 Steph. Dig. Cr. Law, art. 123; Rex v. Bower, 1 Barn. & C. 585; 1 Kus.«!. Crimes, 212. 452 PUBLIC JUSTICE AND AUTHORITY (Ch. 13 An example of oppression is where a justice of the peace refuses a license to a person because of the latter's refusal to vote as the justice wishes;^' and it is extortion for a constable to obtain money from one whom he has in cus- tody on a warrant for assault upon color and pretense that he will procure the warrant to be discharged.*' An ex- ample of fraud and breach of trust affecting the public is where an accountant in public Office fraudulently omits to make entries in his accounts, whereby the cashier is en- abled to retain moneys, and appropriate the interest there- on;" or where the commissary of public stores contracts with a person for supplies on condition that the latter will divide the profits with him.°° Where justices of the peace, whose duty it was to vote for certain officers, made a bargain or reciprocal promise each to vote for a certain candidate, this was held a crime at common law.*'^ On the prosecution of an officer for neg- ligence, it seems that mistake of law or fact is no defense, )as officers must know- the law and the facts necessary to enable them to act.'^ An officer is criminally liable for be- ing drunk when in discharge of his duties.'* »7 Rex V. Williams, 3 Burrows, 1317. 88 2 Ohlt Cr. Law, 292. It is extortion for a public official to de- mand money as a condition to allowing a just claim against a public corporation. In re Siepard, 161 Cal. 171, 118 Pac. 513. 8 Rex V. Bembridge, 3 Doug. 332. 80 Rex V. Jones, 31 How. St. Tr. 251. 01 Com. V. Callaghan, 2 Va. Cas. 460. 02 2 Whart Cr. Law, § 1582. o«Com. V. Alexander, 4 Hen. & M. (Va.) 522. § 148) OFFENSES AGAINST THE PUBLIC PEACH 453 CHAPTER XIV OFFENSES AGAINST THE PUBLIC PEACH 148. In General. 149. Dueling. 150-152. Unlawful Assembly, Eout, and Riot 153. AfEray. 154r-155. Forcible Entry and Detainer. 156-157. Libels on Private Persons. IN GENERAL 148. Any willful and unjustifiable act in disturbance of the public peace, or even which directly tends to a dis- turbance of the peace, if it is of sufficient magni- tude for the law's notice, and does not amount to a felony, is a misdemeanor at common law,^ As said by Gibson, C. J. : " "No man has a right to trifle with the feelings of any large class of men, so as to provoke them to a breach of the peace ; " therefore any intentional, unjustifiable act, done to provoke a breach of the peace, is an indictable misdemeanor at common law. Thus it was held in the case last cited that it was a misdemeanor to erect a stuffed efiSgy of St. Patrick in a portion of a city inhabited largely by emigrants from Ireland. So a prize fight conducted under conditions that would be likely to cause a breach of the peace is indictable.* It is on this ground of a tendency to create a breach of the peace that willful disturbances of public assemblies are 1 1 Bish. New Cr. Law, § 533 et seq. 2 Com. V. Haines, 4 Clark (Pa.) 17. 8 Com. V. CoUberg, 119 Mass. 350, 20 Am. Rep. 328. 454 OFFENSES AGAINST THE PUBLIC PEACE (Ch. 14 indictable. The indictments are usually for disturbing a re- ligious meeting, but disturbances of any public meeting are within the rule.* To constitute this crime there must be an intent to disturb." ' But not only are acts which tend to provoke a breach of the peace on the part of numbers of persons indictable, but acts which tend to such breach by an individual are misde- ' meanors. Thus it has been held to be a misdemeanor to write a scandalous letter to a man concerning his fiancee; ° to enter another man's house secretly, in the nighttime, and by loud noises disturb the family ; ' and to disturb a fam- ily by knocking loudly at the front door for a space of two hours.'' The line drawn between cases of this kind, held to be indictable, and others, held to constitute only a civil wrong, is not clear, and all of the cases are not reconcila- ble." * Disturbance of town meeting, Com. v. Hoxey, 16 Mass. 385. B State V. Linkhaw, 69 N. C. 214, 12 Am. Rep. 645. In this case defendant was indicted for disturbing a religious meeting. The evi- dence was that he sang the hymns in such a manner that his voice was heard at the end of each stanza after the other singers had ceased, that the church authorities had remonstrated with him, and that his reply was that he would worship, and that as part of the wor- ship it was his duty to sing. The prosecution admitted that "he had no intention Or purpose to disturb the congi'egation.^' It was held that intent to disturb was essential, and that, though intent might be presumed from his acts, yet the admission by the prosecu- tion rebutted this presumption, and thff defendant could not be con- victed. « Bex V. Summers, 3 Salk. 194. T Com. V. Taylor, 5 Bin. (Pa.) 277. 8 Rex V. Hood, Sayer, 161. In Com. V. Edwards, 1 Ashm. (Pa.) 46, it was held that an in- dictment could not be^ supported against a person charging him with the frequent practice of going to the house of another and grossly abusing his family, thereby rendering their lives uncomfortable. So In State v. Schlottman, 52 Mo. 164, it was held not a criminal of- §§ 150-152) UNLAWFUL ASSEMBLT, EOUT, AND MOT 455 DUELING 149. It is a misdemeanor at common law ^^ (a) To challenge another to fight a duel, or (b) To be the bearer of such a challenge, or (c) To provoke another to send a challenge. To constitute these crimes, no actual fighting is neces- sary. Provocation, however great, is no justification. As we have seen, if a duel actually takes place, and one of the parties is killed, the other is guilty of murder, and all who are present abetting the crime are guilty as principals in the second degree.^^ It is immaterial that the duel is to take place in another state.^" UNLAWFUL ASSEMBLY, ROUT, AND RIOT 150. UNLAWFUL ASSEMBLY— An unlawful assembly is an assembly of three or more persons (a) With intent to commit a crime by open force, or (b) With intent to carry out any common purpose, law- ful or unlawful, in such a manner as to give firm and courageous persons reasonable grounds' to ap- prehend a breach of the peace. "^^ fense to disturb the peace of a single individual by calling her op- probious names in a loud and angry manner. 10.2 Bish. New Cr. Law, §§ 311-317; 4 Bl. Comm. 150; 1 East, P. 0. 242 ; 1 Hawk. P. C. 487 ; State v. Perkins, 6 Blackf. (Ind.) 20 ; State V. Farrier, 8 N. C. 487; Com. v. Lambert, 9 Leigh (Va.) 603; Com. V. Tibbs, 1 Dana (Ky.) 525. 11 Cullen V. Com., 24 Grat. (Va.) 624; Reg. v. Young, 8 Car. & P. 644 ; Smith v. State, 1 Terg. (Tenn.) 228. 12 2 Bish. New Cr. Law, § 315; State v. Farrier, 8 N. C. 487; Har- ris V. State, 58 Ga. 332. 13 Steph. Dig. Cr. Law, art. 70 ; 1 Hawk. P. C. 513 ; State v. Stal- rup. 23 N. C. 30, 35 Am. Dec. 732. 456 OFFENSES AGAINST THE PUBLIC PEACE (Ch. 14 151, ROUT — A rout is an unlawful assembly which has made a motion towards the execution of the com- mon purpose of the persons assembled.^* 152. RIOT— A riot is (a) An unlawful assembly which has actually begun to execute the purpose for which it assembled, by a breach of the peace, and to the terror of the pub- lic ; or (b) A lawful assembly may become a riot if the persons assembled form and proceed to execute an unlaw- ful purpose to the terror of the people, although they had not that purpose when they assembled.^" To constitute these crimes at common law, three persons are essential, ^° though this is changed by statute in some states. ^^ If three persons meet together for the purpose of beating another who lives a mile ofif, there is an unlawful assembly; while they are on the road to carry out the pur- pose, there is a rout; and, when they make the attack and beat him-, there is a riot. To constitute a riot, the object need not be unlawful, provided the acts are done in a man- ner calculated to inspire terror. For the Salvation Army to assemble and march through the streets might, under some circumstances, constitute a common nuisance, but it would not be an unlawful assembly, for there is no unlawful pur- 1* Steph. Dig. Cr. Law, art. 71. 16 Steph. Dig. Cr. Law, art. 72. 16 Ck>m. V. Gibney, 2 Allen (Mass.) 150; Turpin v. State, 4 Blackf. (Ind.) 72; Com. v. Edwards, 1 Ashm. (Pa.) 46. Riot may be com- mitted where only two are engaged in the physical act, and a third is present, abetting. State v. Straw, 33 Me. 554. 17 Dougherty v. People, 4 Scam. (111.) 179; Ijogg v. People, 92 111. 598; Rachels v. State, 51 Ga. 374; Stafford v. State, 93 Ga. 207, 19 S. B. 50; Dixon y. State, 105 Ga. 787, 31 S. E. 750. §§ 150-152) UNLAWFUL ASSEMBLY, EOUT, AND EIOT 457 pose, and the assembly is not tumultuous, nor against the peace ;^* but it is an unlawful assembly for a number of persons to meet at a house, and disguise themselves, for the purpose of going out on a poaching expedition.^' In a South Carolina case, where money had been staked for a prize fight, and the crowd was assembled, this was held to constitute a rout. It was said by the court : "The parties had no doubt assembled with a common intent to commit a breach of the peace. Preparations had been made for the combat, and blows only were necessary to consti- tute the offense of riot beyond all doubt. • What degree of execution of their purpose will convert a rovit into' a riot it may be often difficult to determine, but this case does not req'uire any such distinction to be made. The preparation for battle, the staking the money, will clearly make them guilty of a rout." "" In another South Carolina case a party of men who had assembled at night in the streets of a village, and out of fun made a great noise, by yelling, shooting firearms, and blowing horns, were convicted of riot. The court said : "If a tumultuous or noisy act be accompanied by no circum- stances calculated to excite terror or alarm in others, it would not amount to a riot; as if a dozen men assemble to- gether in a forest, and blow horns or shoot guns, or such acts, ,it would not be a riot. But if the same party were to assemble at the hour of midnight in the streets of Charles- ton or Columbia, and were to march through the streets crying 'Fire !' blowing horns, and shooting guns, few, I ap- prehend, would hesitate in pronouncing it a riot, although 18 Beatty v. Gillbanks, 15 Cox, Cr. Cas. 138; Eeg. v. Clarkson, 66 Law T. (N. S.) 297. i» Rex V. Brodribb, 6 Car. & P. 571; Reg. v. Vincent, 9 Car. & P. 109. 2 State V. Sumner, 2 Speers (S. C.) 599, 42 Am. Dec. 387. 458 OFFENSES AGAINST THE PUBLIC PEACE (Ch. 14 there might be no ordiriance of the city for punishing such conduct; and why? Because such conduct in such a place is calculated to excite terror and alarm among the citi- zens." " To constitute a riot it is not necessary that the original assembling be for an unlawful purpose ; it is sufficient if; being assembled, they proceed together to the execution of an unlawful purpose in ariotous manner.^^ It is not neces- sary that the persons engaging in the riot should have ex- pressly agreed among themselves as to the common de- sign they intended to pursue.^" The law does not distin- guish between the relative degrees of violence on the part of those engaged in the riot ; all who take any part therein, whether by acts, gestures, signs, or words, are principals.^* AFFRAY 153. An affray is the fighting of two or more persons in a public place, to the terror of the people, and is a misdemeanor.^" An afifray dififers from a riot in that there must be pre- meditation and at least three persons engaged to constitute a riot, whereas an affray, requires only two persons par- 21 state' V. BRAZIL, Rice (S. C.) 257, Mikell Illus. Oas. Criminal Law, 2-15. Attempt to ride a person on tlae rail. State v. Snow, 18 Me. 346. Congregating to prevent removal of prisoner and intimidating sheriff. Green v. State, 109 Ga. 536, 35 S. E. 97. All persons con- nected with the common purpose are guilty, whether their conduct is violent and tumultuous or not. Baptist v. State, 109 Ga. 546, 35 S. E. 658. See, also, Coney v. State, 113 Ga. 1060, 39 S. E. 425. 2 2 State V. Snow, 18 Me. 346. 23 People V. Judson, 11 Daly (N. T.) 1. 24 People V. Judson, 11 Daly (N. Y.) 0, 25 2 Bish. New Cr. Law, §§ 1-7. ^ 153) AFFRAY 459 ticipating, and may be on a sudden encounter. By the bet- ter opinion there must be actual fighting to constitute an affray ; mere words, no matter how provoking or how ter- rifying to the public, do not amount to an affray.^' Also it takes two to make a fight, therefore provocative words by one, followed by blows from the other, do not amount to an affray, if the one using the words does not return the l)low.^' But while words alone, or words by one followed by a bloyv by another, do not make an affray, words accom- panied by the drawing of weapons by both parties with an intention of immediately using them is an affray, though "the parties are prevented from actually using the weap- ons.^* So if one person, by such abusive language toward another as is calculated and intended to bring on a fight, induces the other to strike him, he is guilty of an affray, ■though he may be unable to return the blow.^' It is not essential that both parties enter the fight will- ingly; if one provoke the fight by abusive words, and strike -only when struck by the other, he is guilty of an affray, though he enters the combat reluctantly.'''" But to render •one guilty, he must be unlawfully fighting, either by agree- ment, 6r have brought on the fight himself ; merely defend- ing himself against an attack by an adversary does not make .him guilty of an affray.^^ Merely wearing and carrying 26 O'Neill V. State, 16 Ala. 65. 2 7 O'Neill V. State, supra. 2 8 Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517. 29 Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517 ; SIMPSON v. :STATE1, 5 Tei-g. (Tenn.) 356, MiUell Illus. Cas. Criminal Law, 246; State V. Perry, 50 N. C. 9, 69 Am. Dec. 768; State v. Fanning, 94 N. €. 940, 55 Am. Rep. 653. 3 Pollock V. State, 32 Tex. Cr. K. 29, 22 S. W. 19; State v. Svmmer, 5 Strobh. (S. C.) 53. SI Klum V. State, 1 Blackf. (Ini) 377; State v. Harrell, 107 K C. -.944, 12 S. E. 439. 460 OFFENSES AGAINST THE PUBLIC PEACH (Ch. 14 dangerous weapons to the terror of the people does not con- stitute an affray.'^ One who aids, assists, and abets an af- fray is guilty as a principal.'' To constitute an affray, the fighting must be in a public place; otherwise it is' an assault and battery merely.'* An affray differs from an assault and battery also in that con- sent is held in some cases to be a defense to an indictment for assault and battery,'' whereas it is never a defense to an indictment for an affray. It is impossible to lay down any rule as to what is a pub- lic place within the meaning of the definition of an affray. It must depend on the circumstances of each case. A field, one mile distant from the public highway, and screened from the view of the highway, has been held not to be a public place ; '* while an inclosed lot, thirty yards distant from the street of a country town, visible from the street, has been held to be a public place." The fight need not 82 SIMPSON V. STATE, 5 Yerg. (Tenn.) 356, Mikell lUus. Cas. Criminal Iiaw, 246. ss Hawkins v. State, 13 Ga. 322, 58 Am. Dee. 517. 34 Taylor v. State, 22 Ala. 15; Carwile v. State, 35 Ala. 392; Wil- son V. State, 3 Heisk. (Tenn.) 278. Two persons figbting after chal- lenge in presence of a third. Piper v. State (Tex. Cr. App.) 51 S. W. 1118. 80 Supra. 36 Taylor v. State, 22 Ala. 15. 3 7 Carwile v. State, 35 Ala. 392. In this- case the court said: "A fight at a place so near a public street, and so circumstanced in ref- erence to it, as was the place in this case, is attended b'y this dis- tinguishing characteristic of an afCray (terror to the people), and is so attended by reason of its proximity and relation to a place per se public. From a fight at such a place there may be peril to a person passing along the public street, and also a view and a hearing of all that is alarming and exciting. One upon the public street is thereby subjected to a terror identical In its cause and In its character with that which would have been produced by a fight in the street" §§ 154^155) FORCIBLE ENTRY AND DETAINER 461 originate in a public place. A fight commenced in private, but carried by flight and pursuit to a place where people are assembled, is an affray.*' It is not necessary that the fight actually cause terror to the public ; if it is in a pub- lic place, terror will be presumed. ^° Therefore, if the- fight be in a public place, it is immaterial whether any persons other than the combatants are present.^" From the nature of the crime two persons are necessary; one person alone cannot commit it.*^ FORCIBLE ENTRY AND DETAINER 154. Forcible entry is where a person violently enters upon real property occupied by another, with menaces, force, and arms, and without the authority of law. 155. Forcible detainer is detention of the possession of the property by the same kind of force, and may be ei- ther where the original entry was forcible or where it was peaceable. Forcible entry and forcible detainer were crimes under the old common law, and were also defined and declared by early English statutes, which are the common law with us. To constitute a forcible entry, there must be more force than is sufficient to make the entry a mere trespass. Some violence must be used, or rather some apparent violence; for there may be no actual force, its place being supplied by the presence of such a number of people as to terrorize 88 Wilson V. State, 3 Helsk. (Tenn.) 278. 39 Oarwile v. State, 35 Ala. 392. io Car wile v. State, supra. 41 Hawkins v. State, 13 Ga. 322,' 58 Am. Dec. 517; O'Neill v. State, 16 Ala. 65. \ 462 OFFENSES AGAINST THE PUBLIC PEAOE (Ch. 14 the occupants of the premises, or by menaces and threats, reasonably leading them to believe that bodily injury will be done unless they give up the possession. Entry by a niere trick is not forcible. One may be prosecuted for for- cible entry alone, or for forcible detainer, or for both.^* LIBELS ON PRIVATE PERSONS , 156. The books differ greatly in defining libel, but, subject to qualifications hereafter stated, it may be defined generally as the malicious publication of any writ- ing, sign, picture, effigy, or other representation ' tending to expose any person to hatred, contempt,, or ridicule.** 157. The word "libel" is used to denote both the defama- tory matter published and the offense of publish- ing it. 42 2 Whart. Cr. Law, § 1083 ; 2 Blsh. New Cr. Law, § 489 ; HARD- ING'S CASE, 1 Greenl. (Me.) 22, Mikell lllus. Gas. Criminal Law, 249; Bex v. Blake, 3 Burrows, 1731; Kilpatrick v. People, 5 Denio (N. Y.) 277; Com. v. Edwards, 1 Ashm. (Pa.) 46; Com. v. Powell, a Leigh (Va.) 719; Henderson v. Com., 8 Grat. (Va.) 708, 56 Am. Dec. 160 ; State v. Lawson, 123 N. C. 740, 31 S. E. 667, 68 Am. St Rep> 844 ; State v. Bobbins, 123 N. C. 730, 31 S. E. 669, 68 Am. St Bep. 841. Forcible entry is a misdemeanor under a provision that of- fenses recognized by the common law shall be punished. Ex parte Webb, 24 Nev. 238, 51 Pac. 1027. To enter on the premises of an- other unlawfully, but peaceably, and keep possession by threats and menaces of physical violence to the person entitled to enter, is a criminal forcible entry and detainer. Ellis v. State, 124 Ga. 91, 52 S. a 147. Cf. Williams v. State, 120 Ga. 488, 48 S. E. 149'. Mere wUl- ful trespass upon the posted lands of another has been made a crime by statute in some jurisdictions. Com. v. Shields, 50 Pa. Super. Ct. 194. •13 2 Bish. New Cr. Law, § 907 et seq. ; 2 Whart. Cr. Law, § 1594 et seq. ; Steph. Dig. Cr. Law, art 267 et seq.; Com. v. Clap, 4 Mass- 163, 3 Am. Dec. 212. §§ 156-157) LIBELS ON PRIVATE PERSONS 463 Ivibel is a misdemeanor at common law. The crime is re- garded as one which affects the public peace. The law pun- ishes publication of defamatory matter concerning another, not because of the injury to the reputation, but because it is calculated to provoke a breach of the peace.** The pub- lication of defamatory matter concerning the character of a dead person is criminal if it is calculated to bring living people into hatred, contempt, or ridicule, and thus tend to lead to a breach of the peace, but not otherwise.*" Any words or signs conveying defamatory matter marked upon any substance, and anything which by its own nature con- veys defamatory matter, as, for instance, a passage in a newspaper, words written on a wall, or a gallows set up before a man's door, may be a libel. Defamatory matter is any matter which either directly or by insinuation or irony tends to expose any person to hatred, contempt, or ridi- cule.*' If it has not this effect, it is not libelous.*^ To charge a person with the commission of a crime is of course, libelous. Thus it is libelous to charge a person with ** Com. V. Clap, 4 Mass. 163, 3 Am. Dec. 212 ; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105; State v. Hoskins, 60 Minn. 168, 62 N. W. 2.70, 27 L. R. A. 412. Since the pemiciousness of libel is the tend- ency it has to cause breach of the peace, it has been held that one cannot be indicted for libel directed against a corporation. Com. V. Cochran, 23 Lane. Law Rev. (Pa.) 267. Contra, State v. Boogher, 3 Mo. App. 442. Cf. State v. Williams, 74 Kan. 180, 85 Paa 938. *5 Rex V. Topham, 4 Term R. 126. <« State V. Smily, 37 Ohio St. 30, 41 Am. Rep. 487. "If a man in- sinuates a fact by asking a question, meaning thereby to assert it, it is the same thing as if he asserted it in terms." Alderson, B., in Reg. v. Gathercole, 2 Lewin, 255. 47 It is not libelous to publish of a druggist that he refused to contribute with his fellow merchants for watering the street in front of his store, since such writing did not tend "to expose him to public hatred, contempt, or ridicule." People v. Jerome, 1 Mich. 142. 464 OFFENSES AGAINST THE PUBLIC PEACB (Ch. 14 having. voted twice at an election.*' So to charge that a person has been convicted of a crime is a libel.*' To pub- lish that one's house had been searched under legal process for the discovery of stolen goods supposed to be secreted therein is libelous.'" It is not necessary that the libelous statement reflect upon a particular person; it may be upon a family or a class of persons."^ As the gist of the crime is to provoke retalia- tion and breach of the peace, it is at common law no de- fense to say that the matter published was true; °^ but this rule has been very much modified by statute. As a rule, one is not criminally liable for slander or spoken words.'' 48 Walker v. Winn, 8 Mass. 248. 49 State V. Brady, 44 Kan. 435, 24 Pac. 948, 9 L. R. A. 606, 21 Am. St. Rep. 296. 6 State V. Smlly, 37 Ohio St. 30, 41 Am. Rep. 487. A libelous let> ter is published both in the place in which it is mailed and the place to which it is addressed. People v. Bihler, 154 Ai)p. Dlv. 618, 139 N. Y. Supp. 819. The editor of a newspaper published in In- diana was indicted in Washington, D. C, on a charge of publishing there a libel. - The basis of the charge was that the papers contain- ing the alleged libel had been sent to and received by subscribers in Washington. It was held that there was only one publication, and that was in Indiana, not Washington. U. S. v. Smith (D. C.) 173 Fed. 227. 61 State V. Brady, 44 Kan. 435, 24 Pac. 948, 9 L. R. A. 606, 21 Am. St. Rep. 296. In this case the statement was that a certain Governor had pardoned his brother out of the penitentiary, without specify- ing any particular brother. In Reg. v. Gathercole, 2 Lewin, 237, de- fendant was convicted of libel against a nunnery. 62 Com. V. Clap, 4 Mass. 163, 3 Am. Dec. 212; COM. v. BLANDING, 3 Pick. (Mass.) 304, 15 Am. Dec. 214, Mikell Illus. Cas. Criminal Law, 251; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217 ; Com. v. Morris, 1 Va. Cas. 176, 5 Am. Dec. 515 ; State v. Hinson, 103 N. G. 374, 9 S. B. 552. 63 Reg. V. Langley, 3 Salk. 190 ; Hex v. Penny, 1 Ld. Raym. 153. §§ 156-157) LIBELS ON PRIVATE PERSONS 405 Publication Publication ot a writing, sign, or other matter is neces- sary to make it a criminal libel. This may be by delivering it, sending it by mail, reading it, exhibiting it, or communi- cating its purport in any other manner to any person other than (perhaps) the person libeled."* It has been held that delivery only to the person defamed is not libel, for there is no publication. "^ But, since the gist of the offense is the tendency of the libel to provoke a breach of the peace, it seems 'that sending the libelous matter to the person libeled, although it reaches no third person, is a sufficient publica- tion, and it has been frequently so held.^° A person, to be liable' for publishing a libel, must have known or had an op- portunity to know its contents."^ A libel may be published by a servant so as to render his master liable, as when a book or paper containing a libel is sold by a clerk in the regular course of business in a bookseller's shop or news- paper office."' Publication in a newspaper circulating in one state, but published in another, is a publication in the former."* B* Swindle v. State, 2 Yerg. (Tenn.) 581, 24 Am. Dec. 515; see Steph. Dig. Cr. Law, art. 270. B6 State V. Syplirett, 27 S. C. 29, 2 S. E. 624, 13 Am. St. Rep. 616. • B6 Reg. r. Brooke, 7 Cox, Cr. Gas. 251; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105. It is othei-wise in civil libel. SheffiU T. Van Deusen, 13 Gray (Mass.) 304, 74 Am. Dec. 632. 6 7 Rex V. Burdett, 4 Barn. & Aid. 95, 126; Steph. Dig. Cr. Law, art. 273. i 58 Rex V. Almon, 5 Burrows, 2686 ; ante, p. 132. 69 COM. V. BLANDING, 3 Pick. (Mass.) 304, 15 Am. Dec. 214, Mikell lUus. Cas. Criminal Law, 251. One who dictates a slander to a re- porter for publication is responsible for the libel If it is published. State V. Osborn, 54 Kan. 473, 38 Pac. 572. Clark Ce.L.3d Ed.— 30 4:66 OFFENSES AGAINST THE PUBLIC PEACE (Ch. 14 Privileged Communications There are some circumstances under which one has a right to publish defamatory matter, in which case the pub- lication is said to be a privileged communication. Thus, if the defamatory matter is honestly believed to be true by the person publishing it, and if the relation between the parties by and to whom the publication is made is such that the person publishing it is under any legal, moral, or social duty to publish such matter to the person to whom the publication is made, or has a legitimate personal intefest in so publishing, it, and the publication does not exceed in ex- tent or manner what is reasonably sufficient for the occa- sion, the publication is privileged. °" Such is the case where one is asked the character of his former servant by one about to engage him. He may reply to the inquiry by let- ter, but he cannot publish the letter in a newspaper. Other instances are where information concerning a man's char- acter is published to a relative about to marry him, and communications in business afifairs. The publication of de- famatory matter is also privileged if it consist of comments on persons who submit themselves, or upon things submit- ted by their authors or owners, to public criticism, provided •such comments are fair. A fair comment is a comment which is true, or which, if false, expresses the real opinion of its author; such opinion having been formed with a rea- sonable degree of care and on reasonable grounds.*^ A person taking part in public afifairs, publishing literary pro- ductions or works of art, or taking part in a dramatic per- formance or other public entertainment, submits himself, his book, picture, etc., to public criticism."^ One may also 80 Steph. Dig. Cr. Law, art 273. •1 Steph. Dig. Cr. Law, art. 274. «2ld.; Com. v. Clap, 4 Mass. 163, 3 Am. Dee. 212; State v. Burn- §§ 156-157) LIBELS ON PRIVATE PERSONS 467 publish legislative proceedings and speeches,"' proceedings in courts of justice/* and may make communications as to a candidate's character to the elective or apjJointive power." Communications in the course of judicial proceedings are privileged if they are pertinent and material to the subject of the controversy, whether they are made by a party to the proceeding, or by his attorney, and whether they are malicious or not; but it is otherwise if they are not per- tinent to the subject of the controversy."* An attorney may be indicted for" inserting libelous matter in a pleading if it is not relevant to the controversy, and is inserted merely to annoy the party defamed, and subject him to ridicule and contempt."^ Any abuse of the privilege renders the author of the publication criminally liable."* Malice Malice is necessary to render one criminally liable for publishing a libel, but it need not be shown that he was ac- tuated by personal hatred and ill will towards the person li- beled. No specific intent is essential. The rule that a per- son is deemed to intend the natural and probable conse- quences of his acts prevails, and the intentional publication of defamatory matter Js malicious."" Malice is inferred ham, 9 N. H. 34, 31 Am. Dec. 217; Com. v. Morris, 1 Va. Cas. 176, 5 Am. Dec. 515. See Carr v. Hood, 1 Camp. 855 (literary criticism); Marks v. Baker, 28 Minn. 162, 9 N. W. 678 (candidate for office). «3 Steph. Dig. Cr. Law, art. 275. «4 Stepli. Dig. Cr. Law, art 276 ; COM. v. BLANDING, 3 Pick. (Mass.) 304, 15 Am. Dec. 214, Mikell Illus. Cas. Criminal Law, 251; Com. V. Costello, 1 Pa. Dist E. 745. 6 5 Steph. Dig. Cr. Law, art. 274. ee Gilbert v. People, 1 Denio (N. Y.) 41, 43 Am. Dec. 646. 67 Id. 68 2 Bish. New Cr. Law, § 913 et seq. ; 2 Whart. Cr. Law, § 1629 et sef|. 69 Rex V. Harvey, 2 Barn. & C. 257 ; State v. Mason, 26 Or. 273, 468 OFFENSES AGAINST THE PUBLIC PEACE (Ch. 14 from the fact of publication.'"' As we have seen, a person may be liable for a publication by his servant made without his knowledge.''^ Other Libels There are certain other crimes called "libels" which can- not be properly treated in this connection, as they are not punished on the ground that they tend to breaches of the peace. They are essentially different from libels against private persons, or defamatory libels, and are punished on altogether different grounds. These are blasphemous li- bels, obscene libels, and seditious libels. Blasphemous li- bels are malicious publications reviling Christianity as a re- ligious faith, and are indictable at common law, because they tend to disturb the comfort and insult the religious con- victions of th_e public generally, and are therefore a nuisance, and probably they are punished for the further reason that they tend to provoke retaliation, and therefore to breaches of the public peace.'^ Obsceiie libels are the publication of indecent and obscene books and pictures. They are punish- ed on the ground that they tend to shock and corrupt the public morals, and are therefore common nuisances. We have already sufficiently considered this crime." Seditious libels are publications tending to bring the government into contempt, or tending to expose to hatred, ridicule, or con- tempt foreign potentates, ambassadors, etc.'* 38 Pac. 130, 26 L. R. A. 779, 46 Am. St. Rep. 629 ; Benton v. State, 59 N. J. Law, 551, 36 Atl. 1041. f COM. V. BLANDING, 3 Pick. (Mass.) 304, 15 Am. Dec. 214, Mikell lUus. Cas. Criminal Law, 251 ; Com. v. Bonner, 9 Mete. (Mass.) 410; Pledger v. State, 77 Ga. 242, 3 S. E. 320. 71 Ante, p. 130. 7 2 Ante, p. 401; 2 Whart. Cr. Law, § 1605. 78 Ante, p. 401; 2 Whart. Ci-. Law, §§ 1606-1610. 74 2 Whart. Or. Law, §§ 1611-1617. §§ 158-160) OFFENSES AGAINST THE GOVERNMENT 469 / CHAPTER XV OFFENSES AGAINST THE GOVERNMENT 158-160. Treason and Misprision of Treason. TREASON AND MISPRISION OF TREASON 158. "Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort." * 159. There are similar provisions in the Constitutions and statutes of the different states defining treason against the state, in the absence of which it is a common-law. crime.^ 160. MISPRISION — Every one owing allegiance, and hav- ing knowledge of the commission of treason against the United States, or, vmder state statutes, against the state, is guilty of misprision of treason if he conceals it, and does not as soon as may be dis- close and make known the same." In England treason was divided into high and petit trea- son. The former embraced acts directed particularly against the sovereign ; while petit treason consisted of the murder of a superior by an inferior in natural, civil, or spir- itual relation, as of a husband by his wife, a master by his servant, or a lord or ordinary by an inferior ecclesiastic. What was petit treason however, is no longer recognized 1 Const. XJ. S. art. 3, § 3, cl. 1; Kev. St U. S. § 5331, 2 2 Whart. Or. Law, § 1812, 8 Kev. St. U. S. § 5333. 47.0 OFFENSES AGAINST THE GOVERNMENT (Ch. 15 as treason, but these oflfenses are now regarded as homi- cide.* By the ancient common law it was left very much to dis- cretion to determine what was treason, and the judges, hold- ing office at the pleasure of the crown, raised many offenses to treason which could be deemed such only by arbitrary construction, such as killing the king's father or brother, or even his messenger, and other acts tending to diminish the royal dignity of the crown. The grievance of these con- structive treasons led in the reign of Edward III to the enactment of a statute ° declaring and defining the .diflerent branches of treason. This statute is the basis of the law of treason in England." The early statute, although it makes numerous acts treason which are not such in this country, contains words which are reproduced in the provision of the Constitution of the United States, and' declares it high trea- son "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 to them aid and comfort in the realm or elsewhere." With us there can be no treason against the United States, except as the Constitution provides. To constitute treason by levying war, there must be_ war against the Unit- . ed States ; ' and, to constitute war, there must be an overt act of war. Conspiracy to levy war against the govern- * Ante, p. 41. s 25 Edw. Ill, St 5, c. 2. • 1 Hawk. P. C. (Curw. Ed.) p. 7, § 1; Story, Const. § 1799. See Steph. Dig. Cr. Law, arts. 51-59, and Append, note 5. 7 See Ex parte BoUman, 4 Cranch, 75, 126, 2 D. Kd. 554 ; U. S. v. Burr, 4 Grancli, 469, 2 I* Ed. 684, Fed. Cas. No. 14,692a; TJ. S. v. Hoxie, 1 Paine, 265, Fed. Cas. No. 15,407; U. S. v. Hauway, 2 Wall., Jr. 139, Fed. Cas. No. 15,299; U. S. v. Insurgents, 2 Dall. 335, Fed. Cas. No. 15,442 ; U. S. v. Mitchell, 2 Dall. 348, Fed. Cas. No. 15,788 : Fries' Case, Whart. St. Tr. 610, 634, Fed. Cas. No. 5,327; D. S. v. Pryor, 3 Wash. O. C. 234, Fed. Cas. No. 16,096. §§ 158-160) TREASON AND MISPEISION OF TREASON 471 ment, without any overt act of war, would not amount to treason. The war must be directed against the govern- ment. War to effect private ends is not treason. Merely forcibly to resist the law, and fire at government troops en- deavoring to enforce it, is not treason, where the resistance is purely for a private purpose.' As said by Mr. Wharton, "the offense must be a levying war with the intent to over- throw the government as such, not merely to resist a par- ticular statute or to repel a particular officer." " To consti- tute treason by adhering to the enemies of the United States, the enemy must be a hostile foreign power, and not merely citizens of the United States engaged in a rebellion or insurrection against them, for they are still citizens, and not enemies, within the meaning of the Constitution.^" Any voluntary assistance given to a foreign power engaged in war with the United States is treason.^^ One who joins the enemies of his government from fear of immediate death or grievous bodily harm threatened in case of his refusal to yield is regarded as acting under compulsion, and is not guilty of treason ; but a less danger, or danger to property ^ only, will not excuse him. An alien. owes a local allegiance to the sovereign in whose country he is temporarily sojourn- ing, and may be guilty of treason against him, even by aiding his own sovereign.^' The punishment for treason is death, or imprisonment and fine, at the discretion of the 8 U. S. V. Hoxie, 1 Paine, 265, Fed. Cas. No. 15,407. »2 Whart. Or. Law, § 1707. 10 3 Whart. Cr. Law (11th Ed.) § 2147. 11 "If war be actually levied — that is, If a body of men be actu- ally assembled for the purpose of effecting by force a treasonable purpose — all those who perform any part, however minute, or how- ever remote from the scene of action, and who are actually leagued In the general conspiracy, are to be considered traitors." Marshall, C. J., in Ex parte BoUman, 4 Cranch, 75, 2 L. Ed. 554. 12 Where one was indicted for treason in adhering to the king's 472 OFFENSES AGAINST THE GOVEENMENT (Ch. 15 court. For misprision of treason, the punishment is fine and imprisonment. It is expressly provided by the federal Constitution that "no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." ^* There may also be treason against a state, a crime which is not necessarily also treason against the United States. Treason may be committed against a state by armed opposi- tion to its laws, or by forcibly attempting to overthrow or usurp the government. Conversely, treason against the United States, unless expressly so declared, is not an of- fense against the laws of a particular state. It is a crime which is directed against the national government, and ex- clusively cognizable in its courts.^* Other Similar Critnes Among the other crimes against the United States gov- ernment in the nature of, but not amounting to, treason, is seditious conspiracy ; that is, a conspiracy between persons in any state or territory to overthrow, put down, or destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority there- of, or by force to prevent, hinder, or delay the execution of any law of the United States, etc. It is also a crime for any person to recruit soldiers or sailors within the United States to engage in armed hostility against the same, or to open a recruiting station within the United States for such pur- pose ; for any person to enlist or engage within the United enemies, it was held that naturalization' by the enemy In time of war was no defense. King v. Lynch, 19 T. L. R. 1C3. 13 Const. U. S. art 3, § 3, cl. 1. n People V. Lynch, 11 Johns. (N. T.) 549; Respublica v. Carlisle, 1 Dall. (Pa.) 35, 1 L. Ed. 26. See Black, Const Law, 518, 519 ; 2 Whart Cr. Law, §§ 1812-1818. §§ 158-160) TREASON AND MISPKISION OF TREASON 473 States with intent to serve in armed hostility against the same; to incite or aid in a rebellion; and for a citizen of the United States to correspond with foreign governments with intent to influence their controversies with the United States, or to defeat the measures of the United States gov- ernment.^" OFFENSES AGAINST THE POST OFFICE By acts of Congress, it is a crime to intentionally or neg- ligently obstruct the transmission or delivfery of the mail; to detain letters ; to destroy letters ; to post obscene books ; to counterfeit stamps ; to commit larceny, robbery, or to embezzle from the mail ; or to receive an article stolen from the mail.^' ABUSE OF ELECTIVE FRANCHISE Illegal voting is a crime at common law, and is also reg- ulated by acts of Congress and by the statutes of the dififer- ent states. It is also a crime at common law for a person to usurp an office to which he has no claim, or to offer vio- lence to voters. By statutes, betting at elections is made a crime.^' FORESTALLING, REGRATING, AND ENGROSSING These were old common-law crimes consisting substan- tially in buying up and hoarding provisions and other prod- ucts for the purpose of obtaining a monopoly, and selling them at an enhanced price. They have been abolished in 10 2 Whart. Cr. Law, §§ 1785-1789. 18 2 Whart Cr. Law, §§ 1822-183L IT 2 Whart. Cr. Law, §§ 1832-1848. 474 OFFENSES AGAINST THE GOVERNMENT (Ch. 15 England, and have not been recognized as common-law crimes with us; but Mr. Wharton states that to obtain a monopoly of a necessary commodity for the purpose of sell- ing for grossly extortionate prices would still be indictable at common law. Such questions generally arise in prosecu- tions for conspiracies, as it is in this way that monopolies are usually obtained." The matter is very generally regu- lated by statutes.^* "Ante, p. 163. »» 2 Wliart Cr. Law, §§ 1849-1851. I 161) OFFENSES AGAINST THE LAW OF NATIONS 475 CHAPTER XVI OFFENSES AGAINST THE LAW OF NATIONS 161. Piracy. PIRACY 161. Piracy is "robbery or forcible depredation on the high seas, without lawful authority, and done animo fu- randi, and in the spirit and intention of universal hostility. It is the same offense at sea with rob- bery on land."^ Piracy is a felony. Piracy is an offense against the law of nations, which is a part of the common law ; but, as we have seen, there are no crimes punishable by the United States under the com- mon law ex proprio vigore. The Constitution of the United States, however, gives Congress the power "to define and punish piracies and felonies on the high seas and offenses against the law of nations," ^ and Congress has passed a statute declaring that "every person who on the high seas •commits the crime of piracy, as defined by the law of na- tions, and is afterwards brought into or foui^d in the United States, shall suffer death." * It was said by Nelson, J., in reference to the crime of piracy, on the trial of the officers and crew of the privateer Savannah: "This is defined to be a forcible depredation upon property upon the high seas without lawful authority, ■done animo furandi ; that is, as defined in this connection, 1 1 Kent, Comm. 1S3. 2 Const. U. S. art. 1, § 8. 8 Rev. St U. S. § 5368; U. S. v. Smith, 5 Wheat. 153, 5 I* Ed. 57. 476 OFFENSES AGAINST THE LAW OF NATIONS (Ch. 16 in a spirit and intention of universal hostility. A pirate [under the law of nations] is said to be one who roves the sea in an armed vessel, without any commission from any sovereign state, on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet. For this reason, pirates, according to the law of nations, Tiave always been compared to robbers; the only difference being that the sea is the theater of the operations of one, and the land of the other. And, as general robbers and pirates upon the high seas are deemed enemies of the human race — making war upon all mankind indiscriminately, the crime being one against the universal laws of society — the vessels of every nation have a right to pursue, seize, and punish them." * OTHER OFFENSES Congress has also declared it a crime for any person to violate any safe conduct or passport duly obtained or issued under authority of the United States ; to assault, wound, or imprison, or in any other manner offer violence to, the per- son of a public minister, in violation of the law of nations ; "* to commit breaches of neutrality by serving, or setting on foot, within the United States, military expeditions, against a foreign state at peace with the United States ; ° or to forge and counterfeit, within the United States, notes, bonds, and other securities of foreign governments.' There are many other statutes which it would serve no useful purpose to mention specially." * Savaimali Pirates, Warburton's Trial of the Officers and Crew of the Privateer Savannah, pp. 370, 371. 6 Kev. St. U. S. § 4062 (U. S. Comp. St. 1913, § 7610). e V. S. V. Ybanez (O. C.) 53 Fted. 536. T U^ S. V. Arjona, 120 U. S. 479, 7 Sup. Ct 628,^0 L. Ed. 728. • Post, p. 493. §§ 162-164) JURISDICTION 477 CHAPTER XVII JUEISDICTION 162-164. Territorial Limits of States and United States. 165-168. Jurisdiction as Determined by Locality of OfCensa 169-170. Federal Courts and tlie Common Law. IT/L. Jurisdiction Conferred on Federal Courts by Congress. 172-173. Persons Subject to Our La\YS. TERRITORIAL LIMITS OF STATES AND UNITED STATES 162. UNITED STATES— ON THE OCEAN— The terri- torial limits of the United States, regarded as one nation, extend into the ocean at least the distance of a marine league. 163. SAME— LAND BOUNDARIES— The boundaries be- tween the United States and the countries lying adjacent are determined by treaties, under which, where the countries are divided by rivers or streams, and where they are divided by the Great Lakes, the lines have, as a rule, been run in the mid- dle of the river, stream, or lake.^ 164. STATES— The territorial limits of the states on the borders of the United States both on the sea and land, are, as a rule, coincident with the territorial limits of the United States. The boundaries be- tween the states are determined, in case of the orig- inal states, by their charters and subsequent com- pacts, and, in case of the others, by the acts admit- ting them into the Union. 1 Tyler v. People, 8 Mich. 320. 4'78 JURTSDIOTTON (Ch. 17 United States Limits The territorial limits of a country, where it borders on the ocean, are determined by the law of nations, and by that law it has been held to extend outward into the ocean as i'ar as a cannon ball will reach. This distance has been estimated as a marine league, or about three and a half English miles. "It must be regarded as established that, as between nations, the minimum limit of the territorial juris- diction of a nation over tide waters is a marine league from its coast." ^ Beyond this distance the ocean is the com- mon highway of all nations, no one nation having the right to assume control of it. The distance is measured from low-water mark on the actual shore, but from islands if they are so near the mainland that the intervening waters can- not' be regarded as the high sea. Bays and other arms of the sea wholly within the territory of a country, not ex- ceeding two marine leagues in width at the mouth, are within the territorial limit.' The Delaware and Chesa- peake Bays, although the latter between the outside head- lands is twelve miles or more wide, so that a marine league measured from each shore would not cover the entire width, are claimed to be within the territorial limits of the United States. It has even been said that the United States would have the right, if deemed necessary, to extend its jurisdic- tion over the adjacent waters of the ocean to lines stretch- ing between distant headlands ; as, for instance, from Cape Ann to Cape Cod, from Nantucket to Montauk Point, 2 Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, 35 U Ed. 159, affirming Com. v. Manchester, 152 JIass. 230, 25 N. E. 113, 9 li. R, A. 236, 23 Am. St. Rep. 820. See Eeg. v. Keyn, 2 Exch. Div. 63, 13 Cox, Cr. Cas. 403. 8 Manchester t. Massachusetts, supra. §§ 162-164) LIMITS or states and united states 479 and from the south cape of Florida to the mouth of the Mississippi river.* State Limits The states bordering on the ocean extend put, as does the United States, at least the distance of a marine league. Those on the Great Lakes extend to the boundary line be- tween the United States and Canada. Rivers and bays ex- tending into a state are a part, of its territory. Usually, where the states are divided by rivers, the limits of each state extend to the middle of the stream; but there are exceptions in case of the Hudson river, between New York and New Jersey, the exclusive jurisdiction over which is in New York, and of the Ohio river, between Ohio and Kentucky, the whole river being in Kentucky. The states on the Mississippi river which were formed out of the Northwest Territory have concurrent jurisdiction over the whole river.' County Limits Under the common law, counties on the sea do not extend out to the state limits, but stop at the water line. Bays and other arms of the sea, however, across which objects can be reasonably discerned with the naked eye, it was de- 4 1 Kent, Comm. 29; 1 Bish. New Cr. Law, §§ 102-108; Tyler v. People, 8 Mich. 320. See Direct U. S. Cable Co. v. Anglo-American Tel. Co., 2 App. Gas. 394. 5 1 Bish. New 'Cr. Law, §§ 145-151 ; Com. v. Peters, 12 Mete. (Mass.) 387; Com. V. Manchester, 152 Mass. 230, 25 N. E. 113, 9 L. R. A. 236, 23 Am. St. Rep. 820; U. S.'v. Bevans, 3 Wheat 336, 4 L. EM. 404; U. S. V. Crush, 5 Mason, 290, Fed. Cas. No. 15,268; People v. Tyler, 7 Mich. 161, 74 Am. Dec. 703 ; Booth v. Shepherd, 8 Ohio St 243 ; McFall v. Com., 2 Mete. (Ky.) 394 ; State v. Babcock, 30 N. J. Law, 29. 480 JURISDICTION (Ch. 17 clared, are within county limits." A state, however, may extend the limits of its counties so as to make them coincide with its own limits, and this has been done in some states. Counties bordering on the Great Lakes would probably ex- tend at common law to the Canadian line. They are so extended by statute in New York, Virginia, and Massa- chusetts. Otherwise than has been stated, the boundaries of counties coincide with the state lines, where they are on the border, and the other boundaries are fixed by the acts of the Legislature.'' JURISDICTION AS DETERMINED BY LOCALITY OF OFFENSE 165. As a general rule, applicable to the United States, the courts of a country cannot punish a person for acts committed without its territorial limits, as the'laws of a country have no extraterritorial effect, except that EXCEPTIONS— (a) The ships of a nation are regarded as floating parts of its territory, and it may punish offenses committed thereon, wherever the ship may be. (b) A nation has the power to punish offenses committed by its subjects abroad. (c) A person abroad may be guilty of a crime consum- mated within the territorial limits of a country, as where he acts through an innocent agent, or other- « See 1 Bish. New Cr. Law, § 146. Cf. Direct XJ. S. Cable Co. v. Anglo-American Tel. Co., supra; Com. v. Manchester, supra. 7 1 Bish. New Cr. Law, §§ 145-151 ; Manley v. People, 7 N. Y. 295 ; Com. V. Peters, 12 Mete. (Mass.) 387; Com. v. Manchester, 152 Mass. 230, 25 N. E. 113, 9 L. K. A. 236, 23 Am. St Eep. 820; Biscoe v. State, 68 Md. 294, 12 AtL 25. ■' §§ 165-168) JTJKISDICTION DETERMINED BY LOCALITY 481 wise puts in motion a force which takes effect with- in such limits. 166. STATES — A state probably has no jurisdiction to pun- ish for acts committed beyond its territorial limits by others than its own citizens. 167. It possibly has jurisdiction to punish acts committed by its own citizens abroad. 168. It may, like any other sovereignty, punish for acts com- mitted without, but which take effect and consti- tute a crime within its limits. Offenses on Shipboard It is a rule of international law that vessels, whether they belong to the government itself, or to private citizens, are regarded as part of the territory of the nation under whose flag they sail, and that the country of the flag may punish for crimes committed on board, either by her own subjects or by foreigners, wherever the vessel may be^ This rule, however, is subject to the qualification that if the vessel is a private one, and is in a foreign port, it is also subject to the laws of the foreign country ; and crimes committed on such vessel are cognizable by the foreign country, at least if they are of a character to disturb the peace of that coun- , try, as well as by the country of the flag.' If those laws conflict with the laws of the flag, they will govern, and doubtless an act committed in violati(Sn of them would not be punished by the home government, though a violation of its laws. Jurisdiction to punish for offenses committed on American ships on the high seas and in foreign ports is 5 Reg. V. Anderson, 11 Cox, Cr. Cas. 198. See Wildenhus' Case, 120 U. S. 1, 7 Sup. Ct. 385, 30 L. Ed. 5G5. Claek Ck.L.3d Ed.— 31 482 JURISDICTION (Ch. 17 conferred by act of Congress on the federal courts. The state courts can have ho such jurisdiction.' Offenses by^Subjects Abroad Under the law of nations, a country has the power to punish crimes committed by its own subjects abroad, not only in barbarous and unsettled lands, but in civilized coun- tries as well, and this power exists whether the crime be an injury particularly to the government itself or the for- eign government, or to another subject, or to a subject of the foreign government. The home government cannot go into the foreign country to arrest the offender without its consent, but this difficulty is generally obviated by treaty provisions for extradition. This power has been distinctly recognized by, Congress by making it a crime for a citizen of the United States, whether in the United States or a foreign country, to correspond with any foreign govern- ment, or officer or agent thereof, with intent to influence the measures or conduct of any foreign government, or any of- ficer or agent thereof, in relation to any disputes or contro- versies with the United States; ^° by making it a crime to commit perjury or subornation of perjury abroad before consular and other officers of the United States, authorized to administer oaths; ^^ and by providing for consular courts abroad to punish offenses. ^^. 1 Bish. New Cr. Law, § 117; U. S. v. Holmes, 5 Wheat. 412, 5 li. Ed. 122 ; U. S. v. Imbert, 4 Wash. C. O. 702, Fed. Cas. No. 15,43S ; U. S. V. Pirates, 5 Wheat 184, 5 L. Ed. 64; U. S. v. Wiltlierger, 5 Wheat. 76, 5 L. Ed. 37 ; U. S. v. Palmer, 3 Wheat. 610, 4 L. Ed. 471. 10 Rev. St. U. S. § 5335. 11 Rev. St. U. S. § 4683 (XT. S. Comp. St. 1913, § 8552) et seq. 12 1 Bish. New Cr. I/aw, § 121 et seq. §§ 165-168) JURISDICTION DETERMINED BT LOCALITY 483 Same — Jurisdiction of States Though, by the federal Constitution, the states have ceded to the United States all diplomatic authority, and can ex- ercise none themselves, and cannot therefore be regarded as nations in the full sense of that term, yet they are sover- eigns in their own territory, and with respect to matters which relate peculiarly to their own internal affairs. They retain all the rights incident to sovereignty which have not been ceded to the federal government. In view of this fact, they certainly must have some jurisdiction over their citi- zens abroad. Having ceded to the general government all diplomatic power, they themselves are not recognized by foreign nations, ^^ and cannot protect their citizens abroad; and for this reason it is claimed that they have no right to punish them. The laws of all of the states provide for the punishment of treason against the state, which, as has been seen, is the waging of war against the state, or adhering to its enemies, giving them aid and comfort. Can it be that if a citizen of a state goes beyond its limits, and there ad- heres to its enemies, and wages war against it, the state is powerless to punish him when he returns into the state? Or, if a state sends an agent abroad to negotiate its bonds, can be embezzle them, and return into the state, and object to its jurisdiction to punish him? The right of a state to punish its citizens for acts committed abroad has been up- held by the courts of Virginia, Wisconsin, Texas, and, by dictum in Pennsylvania, but has been denied by those of New York, Michigan, Kentucky, Indiana, North Carolina, and New Jersey. The question, therefore, is not settled.^* J 3 People V. Curtis, 50 N. Y. 321, 10 Am. Rep. 483. 1*1 Bish. New Cr. Law, J 152 et seq. ; Com. v. Gaines, 2 Va. Cas. 172; State ex rel. Chandler v. Main, 16 Wis. 39S: Hanks v. State, 13 Tex. Ai)p. 289 ; Com. v. Kunzmann, 41 Pa. 420 ; People v. Merrill, 2 Parker, Cr. R. (N. Y.) 590; Tyler v. People, 8 Mich. 320, 342; John- 484 JURISDICTION (Ch. 17 Whether this power exists by virtue of the sovereignty of a state over its own citizens, and without an express statute to that effect, there would seem to be no reason why a state should not, by statute, make its own citizens liable to prose- cution for crimes committed abroad. Such statutes exist both in England and in this country." Offenses by Foreigners Abroad — United States As just stated, Congress has made it a crime to commit perjury or subornation before its consular and other officers abroad. It will be noticed that this applies to perjury by foreigners, as well as by subjects of the United States. Same — States Whether a state has power by statute to confer jurisdic- tion upon its courts to punish acts committed by one not a citizen, wholly in another jurisdiction, although injuriously affecting persons within the state, is doubtful, but the pre- vailing view is against the existence of such power.^" By an early statute of North Carolina, residents of other states were declared punishable in North Carolina for counterfeit- ing its bills of credit, the same as if the offense had been committed within its limits. The North Carolina court, however, on prosecution of a citizen of Virginia for counter- feiting in Virginia, held that, if the statute could be held to apply to acts committed in another state by a citizen of such other state, it would be void, as a state could not declare son V. Com., 86 Ky. 122, 5 S. W. .365, 9 Am. St. Kep. 269; Cruthers V. State, 161 Ind. 139, 67 N. E. 930; STATE v. CUTSHALL, 110 N. C. 538, 15 S. E. 261, 16 L. E. A. 130, Mikell Illus. Cas. Criminal Law, 255; State v. Stow, 83 N. J. Law, 14, 84 Atl. 1063. i« See 61 Univ. of Pa. Law Rev. 317. 18 State V. Knight, 3 N. O. 109 ; People v. Merrill, 2 Parker, Cr. B- (N. T.) 590. Contra, Hanks v. State, 13 Tex. App. 289. §§ 165-168) JURISDICTION DBTEEMINBD BY LOCALITY 485 such acts criminal and punish them.^' It has, however, been held by high authority that under a statute enacting that if a mortal wound is given, or other injury inflicted, without the state, whereby death ensues within the state, such offense may be punished in the county where the death happens. Thus it has been held that under such a statute a. foreigner may be convicted of manslaughter of one who dies within the state from a wound inflicted on a foreign ship on the high seas.^* Courts Sitting in foreign Countries A government has the power to have its courts sit in foreign barbarous or unsettled countries, but it has such power in civilized countries only with their consent. In pursuance of treaties with China, and other countries, con- gress has given to United States ministers and consuls power to arraign and try all citizens of the United States charged with offenses against law committed in those coun- tries, and has given similar power to consuls and com- mercial agents of the United States at islands or in coun- tries not inhabited by any civilized people, or recognized by any treaty with the United States.^* Acts without, Taking Effect within Territorial Lirmts The locality of a crime is the place where the act takes effect. As stated in the principal text, a person without the territorial limits of a country may commit a crime within 17 state V. Knight, supra. 18 Com. V. Macloon, 101 Mass. 1, 100 Am. Dec. 89. See, also, Peo- ple V. Tyler, 7 Midi. 161, 74 Am. Dec. 703 ; Tyler r. People, 8 Mich. .:!20. But see State, v. Carter, 27 N. J. Law, 499. See, also, R«g. v. Lewis, Dears. & B. Cr. Cas. 182 ; State v. Kelly, 76 Me. 331, 49 Am. Eep. 620 ; 1 Bish. New Cr. Law, §§ 114-116. Post, p. 487. 18 Kev. St. U. S. §§ 4084, 40SS (U. S. Comp. St. 1913, §§ 7634, 7638); In re Stupp, 11 Blatchf. 124, Fed. Cas. No. 13,562. 486 JURISDICTION (Ch. 17 such limits. As we have seen, a person who commits a crime throug-h an innocent agent, is guilty as a principal in the first degree ; so one who is in England, Mexico, or some other country, while his agent is committing the act in the United States, is a principal in the crime in the latter place. For instance, suppose a person in England gives poison to a per- son there, who is ignorant of its nature, to be administered to a person in the United States, and it is there administered, and the person dies; or suppose a person in England pro- cures an innocent agent to bring forged paper to the United States, and negotiate it. In either case he commits a crime in the United States, and may be there punished if he can be found therein or extradited. So, also, if a person, stand- ing in Mexico or Canada, shoots a person standing" in the United States, he may be punished here for the homicide, as the shot takes effect here.^" And, conversely, if a person standing in the United States shoots a person standing in Mexico, he cannot be punished Jberc for the homicide.^^ The same observations are applicable to the states, where acts are committed in one of them, and take effect and con- stitute a crime in another. Thus, if a person causes a nui- sance in a stream in one state, by building a bridge or dam, or polluting the water, and it results in injury in another state, he is criminally liable in the latter state ; and one who publishes a libel in one state in a newspaper which circulates in another may be prosecuted in the latter.^^ Soj if one forges a paper in one state, and sends it to an innocent agent in another state to procure money on it, he 2« Rex V. Coombes, 1 Leach, 388. 21 U. S. V. Davis, 2 Sumn. 482, F'ed. Cas. No. 14,932 ; State v. Hall, 114 N. C. 909, 19 S. B. 602, 28 L. R. A. 59, 41 Am. St. Rep. 822. 22 Thompson v. Crocker, 9 Pick. (Mass.) 59 ; COJI. v. BLANDING, 3 Pick. (Mass.) 304, 15 Am. Dec. 214, Mikell lUus. Cas. Criminal Law, 251 ; Lindsey t. State, 38 Ohio St 507. An Arkansas statute made §§ 165-168) JUEISDICTION DETERMINED BY LOCALITY 487 may be convicted of the crime in the latter state.^' It has been held that one who, standing without a state, fires at a person within the state, may be convicted in the latter state of assault with intent to murder, if the bullet misses the person aimed at, but strikes within the state. The theory is that the person firing accompanies the bullet, in legal con- templation, up to the point at which it strikes.^* On the other hand, if a person without the territorial lim- its of a state procures a felony to be committed within the territorial limits by means of a guilty agent, who is respon- sible to the laws of the state, the procurer is only an acces- sary before the fact, and is amenable only to the laws of the foreign state, if at all. He is not to be deemed as con- structively present in the state where the crime is commit- ted, and cannot be punished as an accessary in that state.^"* Homicide — Death zvithin Limits from Blow without Again, suppose a foreigner within the limits of a foreign country, or, what, as has been seen, is the same thing, on board a foreign vessel on the high seas, inflicts a wound, and the wounded person comes into the United States, and dies; can he be punished here? It is the act, and not the it a crime to allow cattle to run at large. The defendant, a resident of Missouri, turned his cattle loose in that state, intending that they should wander into Arkansas, and they did so. It was held that the statute confers no jurisdiction over a nonresident turning his cattle loose outside the state. Beattie v. State, 73 Ark. 428, 84 S. W. 477. 2 3 Adams v. People, 1 N. Y. 173. 2i SIMPSON V. STATE, 92 Ga. 41, 17 S. B. 984, 22 L. R. A. 248, 44 Am. St. Kep. 75, Mikell Illus. Casl Criminal Law, 260. 2 6 State V. Moore, 6 Fost. 26 N. H. 448, 59 Am. Dec. 354; State v. Wyckoff, 31 N. J. Law, 65; State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452; Johns v. State, 19 Ind. 421, 81 Am. Dec. 408. Contra, State V. Grady, 34 Conn. 118; State v. Ayers, 8 Baxt (Tenn.) 96. And see Carlisle v. State, 31 Tex. Cr. R. 537, 21 S. W. 358; People V. Wiley, 65 liun, 624, 20 N. X. Supp. 445. 488 JURISDICTION (Ch. 17 result of the act which determines the locality of the homi- cide; and if a man strikes a mortal blow in one state or country and the person struck dies in another state or coun- try, the homicide is committed in the first.^° Whether a statute punishing such a homicide in the state where death occurs is valid has been the subject of controversy. Mr. Bishop maintains that to punish the offender here would be contrary to the law of nations, on the ground that the homicide is committed where the fatal blow is stjuck, and that a country has no right to punish a foreigner for an act committed in a foreign country ; ^' and this view is sustained by an English decision, under a statute making liable to punishment in England one who poisons or strikes a person upon the sea or at any place out of England, and the death from the stroke or poison occurs in England. The English court held that the statute did not apply to a foreigner striking another foreigner on an American ship on the high seas.^* The question has several times arisen in the state courts, and is more apt to arise there. If the blow is given by a citizen of the state or other government within whose limits death occurs, the right to punish would depend on whether the state has a right to punish its citi- zens for acts abroad.^" If the blow is giv^n by a foreigner, the power to punish him must depend on what is to be deemed the locality of the homicide. The validity of such a statute has been upheld in some states upon the ground that the blow, although inflicted without the state, continues 28 state V. Gessert, 21 Minn. 369; Green v. State, 66 Ala. 40, 41 Am. Eep. 744; U. S. v. Gulteau, 1 Mackey (12 D. O.) 498, 47 Am. Eep. 247; Riley v. State, 9 Humph. (Tenn.) 646; People v. GUI, 6 Cal. 637 ; Stout v. State, 76 Md. 817, 25 Atl. 299. 2 7 1 Bish. New Cr. Law, §§ 114-116. 28 Beg. V. Lewis, Dears. & B. Cr. Cas. 182. 2 Ante, p. 482. §§ 165-168) JUEISDIOTION DETEKMINED BY LOCALITY 489 to operate, and that the wrongdoer is therefore liable for the homicide in the place where his victim dies from the continuous operation of the mortal blow; and such states where legislative authority exists punish citizens and for- eigners alike for a blow without, causing death within, their limits."" Other courts have denied the validity of such stat- utes so far as they apply to foreigners, and, unless their validity is to be upheld upon some other ground than that the homicide is, under these circumstances, committed part- ly within the jurisdiction,"^ this conclusion appears to be sound. Larceny — Property Stolen in One State and Brought into Anr- other Again, property may be stolen*in one state and brought into another. Can the latter state punish the thief ? It has been held from the earliest times that if a thief steals goods in one county, and brings them into another, he may be indicted in either, because his unlawful carrying in the sec- ond is deemed a continuance of the unlawful taking, — a con- tinuing trespass, — and so all the essential elements of lar- ceny exist in the second."^ If, however, the original taking is abroad, and the goods are afterwards brought by the thief into England, it has been held in England not larceny, because there has been no taking against the law which is invoked to punish him.*" In the United States the au- 3 Com. V. Macloon, 101 Mass. 1, 100 Am. Dec. 89. See, also, Peo- ple V. Tyler, 7 ilic-h. 161, 74 Am. Dec. 703 ; Tyler v. People, 8 Mich. 320 ; Ex parte McNeeley, 36 W. Va. 84, 14 S. E. 436, 15 L. R. A. 226, 32 Am. St. Rep. 831 ; State v. Caldwell, 115 N. C. 794, 20 S. El 523. 31 State V. Carter, 27 N. J. Law, 499. Cf. Hunter v. State, 40 N. J. Law, 495. See, also, State v. KellyT 76 Me. 331, 49 Am. Rep. 620. Ante, p. 486. 32 4 Bl. Comm. 305. 33 Rex V. Anderson, 2 East, P. C. 772 ; Res v. Prowes, 1 Moody, 490 JURISDICTION (Ch. 17 thorities are not in accord. In some states it is held in ac- cordance with the English cases that if goods are stolen in a foreign country and brought into a state the taker cannot be punished for larceny in the state into which the goods are brought.'* Other c9urts hold that he can be punished in the state into which he brings the goods.'" Where the goods are stolen in one of the United States and carried into another there is the same conflict of opinion. Some courts hold that the second state may punish for larceny/' while others hold that the question is the same as where the goods are stolen in a foreign country, and refuse to allow a prosecution in the state into which the goods are brought." In many states statutes have been enacted pro- viding that a person who has without the state stolen goods and who brings them into the state may be convicted of .lar- ceny. The same conflict of authority is met with in the crime of receiving stolen goods. On principle, in the absence of statute, the goods must have been stolen within the juris- diction of the receiving, and it has been so held in England; Cr. Cas. 349; Reg. v. Debruiel, 11 Cox, Or. Cas. 207; Reg. v. Carr, 15 Cox, Cr. Cas. 131, note. 84 Com. V. Uprichard, 3 Gray (Mass.) 434, 63 Am. Dec. 762 ; Com. V. White, 123 Mass. 433, 25 Am. Rep. 316; Stanley v. State, 24 Ohio St 166, 15 Am. Rep. 604; Lee v. State, 64 Ga. 203, 37 Am. Rep. 67. 35 State V. Bartlett, 11 Vt. 650; State" t. Underwood, 49 Me. 181, 77 Am. Dee. 254. 8 6 Worthington v. State, 58 Md. 403, 42 Am. Rep. 338; Stinson v. People, 43 111. 397 ; State v. Hill, 19 S. C. 435 ; Watson v. State, 36 Miss. 593 1 State v. Johnson, 2 Or. 115 ; State v. Bennf it, 14 Iowa, ,479; Ferrill v. Com., 1 Duv. (Ky.) 153; Com. v. CuUins, i Mass. 116; Hamilton v. State, 11 Ohio, 435. 87 People V. Gardner, 2 Johns. (N. Y.) 477; People v Schenck, 2 Johns. (N. Y.) 479; State v. Brown, 2 N. C. 100, 1 Am. Dec. 548; Lee. V. State, 64 Ga. 203, 37 Am. Rep. 67; State v. Le Blanch, 31 N. J. Law, 82 ; Real v. State, 15 Ind. 378 ; People v. Loughridge, 1 Neb. 11, 93 Am. Dec. 325 ; State v. Reonnals, 14 La. Ann. 278. §§ 169-170) FEDERAL COURTS AND THE COMMON LAW 491 but there are decisions in this country to the contrary where the goods were stolen in another state.'* FEDERAL COURTS AND THE COMMON LAW 169. The federal courts have no criminal jurisdiction by vir- tue of the common law ex proprio vigore, and can exercise such jurisdiction only as is expressly con- ferred upon them by Congress. 170. Where, however, Congress has declared certain acts crimes without idefinihg them, and conferred juris- diction thereof, the courts may look to the common law for their definition. This question came before the Supreme Court of the United States early in the present century. One Hudson and another had been indicted for publishing a libel on the President and Congress of the United States. No jurisdic- tion to punish for such an act had been conferred upon the federal Circuit Courts by any act of Congress, and the judg- es of the circuit in which the indictment was pending, being divided in opinion as to whether such jurisdiction existed at common law, certified the case to the. Supreme Court. That court held that the indictrnent could not be sustained. It was said by the court: "The powers of the general gov- ernment are made up of concessions from the several states. Whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions. That power .is to be exercised by courts organized for the purpose, and brought into existence by an effort of the legislative power •88 Ante, p. 382. 492 JURISDICTION (Ch. 17 of the Union. Of all the courts which the United States may, under their general powers, constitute, one only — the Supreme Court — possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer." ^' The opinion then states that, before the federal courts can punish acts done by an in- dividual in supposed violation of the peace and dignity of the United States, the legislative authority of the Union must first make the act a crime, affix a punishment, and de- clare the court that shall have jurisdiction of the offense; that the exercise of criminal jurisdiction in common-law cases is not within their implied powers. In view of this decision, to determine whether an act is a crime against the United States, and whether the federal courts have power to punish it, we must look to the acts of Congress; and, unless the jurisdiction be thereby conferred, it does not ex- ist. Common Law Supplies Definitions Though the fe,deral courts derive no jurisdiction from the common law, yet, where congress has conferred jurisdiction of a crime in general terms, without defining it, they "may look to the common law for its definition. Thus, an act of Congress declares murder, manslaughter, rape, and other crimes upon the high seas or in certain specified places to be crimes punishable in the federal courts, but does not de- 3 8 U. S. V. Hudson, 7 Cranch, 32, 3 L. Ed. 259; XJ. S. v. Martin (D. C.) 176 Fed. 110. § 171) JURISDICTION OONFEKKED ON FEDERAL COURTS 493 fine those crimes.*" Their definition, therefore, must be de- termined by the common law of the place where the court sits." JURISDICTION CONFERRED ON FEDERAL COURTS BY CONGRESS 171. As has been stated, the federal courts have such juris- diction only as is expressly conferred by act of Con- gress, and Congress can confer such jurisdiction only as is authorized by the Constitution. We have already seen what powers the Constitution has •conferred on Congress. We shall now see in a general way the extent to which it has exercised them. Mr. Wharton has collected the various provisions under five heads: (1) Offenses against the law of nations; (2) offenses against federal sovereignty; (3) offenses against the persons of in- dividuals; (4) offenses against property; and (5) offenses against public justice.*^ Offenses against the Law of Nations This head includes breaches of neutrality, or hostile acts by citizens of the United States in aid of a foreign state against another foreign state which is at peace with the United States, such as serving against such a state under commission from a foreign state, or fitting out vessels with- in the United States to cruise against such state, or render- ing other assistance within the United States by furnishing vessels or setting on foot an armed force. There are also included under this head offenses against foreign ministers 4 Rev. St. U. S. § 5335. 411 Whart. Cr. Law, § 255. 42 1 Whart. Cr. Law, S 257 et seq. 494 JURISDICTION (Ch. 17 or ambassadors and their servants, such as violation of passports, or violence, and suing out or executing process against them.*^ Offenses against Federal Sovereignty Under this head are included treason and misprision of treason, treasonable correspondence with foreign govern- ments, and certain acts of hostility against the United Statps; offenses against the elective franchise; illegally- holding office; offenses against Indians; offenses by sub- jects abroad; perjury and forgery abroad; offenses against the post office; counterfeiting'; piracy; revolt; and the slave trade.** Offenses against the Persons of Individuals Under this head may be mentioned murder and man- slaughter in any fort, dockyard, or other place under the exclusive jurisdiction of the United States; murder, man- slaughter, or rape upon the high seas, or in any river, haven, basin or other like place out of the jurisdiction of the Unit- ed States.*" Offenses against Property Among these are custom house frauds; burning a dwell- ing house within a fort, dockyard, or other place under the "jurisdiction of the United States, or any arsenal, armory, vessel, or public stores; stealing within any of the places under the exclusive jurisdiction of the United States; lar- ceny, robbery, or embezzlement from the mails, etc.** " Rev. St U. S. §i 4062, 4064, 52S5, 52S6 (U. S. Comp. St 1013, §§ 7610, 7612). i* 1 Whart. Cr. Law, § 259, where the statutes are collected or men- tioned lu full. 46 1 Whart Cr. Law, § 260. *a 1 Whait Cr. Law, § 2C1. §§ 172-173)' PERSONS SUBJECT TO OUE LAWS 495 Offenses against Public Justice Under this head may be classed bribery of United States judges or legislators ; extortion and embezzlement by public officers, and other misconduct in office ; obstructing United States officers in the service of process; obstructing justice in the federal courts by intimidating, influencing, or im- peding any juror, witness, or officer; and perjury in the United States courts.*^ • PERSONS SUBJECT TO OUR LAWS 172. GENERAL RULE— As a rule, all persons within the territorial limits of a country are subject to its laws, and the rule applies both to the states and the United States. ' 173. PERSONS EXEMPT— But under the law of nations the following persons are not responsible to our laws: (a) Foreign friendly sovereigns and their attendants and effects. (b) Foreign ambassadors, ministers, .and diplomatic agents, with their servants and effects, but not con- suls. (c) Foreign friendly armies and navies peaceably within our territory. (d) Enemies in war committing belligerent acts. All persons within our territory are subject to our laws except foreign friendly sovereigns, or their representatives, and attendants, and enemies committing belligerent acts in time of war. A foreign private citizen visiting us is as *7 1 Whart. Cr. Law, § 262. 496 JURISDICTION (Ch. IT much amenable to the law as one of our own citizens. For- eign ministers, ambassadors, and diplomatic agents repre- sent their sovereign, and, like him, are exempt. The rule includes secretaries of legation. Consuls, however, being mere commercial agents, are not exempt, and may be crim- inally liable for their acts. It is probable that a minister would forfeit his privilege if he were to be guilty of treason against our government. The exemption does not deprive one of our citizens from defending himself against an as- sault by a foreign minister but he may repel force by force. Foreign friendly armies or navies, if peaceably in our har- bors or passing through our territory by our consent, repre- sent their sovereigns,. and are not subject to our laws; but the rule does not apply to foreign merchant vessels.*' <8 1 Bish. New Cr. Law, § 124 et seq. ; 1 Kent, Comm. 38 et seq. ; iState V. De La Poret, 2 Nott & McC. (S. C.) 217 ; Respublica v. De Longchamps, 1 Dall. (Pa.) Ill, 1 L. Ed. 59. § 174) FORMER JEOPARDY 497 CHAPTER XVIII FORMER JEOPARD! 174. In GeneraL IN GENERAL 174. No man can be put twice in jeopardy for the same of- fense.^ EXCEPTION — A person may waive the right to plead former jeopardy. It is said by Blackstone that the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the English common law:, that no man is to be brought into jeopardy of his life more than once for the same of- fense ; and hence it is allowed as a consequence that when a man is once found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime.^ It is also said by the same commentator that the plea of autrefois convict, or a former conviction for the identical crime, though no judgment was ever given, or perhaps will be, is a good plea in bar to an indictment.^ This was the common law. By the Constitution of the United States, however, it is pro- vided that "no person shall be * * * subject, for the 1 For a fuller treatment of this subject, see Clark, Or. Proc. pp. ?.S2-i07. 2 4 Bl. Comm. 335. «4 Bl. C!omm. 336. Claek Ck.L.3d Ed.— 32 498 FOEMEE JEOPARDY (Ch. 18 same offense, to be twice put in jeopardy of life and limb" ; * and there are similar provisions in the Constitutions of the different states. These provisions are probably merely de- claratory of the doctrine of the common law. Under them there need be no former acquittal or conviction to bar a subsequent prosecution for the same offense. It is sufficient if the accused has once been put in jeopardy. What^ Constitutes Jeopardy After a person has once been put upon his trial before a court of competent jurisdiction, upon an indictment or in- formation, which is sufficient to sustain a conviction, and the jury has been charged with his deliverance, he is in jeopardy; and if afterwards for any reason the jury are discharged unnecessarily and without his consent, he is en- titled to his discharge, and cannot again be tried." Dis- charge of a prisoner by a committing magistrate, or re- fusal of a grand jury to indict him, does not prevent a sub- sequent prosecution, as there is no jeopardy.' Jeopardy only begins when defendant pleads to the indictment, and has been put upon his trial, and this is not until the jury has been fully impaneled and sworn.'' At any time before * Const. U. S. Amend, art. 5. 6 Wright V. State, 5 Ind. 290, 61 Am, Dec. 90 ; Com. v. Cooli, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; State v. Nor veil, 2 Yerg. (Term.) 24, 24 Am. Dec. 458 ; Price v. State, 19 OLio, 423 ; STATE V. SOMJIERS, 60 Minn. 90, 61 N. W. 907, Mikell Illus. Gas. Criminal Law, 264. McCann v. Com., 14 Grat. (Va.) 570 ; Com. v. Hamilton, 129 Mass. 479 ; Com. v. MUler, 2 Aslim. (Pa.) 61 ; State v. Whipple, 57 Vt. 637; Ex parte Clarke, 54 Cal. 412. But if the magistrate has jurisdiction to try, and takes jurisdiction, a plea of former jeopardy is good. State v. Bowen, 45 Minn. 145, 47 N. W. 650; Com. v. Sullivan, 156 Mass. 487, 31 N. B. 647. 7 People V. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501 ; Stuart v. Com., 28 Grat. (Va.) 950; State v. Hastings, 86 N. C. 596 ; Alexander § 174) , IN GENERAL 499 this, the prosecution may be discontinued without prejudice to a new indictment and a prosecution thereon.' As soon, however, as the jury has been sworn, jeopardy begins ; " and if, after that, the indictment is quashed, or a nolle prosequi entered the defendant is entitled to his dischargre.^" ■ It is essential to constitute jeopardy that the court in which the accused is put upon his trial shall have jurisdic- tion. If it is without jurisdiction there can be no valid conviction, and hence there is no jeopardy." There must be a sufficient indictment, or the court has no authority to proceed ; and therefore if the indictment is invalid, because of fatal defects in the organization or constitution of the grand jury, or because it is so defective in its allegations that a conviction will be set aside, there is no jeopardy.^^ V. Com., 105 Pa. 1; State v. Burket, 2 Mill, Const (S. C.) 155, 12 Am. Dec. 662. 8 Com. V. Tuck, 20 Pick. (Mass.) 356 ; State v. McKee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499 ; Clarke v. State, 23 Miss. 261. » Com. V. Cook, 6 Serg.,, & E, (Pa.) 577, 9 Am. Dec. 465; Morgan V. State, 13 Ind. 215; People v. Webb, 38 Cal. 467; Nolan v. State, 55 Ga. 521, 21 Am. Eep. 2S1; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708. 10 People Y. Cage, 48 Cal. 323, 17 Am. Rep. 436; O'Brian v. Com., 9 Bush (Ky.) 333, 15 Am. Rep. 715; Com. v. Hart, 149 Mass. 7, 20 N. E. 310; Klock v. People, 2 Parker, Cr. R. (N. Y.) 676. 11 Com. V. Peters, 12 Mete. (Mass.) 387; Weaver v. State, 83 Ind. 289; State v. Parker, 66 Iowa, 586, 24 N. W. 225; Phillips v. People, 88 111. 160; State v. Odell, 4 Blackf. (Ind.) 156; State v. Hodgkins, 42 N. H. 474; State ex rel. Barbee v. Weatherspoon, 88 N. C. 19; State V. Charles, 16 Minn. 474 (Gil. 426). 12 Weston V. State, 63 Ala. 155; Kohlheimer v. State, 39 Miss. 548, 77 Am. Dee. 689 ; People v. Clark, 67 Cal. 99, 7 Pac. 178 ; Com. v. Loud, 3 Mete. (Mass.) 328, 37 Am. Dec. 139; Pritchett v. State, 2 -Sneed (Tenn.) 285, 62 Am. Dec. 468. 500 FORMER JEOPAEDT (Ch. 18 Same — Several Sovereignties Where the same act constitutes a distinct oflfense against each of several sovereignties, a prosecution by one does not necessarily bar a prosecution by the other. An act which is an offense both against a state and against the United States may be punished by both, and a plea of for- mer jeopardy in the federal court will not be a bar to a prosecution in the state court, or vice versa. ^' The same rule has with less reason generally been applied to acts which are offenses both under municipal ordinances and un- der the general laws of the state.^* Discharge of Jury If jeopardy has in fact once attached, the jury cannot be unnecessarily discharged without the defendant's consent without entitling him to his discharge.^" But, if necessity arises, the jury may be discharged without this result. If, for example, a juror escapes before a verdict is rendered, or is guilty of any misconduct making' it impossible to proceed with the trial, or is discovered, after being sworn, to be disqualified,^* or becomes too ill during the trial to attend 15 Moore v. Illinois, 14 How. 13, 14 L. Ed. 306; U. S. v. Barnhart (C. C.) 10 Sawy. 491, 22 Fed. 2S5; Abbott v. People, 75 N. Y. 602; Hendrick v. Com., 5 Leigb (Va.) 707; Campbell v. People, 109 111. 565, 50 Am. Rep. 621. See Clark, Or. Proc. 394. " Ante, p. 497. IB Wright V. State, 5 Ind. 290, 61 Am. Dec. 90; People v. Barrett, 2 Caines (N. T.) 304, 2 Am. Dec. 239. 16 State V. Hall, 9 N. J. Law, 256; State v. McKee, 1 Bailey (S. C.) 651, 21 Am. Dec. 409; Com. v. McCormick, 130 Mass. 61, 39 Am. Hep. 423; State v. Allen, 46 Conn. 531; Stone v. People, 2 Scam. (111.) 326; Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968 (where by reason of facts existing when jury is sworn, but not known to court, or of outside influence, jury is not impartial). § 174) IN GENEKAL 501 further proceedings,^'' or where the defendant himself has made it impossible for a valid verdict to be rendered, or a valid judgment entered against him,^* he may be tried again. So, where the jury are unable to agree, and are discharged.^' If the defendant consents to the jury's discharge, he waives his right to plead former jeopardy on a subsequent prosecu- tion.^" Waiver by Defendant The defendant may waive his right to plead former jeop- ardy, either expressly or impliedly ; as, for instance, where the jury is discharged during the trial with his consent ;^^ where no objection is made to a verdict that is so defective that judgment cannot be entered thereon ; ^^ where there is a mistrial, because defendant is of his own accord absent when the verdict is rendered, when he should be present; *' where he procures a verdict or judgment to be set aside on his own motion in arrest or for a new trial; ^* or where he 17 Gardes v. U. S., 87 Fed. 172, 30 C. C. A. 596. 18 People V. Higgins, 59 Cal. 357. 19 U. S. V. Perez, 9 Wheat. 579, 6 L. Ed. 165; Simmons v. TJ. S., supra; Cora. v. Purchase, 2 Pick. (Mass.) 521, 13 Am. Dec. 452; Ck)m. V. Cody, 165 Mass. 133, 42 N. E. 575; People v. Goodwin, 18 Johns. (N. X.) 187, 9 Am. Dec. 203; People v. Pline, 61 Mich. 247, 28 N. W. 83; Winsor r. Reg., L. R. 1 Q. B. 289. Contra, Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; WUliams v. Com., 2 Grat. (Va.) 570, 44 Am. Dec. 403. 2 See following note. 21 Williams v. Com., 2 Grat. (Va.) 567, 44 Am. Dec. 403; State v. McKee, 1 Bailey (S. 'C.) 651, 21 Am. Dec. 499 ; Stewart v. State, 15 Ohio St. 155. 22 Wright V. State, 5 Ind. 527; Wilson v. State, 20 Ohio, 26. 23 State V. Hughes, 2 Ala. 102, 36 Am. Dec. 411; People v. Higgins, 59 Cal. 357. 24 Sutcliffe V. State, 18 Ohio, 469, 51 Am. Dec. 459 ; Clark v. State, 4 Humph. (Tenn.) 254; People v. McKay, 18 Johns. (N. T.) 212; Lane v. People, 5 Oilman (111.) 305 ; Joy v. State, 14 Ind. 139 ; State 502 FOKMBE JEOPARDY (Ch. 18 'withdraws a plea of guilty by leave of court, and consents to entry of a nolle prosequi.^" Identity of Offenses To sustain a plea of former jeopardy, the two offenses must be the same, according to the express provision of the Constitution. Former jeopardy for another offense, or for- mer acquittal or conviction of another offense, is no bar. It is often a difficult question to determine whether the offenses are the same, and the decisions are not in accord. Only the general rules can be stated, and for a full dis- cussion the student is referred to works upon criminal pro- cedure. (1) It is the general rule that if the crimes are so distinct, either in fact or law, that evidence of the facts charged in the second indictment would not have supported a conviction under the first, the offenses are not the same, and the second indictment is not barred. Thus, where there has been an acquittal on the ground of variance, a new in- dictment, in which the crime is correctly described, will lie. (2) If the charges are in fact for the same offense, though the indictment differs in immaterial circumstances, the de- fendant may plead his former acquittal or conviction, with proper averments to show the identity of the cl;iarges. (3) If the defendant could have been convicted, under the first indictment, of the offense charged in the second, an acquittal or conviction under the former indictment is a bar to the second. A former acquittal or conviction of an offense in- cluding a lesser offense is a bar to a subsequent prosecution for the lesser offense. (4) If the defendant could have been convicted of the offense charged in the. first indictment on V. Knouse, 33 Iowa, 365; People v. Barric, 49 Cal. 342; Gannon v. People, 127 111. 507, 21 N. B. 525, 11 Am. St. Rep. 147; People v. Hardisson, 61 Cal. 378 ; Veatch v. State, 60 Ind. 291. 2 5 Ledgerwood v. State, 134 Ind. SI, 33 N. E. 631. § 174) ' IN GENBEAL 503 proof of the facts charged in the second, though he could not have been convicted of the whole of the offense charged in the second, the second indictment is barred, for the for- mer acquittal has negatived the existence of the facts charg- ed in the second. A former acquittal of a lesser offense which constitutes a necessary part of a higher crime is a bar to a subsequent prosecution for the higher crime. (5) By weight of authority, if the prosecuting officer elects to prosecute for an act constituting a certain offense, and the defendant's convicted of that offense, he cannot afterwards be prosecuted for the same act under aggravating circum- stances which change its legal character. But if the ag- gravating circumstances do not intervene until after the first conviction — as where, after a conviction for assault and battery, the person assaulted dies — it is otherwise. A for- mer conviction of a lesser offense which constitutes a neces- sary part of a higher crime is a bar to a subsequent prosecu- tion for the higher crime. (6) Where the same act consti- tutes distinct offenses, neither an acquittal nor a conviction for one offense will bar a subsequent prosecution for the other.''^ 2 8 See Clark, Cr. Proc. pp. 396-405. TABLE OF CASES CITED [THE FIGUEES BEFEE TO PAGES] Abbott T. People, 500. Abel V. State, 137. Abernetby v. Com., 197. Abrams v. Posbee, 429. Adair v. State, 75. Adams V. Barrett, 242. Adams v. People, 111, 487. Adams V. State, 315. Addyston Pipe & Steel Co. v. U. S., 154. Adldnson v. State, 297. Alberty v. U. S., 187. Albritton v. State, 119. Alderman v. People, 157. Aldrich v. People, 381. Aldricb v. Wrigbt, 189. Alexander v. Com., 498. Alexander v. State, 302. Alford V. State, 120. Allen V. State, 14, 37, 145, 200, 205, 304, 394. Allen V. U. S., 182, 184, 197, 199, 208, 446. Allgood V. State, 389. Allyn V. State, 136. Ambrose v. State, 40. American Ins. Co. v. Canter, 31. American Pub. Co. v. Fisber, 31. Ames' Case, 390. Amos V. Com., 198. Amos V. State, 115. Anderson v. Com., 157, 412, 415. Anderson v. State, 131, 233, 243, 343, 379, 425, 443. Andre v. State, 424, 425. Angell V. State, 212, 214. Angelo V. People, 62. Anon,, 15, 82, 95, 300, 308, 312, 324, 326, 399, 404. Arcia v. State, 381. Armstrong v. State, 75. Arnol;i V. Cost, 395. Arnold's Case, 65. Arp V. State, 100, 105. Ash V. State, 113. Ashbrook v. Com., 400, 404. Ashford V. State, 302. Asbton's Case, 214. Askew V. State, 198. Aszman v. State, 79. Atkins V. State, 200. Atkinson's Case, 332. Atterberry v. State, 119. Attorney General v. Broaddus, 419. Attorney General v. Leeds, 404. Aultman v. Waddle, 433. Ausman v. Veal, 421. Austin V. Carswell, 8. B Bagley v. People, 403. Bailey v. State, 79, 330, 337. Bain v. State, 100. Baird v. State, 137. Baker v. Barton, 270. Balier v. Com., 182, 185. Baker v. People, 409. Baker v. State, 51, 109, 162, 346, 368, 381, 418, 419. Baldwin v. Franks, 164. Clabk Cb.L.3d Ed. (505) 506 CASES CITED [The figures refer to pages] Baldwin T. State, 203. Bales V. State, 311. Balkum v. State, 254. Ballard v. State, 259. Bang V. State, 197. Banks v. State, 412, 414 Bankus v. State, 414. Bannon v. U. S., 43. Baptist V. State, 458. Barber v. State, 45. Barfield v. State, 386. Barker v. Com., 10. Barlow v. State, 385. Barnard v. Com., 201. Barnards v. State, 183, 197. Barnes v. Com., 395. Barnes v. State, 93, 131, 376. Bamum v. State, 390, 395. Barr v. People, 260. Barr v. State, 197. Barronet's Case, 88. Bartholomew v. People, 79, 80. Barton v. People, 366. Bastable v. Little, 435. Battle V. State, 222. Baumer v. iState, 419. Baxter V. People, 100. Bayliss v. People, 415. Bayslnger v; State, 385, 389. Beach v. Hancock, 265. Beal V. State, 490. Bean v. People, 250. Beard v. State, 401. Beard v. U. S., 182, 187. Beasley v. State, 77, 316. Beattle v. State, 487. Beatty v. GUlbanks, 457. Beck V. State, 76, 137. Beecher v. Anderson, 442. Beecher v. People, 403. Behler v. State, 94. Belk V. People, 233, 238. Bell V. State, 102, 103, 315, 387, 401. Benbow v. State, 288. Benge v. Com., 119. Benson, In re, 385, 387, 393. Benson v. State, 36. Bentley v. Chllders, 433. Benton y. Com., 43. Benton v. State, 314, 468. Bergeron v. State, 303. Berkeley v. Com., 255. Berkowitz v. U. S., 46. Bernhardt v. State, 79. Berry v. State, 342. Best V. State, 346. Betts y. Stevens, 435. Bibb V. State, 103. Biggerstaff v. Com., 442. Biggs y. State, 179, 180. Biles y. Com., 388, 390. Billard v. State, 341. Billings y. State, 380. Bird y. State, 417. Birney y. State, 95. Biseoe v. State, 480. Bishop V. State, 111, 150. Black y. State, 45, 343. Blackburn v. State, 66, 110, 250. Blaisd^U v. Ahem, 434. Blakely v. State, 125. Blakeslee v. Tyler, 103. Blanchette y. State, 288. Bledsoe y. Com., 186. Bleidom v. Pilot Mountain Coal & Min. Co., 433. Blige V. State, 258. Bloodworth v. State, 248. Bloom y. Richards, 26. Bloomer v. State, 255, 279. Bloomhuff y. State, 402. Bloss V. Tobey, 290. Blum y. State, 367. Blunt V. Com., 334. Board of Education of City of Cincinnati y. Minor, 26. Boatright v. State, 134. Bodlford y. State, 417. Boetcher y. Staples, 17. Boggus y. State, 409. Bohannon y. Com., 183. Bolding V. State, 270. Boiling V. State, 67, 71, 74. Bollman, Ex parte, 470, 471. I Bolln y. State, 344. CASES CITED [The figures refer to pages] 507 Bone V. State, 180. Bonfanti v. State, 74; 260. Boody V. Keating, 9. Booth V. Com., 343. Booth V. Shepherd, 479. Boston & W. E. Corp. v. Dana 8, 9. Boswell T. State, 67, 70, 73. Bowen v. State, 124, 366, 370. Bowers v. iState, 241. i Bowles V. State, 170. Bowman v. State, 180, 238. Boyd V. Ellis, 29. Boyd V. State, 271. toze V. State, 344. Bracken v. State, 425. Braddy v. Hodges, 435. Bradford v. State, 312. Bradley v. People, 399. Bradley v. State, 71. Bradshaw v. People, 285. Brady v. State, 358. Brantley v. State, 118. Brazzil v. State, 201. Breese v. State, 113. Brennan v. People, 116, 117. Brewer v. State, 355, 386. Brice's Case, 299. Briggs V. Com., 223. Brinkley v. State, 70, 186. Brltt V. ,State, 377. Brooks V. Com., 210, 214, 220, 226. Brooks V. State, 331, 415. Brotherton v. People, 75. Brown, EX parte, 259. Brown v. Bigne, 434. Brown V. Com., 66, 197, 211, 220, 24-4. Brown v. People, 391. Brown v. State, 94, 119, 123, 149, 245, 260, 261, 283, 297, 349, 417, 418. 'Bruley v. Rose, 315. Bryan v. State, 408. Bryant v. State, 841. Buchanan v. State, 344. Buck V. Com., 123, 124. ;Buckhannon v. Com., 81. Buckland v. Com., 386. Bugg V. Com., 224. Bundy v. Maginess, 8, 17. Bundy v. Newton, 434. BunfiU V. People, 285. Burge V. State, 350. Burgess v. Territory, 196. Burnett V. People, 216. Burnett v. State, 171. Bumham v. Heselton, 433. Bums V. Com., 282, 284. Burns v. State, 113, 125, 270. Burrell v. State, 273. Burrow v. State, 370. Burton v. State, 314, 323. Bush V. Com., 171. Bussey v. State, 374, 377. BuUer^v. Com., SS9, 391. Butler V. People, 232. Bybee v. State, 403. Byers v. Com., 40. Byrne v. Kansas City, Ft S. & M. R. Ca, 434. Cagle V. State, 137. Cahill V. People, 197. Cain V. State, 341. Calder v. BuU, 31, 33. Callahan v. State, 268, 350, 427. Callan v; Wilson, 40. Cameron, In re, 367. Campbell v. Com., 118, 123, 221. Campbell v. People, 197, 500. Canada v. Com., 242. Canton Nat. Bank v. American , Bonding & Trust Co., 346. Carlisle v. State, 487. Carlson's License, 94. Carmichael v. State, 407. Carney v. State, 250. Carotti v. State, 412, 417. Carpenter v. People, 285. Carr v. Hood, 467. Carr v. State, 44, 62,, 256, 257. Carroll v. State, 134, 185, 186, 261, 234. 508 CASES CITED ^ [The figures refer to pages] Carter v. State, 55, 148, 199, 200, 259, 295. Cartwrlght v. Green, 322. Canvile v. State, 460, 461. Case V. People, 442. Castell V. Bambridge, 169. Castillo V. State, 281. Catlin V. Valentine, 400. Caughron v. State, 170. Caulklns v. Whisler, 386. Causey v. State, 344. Cecil V. Com., 418. '' Chamberlain v. People, 446. Ohamper v. State, 275. Cbandler v. Com., 64. Chapman v. Gillet, 26. Chapman v. State, 262, 264, 265. Charlfe V. State, 245. Cheatham v. Shearon, 399. Cheeseman's Case, 142. Cherry's Case, 839. Chicago & E. I. R. Co. t. Peo- ple, 83. Chick V. State, 240. Chinn V. State, 418. Chisholm v. Doulton, 48, 129. Ohism V. State, 251. Chittenden v. Com., 205. Choice V. State, 82. Chrlsman v. State, 79. Church of Jesus Christ of Latter , Day Saints v. U. S., 31. Circle v. State, 273. City of Bvanston v. Myers, 13. City of Greeley v. Hamman, 38. City of Kansas v. Clark, 38. City of Mankato v. Arnold, 40. City of Oshkosh v. Schwartz, 38. City of Wilkes Barre v. Burgun- der, 402. City of Yankton v. Douglass, 40. Claiborne v. State, 295, 395. Clark V. Com., 170. Clark V. State, 143, 337, 418, 501. Clarke, Ex parte, 498. Clarke v. State, 499. Clay V. Schwab, 388. Clem V. State, 114, 210. Clements v. State, 175, 177, 374. Click V. State, 280, 281. Clifford V. State, 200. Oline V. State, 372. Coates V. People, 123. Coates V. State, 74, 246w Cochran v. State, 284. Cody V. State, 353. Coffman v. Com., 170. Cohen v. New Tork, 402. Cohen v. U. S., 86. Colbert v. State, 301. Cole V. People, 158. Cole V. State, 191. Collier v. State, 233. Collins V. State, 110, 112, 119, 382, 417. Collins V. U. S., 220. Combs V. Com., 188, 291. Combs V. McQuinn, 433. Comer v. State, 246, 277. Com. V. Adams, 18, 57, 194, 230,. 268, 270J Com. V. Aiello, 221. Com. V. Alexander, 452. Com. V. Allen, 402. Com. V. Andrews, 382. Com. V. Bagley, 450. Com. V. Balrd, 272. Com. V. Baker, 118. Com. V. Baldwin, 387. Com. V. Bangs, 429. Com. V. Barlow, 43, 139. Com. V. Barnes, 183. Com. V. Barney, 289. Com. V. Barrett, 11. Com. V. Barry, 322, 323, 333, 340, Com. V. Beaman, 308. Com. V. Bean, 381. Com. V. Bell, 449. Com. V. Berry, 324, 353. Com. V. Blackburn, 46. Com. V. Blanding, 464, 465, 467, 468, 486. Com. V. Blodgett, 101, 281, Com. V. Bonner, 468. Com. V. Bowen, 167, 217. Com. V. Boynton, 93, 362. ^ CASES CITED [The figures reter to pages] 509 Com. V. Bradford, 88, 90. Com. V. Brady, 136. Com. V. Branbam, 258. Com. V. Brianl^ 129, 130, 131, Com. V. Brooks, 106, 107, 290.' Com. v., Brpwn, 9, 300, 322. Com. V. Burk, 103. Com. V. BTirke, 47, 245. Com. V. Burton, 367. Com. 7. Butler, 103. Com. V. Butterick, 355. Com. V. Call, 369, 411. Com. V. Callaghan, 22, 452. Com. V. Campbell, 53, 162, 168, 232. Com. V. Carr, 10. Com. V. Carter, 35. Com. T. Chace, 308. Com. V. Chance, 209, 212. Com. V. Chapman, 21, 22, 36. Com. V. Cheney, 103. Com. V. Churchill, 22, 38. Com. V. Clap, 462, 463, 464, 466. Com. V. Clark, 141, 273, 444. Com. V. OUfford, 377. Com. V. Cline, 143. Com. V. Clune, 112. Cont V. Cochran, 463. Com. V. Cody, 501. Com. V. Coe, 367, 390. Com. V. CofEee, 311. Com. V. Colandro, 227. Com. V. CoUberg, 275, 453. Com. T. Collins, 334. Com. V. Connolly, 394. Com. V. Cook, 233, 238, 283, 498, 499, 501. Com. V. Cooley, 36. Com. V. Cooper, 45, 71. Com. V. Costello, 467. Com. V. Costley, 168. Com. V. Creadon, 47. Com. V. Cruikshank, 334. Com. V. CuUins, 490. Com. V. Daley, 103. Com. V. Davis, 323, 353, 432, 434. Com. T.xDejardin, 400. Com. V. Delaney, 191. Com. V. Demain, 429. Com. V. Dennis, 217. Com. V. Devlin, 367. Com. V. Dill, 422. Com. V. Dimond, 349. Com. V. Dingman, 316. ' Com. V. Doane, 89, 344. Com. V. Donahue, 274. Com. V. Dougherty, 271. Com. V. Downing, 118. Com. V. Drew, .136, 223, 306, 370. Com. V. Drum, 46, 182, 20S, 212. Com. V. Duane, 4. Com. V. Duncan, 258. Com. V. Eastman, 157. Com. V. Eberle, 161, Com. V. Eckert, 383. Com, V. Edison, 445. Com. V. Edwards, 454, 456, 462. Com. V. Eichelberger, 335. Com. V. Eisenhower, 170. Com. V. Elwell, 412, 414. Com. V. Emmons, 94. Com. V. Eyre, 264. Com. V. Feeney, 103. Com. V. Fields, 245, 201. Com. V. Filburn, 125, 439. Com. V. Finn, 14, 315. Com. V. Flagg, 152, 153. Com. V. Flannelly, 92. Com. V. Flynn, 322. Com. V. FoUansb'fee, 430. Com. V. Fortune, 113, 119. Com. V. Foster, 355, 359, 386, 387, 389. Com. V. Fox, 171. Com. V. Fritch, 71. Com. V. Gable, 45. Com. V. Gaines, 483. Com, V. Galligan, 136. Com. V. Gannett, 109. Com. V. Gardner, 28, 32, Com. V. Gerade, 75. Com. V. Gibney, 456. Com. V. Gillespie, 131. Com. V. Glover, 298, 29a Com. V. Goodman, 93. Com. V. Grady, 370. Com. T. Grant, 446. 510 Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. Com. V. CASES CITED [The figures refer to pages] Graves, 52. Green, 148, 251. Greene, 315, 343. Hackett, 53, 170. Hadley, 101, 136. Haines, 453. Hamilton, 408. Harrison, 74. Hart, 499. Has, 51. Hawkins, 76, 81, 241. Hayden, 96. Hayes, 128, 131. Hays, 358. Hazlewood, 309. Heath, 66. Henry, 366, 395. B^ersey, 53, 55. Hill, 111. Hinds, 391. Hodgkins, 429. HoUister, 118, 120. Holmes, 128. Houle, 131. Hoxey, 24, 454. Hoyer, 136. Hudson, 52. Hunt, 154, 155, 160. Hurley, 131. Hussey, 414. Isaacs, 412, 415. Jackson, 213. Jacobs, 144, 357. Jacobus, 400. James, 322. Jeandell, 26. Jeffries, 367. ■ Jones, 415. Joslin, 131. Judd, 155, 159. Keller, 355. Kelley, 134, 135. Kennard, 273. Kennedy, 140, 145. Kimball, 136. King, 324. Kingsbury, 46, 139. Knapp, 112, 123, 127. 268. Com. V. Kneeland, 26. Com. V. Knowlton, 22. Com. V. Knox, 35. Com. V. Kunzmann,f483. Com. V. Ladd, 395. Com. V. Lafferty, 412. . Com. V. Lambert, 455. Com. V. Lane, 409. Com. V. Langley, 372. Com. V. Lannan, 322, 323, 326. Com. V. Leach, 22. Com. V. Lee, 369. Com. V. Leonard, 380, 381. Com. V. Lester, 327, 351. Com. V. Libbey, 355, 359. Com. V. Light, 380. Com. V. Linn, 401. Com. V. Loud, 499. Com. v. Lowrey, 298. Com. V. Luckls, 338. Com. V. Lynn, 274. Com. V. McDonald, 143. Com. V. McCormick, 500. Com. V. McCulloch, 434. Com. V. McAfee, 271. Com. V. McDonougb, 32. Com. V. McDufCy, 369. Com. V. McHale, 24, 449. Com. V. McHugh, 435. Com. V. McKie, 256. Com. V. McLaughlin, 233. Com. V. Macloon, 485, 489. Com. V. Macomber, 43. Com. V. McPike, 170. Com. V. Makely, 291. Com. V. Malone, 191. Com. V. Manchester, 478, 479, 480. Com. V. Manson, 155. Com. V. Marchand, 32. Com. V. Marshall, 4. Com. V. Mash, 96, 97, 410, 413. - Com. V. Mason, 341!. Com. V. Matthews, 233. Com. V. Mead, 62. Com. V. Merriam, 136. Com. V. Merrill, 260, 261. Com. V. Meyers, 400. Com. V. Miles, 444. CASES CITED [The figures refer to pages] 511 Com. V. MUler, 400, 405, 498. Com. V. Milliman, 402. Com. V. Mink^42, 56, 212, 217, 231. Com. V. Mohn, 401. Com. V. Moore, 103, 168, 363. Com. V. Morgan, 132. Com. V. Morrill, 15, 871. Com. V. Morris, 464, 467. Com. V. Morse, 139. Com. V. Mosler, 69, 71, 221. Com. V. Mott, 38. Com. V. Munsey, 103. Com. V. Munson, 417. Com. V. Murphy, 5, 57, 92, 94, 95, 246. Com. V. Mycall, 394. Com. V. Myers, 161. Com. V. Neal, 102. Com. V. Newell, 43, 45, 242, 302. Com. V. Nichols, 129, 131, 134. Com. V. Nickerson, 12, 277, 280, 281, 282. Com. V. O'Brien, 367, 371. Com. V. O'Hara, 314. Com. V. O'Kean, 93. Com. V. O'Malley, 324, 327, 353. Com. V. Parker, 11, 276, 364, 429. Com. V. Passmore, 402. Com. V. Pease, 440. Com. V. Peaslee, 140, 153. Com. V. Perry, 131, 400. Com. V. Peters, 479, 4S0, 499. Com. V. Phelps, 223. Com. V. Phillips, 33, 123. Com. V. Pierce, 233. Com. V. Pollard, 445, 447. Com. V. Posey, 292. Com. V. Powell, 6, 462. Com. V. President, etc., of Swift Run Gap Turnpike Co., 83. Com. V. Prius, 157. Com. V. Proprietors of New Bed- ford Bridge, 83, 84, 86. Com. V. Pulaski County Agricul- tural & Mechanical Ass'n, 84, 85. Com. V. Purchase, 501. Com. V. Putnam, 409. Com. V. Randall, 269, 270. Com. V. Randolph, 152, 153. Com. V. Ray, 385, 392. Com. V. Raymond, 93. Com. V. Reardon, 412. Com. V. Reed, 406. Com. V. Renzo, 70, 73. Com. V. Ribert, 273. Com. V. Robinson, 281. Com. V. Roby, 45. Com. V. Rogers, 67, 60, 74. Com. V. Roosnell, 246. Com. V. Rourke, 311. Com. V. Rubin, 343. Com. V. Russell, 395. Com. V. Ryan, 320, '6-2o. Com. V. Sankey, 388. Com. V. Saulsbury, 450. Com. V. Bchall, 42. Com. V. Searle, 396.' Com. V. Seed, 269. Com. V. Sharpless, 400. Com. V. Shaw, 314, 339. Com. V. Shields, 462. Com. V. Shortall, 102. Com. V. Slattery, 9. Com. V. Smith, 14, 93, 162, 349, 350. Com. V. Snow, 422. Com. V. Speer, 362. Com. V. Spink, 158. Com. V. Stahl, 402. Com. V. Stearns, 359. Com. V. Stebbins, 89, 344. Com. V. Steimling, 312, 313. Com. V. Stephenson, 296, 388, 389. Com. V. Stevens, 94, 114. Com. V. Steward, 295. Com. V. Stone, 365. Com. V. Stratton, 11, 256, 257, 277. Com. V. Strupney, 295. Com. V. Sullivan, 498. Com. V. Superintendent of Phila- delphia County Prison, 315. Com. V. Surles, 430. ^ Com. V. Taylor, 143, 454. Com. V. Thomas, 422. Com. v., Thompson, 96, 97, 233, 413, 414. 512 CASES CITED [The figures refer to puges] GOTn. V. Tibbetts, 143, 158, 160. Com. V. Tibbs, 455. Com. V. Tilton, 402. Com. V. Titus, 330. Com. V. Tobin, 315. Com. V. Tudc, 499. Com. V. Tuckerman, 354. Com. V. Uprichard, 490. Com. V. Upton, 400, 404. Com. V. Wachendorf, 131, 134, 135. Com. V. Waite, 27, 93. Com. V. Walden, 55, 384. Com. V. Walker, 47. Com. V. Wallace, 364, Com. V. Ward, 389. Com. V. Warden, 401. Com. V. Ware, 199. Com. V. Warren, 5, 8, 22, 157, 361. Com. V. Waterman, 161. Com. V. Webb, 7, 399. Com. V. Webster, 172, 208, 215, 221, 222, 225. Com. V. Weiss, 93. Com. V. Welch, 394. Com. V. Wentwortb, 93. Com. V. Wbeeler, 75. Com. V. WMtcomb, 369. Com. V. WMte, 262, 264, 265, 348, 377, 378, 379, 382, 490. Com. V. Wilde, 327, 334. Com. V. Wilkinson, 403. Com. V. Willard, 114. Com. V. Williams, 137, 358. Com. V. Wood, 271, 430. Com. V. Wright, 428. Com. V. Wyman, 32, 355. Com. V. York, 210, 215. Com. V. Young, 355. Com. V. 2elt, 94. Coney v. State, 458. Conn V. People, 260. Connaughty v. State, 114. Conner v. State, 177, 335. , Conners v. State, 243. Connor v. People, 12, 13, 335, 377. Connors v. State, 273. Cook V. State, 208, 412, 419. Cook V. U. S., 33. Cooper's Case, 191. Corbett v. State, 397. Corey v. People, 185. Comellson v. Com., 258. Cornwell v. Association, 142. Cosby V. Com., 259. Coslet's Case, 338. Couch V. Com., 283. Cowen V. People, 370. Cowley V. State, 265. Cox V. People, 153. Cos V. State, 393. Coy, In re, 34. Crabtree v. State, 94. Craig V. State, 183. Crane v. Com., 201. Crawford v. State, 185, 189, 377, 389, 395. Creed v. People, 288. Creek v. State, 198, 200. Creighton v. Com., 182, 184, 223. CrisweU v. State, 341. Crocheron v. State, 324. Crockford v. State, 307. Croghan v. State, 427. Croom V. State, 214, 223. Crosby v. Leng, 9. Crosby v. People, 148, 260. Cross V. People, 127. Cross V. State, 274. Crosswell v. People, 245, 246, 249. Crowder v. State, 191. Crnm v. State, 170, 322. Crump V. State, 356. Crumf)'s Case, 155, 158, 160. Cruthers v. State, 484. Cullen V. Com., 455. Gulp V. State, 310. Cummlngs v. Com., 340. Cummings v. Missouri, 33. Cummins, In re, 15, 371. Cunningham v. People, 391. Cunningham v. State, 67. Curkendall v. People, 289. Curtis V. State, 53. Cutler V. State, 254. CASES CITED [The figures refer to pages] 513 D Dacey v. People, 71. Dahms v. Sears, 434. Dale V. State, 337, 340. Damarest v. Haring, 152. Danforth v. Streeter, 434. Daniels v. People, 418. Darrow v. Family Fund Soc, 216. Davenport v. Com., 280. Davidson v. Com., 252. Davidson v. State, 136, 208, 443. Davies v. 'State, 278. Davies v. Stowell, 433. Davis V. Com., 409. Davis V. People, 220. Davis V. State, 32, 70, 102, 103, 141, 145, 151, 241, 250, 259, 2G0, 272, 277, 436. Davis V. U. S., 75.. Davison v. People,' 182, 188. Davyson v. CofiEman, 22. Dawson v. Com., 376. Dawson v. State, 79. Dean v. State, 271. De Florin v. State, 402. De Groat v. People, 419. Delaloile v. State, 270. Delany's Case, 292. Delaware Division Canal Co. v. Com., 84, 399. Delli V. State, 346. Dempsey v. People, 123. Denman v. State, 171. Dennis v. People, 296. Dennison v. State, 219. Dickey v. McDonnell, 151, 276. Dignowitty v. State, .346. bilger V. Com., 176, 214. Direct U. S. Cable Co. v. Anglo- American Tel. Co., 479, 480. Dishon v. Smith, 449. Dixon V. State, 456. Doan V. State, 112. Dobb's Case, 54, 302. Dolan V. State, 196. Dollarhide v. U. S., 258. Donahoe v. Richards, 26. Donahoe v. State, 341. Clark Ce.L.3d Ed.— 33 Donaldson v. Mississippi & M. R. Co., 83. Don Moran v. People, 243, 247, 248, 249. Donnelly v. Harris, 274. Donolioo V. State, 295. Donolly's Case, 375. Doss V. People, 322. Doss V. State, 337, 340. Dotson V. State, 410. Dougherty v. People, 456. Douglass V. State, 399. Doyle V. State, 374. Drennan v. People, 43, 223. Drew V. State, 189. Drinkhom v. Bubel, 272. Drysdale v. State, 204. Ducher v. State, 298. Duffey's Case, 115. Dugdale v. Reg., 139. Dukes V. State, 349. Duncan v. Missouri, 34. Duncan v. State, 35, 95, 199, 200. Dunn V. People, 66. Dunne v. Herrick, 434. Durand v. People, 377. Duthey v. State, 226. Dyson v. State, 183. E Eberhart v. State, 244, 249. Eberling v. State, 281. Eckels V. State, 338, 339, 343. Edmond's Case, 301. Edmonds v. State, 338, 339, 343. Edmonson v. State, 120. Eflwards v. State, 104, 127, 255. Eggart V. State, 430. Eilenbecker v. District Court, 29. Elder v. People, 181. Elizando v. State, 120. ElUs V. People; 327. Ellis V. State, 208, 250, 405, 462. Elmore v. State, 389. Elsey V. State, 396. Emig V. Daum, 291. Engelhardt v. State, 73. Engeman v. State, 109. 514 CASES CITED [The flgures refer to pages] Bnright v. People, 197. Erlckson v. Lyon, 433. Bi-win V. State, 181, 219. Eskridge v. State, 241. Espalla V. State, 397. Estell V. State, 57, 230, 232. Estep V. Com., 186, 191, 205. Estes V. Carter, 37. Etheridge v. State, 359. Evans V. Com., 258. Evans v. People, 167. Evans v. State, 210. Evers v. State, 226. Eversole v. Com., 187. Fair, In re, 101. Fairy v. State, 315. Fanning v. State, 374, 376, Fantroy v. State, 197. Farbach v. State, 94. Farley v. Geisheker, 33. Farmer v. People, 93. Farmer v. State, 180, 269, 384. Farrell v. State, 246. Faulkner v. Territory, 75. Faulks V. People, 94. Felker v. State, 260. Fennell v. State, 421. Ferens v. O'Brien, 314. Ferguson v. State, 115, 295, 296. Ferrell v. State, 81. Ferrill v. Com., 490. Ferris v. Higley, 31. Field V. Com., 198. Files V. State, 338. Filkins v. People, 258, 273. Finch V. Com., 296. Findlay v. Bear, 309. First Nat. Bank v. Yankton Coun- ty, 31. Fisher v. People, 74. Fisher v. State, 77, 300. Fitzgerald v. State, 182, 359. Flaherty v. Thomas, 32. Flanagan v. People, 66, 70, 73, Flanlgan v. People, 76. Fleener v. State, 10, 360. Fletcher v. People, 271, 279. Floyd V. State, 269, 272, 278, 279. Flynn v. State, 350. Fogarty v. State, 70, 74. Fonville v. State, 76, Fort V. State, 341. i'ortenberry v. State, 183, Foster v. Com., 251. Foster v. People, 241. Fowler v. State, 401. Fox V. State, 413. Foy V. Cochran, 433. Francisco v. State, 279. Franco v. State, 298. FranJilin v. State, 204. Fray's Case, 229. Freel v. State, 104. Freeman v. People, 66, 68, French v. People, 136. French v. State, 77. Friederich v. People, 223. Fries' Case, 470. Fry v. State, 224. Fullwood V. State, 131. Funderburk v. State, 384, Fussell v. State, 200. Futch V. State, 179. Gabrielson v. Waydell, 272. Gaines v. Com., 200. Gaines v. State, 401. Galbraith v. State, 262. Gallagher v. State, 272. Gallery v. State, 198, 200. Gann v. State, 222. Gannon v. People, 502. Gardes v. U. S., 501. Garner v. State, 79. Garrett v. Greenwell, 384. Garrett v. State, 291, 406. Gary v. Northwestern Mut. Life Ass'n, 357. Gaunt V. State, 413, 416. Gay V. State, 400. Gelst V. U. S., 156. Gentry v. State, 304, George v. Gobey, 134. CASES CITED [The figures refer to pages] 515 Georgia v. Kepford, 339, 343. Gettinger v. State, 338, 344. Gibbons, Case of, 297. Gibbons v. People, 34. Gibbons v. Pepper, 267. Gibbs V. Dewey, 436. Gibson v. State, 155, 162, 200, 444. Gilbert v. People, 467. Gilbert v. State, 260. Givens v. Com., 12, 277. Glacken v. Com., 364. Gladney v. State, 258. Glover v. Com., 150. Godfrey v. People, 241. Godfrey v. State, 63. Goetz V. State, 94. Coins V. State, 114, 119, 123, 124, 161, 239, 295. Golden v. State, 198. Golden Gate Consol. Hydraulic Min. Co. V. Superior Court, 87. GoUiher v. Com., 211, 212, 233. Gooch V. State, 341. Goodricli v. People, 399. Goodspeed v. Fuller, 433. Gordon v. Gordon, 413. Gordon v. State, 95. Gore's Case, 97, 194, 212. Gossett V. State, 179. Grace v. State, 216, 217. Graham v. McReynoIds, 433. Graham v. People, 372. Graham v. State, 224. Grainger v. State, 198. Grand Jury, In re, 165. Granger v. State, 226. Graves v. State, 347. Gray v. Combs, 189. Green v. State, 261, 349, 458, 488. Greene, In re, 164. Greer v. Wintersmith, 433. Gregg V. State, 348. Gregory v. State, 111, 389. Greschia v. People, 186, 188, 196. Grey's Case, 210, 231. Griffin V. State, 142. Griffith V. State, 121. Grishairi v. State, 401. Groves v. State, 123, 142. Grubb V. State, 75. Guardians of the Poor v. Green, 22. Guest V. State, 343, 346. Guetig V. State, 73. Gutfee V. State, 192. Guiteau's Case, 68. Gunter v. State, 74. Gutchins v. People, 391. H Hadden v. People, 12, 277, 280, 281. Hadfield's Case, 67. Hagan v. State, 239. Hagar v. State, 393. Hager v. Thomas, 7. I-Iaile V. State, 79. Hairston v. State, 55, 162, 255, 260. Halbrook v. State, 408. Hale V. State, 389, 395. Haley v. State, 333. Hall V. Com., 366. Hall V. People, 349. Hall V. State, 198, 258, 259, 260, 344, 417. Hall's Case, 402. Halsted V. State, 93. Hamilton v. People, 88, 117, 259. Hamilton v. State, 143, 346, 490. Hamlin v. Com., 435. Handley v. State, 44, 176. Hankins v. People, 40. Hanks v. State, 483, 484. Harding's Case, 462. Hardtke v. State, 250. Haring v. State, 402. Harkins v. State, 279. Harrel v. State, 125. Harrington v. Mills, 309. Harris v. State, 186, 333, 455. Harrison v. People, 338. Harrison v. State, 183, 188, 298. Hart V. Albany, 403. Hartman v. Com., 8. Hartung v. People, 32. Harvey v. State, 261, 302. 516 CASES CITED [Tbe figures refer to pages] Harvlck v. State, 54, 303. Hash V. Com., 201, 202, 203. Hasson v. Com., 200. Hatchard v. State, 430, 431. Hatchett v. Com., 128. Hathaway v. State, 205. Hawkins v. State, 395, 459, 460, 461. Hayes v. People, 407. Hayes v. State, 57. Haygood v. State, 283. Hayne's Case, 307. Haynes y. State, 182. Haynes' Case, 315. Hays V. People, 254, 277. Hays V. State, 136. Haywood v. State, 308. Hazen v. Com., 155, 158. Head v. Martin, 176. Head v. State, 80. Heard v. State, 291. Heath v. State, 95. Hedley, Ex parte, 358. Heeg V. Licht, 399. Helgho, Ex parte, 169. Hellman v. Com., 252. Helfrich V. Com., 412. Helm V. State, 200. Hemingway v. State, 356. Henderson v. Com., 6, 462. Henderson v. People, 284. Henderson v. State, 183, 289, 340, 38a Hendrick v. Com., 500. Hendricks v. State, 389. Hendricksoh v. Com., 169. Hendrix v. State, 274. Hendry v. State, S44. Henry v. State, 145, 265, 315. Henson v. State, 182. Heritage v. Dodge, 270. Herman v. People, 46. Heron v. State, 385. Hess V. State, 388. Hewlett V. George, 270. Hicks V. Com., 153. Higgins V. Com., 281, 283, 285. High V. State, 241. Higler v. People, 363. HUd V. State, 296. Hlldebrand v. People, 328, 335. HUl V. State, 46, 62, 79, 119, 2G8, 346, 350, 374, 388, 403. HUmes v. Stroebel, 114. Hiltabiddle v. State, 252. Hilton's Case, 169. Hinkle v. State, 271. Hitchcock V. Baker, 437. Hittner v. State, 201. Hoch V. People, 446. Hodge V, State, 75. Hodgkins v. State, 275. Holden v. Minnesota, 32. Holland v. State, 299, 430. Hollingsworth v. State, 357, 359. Holly V. State, 312. Holmes V. State, 271. Holmes' Case, 290. Holt V. State, 211. Holtz V. State, 161. Home Lumber Co. v. Hartman, 359. Hong Shen, Ex parte, 40. Honselman v. People, 421. Hood V. State, 409, 411. Hooker v. Com., 289. Hooks V. State, 179, 196, 224. Hooper V. State, 388. Hoover v. State, 420. Hope V. Com., 310. Hope V. People, 374. Hopps V. People, 71. Hopt V. Utah, 33, 79. Homish V. People, 66. Horton V. State, 15. Hoskins v. Tarrence, 312. Howard v. State, 226. Hoy V. State, 182. Ruber v. State, 244. Huffman v. Com., 119. Iluggett's Case, 222. Hughes V. Com., 389. Hughes V. State, 122. 126. Hughes' Case, 375. Hunt, Ex parte, 32. Hunt V. Adams, 393. CASES CITED [The figures refer to pages] 517 Hunt V. State, 316. Hunt's Case, 330. Hunter y. Com., 46. Hunter v. State, 145, 303, 399, 489. Hunter v. U. S., 412. Hurd V. People, 221. Hurley v. State, 309. Huston V. People, 247. Hutchinson v. State, 401, 448, 449. Hutchison v. Com., 314. Hutton V. State, 270. Illinois Land & Loan Co. v. Spey- er, 433. Ingalls V. State, 79, 128. Ingi-am v. State, 43. Inwood V. State, 40. Irby V. State, 63. Isaac's Case, 291. Jackson v. People, 365. Jackson v. State, 148, 176, 177, 179, 258, 259, 261, 312, 324. James v. Com., 22, 401. Jameson v. State, 340. Jaquith v. Royce, 39. Jardine v. Cornell, 271. Jeff's Case, 260. Jellico Coal Min. Co. v. Com., 88. Jenkins v. State, 258, 292, 324, 380. Jennings v. Com., 212, 423. Jennings v. State, 445. Jesse V. State, 292. John V. State, 281. Johns V. State, 487. Johnson v. Com., 483. Johnson v. Patterson, 189, 190. Johnson v. People, 37. Johnson v. 'btate, 149, 158, 168, 201, 204, 212, 256, 257, 264, 270, 271, 341, 370, 418. Johnson's Case, 294. Johnston v. Com., 295, 298. Jolly V. U. S., 311. Jones, Ex parte, 226. Jones V. Com., 79, 376. Jones V. Fortune, 206, 272. Jones V. People, 224. Jones V. Rice, 441. Jones V. State, 37, 64, 80, 149, 184, 196, 223, 261, 324, 362, 416, 426, 427. Josephine v. State, 122. Joy V. State, 501. Jules V. State, 369. Junod V. State, 312. K Kahn v. U. S., 447. Kansas City v. Neal, 38. Kauffman v. People, 285. Keely v. State, 346. Keenan v. Com., 79. Keeton v. Com., 79. Keil, Bx parte, 2S0. Keir v. Leeman, 441. Keller v. State, 4, 34, 36. Kelley v. State, 77. Kellogg V. State, 332, 333. Kelly, In re, 281. Kemp V. State, 262. Kendall v. Com., 189. Kendrick v. State, 198. Keneval v. State, 408. Kennedy v. State, 314. Kent V. People, 215. Kent V. State, 296. Kenyon v. People, 423, 424, 427. Kessler v. Com., 115, 251. Ketchell v. State, 367. Key V. Vattier, 434. ICieffer, Ex parte, 28. Kilpatrick v. Com., 221. Kllpatrick v. People, 6, 462. Kimmel, In re, 28. King V. Lynch, 472. King V. People, 401. King V. State, 75, 79, 93, 249, 386. Kingen v. State, 182. Kinnebrew v. State, 109. Kinney v. People, 200. Kirby v. Foster, 274. 518 CASES CITED [The figures refer to pages] Kirby v. State, 162. Kirland v. State, 257. Kitchens v. State, 241. Klein v. State, 202, 264, 265. Kline, In re, 32. Klock V. I'eople, 499. Klum V. State, 459. Kneffler v. Oom., 402. Knotts V. State, 295. Knovvles v. State, 401. Knox County v. Hunolt, 8. Koch V. State, 40. Kohlheinier v. State, 499. Kopcyznski v. 'State, 290. Kotter V. People, 394. Kouns V. State, 258. Krambiel v. Com., 283. Kribs V. People, 359. Kring V. Missouri, 31, 33. KualUe V. State, 145, 188, 265. Lamb v. People, 115. Lamb v. State, 430. Lambert v. People, 441, LamUin v. People, 43. Lamphere, In re, 22. Lampliier v. State, 316. Lampton v. State, 285. Lancaster v. State, 79. Lancy v. Havender, 433. Lane v. People, 331, 501. Lane v. State, 197, 225, 226, 252. Langan v. State, 149, 261. Langdon v. People, 74, 75. Langston v. State, 312. Lanier v. State, 303. Lapier's Case, 338. La Rue v. State, 181. Lascelles v. State, 386. Lathrop v. President, etc., ol Am- herst Bank, 433. Law V. Com., 63, 252. Lawrence v. State, 331. Laws V. State, 302. Lawson v. State, 254. Leach v. State, 100. Leache v. State, 71, 73, 74. Leak v. State, 445. I^eary v. State, 141. Ledgenvood v. State, 502.. Lee V. Com., 358. Lee V. State, 186, 233, 490. Lefler v. State, 370.^ Leigh's Case, 321. J^emasters v. State, 386. Le Mott's Case, 297. Leonard v. State, 119. Lett V. State, 200. Levar v. State, 450. Levet's Case, 91, 179. Levi V. State, 379. Levy V. State, 40, 327, Lewer v. Com., 333. Lewis, In re, 428. Lewis V. Broun, 433, 434. I/ewis V. Com., 176, 362. Lewis V. State, 140, 149, 150, 248, 421. Lindenmuller v. People, 26. Lindsey v. State, 486. Linton v. State, 420. Livingston v. Com., 171, Lloyd, In re, 277. Lockett V. State, 292. I^oeffner v. State, 74. Loescher v. State, 247. Lofton V. Vogles, 8. Loftus V. State, 450. Logg V. People, 456. Long V. State, 376, 377. Loomis V. People, 327. Looney v. State, 71. Lord V. State, 402. Lord Morly's Case, 225. Louisville, O. & L. R. Co. v. Com., 400. Louisville & N. R. Co. v. State, 83. Love V. People, 14. Love V. State, 314. , Lowenthal v. State, 353. Loyd V. State, 125. Loza V. State, 79. Luddy V. People, 317. Luke V. State, 289, 292, 293. Lundy v. State, 339. CASES CITED [The figures refer to pages] " 519 Lusk V. State, 162. Luster v. State, 417. Lutterell v. Reynell, 9. Lybarger v. State, 33. Lyle V. State, 79, 445. Lynch v. Com., 224. Lynch v. State, 350. Lynn v. People, 175. Lyon V. State, ISS. Lyons v. People, 296. Lyons V. State, 285, 424. M McAllister v. State, 170. ifeCann v. Com., 498. ^^Karty v. State, 33, 124, 127. ^^^Bearley v. State, 44. ^Hlaiu V. Com., 208. McClean v. State,. 402. McClurg V. Com., ISL Mc-Connell v. State, 2G5. McCook V. State, 81. McCord V. People, 15, 366, 371. McCord V. State, 445. McCormack v. State, 62. McCormick v. State, 377. McCoy V. State, 115, 126. McCullough V. State, 267. McCiitcheon v. People, 93. McDade v. People, 152. McDanlel v. State, 188, 317, 344, 346. McDanlel's Case, 13. McDonald v. Massachusetts, 32. McDonough, In re, 34. McDuffie V. State, 183. McFall V. Com., 479. McGear v. Woodrutf, 40. McGee v. State, 261. McCehee v. State, 59, 263. McGinn v. Tobey, 389. McGowan v. State, 344. McGrath v. State, 294, 296. McGrowther's Case, 100. Mclnerney v. City of Denver, 40. Mclntyre v. People, 76, 77, 81. McKay v. State, 267. McKee V. State, 155, 210. Mackin v. People, 446. McKlnny v. State, 251. McLaren v. State, 330. McLeland v. State, 417. McMahan v. State, 216, 217. McMahon v. State, 114. McMillan v. State, 207. McNaghten's Case, 65. McNeal v. Woods, 290. McNeeley, Ex parte, 489. Maconnehey v. State, 77. McPherson v. Com., 420. McQuli-k V. State, 246, 251. McTyier v. State, 424, 426. McWhirt's Case, 220, 221. Maher v. People, 148, 215, 219, 220, 222, 224, 228, 229, 260. Malcolmson v. Scott, 355. Malone v. Com., 283. Malone v. State, 266. Manchester v. Massachusetts, 478. Manley v. People, 480. Manning v. Sprague, 434. Marceau, In re, 281. JIarcus V. State, 324. Marlon v. State, 32, 33. Markley v. Whitman, 2G0. Marks v. Baker, 467. Marley v. State, 147. Marshall v. State, 94. Marshall's Case, 81. Martin v. Miller, 445. Jlartin v. State, 63, 116, 186, 274. Martin's Ex'r v. Martin, 9. Martindale v. Faulkner, 88. Martins v. State, 369. Mary v. State, 288, 2S9. Mason v. Peojjle, 300. Ma.son V. State, 95, 111, 2^5, 286. Massie v. State, 272. Mathews v. State, 245. Mathis V. Com., 419. Mathis V. State, 33. Matthews v. Terry, 272. Mattingly v. State, 446. Maupln V. State, 261. iMa.xwell v. State, 74. -Maxwell v. Territory, 315. 520 CASES CITED [Tlie figures refer to pages] May V. State, 10. Mayes v. People, 208, 211. Mayes v. State, 348. Maynard v. People, 443. Mayor, etc., of City of New York V. New York & S. I. Ferry Co., 87. Mays V. State, 224. Mead v. State, 341. Medley, In re, 32. Medrano v. State, 88, 408. Meeks v. State, 288. Meister v. People, 118, 122. Melton V. State, 221, 226, 259, 262. Menken v. Atlanta, 186. Merritt v. State, 435. ' Metcalf V. State, 270. Meurer v. iState, 196, 199. Miers v. State, 214. Mifflin V. Com., 158. Miles V. V. S., 89. Miller v. State, 103, 117, 162, 180, 220. Mills V. Com., 425, 429. Milton V. State, 260, 262. Miner v. People, 411. Miner v. State, 412. Miners' Bank v. Iowa, 31. Minnesota v. Barber, 28. Minter v. State, 295, 298, 339. Mitchell V. Com., 112, 114, 117, 299, 429. Mitchell V. State, 178, 279. Mitchum v. State, 208, 320. Mitten V. State, 411. Mockabee v. Com., ^14, 223. Mogler V. State, 134. Molette V. State, 241. Molton V. State, 839. Monday v. State, 260. Montag V. People, 75. Montgomery v. Com., 273. Montgomery v. State, 113. Moody V. People, 280, 281, 285. Mooney v. State, 249. Moore v. Com., 74, 388. Moore v. Illinois, 500. Moore v. People, 256, 301. Moore v. State, 148, 149, 222, 259, 261, 855, 448. Morehouse v. State, 355. Morgan v. State, 499. Morrell v. People, 441. Morris v. State, 192. Morris Run Coal Co. v. Barclay Coal Co., 159. Morrison v. State, 346. Morse v. State, 60, 129. Morton v. Shoppoe, 265. Moye V. State, '349. Mrous V. State, 33. Mulford V. People, 355, 359. MuUaly v. People, 309. Mullen V. State, 145, 266. Mulreed v. State, 94. Mulvey v. State, 103. Munkers v. State, 423. Murio V. State, 382. Murphy v. Com., 32, 233. Murphy v. State, 207, 210, 275, 277. Murray v. Com., 197. Murray's Estate, In re, 433. Myers v. Malcolm, 399. Myers v. State, 95, 359. N Nash V. State, 204. Nations V. State, 418. Navarro v. State, 430. Neagle, In re, 191. Neal V. Henry, 399. Neal V. State, S71. Nehr v. State, 383. Neiderluck v. State, 294. Nelms V. State, 407. Nelson v. Brush, 438. Nelson v. State, 389, 891, 445. Neiw Jersey Steam-Boat Co. v. Brockett, 271. New York & G. L. R. Co. v. State, 88. Nicholls V. State, 298. Nichols V. People, 822. Nichols V. State, 43, 346. Nicholson v. State, 147. CASES CITED [The figures refer to pages] 521 Noecker v. People, 134. Nolan V. State, 499. Noles V. State, 184. Norman v. State, 226. Norrls v. State, 261. Northern Cent. R. Co. v. Com., 84. Norton v. Ladd, 309. Nye V. People, 208, 219. O Oakley v. Com., 197, 201. O'Boyle v. State, 244. O'Brian v. Com., 499. Ocha V. People, 156. Oder V. Com., 183, 197. O'Donnell v. People, 161. Ogden V. State, 123. O'Grady v. State, 80. Olds V. 'State, 295, 209. Oleson V. State, 243. Oliver v. Com., 425. Omer v. Com., 115. O'Neill V. State, 424, 426, 459, 461. O'Reilly v. People, 442. Orman v. State, 226. Orr V. Bank of U. S., 86. Orr V. People, 157. Ortwein v. Com., 66. Osbom V. Gillett, 9. Owen V. State, 314. Owens V. State, 96, 344, 414. Oxx V. State, 371. Pace V. State, 420. Palatka & I. R. R. Co. v. State, 84. Palmer y. People, 184, 315, 343. Pankey v. People, 443. Parker v. State, 27, 201, 400. Parsons v. People, 415. Parsons v. State, 70, 71, 72, 74, 170. Patillo V. 'State, 197. Patten v. People, 177, 191, 197, 205. Patterson v. Nutter, 271. Patterson v. People, 197. Patterson v. State, 148, 260. Paul V. Detroit, 436. Pauli V. Com., 394. Payne v. People, 310, 311. Payne v. State, 249. Payner v. Com., 283. Pearson, In re, SO, 81. Pearson's Case, 76, 224. Peck, In re, 282. Peden v. State, 117. Pefferling v. State, 261. Pence v. State, 346. Pennsylvania v. Campbell, 316, 319. Pennsylvania v. Honeyman, 210. Pennsylvania v. McGill, 152. Pennsylvania v. Misner, 394. Pennsylvania v. Sullivan, 422. Penny v. State, 359. Penton v. State, 417. People V. Abbott, 46. People V. Abeel, 390. People V. Adams, 112. People V. All Fat, 119, 167, 170, 171. People V. Ah Ping, 114. People V. Ah Sing, 445. People V. Albany & V. R. Co., 87. People V. Anderson, 198, 330, 346, • 348. People V. Angeles, 1T9. People V. Aplin, 289, 300. People V. Arnold, 47, 156. People V. Austin, 198. People V. Babcock, 5, 361. People V. Barber, 70. People V. Barnes, 344. People V. Barrett, 500. People V. Barric, 118, 502. People V. Batchelder, 273. People V. Bawden, 74. People V. Beardsley, 236. People V. Beckwith, 172. People V. Beevers, 407, 408. People V. Beldon, 324. People V. Belencia, 79. People V. Bemmerly, 74. People V. Bennett, 314, 413. 5:^2 CASES CITED [The figures refer to pagesj People v. Benolt, 419. People V. Coughlln, 185. People V. Benson, 250. People T. Courier, 246, 250. People V. Blhler, 464. People V. Crego, 250. People V. Blake, 134. People V. Crissle, 365. People V. Bliven, 123. People V. Crosby, 247. People V. Bolanger, 118. People V. Crowey, 207. People V. Boyle, 422. People V. Cummings, 372. People V. Bransby, 275. People V. Cummins, 79. People V. Brewer, 424. People V. Cummons, 283. People V. Brown, 149, 244, 407. People V. Cunningham, 402, 404. People V. Burkliardt, 384. People V. Curtis, 13, 483. People V. Burt, 180, 223. People V. Dalrymple, 10, 415. People V. Burwell, 419. People V. Dalton, 353. People V. Bush, 152, 153, 300. People V. Dann, 186, 273. People V. Bushton, 215. People V. Davidson, 123. People V. Butler, 157, 225. People V. Davis, 386, 415. People V. Button, 201, 202. People V. Dawell, 409. People V. Cage, 499. People V. Deacons, 172. People V. Calderwood, 301. People V. De Fore, 426, 427. Pieople V. Calhoun, 450. People V. De Day, 360. People V. Call, 324, 326, 346. People V. De Leon, 280, 281. People V. Camp, 281, 334. People V. Demousset, 283, 284. People V. Campbell, 122, 182, 309. People V. Detroit White Lead People V. Carabln, 344. Works, 399, 400, 404. People V. Carr, 301. People V. Devine, 344. People V. Carrier, 283, 284. People V. Dickie, 388. People V. Carter, 168. People V. Dillon, 75. People V. Caryl, 271. People V. Dodel, 262, 265. People V. Caton, 396. People V. Dohring, 243, 244. People V. Chalmers, 46. People V. Dolan, 95. People V. Chapman, 114, 251. People V. Drayton, 391. People V. Clark, 208, 425, 426, 499. People V. Dunn, 125. People V. Clements, 435. People V. Dupree, 29G. People V. Clough, 11, 276, 369. People V. Durfee, 73. People V. Cogdell, 330, 331, 348. People V. Dyer, 161. People V. Cole, 177, 199, 316, 371. People V. Bbner, 278, 280. People V. Collier, 445. People V. Eddy, 93. People V. Collins, 117. People V. Elder, 168. People V. Comstock, 258, 260. People V. Elliott, 392. People V. Constantino, 199. People V. Emerson, 114. People V. Converse, 355. People V. Equitable Gas-Light People V. Cook, 88, 170, 179, 369, Co., 83. 442. People V. Faber, 409. People V. Corbett, 408. People V. Pahey, 259. People V. Corey, 79. People V. Fairchlld, 289. People V. Corporation of Albany, People V. Fick, 280, 282. 84, 403 People V. Finley, 71, 73. People V. Cotteral, 292. People V. Fish, 215.. CASES CITED 523 [The figures refer to pages] People V Fisher, 160, 498. People V. Higglns, 501. People V Pitch, 393, 395. People V, Hodgkin, 422, People V Fitzpatrick, 280. People V. Hoin, 70. People V. Fleming, 149, 261. People V. Holmes, 239. People V Foley, 115, 162. People V. Horrigan, 350. People V. Foy, 73. People V. Horton, 224, 273. People V Freel, 219. People V. Howard, 147. People V. Fuller, 233. People V. Hughes, 43, 377. People V. Gaige, 443. People V. Hurst, 359. People V Gallagher, 358. l-'eople V. Husband, 89. People V. Galland, 359. People V. Hyde, 448. People V. Galloway, 392. People V. Jackson, 46, 402. People V. Garbutt, 75, 76. People V. Jacobs, 365. People V. Gardiner, 151. People V. Jaffe, 379. People V. Gardner, 12, 146, 2C2, People V. Jenness, 418. 490. People V. Jerome, 463. People V. Gamett, 360. People V. Johnson, 327, 353, 364 People V. Gassaway, 126. 372, 381. People V. Gates, 417. People V. Jones, 143. People V. Gaylord, 307. People V. Jordan, 365. People V. Getchell, 367. People V. Juarez, 346. People V. Gibbs, 365, 3G9, 425. People V. Judson, 458. People V. Gibson, 299. People V. Justices of Court of People V. Gill, 4b8. V Special Sessions, 40. People V. Gillis, 340. People V. Kane, 384. People V. Gilman, 155. People V. Keeley, 384. People V. Glynn, 374. People V. Kehoe, 424, 426. People V. Gonzales, 1S3, 197, 199. People V. Kerr, 449. People V. Goodwin, 501. People V. Kerrigan, 73. People V. Gould, 428. People V. Kibler, 93. Peojjle V. Goulette, 246, 277. People V. Kirby, 51. People V. Griffin, 301, 302. People V. Kirwan, 149, 261. People V. Gukouski, 116. People V. Knapp, 115, 162, 415. People V. Haggerty, 288. People V. Krummer, 386. People V. Haley, 435. People V. Krusick, 423. People V. Hall, 376. People V. Lake, 418. People V. Hamilton, 435. People V. Lanagan, 171. People V. Handley, 289. People V. Lanfe, 172. Peojile V. Hanrahan, 39. People V. Lee Kong, 143,, 267. People V. Hansel man, 13, 336. People V. Leonardi, 79. People V. Hardisson, 502. People V. Leong Yune Gun, 267. People V. Harriden, 419. People V. Levlson, 381. People V. Harris, 76, 79. People V. Lewinger, 393. People V. Hartman, 409. People V. Lewis, 76, 171. Peojile V. Hayes, 32. People V. Leyba, 259. People V. Haynes, 369, 370. People V. Lilley, 219, 220, 254, People V. Hennessey, 172. 260. People V. Henssler, 371. People V. Lilly, ISO. 524 People V. People V. People V. People V. People V. People V. People V. People V. 370. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People v. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. 265. People V. People V. People V. CASES CITED rnie figuree refer to pages] tiiphardt, 13. Lombard, 183. . Long, 315, 344. Loughridge, 490. Lynch, 198, 472. Lyon, 43. Lyons, 184, 193. McAllister, 367, 369, Macard, 184, 200. McCord, 14, 304. McDanlels, 377. McDonald, 246, 277. McDonell, 73. McGarren, 331. McGonegal, 113, 431, McGuire, 120. McKane, 47. McKay, 271, 501. McKlnney, 34, 356. McLaughlin, 450. McLean, 435. McMakin, 255. BIcNuIty, 32. McQuaid, 408. Malone, 400. Maloney, 309. Manchego, 261. Marks, 95. Martin, 15. Mather, 46, 155, 162. Mendenhall, 408.. Merrill, 280, 483, 484. Meyer, 337. Miller, 8, 155, 273, 347. Mills, 151. MUlspaugh, 285. Mize, 148. Montague, 379. Montarial, 326. Moody, 383. Moore, 257. Moran, 143. Morehouse, 262, 264, Morine, 197. Morino, 346. Morrison, 243. People V. Mortimer, 73. People T. Most, 36. People V. MuUer, 400. People V. Murback, 225. People V. Murphy, 13, 339. People V. Murray, 142, 274. People v. Myers, 74, 436. People V. Nelson, 424. People V. Nolan, 296. People v. Northey, 449. People V. North River Sugar Re- fining Co., 159. People T. Olmstead, 231, 430. People V. Olsen, 212, 225, 384. People V. Orcutt, 289. People V. Ozboda, 371. People T. Palmer, 172. People V. Park, 43. People V. Parks, 135. People V. Parshall, 284, 285. People V. Payne, 178, 273. People V. Peabody, 145. People V. Peacock, 386. People V. Pearl, 274. People V. Perazzo, 445. People V. Perini, 324, 353. People V. Peters, 449. People v. Petheram, 47. People V. Phelan, 80. People V. Phelps, 430. People V. Pine, 67. People V. Pline, 501. People V. Plumsted, 34. People V. Pool, 214. People V. Porter, 26. People V. Quin, 149, 245. People V. Rae, 333. People V. Randolph, 147, 252. People V. Raschke, 333. People V. Reilly, 34. People V. Reinitz, 388. People V. Repke, 100, 112. People V. Reynolds, 34, 378, 381. People V. Rice, 370. People V. Richards, 46, 156, 157. People V. Richmond, 101. People V. Robertson, 200, 221. People V. Roby, 50, 93, 134, 135. CASES CITED [The figures refer to pages] 525 People V. Rochester R. & Light Co., 86 People V. Rockwell, 53, 232. People V. Rogers, 76, 77, 81. People V Royal, 247. People y. Ruggles, 25, 26. People V. Rushing, 386. People V. Ryan, 145. People V. Samonset, 427. People V. Sands, 399. People y. Saunders, 158, 161. People V. Schenck, 490. People y. Schultz, 344. People y. Schuyler, 316. People y. Scoggins, 183. People V. Scott, 260. People y. Seaton, 330. People V. Shall, 391, 392. People y. Sharp, 389. People V. Shears, 343. People y. Sheldon, 159. People y. Sherman, 354. People y. Skutt, 419. People y. Slack, 233, 408. People y. Slayton, 344. People y. Sligh, 113, 349. People y. Smith, 114, 322, 383. People y. Spencer, 75. People y. Spohr, 57. People y. Sprague, 70, 71. People y. Squires, 424, 425. People y. Stanley, 32. People V. Stetson, 366. People y. Stewart, 150. People y. Stockham, 430. People y. Stokes, 413. People y. Stubenyoll, 231. People V. Summers, 370. People y. Swalm, 317. People y. Sweeney, 55, 12& People y. Swetland, 397. People V. Sylva, 265. People y. Tarvis, 442, 443. People V. Taylor, 67, 70, 289. People y. Thomas, 369. People y. Thompson, 315, 343. People y. Thorn, 47. People V. Todd, 63. People y. Toland, 297. People V. Tomlins, 187. People V. Tovvnsend, 62, 399. People V. Travers, 76. People y. Trim, 122. People y. Tyler, 479, 485, 4S9. People y. Van Alstyne, 426. People V. Vincent, 79. People V. Wadsworth, 359. People y. Wakely, 367. People V. Walker, 79. People V. Wallace, 425. People y. War, 43. People ^y. Warner, 386. People 'v. Wasservogle, 365. People y. Watson, 371. People y. Webb, 141, 499. People V. Weinstock, 423. People y. Welch, 93, 135. People y. Wheeler, 278, 392. People y. Whiteman, 368. People V. Wicks, 47. People y. Wiley, 310, 315, 343, 487. People y. WUley, 445. People y. Williams, 81, 197, 208, 312, 370. People V. Wilson, 79, 350. People V. Winslow, 364. People y. Wong Ah Teak, 201. People V. Woods, 116. People y. Woodward, 114. People V. Wright, 103, 119, 241. People V. Youngs, 141. People V. Yslas, 254, 265. People V. Zeiger, 93. People ex rel. Burnham y. Flynn, 158. People ex rel. Perkins v. Moss, 346. People ex reL 'Scharff y. Frost, 429. Peoples V. Com., 114, 213,- 231. Perkins y. State, 222, 366. Perrin v. Com., 330. ' Pen-y v. State, 33, 186, 187. Peterson v. State, 149. Pettes y. Com., 123. Petty, In re, 32. 526 CASES CITED [Tbe figures refer to pages] Phelps V. People, 341. Phillips V. Com., 183, Phillips V. Innes, 400. Phillips V. People, 499. Phillips V. South Park Com'rs, 433. Phillips V. State, 127, 426. Philpot V. Com., 258. Pickens v. State, 224. Pierce v. State, 258, 2T4. Pigg V. State, 13, 335. Pigman v. State, 80. Pinder v. State, 194, 197. Pinkard v. State, 122, 150, 163. Pinson v. State, 417. Piper V. State, 460. Pirtle V. State, 76, 79. Pistorius v. Com., 197. Pitcher v. People, 36, 289, 300. Pitts V. State, 226. Pittsburgh & Allegheny Bridge Co. V. Com., 84, 404. Plake V. State, 71, 75. Pledger v. State, 468. Plummer v. Smith, 8, 194. Point V. State, 350. Polk V. State, 203, 425. Pollard V. People, 446. Pollock V. State, 459. Pomeroy v. State, 249. Pond V. People, 177, 182, 185, 187, 191, 205, 289. Pool V. State, 211. Popinaux v. State, 368. Porath V. State, 419. Potter V. State, 57. Powell V. Com., 394. Powell V. State, 171, 231. Powers V. People, 189. Pratt V. Pratt, 413. Pratt V. State, 267. Pressley v. State, 296. Price V.' People, 118, 302. Price V. State, 222, 401, 498. Price T. U. S., 13, 262, 264. Prindle v. State, 36, 422. Pritchett v. State, 499. Probert's Case, 291. Proper v. State, 246, 277. Pruitt V. State, 281. Pruner v. Com., 417. Pugh V. Com., 250. PuUam V. State, 355. Putman v. State, 426. Quarles, In re, 164. Queen, The, v. Flattery, 12. Quinn V. People, 301, 314, 330, 353.^ R Rachels v. State, 456. Radford v. Com., 197, 200. Rafferty v. People, 76, 223. Ragland v. State, 181. Rand v. Com., 32. Randall v. Com., 43. Randall v. Evening News Ass'n,- 448. Randolph v. Com., 139. Ranney v. People, 364. Ransom y. State, 330, 348. Rather v. State, 74. Ratzky v. People, 32. Rauck V. State, 274. Raven's Case, 321. Raymond v. People, 393. Reagan v. State, 79. Rebman, In re, 28. Reddick v. Com., 212. Reddick v. State, 389. Reed v. State, 204. Reese v. State, 219, 222. Reeves v. State, 355. Reg. V. Adams, 381. Reg. V. Addis, 342. Reg. V. Adey, 354. Reg. V. Alison, 217. Reg. V. Allen, 213, 407, 422.. Reg. V. Anderson, 481. Reg. V. Archer, 188. Reg. V. Ardley, 366. Reg. V. Ashwell^ 337, 347... Reg. V. Avery, 317. Reg. V. Bamber, 107. CASBS CITED 527 [The figures refer to pages] Reg. V. Banner, 111. Reg. V. Dadson, 180. Reg. V. Barronet, 11, ,276. Reg. V. Dalloway, 233. Reg. V. Barrow, 248. Reg. V. Daniel, 152. Reg. V. Bazely, 324. Reg. V. Dant, 232. Reg. v.'Beecham, 342. Reg. V. Davis, 77, 170. Reg. V. Bennett, 238, 266, 277. Reg. V. Day, 257. Reg. V. Best, 158. Reg. V. Debruiel, 490. Reg. V. BirchaU, 238. Reg. V. Dee, 243, 245, 248, 249. Reg. V. Bird, 296, 335. Reg. V. Doherty, 53, 208. Reg. V. Blrkett, 395. Reg. V. Dolan, 379. Reg. V. Birmingham & Q. R. Reg. V. Doody, 80, 217. Co., 83. Reg. V. Downes, 51, 89, 234. Reg. V. Bishop, 93. Reg. V. Dudley, 104, 105, 100. Reg. V. Bleasdale, 137. Reg. V. Dugdale, 139. Reg. V. Bowers, 354. Reg. V. Dykes, 102, 103. Reg. V. Boyce, 55. Reg. V. Eagleton, 142. Reg. V. Bradshaw, 11, 230, 231, Reg. V. Farrell, 401. 276. Reg. V. Faulkner, 55, 58, 292. Reg. V. Brooke, 465. Reg. V. Featherstone, 316. Reg. V. Brooks, 380. Reg. V. Finkelstein, 397. Reg. V. Brown, 119, 143, 160, 407, Reg. V. Fisher, 228. 422. Reg. V. Flatman, 111. -Reg. V. Bruce, 194. Reg. V. Flattery, 249. Reg. V. Bryan, 366, 368. Reg. V. Fletcher, 245, 248, 276, Reg. V. Bubb, 234. 355. Reg. V. Buekmaster," 335. Reg. V. Flowers, 337, 347. Reg. V. Bunce, 322. Reg. V. Foley, 313. Reg. V. Button, 256, 257. Reg. V. Franklin, 57. Reg. V. Carr, 382, 490. Reg. v. Friend, 234. Reg. V. Case, 12, 277. Reg. V. Fulton, 139. Reg. V. Chadwick, 388. Reg. V. Gamble, 145. Reg. V. Champlin, 245. Reg. V. Gardner, 347, 372. Reg. V. Chamberlain, 233. Reg. V. Gathercole, 463, 404. Reg. V. Chapman, 142. Reg. V. Geach, 395. Reg. V. Cheafor, 308. Reg. V. Goodchild, 143. Reg. V. Christopher, SSL Reg. y. Goode, 326. Reg. V. Clarence, 278. Reg. V. Goodwin, 368. Reg. V. Clarke, 248. Reg. V. Goss, 366. Reg. V. Clarkson, 457. Reg. V. Great North of England Reg. V. Clayton, 109. R. Co., 83. Reg. V. Clinton, 307. Reg. V. Greenwood, 212. Reg. V. Closs, 390. Reg. V. Gregory, 121. Reg. V. Cohen, 334. Reg. V. Grey, 400. Reg. V. Collins, 143. Reg. V. Griffin, 193. Reg. V. Conde, 210, 234. Keg. V. Hagan, 214. Reg. V. Coney, 114, 275. Reg. V. Haigh, 323. Reg. V. Cruse, 118. Reg. V. Haines, 171, 235. Reg. V. CuUum, 358. Reg. V. Hall, 342, 354. 5Z8 CASES CITED [The figures reter to pagesj Reg. V. Hallett, 243. Reg. V. Lowe, 235. Reg. V. Halllday, 169. Reg. y. McGrath, 321. Reg. V. Hamilton, 368. Reg. y. Macleod, 237. Reg. V. Hancock, 379. Reg. y. McPherson, 139, 148. Reg. V. Hands, 321, 339. Reg. y. Madge, 382. ' Reg. V. Hanson, 256. 257. Reg. V. Manley, 111. • Reg. V. Harrison, 316. Reg. V. March, 256. Reg. V. Hart, 388. Reg. V. Marriott, 236. Reg. V. Haynes, 70, 72. Reg. V. Marshall, 354. Reg. V. Hazell, 321. Reg. y. Martin, 169, 388. Reg. V. HeWr, 337. Reg. V. Masters, 324. Reg. V. Hewlett, 181. Reg. y. Matthews, 60. Reg. V. Heywood, 396. Reg. y. Mears, 158. Reg. V. Hodgson, 390. Reg. y. Medland, 342. Reg. V. Holland, 169. Reg. y. Meredith, 141. Reg. V. HoUoway, 306, 341. Reg. y. Michael, 110. Reg. V. Holmes, 401. Reg. y. Mlddleton, 336, 347. Reg. V. Hornby, 334. Reg. y. Miller, 380. Reg. V. Howell, 158. Reg. y. Mills, 368. Reg. V. Hudson, 15, 371. Reg. y. Mitchell, 389. Reg. y. Hughes, 235, 444. Reg. y. Moore, 331. Reg. V. Instan, 234. Reg.- y. Morley, 51, 234. Reg. V. Ion, 396. Reg. y. Mucklow, 337. Reg. V. Jackson, 117, 271. Reg. y. Murphy, 179. Reg. V. James, 264, 265, Reg. y. Nichols, 234. Reg. V. Jellyman, 422. Reg. y. Norman, 359. Reg. V. Jennison, 363. Reg. y. Norval, 325. Reg. T. Jones, 289, 310, 346, 362, Reg. y. O'Brien, 298, 299. 369. Reg. y. O'Donnell, 342. Reg. V. Kelly, IIL Reg. y. Parker, 287, 288. Reg. V. Kenny, 316. Reg. V. Parnell, 154. Reg. V. Kerr, 332. Reg. y. Pembliton, 55, 5a Reg. V. Kew, 238. Reg. V. Perry, 311. Reg. V. Keyn, 478. Reg. y. Petch, 309, 313. Reg. V. KiUiam, 372. Reg. y. Phetheon, 342. Reg. V. Kirkham, 219. Reg. y. Phillips, 147, 251. Reg. T. Knights, 236. Reg. y. Pierce, 331. Reg. V. Knock, 98, 193, 230. Reg. y. Plummer, 170. Reg. V. Lancaster, 449. Reg. y. Pocock, 168, 237. Reg. V. Laagley, 464. Reg. y. Pollard, 104:. Reg. V. Latimer, 59, 268. Reg. V. Powell, 310, 311. Reg. y. Lawrence, 13, 335. Reg. y. Poyser, 322, 323. Reg. V. Leddington, 217. Reg. y. Preston, 329, 348. Reg. y. Lee, 364. Reg. y. Prince, 94, 334. Reg. y. Leslie, 101. Reg. y. Priyett, 345. Reg. V. Lewis, 141, 485, 488. Reg. V. Quail, 152. Reg. V. Longbottom, 238. Reg. y. Radford, 398w Reg. y. Lovell, 321. I^eg. y. Ragg, 366. CASES CITED 529 [The figures Reg. T. Read, 277, 358. Reg. V. Reardon, 379. Reg. V. Reed, 89, 320, 325, 344. Reg. y. Reeves, 167. Reg. V. Richardson, 388. Reg. V. Ridgway, 366. Reg. V. RUey, 348, 349. Reg. V. Ring, 143. ♦ Reg. V. Roberts, 125, 139, 141. Reg. V. Robins, 334. Reg. V. Robinson, 309, 372. Reg. V. Rodway, 326. Reg. V. Rose, 205. Reg. V. Rothwell, 224, 226. Reg. V. Rowed, 152. Reg. V. Russell, 288. Reg. V. Russett, 335. Reg. V. St. George, 141, 265. Reg. V. Salmon, 113, 233. Reg. V. Saunders, 248. Reg. V. Scblesinger, 445. Reg. V. Schmidt, 379. Reg. V. Sellls, 167. Reg. V. Selwag, 373. Reg. V. Senior, 234. Reg. V. Seme, 209, 210, 212. Reg. V. Shappard, 334. Reg. V. Sharman, 390. Reg. V. Sharpe, 51. Reg. V. Shepherd, 236. Reg. V. Shickle, 808. Reg. V. Simpson, 338. Reg. V. Sinclair, 256, 277. Reg. V. Slowly, 327, 328, 334. IJeg. V. Smith, 236, 317, 380, 390, 391. Reg. V. Solomons, 333. Reg. V. Stanton, 249. Reg. V. Stephens, 133, 403. Reg. V. Stokes, 70. Reg. V. Stone, 367. Reg. V. Swindall, 238. Reg. V. Taylor, 111, 397. Reg. V. Thompson, 223, 316, 327, 334. Reg. V. Thristle, 321. Reg. V. Thurborn, 60, 329, 330. Reg. V. ToUett, 316. Clabk Cb. L.3d Ed. — 34 refer to pages] Reg. V. Tolson, 48, 50, 92, 95, 409, 410. Reg. V. Tooley, 222, 224. Reg. V. To'shack, 390. Reg. V. Towers, 169, 231, 232. Reg. V. Townley, 308, 309, 312, 313. Reg. V. Tracy, 110. Reg. V. Tribilcock, 342, Reg. V. Trilloe, 167. Reg. V. Turner, 354. Reg. V. Twose, 89. Reg. V. Tyler, 100. Reg. V. VUlensky, 379. Reg. V. Vincent, 457, Reg. V. Vreones, 436. Reg. V. Wade, 379. Reg. V. Wagstaffe, 51. It eg. V. Waite, 251. Reg. V. Walker, 354. Reg. V. Wallace, 383. Reg. V. Walne, 364. Reg.- V. Warburton, 157. Reg. V. Wardraper, 380. Reg. V. Watson, 401. Reg. V. Watts, 310, 311, 325. Reg. V. Webb, 401. Reg. V. Webster, 314, 316. Reg. V. Welsh, 219, 220. Reg. V. West, 167, 331. Reg. V. Wheeldon, 299. Reg. V. White, 314, 339, 354, 382. 387. Reg. V. Wiley, 380. Reg. V. Williams, 103, 152. Reg. V. Wilson, 395. Reg. V. Woodhurst, 247, 277, 278. Reg. V. Woodward, 60, 129, 380, 381. Reg. V. Wortley, 312. Reg. V. Wright, 320. Reg. V. Wynn, 346, 349. Reg. V. York, 330. Reg. V. Young, 220, 455. Reimer's Appeal, 403. Rembert v. State, 392. Reneau v. State, 44, 176, 177. Renew v. State, 443. OrfU CASES CITED [The figures refer to pages] Respubllca v. Caldwell, 404. Rex V. Cross, 400, 405, Respuhlica v. Carlisle, 472. Rex V. Crump, 342. Kespublica v. De Longchamps, 496. Rex V. Crutchley, 100. Kespublica v. McCarty, 100. Rex V. Dale, 368. Respubllca v. Malin, 147. Rex V. Davies, 301. Kespublica v. Mesca, 22. Rex V. Davis, 297, 298. Kespublica v. Powell, 362. Rex V. Delavel, 158. Kespublica v. Teischer, 346, 383. Rex V. 'Dickinson, .341. Revoir v. State, 75. Rex V. Dingley, 319. Rex V. Adams, 333, 372. Rex V. Dixon, 133, 399. Rex V. Adey, 222. Rex V. Dunn, 3S6. Rex V. Allen, 177. Rex V. Dunnage, 8. Rex V. Almon, 131, 132, 465. Rex V. Edward, 376. Rex V. Anderson, 489. Rex V. Egginton, 14, 304. Rex V. Astley, 875. Rex V. Enoch, 167. Rex V. Bailey, 88, 299. Rex V. Esop, 88. Rex V. Banks, 321, 347. Rex V. Finnerty, 177. Rex V. Barnard, 367. Rex V. Flannagan, 301. ) Rex V. Bass, 324. Rex V. Fletcher, 322. Rex V. Bazeley, 320, 352. Rex V. Ford, 214. Rex y. Beacall, 14, 355. Rex V. Francis, 373. Rex V. Bembridge, 452. Rex V. Fuller, 139. Rex V. Bennett, 297. Rex V. Gammon, 250. Rex V. Bigley, 13, 304. Rex V. Gibbons, 300. Rex V. Billingham, 11, 275. Rex V. Gilbert, 334. Rex V. Bingley, 111. Rex V. Gill, 155. Rex V. Birkett, 389. Rex V. Goodhall, 364. Rex V. Blake, 462. Rex V. Gray, 301. Rex V. Bloekham, 375. Rex V. Great Western Laundry Rex V. Bootle, 439. Co., B6. Rex V. Bower, 451. Rex V. Greenacre, 215. Rex V. Brain, 167. Rex V. Groombridge, 35. Rex V. Bramley, 314, 315. Rex V. Grout, 233. Rex V. Brazier, 322. Rex V. Gutch, 132. Rex V. Brice, 295. Kex V. Haines, 296. Rex V. Brodribb, 457. Rex V. Hall, 89, 344, 376. Rex V. Bull, 319. Rex V. Hantin, 358. Rex V. Burdett, 465. Rex V. Harrington, 191. Rex V. Burgess, 316. Rex V. Hartley, 354. Rex V. Burnett, 400. Rex V. Harvey, 333, 335, 467. Rex V. Cabbage, 345. Rex V. Haswell, 439. Rex V. Campbell, 334. Rex V. Headge, 13, 335, 353. Rex V. Chissers, 327. Rex V. Heath, 139. Rex V. Clark, 317. Kex V. Hickman, 152. Rex y. Clay, 339. Rex V. Higgins, 152. Rex V. CI ewes, 172. Rex V. Hogan, :j:'>9. Rex V. Coombes, 486. Rex V. Hood, 454. Rex V. Cooper, 120. Rex V. Howard, 229. CASES CITED [The figures refer to pages] 531 Rex V. Hughes, 299. Rex V. Hull, 232. Rex V. Hyams, 296. Rex V. Jackson, 248, 33^, 334, 366. Rex V. Jacobs, 422. Rex V. James, 262. Rex V. Jarvis, 126. Rex V. Johnson, 295. Rex V. Jones, 452. Rex V. Joyner, 383. Rex V. Kelly, 119. Rex V. King, 117. Rex V. Kirkwood, 111, 120. Rex V. Knight, 54, 233. Rex V. Lapier, 375. Rex V. Lawrence, 296. Rex V. Lewis, 294. Rex V. Lockett, 386. Rex V. Longstreeth, 334. Rex V. Lord Grey, 157. Rex V. Lynch, 229. Rex V. Lyons, 301. Rex V. Macdaniel, 169. Rex V. Madox, 322. Rex V. Mann, 217. Rex V. March, 290. Rex V. Martin, 289, 300. Rex V. Medley, 133. Rex V. Mellish, 354. Rex V. Monteth, 45. Rex V. Morfit, 345. Rex V. Mulreaty, 422. Rex V. Murray, 324. Rex V. Oneby, 228. Rex V. Owen, 62. Rex V. Palmer, 226. Rex V. Paradice, 326. Rex V. Parker, 366. Rex V. Parkes, 332. Rex V. Pear, 322. Rex V. Pedley, 445. Rex V. Penny, 464. Rex V. Perkes, 298. Rex V. Phillips, 341, 342. Rex V. Pitman, 340. Rex V. Pitwood, 235. Rex V. Porter, 158. Rex V. Pratley, 322. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Kex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex 7. Rex V. Rex Rex Rex Rex Rex Rex Rex Rex V. Hex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Rex V. Pratt, 334. Prowes, 489. Pywell, 157. Rampton, 233. Reekspear, 422. Regan, 293. Rew, 169. Richardson, 381. Roderick, 139. Rosinski, 12, 277. Russell, 296. Rust, 299. St. George, 264. Scully, 178, 180. Searing, 309. Sharpless, 334. Sheperd, 53. Smith, 295, 299, 354. Snowley, 358. Scares, 112. Spriggs, 294, 295. Squire, 354. Stallion, 288. Stewart, 139. Stokes, 439. Stratton, 105. SuUens, 319, 353. Summers, 454. Sutton, 139. Taylor, 350. Thomas, 80. Thompson, 338. Thorley, 358. Tideswell, 321, Tolface, 316. Topham, 463. Treble, 394. Turner, 6, 157. Tyson, 217. VantandiUo, 400. Vaughan, 152. Vyse, 311. Wakeling, 367. Wall, 391. Walsh, 338. Walter, 132. Ward, 404. Westbeer, 45, 311, 312. 532 CASES_ CITED [Vhe figures refer to pages] iJex V. Wheatley, 361. Rex V. Wheatly, 5, 8. Rex V. White, 115, 400, 436. Rex V. Williams, 452. Rex V. Willis, 316. Rex V. Wody, 311. Rex V. Wright, 342. Reynolds v. People, 122, 125, 126. Reynolds v. State, 245. Reynolds v. U. S., 51, 89, 410. Rice V. State, 233. Richards, Ex parte, 448. Richardson v. State, 417. Richmond v. Fisk, 257. Riflemaker v. State, 241. Riggs V. State, 101, 102, 220. Rigmaidon's Case, 237. Riley V, State, 95, 488. Ritchey v. People, 181. Road Commission v. Harlng, 34. Roberts v. People, 79, 82. Roberts v. State, 214, 220, 291, 332, 346, 386. Robertson v. State, 233, 261. Robinson v. State, 145, 323, 343. Robson V. State, 10, 360. Rodgers v. State, 246, 250. Rogers v. Com., 143. Rogers v. State, 79, 171. RoUand v. Com., 294, 295, 297. Rollins V. State, 389. Roode V. State, 392. Rose V. Com., 295. Rose V. State, 204. Ross V. Com., 341. Ross V. People, 333. Rowe V. U. S., 187, 201. ' Royal Circle v. Achterrath, 216. Rudlcel V. State, 392. RulofE V. People, 117, 172, 178. Rump V. Com., 445. Rung V. Shoneberger, 404. Runyan v. State, 181, 200. RusseU V. State, 409. Saens v. State, 204, 205. Sage V. State, 121. St. Louis, A. & T. R. Co. v. State, 83. Sanders v. People, 443. Sanders v. State, 11, 101. Sanderson v. Com., 381. Sanford v. State, 187. Sans V. People, 22. Sasser v. State, 386. Saunders' Case, 97, 121, 194, 212. Savannah, F. & W. R. Co. v. State, 84. Sawyer v. State, 224. Saylor v. Com., 191. Sayre v. Louisville Union Benev. Ass'n, 1.59. Sayres v. Com., 71. Scales V. State, 183. Scarlett v. State, 363. Schlect -v. State, 221, 222. Schmidt v. State, 136. Schmidt v. U. S., 52. Schnier v. People, 197. Schoenfeldt v. State, 419. Schultz V. State, 341. Schwabacher v. People, 300. Scott V. Com., 71. Scott V. Fleming, 274. Scott V. People, 430. Scott V. State, 55, 148. Scruggs V. State, 285, 286. Seaoord v. People, 403, 404. Searles v. State, 119. Sedgwick v. Stanton, 434. Self's Case, 234. Sellers v. State, 225. Semayne's Case, 191. Severance v. Carr, 344. Seville v. State, 161. Shadle v. State, 258. Sbafher v. State, 408. Shannon v. People, 36, 123. Sharp V. State, 170, 191, 367. Shaw V. State, 204. ShefflU V. Van Deusen, 465. Shelbum v. Com., 355. Shelly V. State, 418. Shepard, In re, 452. Shepherd v. People, 32, 290. CASES CITED [The figures reler to pages] 633 Sherley v. Riggs, 434. Sherman v. State, 376. Sherwood, Ex parte, 223. Shields V. Yonge, 8. Shlnn V. State, 374, 376. Shlpply V. People, 334. Shirk V. People, 393. Shores, Ex parte, 438. Shorter v. People, 197, 198, 199. Shufflm V. People, 225. Slkes V. Com., 376. Silver v. State, 443. Simmerman v. State, 223. Simmons v. State, 127, 226, 351. Simmons v. U. S., 500, 501. Simon's Case, 339. Simpson v. State, 148, 459, 460, 487. Skidnlore v. State, 258. Skinner v. State, 149, 261. Slatterly v. People, 148. Slattery v. People, 430. Slattery v. State, 241." Slaughter v. Com., 219, 220. Sloane, Ex parte, 225. Slomer v. People, 160, 278, 279. Smith V. Com., 71, 139, 153, 312, 412. ^mith V. Milbum, 424. Smith V. Odell, 31. Smith V. People, 157, 322, Smith V. Price, 433. Smith V. State, 36, 37, 43, 73, 92, 120, 123, 170, 171, 176, 183, 184, 197, 203, 213, 220, 254, 259, 266, 267, 277, 278, 279, 280, 292, 293, 340, 370, 379, 3S9, 397, 417, 419, 429, 430, 444, 455. Smurr v. State, 191. Snap V. People, 384. Snell V. State, 390. Snelltng v. State, 214. Snowden v. State, 270. Snyder v. People, 290, 29L Sossamon v. Cruse, 176. South V. State, 33, 284. Spann v. State, 66. Sparks v. Com., 233. Speiden v. State, 14, 304. Speir V. Brooklyn, 402. Spencer v. State, 1(J2, 374. Spies V. People, 108, 154, 162. Splgner v. State, 275. Spivey v. State, 260. Springfield v. State, 79, 81, 199. Springville v. Thomas, 31. Squire v. State, 95, 199, 409. Stabler v. Com., 141, 152, 153. Stafford v. State, 456. Stallings v. State, 359. Stanley v. Com., 191, 197. Stanley v. State, 350, 490. Starck v. State, 348. Starin v. People, 123. Starkie v. Com., 322. State V. Aaron, 63. State V. Abley, 304, 336. State V. Abram, 241. State V. Abrlsch, 426. State V. Adams, 13, 62, 426. State V. Adamson, 393. State V. Ah Jim, 34. State V. Aiken, 431. State V. Alexander, 70, 74, 339, 443. State V. Alford, 270. State V. Alfred, 258. State V. AUen, 117, 122, 139, 163, 314, 500. State V. Ames, 44^. State V. Anderson, 119, 175, 208, 224, 328, 335. State V. Angel, 284. State V. Anone, 118. State V. Appling, 401. State V. Archer, 262, 266, 356. State 7. Armlngton, 409. State V. Armstrong, 411, 412. State V. Arnold, 63. State V. Asher, 51, 371. State V. Ashley, 208. State V. Atchison, 84, 86. State V. Atherton, 151, 245, 276 State V. Austin, 273. State V. Avery, 152, 224, 412, 463, 465. 534 state V. State V. State V. State V. State V. State V. State V. State V. 83, 84. State V. Co., 93 State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. 'State V. •State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V CASES CITED [The figures refer to pages] Ayers, 487. Babeock, 34, 479. Bacon, 130. Baden, 114. Baer, 93. Bagan, 151, 276. Baker, 170, 254, 257. Baltimore & O. R. Co., Baltimore & S. Steam Bancroft, 302. Banks, 316. Bantley, 170. Barefoot, 408. Barrett, 56, 117, 212, 435. Barry, 266. Bartlett, 75, 490. Barton, 62. Ban man, 389. Baumlmger, 356. Beal, 143, 303. Beasley, 396. Beaucleigh, 118. Beck, 275, 276. Bee, 297. Beebe, 123, 439. Beekman, 383. Bell, 80, 136. Benham, 182, 193. Bennett, 490. Berkley, 225. Berryman, 312. Berthed, 401. Bethune, 225. Bierce, 427. Black, 274, 372. Bland, 176. Bobbst, 284. Bodie, 198. Bogue, 124. Bolin, 358. Bonds, 153. Boneil, 38. BonoHgUo, ISO. Boogher, 463. Boon, 261, 294, 295, 296. Bostick, 63. State V. Bowen, 498. State V. Bowers, 152, 153. State V. Boyd, 330. State V. Brady, 260, 464. State V. Brandenburg, 427, 428. State V. Brazil, 458. State V. Brecht, 415. State V. Briggs, 274. State V. Brittain, 191, 200, 206. State V. Brooks, 149, 248, 355, 356. State V. Brow, 283. State V. Brown, 215, 241, 242, 309, 346, 377, 419, 436, 445, 446, 490. State V. Brnder, 94. State V. Brunson, 412. , State V. Buchanan, 22, 154, 156, 157. State V. Buckman, 400. State V. Bugbee, 137. State V. Bullock, 191. State V. Burgdorf, 243. State V. Burke, 130, 182, 274, 305. State V. Burket, 499. State V. Burnett, 370. State V. Burnham, 11, 157, 275, 464, 406. State V. Burrows, 372. State V. Burt, 312. State V. Burton, 450. State V. Bussey, 284. ^ State V. Butler, 147, 153, 369, 448. State V. Butman, 55, 260, 357. State V. Byers, 21.5. State V. Caddie, 346. State V. Cain, 93. State V. Caldweli; 489. State V. Calhoun, 374. State V. Calkins, 397. State V. Campbell, 310. State V. Cantieny, 182. State V. Carroll, 411. State V. Carron, 285, 425. State V. Cafter, 369, 485, 489. State V. Carver, 441. State V. Castello, 171. State V. Center, 2.32. State V. Central R. Co. of New Jersey, 84. CASES CITED [The figures refer to pages] 535 State V. Chamberlin, 442. State V. Currle, 336. State V. Chambers, 338, 419. State V. Cushing, 182, 187. State V. Chandler, 442. State V. Cutshall, 484. State V. Chapin, 48T. State V. Czizek, 357. State V. Chapman, 261. State V. Dalton, 250. State V. Charles. 499. State V. Daly, 261. State V. Chastain, 113, 136. State V. Dana, 419. State V. Chicago, M. & St. P. R. State V. Darling, 116. Co., 83. State V. Davidson, 203. State V. Chlsenhall, 284. State V. Davis, 74, 152, 184, 254, State V. Chitty, 434. 266, 339, 343, 346, 370, 300, 393, State V. Christian, 210. 394, 438, 449. State V. Church, 255. State V. Dayton, 442, 443. State V. Clark, 75, 155, 162, 301, State V. Decklotts, 196, 208. ii50. State V. De Hart, 370. State V. Cleaves, 103. State V. De La Foret, 496. State V. Clifford, 40. State V. Dennison, 208. State V. Close, 399. State V. Denoon, 134. State V. Coats, 172. State V. Denton, 357. State V. Cody, 241. State V. Depolster, 250. State V. Coleman, 51, 239. State V. De Ranee, 74. State V. Collingsworth, 57. State V. Dewer, 43, 122, 126. State V. Collins, 197. State V. De Witt, 161. State V. Comings,, 359. State V. Dickerson, 272. State V. Conally, 274. State V. Dlerberger, 175. State V. Conlin, 40. State V. Dill, 259. State V. Connelly, 355. State V. Dillon, 201. State V. Conners, 296. State V. Dixon, 364. State V. Connor, ^60. State V. Doepke, 308. State V. Constatine, 130. State V. Donahoe, 197. State V. Conway, 330, 348. State V. Donaldson, 157, 160. State V. Cooler, 33. State V. Donnelly, 182, 200. State V. Coombs, 348, 349. State V. Donovan, 80, 426. State V. Cooper, 302, 412, 415, 420. State V. Donyes, 188. State V. Costln, 355. State V. Dooley, 274. State V. Countryman, 186. State V. Dorman, 94. State V. Covert, 359. State V. Dorrance, 393. State V. Covington, 304, 392. State V. Dorsey, 233. State V. Cox, 114, 412, 416. State V. Douglass, 79, 113, 114. State V. Coyle, 389. State V. Dowe, 304, 365. State V. Cralge, 338. State V. Dowell, 251. State V. Crawford, 198, 241, 299. State V. Doyle, 259. State V. Cross, 80, 151, 276, 395. State V. Dubuque & S. C. K. State V. Crow, 264. Co., 84. State V. Crowner, 417. State V. Ducker, 337, 348. State V. Crummey, 402. State V. Dudoussat, 13. State V. Culler, 203. State V. Dula, 435. State V. Cunningham, 245, 247. State V. Dunn, 392. 536 State State State State State State State State State State State State State State State State State' State State 260. State State State State State 282, State State State State State State State State State State State State State State State State State State State State State State CASES CITED IThe figures refer to pages] V. Durham, 223. State V. Fowler, 62. V. Dyer, 160. State V. Fox, 302. V. Eaton, 197. State V. Friend, 356. V. Eckler, 425. State V. Friseh, 10. V. Edge, 262, 279. State V. Fulkerson, 110. V. Eding, 419. State V. Furlong, 314, 443. V. Edwards, 44. State V. Furney, 162. V. Elick, 150. State V. Gainer, 399. V. Elllck, 222. State V. Gallegher, 55. V. Elliot, 274. State V. Garrett, 175, 439. V. Elliott, 225. State V. Garrls, 371. V. Ellis, 418, 419, 447, 449. State V. Garvey, 79, SO. V. Elvins, 259. State V. Gaston, 109. V. Eimery, 233. State V. Gates, 442, 445. V. Empey, 125, 127. State V. Germain, 333. V. England, 321. State V. German, 172. V. Estabrooks, 443. State V. Geissert, 488. V. Estes, 370. State V. Gherkin, 391, 394. V. Evans, 148, 184, 197, 241, State V. Gibson, 284, 420. 1 State V. Uilligan, 384. V. Falrclough, 322. Sta{e V. Gil man, 188, 273. V. Fann, 321. State V. Gilmer, 341. V. Panning, 459. State V. Gilmore, 203, 212. V. Farr, 94, 114. State V. Girkin, 241. V. Farrar, 12, 277, 2S0, 281, State V. Glasgow, 450. 285. State V. Glenn, 40. V. Farrell, 386. State V. Glidden, 155, 160. V. Farrier, 455. State V. Glover, 145, 256, 266. V. Farrington. 356. State V. Godfreiy, 258, 262, 264 V. Farrow, 330. 265. V. Felter, 71. State V. Goff, 106. V. Fenn, 317, 327. State V. Goin, 62. V. Ferguson, 214, 330. State V. Goldman, 382. V. Finan, 137. State V. Gooch, 220. V. J'lndley, 357. , State V. Goode, 358. V. Fisher, 100, 344. State V. Goodenow, 88, 96, 409, V. Fitzgerald, 144, 430. 413. V. Fitzporter, 232. State V. Goodrich, 408. V. Flanders, 388. State V. Goold, 271. V. Fleming, 296. State V. Gorham, 314. V. Fletcher, 36. State V. Gorman, 322, V. Fley, 119. State V. Grady, 487. V. Floyd, 390. State V. Graham, 40L V. Fooks, 364, 369, 371. State V. Grant, 47. V. Foote, 385. State V. Gravelin, 136. V. Forsythe, 430. State V. Gray, 422. V. Foster, 298. State V. Grayor, 220. V. Fourcade, 40. State V. Grear, 74, 80. CASES CITED [The figures refer to pages] 537 State V. State V. State V. State y. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. 500. State V. State State State State State State State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. Green, 220, 241, 338. Gregory, 270. Grisbam, 355. Groning, 296. Grossbeim, 277. Grubb, 250. Grugin, 226. Gryder, 388. Guild, 63, 172. Guiton, 418. Gustin, 40. Gut, 66, 68, 79, 222. Haab, 78, 82. Haines, 251, 401. Hair, 241. Hairston, 251. Hall, 288, 312, 334, 486, Hambrigbt, 1^68. Hamilton, 113. Hampton, 264, 265. Handy, 148. Hannett, 290. Hardie, 91, 233. Hardy, 203. Hargrave, 250. Harman, 224. Harney, 151, 153. Harr, 43. Harrell, 459. Harrigan, 82. Harris, 178, 270. Harrison, 69, 70. Hartfiel, 93. Hartigan, 151, 276. Hartley, 435. Hascall, 444. Hastings, 498. Hattaway, 445, 44«. Hause, 93. Hawkins, 200, 346. Hayes, 117, 346, 425. Haynes, 291. Heck, 93. Hecox, 338. Hemm, 425, 427. Henry, 298. Uensley, 220. State V. Herbert, 296. State v. Herdlna, 205. State V. Herges, 418. State V. Herrell, 180. State V. Herselus, 137. State V. Heuchert, 38. State V. Hickling, 158. State V. Higgins, 338, 394. State V. Hildretb, 114, 220, 222. State V. Hill, 199, 201, 202, 219, 221, 222, 227, 490. State V. Hilton, 392. State V. Hinson, 464. State V. Hinton, 411. State V. I-Iobgood, 377. State V. Hockett, 68, 71, 208, 210, 222, 225. State V. Hodgkins, 499. State V. Hodgskins, 412. State V. Hoelcher, 103. State V. Holt, 235. State V. Holder,- 309. State V. Holly way, 377. State V. Holme, 224. State V. Holmes, 344. State V. Hood, 371. State V. Home, 256. State V. Horton, 57, 427. State V. Hoskins, 463. State V. House, 308. State V. Houston, 103. State V. Houx, 94, 95, 246. State V. Howard, 183. State V. Hoxsie, 136. State V. Hoyt, 33, 220, 221, 225, 226. State V. Huegin, 158. State V. Huff, 53. State V. Hughes, 409, 426, 501. State V. Hull, 13, 270. State V. Hunter, 203, 279, 403. State V. Hurd, 290. State V. Hurley, 141. State V. Hutchinson, 300. State V. Huting, 68. State V. Ingersoll, 4. State v. Ives, 379. State T. Jack, 75. 538 CASES CITED [The figures refer to pages] State V. Jackson, 83, 183, 199, 449. State V. Laliyer, 172. State V. Jacobs, 220. State V. Landgraf, 170. State V. James, 314. State V. Lane, 200. State V. Jamison, 284. State V. Lapoint, 205. State V. Jansen, 117. State V. Larkin, 122. State r. Jaivis, 324, 419. State V. Lash, 411, 412. State V. Jefferson, 389. State V. Latham, 38.'^. State V. Jenkins', 443. State V. Laughlin, 29L State V. Jennings, 358. State V. La valley, 443. State V. Jolin, 76, 224, 374, 375. State V. Lawrence, 70, 73, 74, 147 Stiite V. Jolinson, 33, 46, 71 , T3, State V. Lawson, 402. 79, 82 , 95, 116, 117, 220, 241, State V. Leach, 438, 439. 2«3, 284, 298, 308, 392, 490. State V. Learnard, 111. State V. Jones, 67, 68, 71, 109, State V. Le Blanch, 490. 115, 199, 222, 241, 251, 252, 339, State V. Ledford, 317, 341. 302. State V. Lee, 40, 431. State V. Jordan, 139. State V. I-eedy, 350. State V. Jump, 190, 20O. State V. Levelle, 56, 210, 212, 216 State V. Kaster, 400, 404. 225. State V. Kattlemann, 394. State V. LeVy, 330. State r. Keeland, 47. State V. Lewis, 67, 75, 427, 438. State V. Keenan, 443, 447. State V. Linde, 384. State V. Keith, 285, 286. State V. Lindenthall, 322. State V. Kelly, 93, 103, 126, 4«5, State V. Linkhavv, 454. 489. State V. LittscUke, 357. State V. Kendall, 149, 261. State V. Locker, 401. State V. Kennedy, 181, 188, 374. State V. Lockerby, 425. State V. Kent, 315, 357. State V. Lorry, 400. State V. Kern, 451. State V. Lovell, 34. State V. Keyes, 153, 161. State V. Lowe, 76. State V. Kimnierling, 281. State V. Lucas, 120. State V. King, 357, 403. State V. Lung, 149, 245, 201. State V. Kingsly, 33. State V. Lunsford, 270. State V. Kinkead, 94. State V. Lymburn, 109. State V. Kinney, 271. State V. Lymus, 309. State V. Kittelle, 134. State V. Lyon, 290. State V. Kluseman, 03. State V. McCall, 209. State V. Knight, 70, 484, 485. State V. MeCance, 131. State V. Knouse, 501. State V. McCann, 331. State V. Knowlton, 371. State V. McCants, 220, 222, 228. State V. Kortgaard, 359. State V. JlcCartey, 334. State V. Kotovsky, 219, 222. State V. McCarthy, 443. State V. Kroeger, 388, 393. State V. McCaskey, 425. State V. Kube, 364. State V. McClellan, 310. State V. Kusniek, 357. State V. McConkey, 370. State V. Kyne, 46. State r. McCoy, 74. State V. Lacey, 246. State V. McCrum, 285. State V. La Forrest, 422. State V. McCullough, 71. CASES CITED [The figures refer to pages] 539 State V. McCune, 375. State V. McDaniel, 150, 203, 221, 303. State V. McDonald, 32, 183, ISS, 448. State V. McDonnell, 219, 222. State V. McDuffle, 273. State V. McGowan, 288, 289. State V. McGuire, 260. State V. Mclntire, 424. State V. McKean, US. State V. McKee, 499, 500, 501. State V. Mackey, 428. ' State V. McKinuey, 444. State V. McKinstry, 161. State V. McKnight, 302. State V. McMackin, 392, 395. State V. McNab, 212. State V. McNally, 161. State V. McPherson, 297. State V. McRae, 314. State V. Mclioberts, 281. State 7. Madison, 403. State V. Ma Foo, 103, 241. State V. Mahoney, 130, 131. State V. Maier, 68. State V. Main, 483. State V. Mallett, 43. State V. Maloney, 283. State V. Mansel, 4. State V. Manuel, 383. State V. Blanufacturing Co., 83. State V. Marfaudille, 190. State V. Martin, 140, 187, 255, 265, .266, 274. State V. Martindale, 35. State V. Mason, 467. State V. Massage, 222. State V. Massey, 149, 261. State V. Matthews, 137, 197, 357. State V. Rlatthis, 136. State V. Maxwell, 388. State V. May, 115, 311. State V. Mayberry, 46, 154, 157. State V. Meerchouse, 288, 300. State V. Melton, 43, 205. State V. Metsch, 369. State V. Mewherter, 71. State V. Middleham, 186, 187. State V. Middleton, 362. State V. Miles, 449. State V. MilhoUand, 62. State V. Millard, 401. State V. Miller, 7, 70, 246, 374. State V. Mills, 346, 370. State V. Mllsaps, 254. State V. Mims, 356. State V. Mitcbell, 58, 143, 267, 292. State V. Monongabela River R. Co., 83. State V. Montgomery, 149, 370. State V. Mooney, 254. State V. Moore, 33, 54, 60, 176, 178, 189, 190, 212, 213, 220, 296, 301, 302, 303, 312, 399, 425, 487. State V. Moothart, 431. State V. Mordecai, 298. State V. Morea, 171. State V. Moretti, 101. State V. Morey, 198. State V. Morgan, 188, 254, 256, 273. State V. Morphy, 170. State V. Morris, 302. State V. Morrison, 233, 436. State V. Morton, 137. State V. Mowry, 70, 76, 214. State V. Mueller, 46, 93, 132. State V. Mullen, 81, 314. State V. Murdoch, 109. State V. Murdy, 200. State V. Murphy, 42, 46, 158, 187, 248, 308. State V. Murray, 46, 73, 74, 439. State V. Myers, 359. State V. Napper, 145. State V. Nargashian, 100, 101. State V. Narrows Island Club, 403. State V. Nash, 249, 261. State V. Neeley, 200. State V. Neely, 255, 261, 265. State V. Neidt, 400. State V. Neimeier, 367. State V. Nelson, 258, 315. State V. Neville, 224. 540 CASES CITED [Tile figures refer to pages] State V. New, 359. State V. Pike, 82, 208. State V. Newcomer, 245, State V. Porter, 215, 369. State V. Nickleson, 62. State v. Portland, 83, 84, 403. State V. Nixon, 75. State 7. Postal, 260. State Y. Noeninger, 113. State V. Potter, 103. State V. Noland, 356. State V. Potts, 73, 77, 82, 300. State V. Norton, 159, 399. State V. Powe, 282. State V. Norvell, 49S. State V. Powell, 261, 401. State V. Noyes, 46, 156, 161. State V. Pratt, 28, 224, 360. State V. Nueslein, 57. State V. President, eta, of OMo & State V. Nugent, 419. M. R. Co., 83. State V. O'Brien, 16, 171, 233, 235, State V. Presnell, 94. 237, 296. State V. Primm, 424, 426. State V. O'Connor, 377. State V. Pritchard, 450. State V. Odell, 499. State V. Pritchett, 65. State V. Oliver, 271. State V. Probasco, 94. State y. Orrell, 171. State V. Pugh, 62, 270. State V. Orrick, 123. State V. Pugsley, 123. State V. Osborn, 465. State V. Pulle, 22, 36, 37, 156. State V. Osborne, 417. State V. Purdie, 46. State V. Ostrander, 258. State V. Purdy, 449. State V. Otis, 428. State V. Quigley, 75. State V. Outlaw, 300. State V. Railroad Co., 83. State V. Overstreet, 284. State V. Rainsbarger, 210. State V. Owsley, 149, 261. State V. Rankin, 399, 400. State V. Pagels, 70. State V. Rawles, 255, 265, 266. State V. Painter, 254. State V. Keavis, 256. State V. Palmer, 369. State v. Reddick, 357. State V. Parker, 198, 203, 207, 316, State V. Reed, 250. 499. State V. Reedy, 418. State V. Parrish, 442. State V. Reese, 57. State V. Parsons, 374. State V. Reid, 296. State V. Parti ow, 188, 203. State V. Reidell, 71, 75. State V. Passaic County Agr. State V. Renfrow, 212. Soc, 86. State V. Reonnals, 490. State V. Patterson, 123, 124, 186, State V. Reynolds, 233. 225. State V. Rheams, 20O. State V. Paul, 365. State V. Richards, 66. State V. Peacock, 65, 185. State V. Richardson, 284. State V. Pearce, 411. State V. Riddle, 71. State V. Pennington, 401. State V. Ridley, 358. State V. Pepper, 26. State V. Riebe, 393. State V. Perkins, 455. State V. Ring, 356. State V. Perry, 459. State V. Rivers, 315. State V. Peters, 444. State V. Roane, 177, 180, 233. State V. Phillips, 258. State V. Roanoke R. & Lumber State V. Phipps, 164, 384. Co., 83. State V. Pickett, 277. State V. Robbins, 462. CASES CITED [The figures refer to pages] 541 State V. Roberts, 120, 222. State V. Robinson, 77, 79, 382, 384, 394. State V. Robitshek, 39. State V. Rollins, 12, 277, 280, 281. State V. Romans, 422. State V. Roper, 348, 401. State V. Korebeck, 283. State V. Rose, 401. State V. Roseman, 270. State V. Ross, 119. State V. Rouch, 38. State V. Row, 184. State V. Rowe, 298. State V. Rowley, 157. State V. Ruhl, 94, 95, 284. State V. Rushing, 381. State V. Rutberford, 178, 180. State V. Ryan, 33. « State V. St. Clair, 380. State V. Sales, 436. State V. Sampson, 289, 300. State V. Samuel, 224. State V. Sanders, 414. State V. Sandford, 235. State V. Sandy, 288. State V. Sansone, 225. State V. Ssirvis, 291. State V. Sasse, 94. State V. Savoye, 158. State V. Scates, 170. State V. Schaefer, 74. State V. Scheele, 185, 223, State V. Schingen, 79. State V. Schlottman, 454. State V. Schulz, 233. State V. Scott, 46, -70, 200, 258; 343. State V. Scripture, 295, 297. State V. Seagler, 339. State V. Sears, 262, 264. State V. Setter, 46, 156. State V. Shaw, 37, 308. State V. Shee, 103. State V. Shelledy, 212. State V. Shepard, 46, 248, 262, 264, 265. State V. Sherman, 34. State V. Shermer, 346. State V. Sherwood, 408. State V. Shields, 244, 250, 258. State V. SWpman, 255, 265, 266. State V. Shippey, 66, 188, 197, 198, 225. State V. Shooter, 157. State V. Shores, 302. State V. Shroyer, 261. State V. Shupe, 442, 443, 447. State V. Shurtlife, Ul, 388. State V. Sias, 353. State V. Sigman, 270. State V. Simmons, 241, State V. Simons, 442. State V. Slagle, 429. State V. Slingerland, 346. State V. Sloan, 182. State V. Smily, 463, 464. State V. Smith, 10, 13, 43, 44, 53, 93, 170, 171, 172, 185, 187, 189, 199, 208, 210, 212, 213, 235, 265, 336, 372, 381, 384, 390, 391, 415, 445. State V. Sneff, 13, 304. State V. Snow, 458. State V. Snyder, 93, 399. State V. Somerville, 314. State V. Sommers, 408. State V. Sopher, 76. State V. Sorenson, 73, 200, 295. State V. South, 341. State V. Southall, 370. State V. Spangler, 207. State V. Spaulding, 214, 220, 223, 355. State V. Spencer, 74. State V. Spiegel, 288, 289. State V. Stalcup, 465. State V. Stanley, 365. State v. Stanton, 58. State V. Starling, 74. State V. Stephen, 389. State V. Stevens, 40. State V. Stevenson, 431. State V. Stewart, 148, 160. State V. Stickley, 73. State V. Stickney, 13. 542 CASES CITED [The figures refer to pages] State V. Stike, 129. State V. Stone, 260, 283, 286, 368, 369. State V. Stout, 415. State V. Stow, 484. State V. Stoyell, 284. State V. Stratton, 393, 394. State V. Straw, 157, 456. State V. Stroll, 362. State V. Sudduth, 244. State V. Sullivan, 196. State V. Summers, 414. State V. Sumner, 364, 457, 459. State V. Sutton, 281. State V. SwaUs, 145, 265. State V. Swift, 66. State V. Symmes, 198. State V. Syphrett, 465. State V. Taberner, 353. State V. Tatro, 80. State V. Taylor, 118, 185, 273, 308, 387, 400. State V. Thaden, 363. State V. Thatcher, 369. State V. Thomks, 210. State V. Thompson, 94, 178, 181, 183, 200, 201, 242. State V. Thornburg, 390. State V. Thornton, 40. State V. Tice, 62. State V. Tilman, 246. State V. Tlmmens, 425. State V. Toole, 290, 401. State V. Trexler, 375. State V. Tripp, 274. State V. Trolson, 359. State V. Trout, 74. State V. Tull, 10. State V. Turlington, 178. State V. Turner, 130. State V. Twogood, 37. State V. Umble, 128. State V. Underwood, 490, State V. Vadnais, 47. State V. Vail, 39. State V. Vance, 179, 188, 233. State V. Vanderbllt, 271. State V. Vicknair, 422. State V. Vincent, 139. State V. Vines, 233. State V. Wadsworth, 136. State V. Wallace, 411. State V. Waller, 401. State V. Walsen, 8. State V. Ward, 247, 297, 342. State V. Warren, 288, 289, 395.. State V. Warren R. Co., 84. State V. Washington, 395. State V. Watson, 242. State V. Watts, 383. State V. Weatherby, 411, 413. State V. Weatherspoon, 499. State V. Weber, 131. State V. Welch, 33, 53, 76, 79. State V. Wellman, 314, 339, 346. State V. Wells, 356. State V. Welsh, 245. State V. West, 39, 40, 336. State V. Westfall, 191. State V. Whaley, 280. State V. Wheeler, 386, 387, 392,. 423. State V. Whipple, 498. State V. Whitcomb, 413. State V. White, 51, 260^, 357. State V. White Oak River Corp., 83, State V. Whittemore, 445. State V. Whyte, 339. State V. Wiggin, 136. State V. Wilcox, 384. State V. Wilkerson, 365, 367. State V. Wilkinson, 284. State V. Willard, 369. State V. Williams, 4, 103, 172, 301,. 370, 396, 401, 421, 463. State V. Williamson, 314, 357,384. State V. Willis, 295. State V. WUlson, 387. State V. Wilson, 143, 144, 294, 295,. 297, 411, 441. State V. Windsor, 68, 71. State V. Winthrop, 167. State V. Wisdom, 339. State V. Wolf, 114, 399. State V. Wolfenberger, 289. State V. Wood, 170. CASES CITED [The figures refer to pages] 543 State V. Workman, 274. State V. Wray, 106, 277. State V. Wright, 246. State V. Wyatt, 442. State V. Wyckoff, 4S7. State V. Wyman, 418. State V. Wymberly, 443. State V. Yanz, 225. i State V. York, 342. State V. Young, 370, 887, 300, 394, 430. State V. Younger, 155, 157. State V. Yturaspe, 258. State V. Zeibart, 123. State V. Zeigler, 182. State V. Zlchfeld, 96, 409. State ol North Carolina v. Gos- nell, 175. Staten v. State, 178, 101. Steadman v. State, 302. Stedman's Case, 221. Steel V. State, 34. Stegar v. State, 377. Steinert v. Sobey, 39. Steinmeyer v. People, 197. Stephens v. Myers, 265. Stephens v. State, 277. Stepp V. State, 343. Stern v. State, 94. Stetson V. Faxon, 402. Stevens v. Com., 292. Stevens v. People, 109, 136. Stevens v. State, 69, 71, 258, 260, 347. Stewart v. State, 183, 200, 221, 389, 501. Stewart v. Waterloo Turn Ver- ein, 84. Stinson v. People, 490. Stoffer V. State, 200, 201, 202. Stokes V. People, 33, 215. Stone V. People, 500. Stone y. State, 270. Stoneman v. Com., 183, 197. Stoops V. Com., 123, 124. Storey v. State, 179, 201. Stoughton V. State, 399. Stout V. Keyes, 22. Stout V. State, 488. Strang v. People, 243, 247, 251. Stratton V. State, 100. Stringfellow v. State, 172. Stripling v. State, 255. Stuart V. Com., 498. Stuart V. People, 22. Studstill V. State, 233. Stump V. McNairy, 403. Stupetski V. Transatlantic Fire Ins. Co., 288, 300. Stupp, In re, 485. Sturtevant v. Com., 32. Sullivan v. State, 199, 203, 290. Sutcliffe V. State, 501. Suther v. State, 425. Swan V. Williams, 31. Sweat V. State, 877. Swincher v. Com., 89. Swindle v. State, 465. Sylvester v. State, 258. Tanner v. Com., 830. Tapscott V. Com., 205. Tarver v. State, 145, 266, 267. Tate V. State, 112. Tatnall v. Courtney, 274. Taylor v. Com., 864. Taylor v. State, 149, 168, 243, 250, 262, 850, 418, 460. Teague v. State, 92. Teat V. State, 499. Terrell v. State, 241. Terrett, In re, 887. Terrill v. State, 77. Territory v. Bafth, 389. Territory v. Catton, 219. Territory v. Crozier, 384. Territory v. Doty, 31. Territory v. Evans, 28. Territory v. Gomez, 258. Territory v. Hart, 210. Territory v. Jaspar, 416. Territory v. Keyes, 148, 246, 261, 266, 277. Territory v. McKern, 374. 544 CASES CITED [Tie figures refer to pages] Territory v. Manton, 210, 235. Terry v. Com., 392. Thacker v. Belcher, 433. Thamelm v. State, 9. Thatcher v. State, 401. Thomas, Ex parte, 28, 412. Thomas^v. Cincinnati, N. O. & T. P. R. Co., 165. Thomas y. Com., 280. Thomas v. People, 236. Thomas y. State, 266, 363, 376, 417. Thomas v. Thomas, 316. Thompson v. Com., 376. Thompson v. Crocker, 486. Thompson v. Stacey Clarke, The, 272. Thompson v. State, 13, 200, 304, 377, 391, 409. Thompson v. U. S., 184. Thompson v. Dtah, 31, 34; Thurman v. State, 51, 67. Thurmond v. State, 396. Tlmmons v. State, 296. Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 163. TolUver v. State, 381. Tom V. State, 214. Tomson's Case, 214. Trogdon v. State, 199. True V. Com., 114. TubervUle v. Savage, 264. Tucker v. State, 11. Tucker v. U. S., 79. Tudor V. Com., 127. TuUy, In re, 387, 390. TuUy V. Com., 125. Turpln v; State, 456. Turner v. People', 247. Turner v. State, 162. Tuttle v. People, 444. Tyler v. People, 330, 477, 479, 483, 485, 489. Tyson, In re, 32. U Ulmer v. State, 123. Ulrich V. Com., 93. Umphrey v. State, 342. Union Colliery v. Queen, 86. U. S. V. Addyston Pipe & Steel Co., 164. U. S. V. Adler, 163. U. S. V. Anthony, 88.- U. S. V. Arjona, 28, 476. U. S. V. Atkins, 444. U. S. V. Babcock, 444. U. S. V. Barnhart, 393, 500. U. S. V. Bedgood, 442. U. S. v. Bevans, 479. U. S. V. Beyer, 272. U. S. V. Boyd, 112. U. S. V. Boyer, 448. U. S. V. Burr, 470. U. S. V. Cannon, 407. U. S. V. CarU, 36, 396. U. S. V. Carpenter, 163. n. S. V. Carr, 101. U. S. V. Cassidy, 160, 165. U. S. V. Coal Dealers' Ass'n ■ of California, 165. U. S. V. Conner, 444. U. S. v.vCoolidge, 28. U. S. V. Crane, 123. U. S. V. Crow Dog, 215. U. S. V. Davis, 311, 486. U. S. V. De Bare, 379. U. S. V. Debs, 165. U. S. V. Drevc, 76, 77. U. S. V. Durkee, 346. U. S. V. Eaton, .26. U. S. V. Elliott, 165. U. S. V. Farnham, 233. U. S. V. Faulkner, 66, 75. U. S. V. Fox, 60. U. S. V. Fullhart, 270. U. S. V. Garcelon, 442. U. S. V. Gideon, 383. U. S. V. Gilliam, 190. U. S. V. Greenhut, 164. U. S. V. Grelner, 100. U. S. V. Crush, 479. U. S. V. Gulteau, 488. U. S. V. Gunther, /241. U. S. V. Hand, 254. U. S. V. Hanway, 470. CASES CITED 545 u. u. u. u. u. u. u. u. u. u. u. u. u. u. u, u. D. u. u. u, u. u. u. u. u, u, u. u. o. u, u, u, u, u. u, u, u, u u, u, u u, u, u, u. D [The figures reler to pages] S. V. Harmon, 51. S. V. Hartwell, 34. S. V. Haskell, 100. S. V. Heath, 198, 234. S. V. Holmes, 73, 105, 482. S. V. Uoxie, 470, 471. S. V. Hudson, 26, 28, 492. S. V. Imbert, 482. S. V. Insurgents, 470. S. V. Irvine, 4. , S. V. Jackson^ 443. , S. V. Jellico Mountain Coal & Coke Co., 164. S. V. John Kelso Co., 85. S. V. Jones, 101, 374. , S. V. Kagama, 31. S. V. Keller, 233. S. v. King, 227. . S. V. Lancaster, 155, 156, 1G4. S. V. Long, 386, 395, 397. . S. V. McGlue, 66, 77. S. V. Manion, 441. 'S. V. Martin, 492. , S. V. Meagher, 193. . S. V. Memphis & L. R, R. Co., 87. . S. V. Mitchell, 470. , S. V. Moore, 387, 444. . S. V. Morris, 34. S. V. Myers, 255. S. y. lielson, 164. S. V. Newton, 163. S. V. Ortega, 254. S. V. Owen, 163. S. V. Palmer, 482. S. V. Passmore, 444. S. V. Perez, 501. S. V. Philbricli, 38. S. V. Pirates, 482. S. V. Pryor, 470. S. V. Eamsay, 3. S. V. Reichert, 164. S. V. Rice, 44, 175, 176, 213. S. V. Ridgeway, 68. S. V. small, 258. S. V. Smith, 356, 464, 475. S. V. Snow, 417. S. V. Stanley, 444. Clark Cr.L.3d Ed. — 35 U. S. V. Stephens, 142. U. S. V. Stevens, 163. U. S. V. Sweeney, 162. U. S. V. Taylor, 233. U. S. V. Terry, 103. U. S. V. Trans-Missouri freight Ass'n, 164, 165. ,U. S. V. Van Schaick, 86. U. S. V. Vigol, 100. U. S. V. Wiltberger, 34, 188, 482. U. S. V. Workingmen's Amalga- mated Council, 165. U. S. V. Worrall, 152. U. S. V. Ybanez, 476. Unseld v. Com., 300. Cpdegraph v. Com., 25. Upstone V. People, 76. Valentin^ v. State, 204. Vanderpool v. State, 279. Van Dusen v. People, 442. Van Fossen v. State, 409. Van Houten v. State, 401. Van Meter v. People, 109. Vanvactor v. State, 271. N^arnell v. State, 180, 204. Vaughan v. State, 96, 414. ^'eatch V. State, 502. Vidal V. Girard, 25. Village of St. Johnsbury v. Thomp- son, 109. Vince v. State, 436. ^■incennes University v, Indi- ana, 31. N'incent, Ex parte, 300. Vollmer v. State, 214. W Wade V. State, 123, 126. Wagner v. State, 77. Wagoner v. State, 252. Waites' Case, 320. Wakefield v. State, 350. Walker v. People, 75. v Walker v. State, 167, 295, 299. 442. ■- 546 CASES CITED [The figures refer to pages] Walker v. Winn, 464. Wall V. State, 350. Wallace v. State, 167, 281. Wallace v. U. S., 183, 188. Waller v. State, 250. Wallia V. State, 355, 359. Walls V. State, 148, 260. Walrath v. State, 122. Walsh V. People, 153, 449. Walter v. People, 33, 247. > Walters v. State, 335. Walton V. State, 302. Wampler v. State, 337, 340. Ward V. People, 14, 109, 311, 312, 315. Ward V. State, 309, 339. Warden v. State, 119, 346. Ware v. State, 265. Warren v. State, 309. Wartena v. State, 66. Wasli V. Com., 396. Washington v. State, 289, 446. Waterbury v. Newton, 93. Waterhouse v. Conier, 163. , Waterman v. People, 390. ■ Waterman v. St^te, 357. I Watkins v. State, 186. Watson V. People, 365. Watson V. State, 113, 440, 490. Watts V. State, 121. Weatherford v. State, 214. Weaver v. People, 260. Weaver v. State, 499. Weaver v. Ward, 267. JVebb, Ex parte, 462. Webb V. State, 412. Wellar v. People, 208, 210, 212. Wells v. Abrahams, 9. Wells V. State, 388. I Wenz V. State, 81. West V. Kurtz, 433. Weston V. State, 499. Whalen v. Com., 300. Wheeler v. Com., 374. Wheeler V. State, 4. Whippen v. Whlppen, 414. Whltcher v. State, 151, 277. White V. Com., 386. White V. Fort, 8. White V. nass, 394. White V. People, 114, 115, 125. White V. Spettigue, 9. White V. State, 204, 296, 297, 341. White V. Wagar, 390. White V. Washington Territory, 189, 196. Whitehead v. State! 123. Whiting V. State, 380. Whitney v. State, 243. Whittaker v. State, 243, 247. Whitten v. State, 180. Whitton V. State, 88. Whorley v. State, 124. Wilbur V. Crane, 35. Wilcox V. State, 70. Wild's Case, 187, 274. Wildenhus' Case, 481. Wildey v. Crane, 434. Wilkerson v. State, 204. Wilkinson's Case, 337. Willey V. Carpenter, 274. Willey V. State, 231. Williams v. Com., 501. Williams v. Dickenson, 9. Williams v. State, 10, 73, 81, 92, 94, 113, 116, 119, 147, 162, 199, 221, 226, 250, 252, 294, 302, 328, 339, 346, 365, 374, 393, 395, 422, 430, 446, 462. Williams v. U. S., 450. Williamson v. Sammons, 433. Willis V. Com., 76, 79. Willis V. State, 186, 292. Wills V. State, 201. Wilson V. People, 258, 260, 346. Wilson V. State, 258, 318, 460, 461, 501. Winslovc V. Central Iowa Ry. Co., 434. Winsor v. Reg., 501. Winter v. State, 136. Wixson V. People, 111, 112, 113. Wolf V. State, 339. Wolfington V. State, 330. CASES CITED [The figures refer to pages] 547 Wolfsteln V. People, 336, 337. Wolverton v. Com., 310. Wong V. Astoria, 40. Wood V. People, 445, 446. Wood V. State, 79, 275, 424, 427. Woodbury v. State, 369. Woods V. People, 250. Woods V. State, 377, 384. Woodward v. State, 385. Woolsey v. State, 287. Woolweaver v. State, 117, 239. Worthlngton v. State, 490. Wren v. Com., 125. Wright, In re, 33. Wright V. Com., 185. Wright V. Mooce, 404. WrigHt V. People, 258. Wright V. State, 177, 3S4, 428, 498, 500, 501. Wright's Case, 11, 276, 374. Wusnig V. State, 62. Wyatt V. State, 248. Wylie V. Elwood, 400. Yates V. People, 223. Yong's Case, 214. York's Case, 63. Young V. State, 150, 182. Yundt V. People, 231. Zabriskle v. State, 425. INDEX [the FIOtrSES UEFEB TO PAGES] A ABANDONMENT, By principal in second degree, 117. By accessary before the fact, 122. Of attempt, 150. ' Of conspiracy, 162. Of stolen property, 343. Of attack, 198, 201, 202. ABETTORS,- See Principals and Accessaries. ABDUCTION, Defined and explained, 282. See, also. Assaults ; False Imprisonment ; Kidnapping ; Se- duction. ABORTION, Defined, 428. Not homicide at common law, 167. Homicide in committing, manslaughter, 231. Murder,, 212. ACCESSARIES, See Principals and Accessaries. ACCIDENT, As ground of exemption from responsibility, 97. For homicide, 192. For assault, 267, 269. ACCOMPLICE, Defined, 127, 128, note. See Principals and Accessaries. ACT, Necessity for, 54, 60, 138, 254. ACTION, Civil and criminal proceedings for same wrong, 8, Clabk Ce,L.3d Ed. (549) 550 INDEX [The figures refer to pages] ADULTERY, Defined, 410. Distinguished from rape, 414. Effect of divorce, 413. Belief in divorce, 88, 413. Belief in deatti of first spouse, 96, note. , Effect of religious views, customs, etc., 413. Emission not necessary, 414. ^Wlio may institute prosecution, 415. Living in, 416. As provocation to husband for homicide, 224. Solicitation to commit, 153. Condonation of, 10. AFFRAY, Defined and explained, 458. Homicide to suppress, 177. AGE, Of consent, 246. Presumption from age as to capacity to commit crime, 61, 251. AGENCY, See Principals and Accessaries ; Priijcipal and Agent. AGGRAVATED ASSAULT, See Assaults. AIDER AND ABETTOR, Defined, 113, 119, 127. / See Principals and Accessaries. ALIENS, See Jurisdiction. ALTERATION, Of instruments, see Forgery, AMBASSADORS, Not subject to the laws; 495. Violence to, 476, 403. ANIMUS FURANDI, See Larceny. ARREST, Homicide in making, 173, 175, 214. Assault in making, 272. Homicide in resisting, murder, 206, 213. Manslaughter, 223. As justification of criminal act, 98. Of assault, 270. See, also. Assaults ; False Imprisonment. ' INDEX 551 [The figures refer to pages] ARSON, Defined, 287. Elements of the crime, 287. A felony, 287. The burning, 287. Character of house, 288. Ownership of house, 289. Malice, 291. ■ Statutory burnings, 293, ASPORTATION, See Larceny ; Robbery. ASSAULTS, Defined, 252. Battery defined, 253, 256. Battery distLnguished from, 256. Consent to, 11, 275. ' Common and aggravate*^, 252, 257. Sufficiency of overt act, 254. False imprisonment as, 278. Aggravated assaults, specific intent, 257. Intention to injure, 262. Ability to injure, 265. Justification and excuse, 269. Self-defense, 272. Defense of others, 272. In resisting trespass, 273. In recapturing property, 273. Resisting unlawful arrest or imprisonment, 272. Ejecting trespasser, 273. By railroad employe, 271. By teacher on pupil, 270. Officer, 270. By husband on wife, 271. By master on servant or apprentice, 271. By master of vessel on seaman, 272. For abusive words, 274. Consent of person assaulted, 2, 11, 275. As provocation for homicide, 221. Duty to retreat from, 272. Merger in felony, 45. See, also. Abduction; Attempts; Kidnapping; Mayhem. ASSIST.\NCE, See Principals and Accessaries. ATTEMPTS, Defined, 138, 139. Distinction between Intent and, 139. 552 INDEX [The figures refer to pages] ATTEMPTS— Continued, Preparation, not attempt, 140. Effect of consent, 138, 150. Specific intent necessary, 138, 148. Possibility to commit crime, 138, 142. Inability in law, 146. Are misdemeanors, 139. Sufficiency of overt act, 139. Voluntary abandonment, 150. AUTREFOIS ACQUIT OR CONVICT, Explained, 497. B BAILEES, Larceny by, 321. See, also. Embezzlement. BAR, Civil action as bar to prospcution, 8w BARRETRY, Defined and explained, 432. BATTERY, See Assaults. BESTIALITY, Defined, 421. Essentials, 421. Felony or misdemeanor, 422. BETTING, At elections, 473. BIGAMY OR POLYGAMY, Defined, 406. Validity of second marriage, 407. Effect of divorce, 409. Honest belief in divorce, 88, 409. Validity of prior marriage, 408. Belief in death of first spouse, 95, 410. Religious belief and duty, 88, 410. feLASPHEMY, As a crime, 26. As a nuisance, 401. Blasphemous libels, 468, BOUNDARIES, See Jurisdiction. BRAWLERS, As nuisance, 401, INDEX 553 [The figures refer Co pages] BEBACH OF PEACE, In general, 453 et seq. Consent to, 2. BREACH OF PRISON, Defined and explained, 437, 438. BREACH OF TRUST, By officer, 450. ° . See Embezzlement. BRIBERY, Defined and explained, 447. BUGGERY, Defined, 421. Essentials, 422. Felony or misdemeanor, 422. BURDEN OF PROOF, Of insanity, 73. ^ BURGLARY, Defined, 2^4. Elements of the crime, 294. A felony, 294. The breaking, 294. Constructive breaking, 297. The entry, 298. Character and occupancy of premises, 300. Nighttime, 301. The intent, 302. Consent to breaking and entry, 13, 303. Consent obtained by fraud, 297. Statutory changes, 303. BURNING, See Arson. c CAPACITY, To commit crime, see Corporations; Drunkenness: Infancy; Insanity. CARELESSNESS, ^ See Negligence. CARNAL KNOWLEDGE, See Rape. CAUSE OF DEATH, See Homicide." CHALLENGE, To fight duel, 455. 554 INDEX [The figures refer to pages] CHAMPERTY, Defined and explained, 432. CHANCE, See Accident. CHEATS, When punished at common law, 7. At common law, defined, 360. Distinguished from false pretenses, 362. A misdemeanor, 360. By false pretenses, defined, 362. Elements of the crime, 362. Distinguished from common-law cheats, 362. Purpose of statutes, 363. Tlie false representations, 363 et seq. Expressions of opinion, 365. Puffing statements, 365. Statements as to future, 363 et seq. Statements as to quantity, 366. Statements as to quality, 365, 366. Form of statement, 36G. Knowledge of falsity, 367. Remoteness of pretense, as inducement to pay debt, 369. Must be false in fact, 371. Intent, 367, 372. Person must be in fact defrauded, 369. Reliance on representations, 368. Credulity of person defrauded, 370. Fraudulent intent of person defrauded, 14, 371. Condonation, no defense, 9. ' Property subject of, 371. CHILD, Capacity to commit crime, 61. CHILDREN, See Infancy. CHRISTIANITY, As part of common law, 25, 235. See Blasphemy ; Morality ; Nuisanceu CODE, Penal codes, 37. COERCION, As jusUflcation of criminal act, 102. ■See Necessity and Compulsion; Husband and Wife. COHjABITATION, See Adultery; Fornication; Illicit Cohabitation; Incest; Mis- cegenation. INDEX 555 [The figures refer to pages] COMBINATIONS, To do unlawful act, see Conspiracy. COM JI AND, As justification of criminal act, 101. COMMON ASSAULT, See Assaults. COMMON BARRETRY, Defined and explained, 432. As nuisance, 401. COMMON BRAWLERS, As nuisance, 401. COMMON LAW, Defined and explained, 20. In the United States, 19, 21, 491, 492. No common-law crimes against the United States, 19, 26, 492. English common-law authority not essential, 23. Prohibits as well as punishes, 24. Morality and Christianity, 25. In connection with statutes, 35; 37. With penal codes, 37. When repealed by statute, 37. COMMON SCOLD, As nuisance, 401. COMPOUNDING CRIME, Defined and explained, 440. • COMPOUND LARCENY, See Larceny. COMPULSION, See Necessity and Compulsion. CONDONATION, By person 'injured by crime, 9, 415. CONGRESS, See Jurisdiction; Statutes. CONSENT, Of person injured by crime, in general, 10. Obtained by fraud or threats, 12, 243, 247. To attempt, 138, 150. To assault, 275. To imprisonment, 281. To breaking and entry, burglary, 297, 303. To taking property, see Larceny ; Robbery. Of woman, rape, 243, 245 et seq., 261. To abortion, 430. 556 INDEX [The figures refer to pages] CONSENT— Continued, " To abduction, 2S5. To kidnapping, 281. Person incapable of consenting, 12, Entrapment as consent, 12. CONSPIRACY, Defined, 154. Requisites in general, 154. Overt act not necessary, 154, 155, 156. Formal agreement not necessary, 155. Number of persons necessary, 155. Character of acts contemplated, 156 et seq. Prejudice to public generally, monoitolies, trades unions, 159. Against public justice and public peace, 160. Community of unlawful purpose, 115, 120. Liability of co-conspirators, 162. Repentance and withdrawal, 117, 122, 1C2. A misdemeanor, 154. Merger In completed crime, 45, 163. ' Statutory regulations, including federal statutes, 163. Seditious conspiracy, 472. CONSTITUTION, Powers conferred on congress, 27. Restrictions of federal constitution, 29. CONSTRUCTION, Of statutes, 34. CONSTRUCTIVE INTENT, See Criminal Intention. CONSTRUCTIVE POSSESSION, See Larceny. CONSULS, Are subjeet to the laws, 496. CONTEMPT, Corporation may be punished, 82, 87. CONTRIBUTORY NEGLIGENCE, Of person injured or kUled, 15, 238. CORPORATIONS, Capacity to commit crime, 82. Criminal responsibility, 82 et seq. For misfeasance, 83. For nonfeasance, 82. For nuisance, 83. For crimes involving specific Intent, 85. Malice not imputable, 86. May be guilty of contempt of court, 82, 87. INDEX 557 [The figures refer to pages] CORPUS DELICTI, Proof of homicide, 172. COUNTERFEITING, Uttering counterfeit money, wrong of person receiving It, 14. See Forgery. Stamps, 473. COUNTIES, See Jurlsdiction- COURTS, See Jurisdiction. COVERTURE, See Husband and Wife. CRIME, Defined, 1, 50, note. Nature of crime, 1. Public policy the ground of punishment, 2, 3, 4. Civil and criminal proceedings for same wrong, 2, 8. Condonation and settlement by person injured, 2, 9. Consent of person injured, 2, 3, 10. Entrapment into crime, 212. Prohibition by law essential, 3- Want of consent as essential ingredient, 2. Wrong or negligence of person Injured, 3, 14. Public policy the ground of punishment, 4. Public injury essential, 4, 5, 6. DLstinguished from tort, 6, 9, 15. Mental element, 15. Trifling offenses not noticed, 5, 6, 156. Criminal prosecution to enforce debt, 7, note. Compounding felony, 10. May be one of omission, 16, 403. Punishability not an absolute test, 16. Indictability not an absolute test, 17. JNIala in se and mala prohibita, 18. No common-law crimes against United States, 19, 26. Statutory crimes, 27, 35, 90. Ignorance or mistake of fact as defense, 90. Penal codes, 37. Classification of crimes, 41. Felonies and misdemeanors, 42 Criminal intent, 15, 48. Specific intent an essential element, 54. Concurrence of act and intent essential, 60. Exemptions from liability, 61. Persons capable of committing, 61. Capacity of corporation to commit, 82. 558 INDEX [The figures refer to pages] CRIME— Continnea, Justification, 98 et seq. Parties concerned in the commission of crimes, 108. Overt act necessary, 60, 138. Criminal responsibility as affected by Infancy, 61. As affected by insanity, 64. Ignorance or mistake of law no defense, 87. Common-law offense, ignorance or mistake of fact as defense, 90. See Attempts; Consent; Criminal Intention; Common Law; Criminal Law ; Statutes. CRIME AGAINST NATURE, See Sodomy. CRIMINAL INTENTION, Defined, 46 et seq. An essential element in crime, 15, 46 et seq. Distinguished from malice, 49. From motive, 50. Specific intent, 54. Natural consequences of act presumably intended, 52. Not punishable without overt act, 60, 138. Constructive Intent, 56, 211. Unintended results, 56, 211. Doctrine does not apply when specific intent necessary, 58. Supplied by negligence, 59. Must exist at time of act, 60, 302, 341, 346. Not Imputable to corporation, 84, 85. Specific intent, necessary in attempts, 138, 148. In aggravated assaults, 257. In burglary, 302. In statutory offenses, 91 et seq. See Drunkenness; Infancy; Insanity; specific crimes^ CRIMINAL LAW, How prescribed, 19. See Common Law; Crime; Statutes. CUSTODY, See Larceny. CUSTOM, Basis of law, 20. As defense to nuisance, 406. D DEADLY WEAPON, What constitutes, 258, note. DEATH, Cause of, see Homicide. INDEX 559 [The figures refer to pages] DEATH— Continued, Time of, see Homicide. Proof of, see Homicide. DEFENSE, Of otbers, 191, 205, 221, 272. See Assaults; Homicide; Property. DEFINITIONS, See specific titles. DELIRIUM TREMENS, See Drunkenness. DELUSIONS, See Insanity. v DEJIENTIA, See Insanity. DE MINIMIS NON CURAT LEX, Application of maxim, 5. DETECTIVES, Entrapment Into crime, 12, note, 117. DIPSOMANIA, See Drunkenness. DISORDERLY HOUSE, As a nuisance, 401. DRUGS, Administering, an assault, 256, 277. A battery, 257. I To effect abortion, 430. DRUNKENNESS, As exempting from responsibility, 76 et seq. Voluntary, ordinarily no defense, 76. Otherwise wbere delirium tremens results, 77. Does not aggravate crime-, 77. Materiality as reducing homicide to manslaughter, 80. May negative essential specific intent, 76, 78, 345. Dipsomania, 81. Resulting from unsuspected susceptibility, 82. Involuntary, a good defense, 76, 81. As a nuisance, 77, 401. Mistake of fact, due to, 81. DUELING, Challenge as a crime, 455. DURESS, As justification of criminal act, 98, 99, 471- 560 INDEX [Tie figures reter to pages] * DWELLING, In arson, 2^8. In burglary, 300. E EAVESDROPPING, As a nuisance, 401. ELECTIONS AND VOTERS, Abuse of elective franchise, 473. EMBEZZLEMENT, * Defined, 351. As statutory crime, 7, 351. Settlement with owner no defense. 10, note, 359. Distinguished from larceny, 321, 325, 351. Purpose of statutes, 351 et seq. Who are within the statutes, 353. Scope of statutes, 353. By public officers, 357, 450, 451. By joint owner, 357. From bailee, 357. Breach of trust as element of the crime, 357. Fraudulent intent essential, 350. See, also. Receiving Stolen Goods. EMBRACERY,. Defined and explained, 436. EMOTIONAL INSANITY, See Insanity. ENEMIES IN WAR, Not subject to the laws, 495. Aiding, 471. ENGROSSING, Explained, 473. ENTRAPMENT, Into crime, 12, 117. Not a defense, 3, 12. Community of purpose, 117. ESCAPE, Defined and explained, 437. Preventing, as justification for criminal act, 98. Homicide to prevent, 173, 175. EXCUSABLE HOMICIDE, See Homicide. EXCUSE, Distinguished from justification, 173. INDEX 561 [The figures refer to pages] EXCUSE— Continued, For injury to property, 384. For assault, see Assaults. For homicide, see Homicide. EXECUTION, Of criminals, 174. EXEMPTIONS FROM RESPONSI BIIJTT, See Accident ; Corporations ; Drunkenness ; Ignorance or Mis- take of Fact; Ignorance or Mistake of Law; Infancy; Insan- ity ; Married Women ; Necessity and Compulsion ; Provocation EX POST FACTO LAWS, Wliat are, 31. EXPOSURE, As an assault, 256. EXPRESS MALICE, See Murder. EXTORTION, By officer, 450. Consent, 12. F FACT, Ignorance or mistake of fact, 90 et seq. FALSE IMPRISONMENT, Defined, 278. As provocation for homicide, 222. What is Imprisonment, 278. When imprisonment false, 279. See, also. Abduction; Assaults; Kidnapping. FALSE PRETENSES, See Cheats.. FALSE TOKENS, See Cheats. FEAR, Effect of, in reducing grade of crime, 101, note. FEDERAL COURTS, See Jurisdiction. FELONIES, What are, 42. Compounding, 10, 440. Distinguished from misdemeanor, 43, 44. Merger of offenses, 45. Corporation cannot be guilty. 86. Distinction between principals and accessaries, 43, 109. Clabk Cb.L.3d Ed.— 36 562 INDEX [The figures refer to pages] FELONIES— Continued, What are, at common law, see specific crimes. Homicide to prevent, 174, 178. Misprision of felony, 440. FELONIOUS HOMICIDE, See Homicide; Manslaughter; Murder; Suldde. FEME COVERT, See Husband and Wifa FIGHTING, See Affray ; Dueling. FINDING LOST PROPERTY, See Larceny. FORCIBI^ ENTRY AND DETAINER, Defined and explained, 461. FOREIGN COUNTRIES, See Jurisdiction. FOREIGN SOVEREIGNS, Not subject to the laws, 495. FORESTALLING, Explained, 473. FORGERY, Defined, 385. Elements of the crime, 385. A misdemeanor, 385. The making and signing of the Instrument, 385 et seq. By agent, 387, 388. Character of the instrument, 336„ 383, 389. Legal efficacy of Instrument, 338, 391. Alterations and erasures, 393. The intent, 394. Need not in fact defraud, 395. Of foreign securities, 476. Possession of forged note, 397. Uttering forged instrument, 388, 398. FORGIVEnsnE^SS, By person Injured by crime, 9, 415. FORMER JEOPARDY, Defined and explained, 497. What constitutes, 498. Jurisdiction, 499. Discharge of jury, 500. Identity of offenses, 502. Waiver by defendant, 501. Prosecution under ordinance as, 40. INDEX 563 [The figures refer to pages] FOKNIOATION, Defined, 415. Living In, 416. FKAUD, In office, 450. See Cheats ; Embezzlement ; Forgery ; Larceny ; Miscon- duct in Office ; Rape. FREE AGENCY, See WiU. FRENZY, See Insanity. G GAMES, Assault in, 275. See Manslaughter. GAMING, Gambling and gambling houses, 402. GOVERNMENT, Offenses against, 469. GRAND LARCENY, See Larceny. H HABITATION, Defense of, 185. Offenses against, see Arson; Burglary. HEALTH, Crimes against, 398 et seq. HEAT OF PASSION, See Manslaughter. HIGH TREASON, See Treason. HIGHWAYS, Obstruction as a nuisance, 402. HOMICIDE, Defined, 166. Subjects of, 166. The killing, cause of death, 167, 232. Sole or contributing cause of death, 167, 168. Time of death, 157, 166, 171. Negligence of person injured, 14, 169. Consent of person killed, 10. Efi'ect of drunkenness, 76. Proof of corpus delicti, 172. 564 INDEX [The figures reler to pages] HOMICIDE— Continued, Justifiable, what amounts to justification, 173 et seq. Distinguished from excusable, 173. Execution of criminals, 173, 174. In making arrest, 173, 175. In preventing escape of prisoner, 173, 175. In preventing rescue of prisoner, 174, 176. In suppressing riot or affray, 177. In preventing crime, 174, 178. Self-defense, 175, 176, 177, 179, 181, 187. Defense of others, 191. Defense of habitation, 185. Defense of property, 188. Setting spring guns, 189. Duty to retreat, 181, 185. Excusable defined, 192, 194. Distinguished from justifiable, 173. Accident, 192. Self-defense, 188. Accused as aggressor, 195, 200. Imminence of danger and necessity, 194, 196. Duty to retreat, 194, 199, 203. Distinguished from manslaughter, 227. Defense of others, 205. Knowledge that act will cause death or injury, 211. Assault with intent to kill, 259. Death within, from blow without, the state, 487. See Manslaughter ; Murder ; Suicide. HOUSEBREAKING, See Burglary. HUMAN BEING, Subject of homicide, 166. HUSBAND AND WIFE, Coercion of wife by husband, 102 et seq. Wife assisting husband to escape not accessary, 126. Assault by husband on wife, 271. Receiving by one of goods stolen by the other, 380. I IDIOCY, See Insanity. IGNORANCE OR MISTAKE OF FAOT, Insane delusion, 67. As ground of exemption from responsibility, 90 et seq., 95, 178, 180, 197. INDEX 565 [Tbe figures refer to pages] IGNORANCE OR MISTAKE OF LAW, As ground of exemption from responsibility, 87, 420, 451, 452. Negativing specific Intent, 89. ILLICIT COHABITATION, How and when a crime, 416. IMBECILITY, See Insanity. IMPLIED MALICE, See Murder. IMPOSSIBILITY, As justification for failure to perform a duty, 104. INCEST, Defined, 418. Distinguished trom rape, 419. INDECENT EXPOSURE, As a nuisance, 401. INDECENT PRINTS, As a nuisance, 400. INDIANA, Common-law crimes, 37. IN'DICTMENT, Indictabllity not an absolute test of crime, 17. INFANCY, Capacity to commit crime, 16, 61. Incapacity arising from civil disabilities, 63. Capacity to commit rape, 63, 251. INSANE DELUSIONS, See Insanity. INSANITY, Defined, 64 et seq. See Drunkenness. Presumption and burden of proof. 73. Insane delusion result of negligence, 68. Partial insanity or Insane delusions, G4, 67. Moral insanity, 65, 72. Irresistible Impulse, 65, 68. Exempts one from being tried or sentenced, 65. Ability to distinguish between right and wrong, 64, 66. As exempting from responsibility, 64 et seq. Emotional insanity, 65, 72. INSTIGATION, Solicitation to commit crime, 152. See Principals and Accessaries, 566 INDEX [The figures refer to pageaj INTENT, See Criminal Intent; also under specific crimes. INTERPRETATION, Of statutes, 34. See Disorderly House. Agent's liability for his own acts, 136. INTOXICATING LIQUORS, Unlawful sale, liabilily of principal for acts of agent, 131. INTOXICATION, See Drunkenness. INVOLUNTARY ACTS, See Will. IOWA, No common-law crimes, 37. IREESISTIBLB IMPULSE, Exemption from responsibility for crime, 65, 68. JEOPARDY, See Former Jeopardy. JUDGMENT, In civil action as bar to prosecution, 8. JURISDICTION, Territorial limits, of states and United States, 477. Of counties, 479. As determined by locality of offense, 480. Extraterritorial, in general, 480. Offenses on shipboard, 480, 481. Offenses by subjects abroad, 482. Jurisdiction of states, 483. Offenses by foreigners abroad, 484. Jurisdiction o^ states, 484. Courts sitting In foreign countries, 485. Acts committed without, taking effect within, territorial lim- its, 372, 382, 480, 485. Homicide, death within, from blow without, limits, 487. Larceny, property stolen in one state and brought into another, 489. Federal courts and the common law, 491. Conferred on federal courts by congress, 493. Persons subject to the laws, 495. See, also, Former Jeopardy. JUSTICE, Offenses against, 432. INDEX 667 [The figures refer to pages] JUSTIFIABLE HOMICIDE, See Homicide. JUSTIFICATION, For criminal act,- 98. Dlstinguislied from excuse, 173. For injury to property, 384. For nuisance, 403. i For assault, see Assaults. For homicide, see Homicide. For mayhem, see Mayhem, Burden of proving, 214. See Coercion ; Duress ; Necessity. K KIDNAPPING, Defined, 280. Consent, 281. See, also, Abduction ; False Imprisonment. L LARCENY, Defined, 305. Elements of the crime, 305 et seq. A felony, 307. Grand and petit, 306. Manner of the taking, 317. Simple and compound, 349. Consent of owner, 11, 318, 320, 332. Entrapment as consent, 13, 335. Negligence of owner, 14. Property that may be stolen, 307. Personal property, 311. Ownership, 314. Distinguished from embezzlement, 321, 325, 351, Prom false pretenses, 332, 363. , From malicious mischief, 383. From robbery, 373, 374. The trespass In the taking, 317. Possession, custody, and property distinguished, 323. Possession necessary for trespass to attach, 318. Possession only obtained without owner's consent, 320. By bailees, 321. Bailment terminated before taking, 322. Possession fraudulently obtained anlmo furandl, 321. 568 INDEX [The figures refer to pages] LARCENY— Continued, Constructive possession of owner, 323. Possession by servant as bailee, 324. Talcing from or by servant, 323. Custody only by others than servants, 327. Larceny of lost property, 328. Consent to part with "property," 332. Property merely mislaid, 331. Servant or agent parting with "property," 333, Conditional parting with "property," 327. Delivery by mistake, 336. The caption and asportation, 337. The intent, 341. To use and return, 341. Abandoning or returning property, 343. Must exist at time of talcing, 341, 346. Lucri causa, 345. Taking under claim of right, t<9, 343. ■Coexistence of act and intent, 341, 346. Continuing trespass, 348. Compound larcenies, 349. Property stolen in one state and brought into another, 489. See, also. Receiving Stolen Goods. LASCIVIOUS COHABITATION, How and when a crime, 415, 416. LAW, Ignorance or mistake of law no defense, 87. LAW OF NATIONS, Offenses against, 475, 493. LEGISLATURE, See Statutes. LEWDNESS, As a nuisance, 401. How and when a crime, 4 15, 41C. LIBEL, On private persons, defined, 462. What constitutes defamatory matter, 463. Spoken words, 464. Publication, 465. Without, to circulate within, the state, 465, 488. Truth no defense, 464. Privileged communications, 466. Malice, 467. Other libels, 468. Liability Of principal for acts of agent, 130, 132, 465. INDEX 569 [The figures refer to pages] LIMITS, See Jurisdiction. LIVING IN ADULTERY, What constitutes, 416. LIVING IN FORNICATION, WJiat constitutes, 416. LOCALITY, See Jurisdiction. LOST PROPERTY See Larceny. ^ LOUISIANA, Common law governs as to crimes, 22. LUCRI CAUSA, Intent»in larceny, 345. LUNACY, See Insanity. M MAIM, See Mayhem. MAINTENANCE, Defined and explained, 4.32. MALA IN SE AND MALA PROHIBITA, Distinction, 18. Homicide in dbing act, 194, 229. MALFEASANCE, In oflSce, 450. MALICE, An essential element in a crime, 55, 383. Distinguished from intent, 49. Not imputable to corijoration, 86. As ingredient of particular crimes, malicious mischief, 383. Murder, 206 et seq. Presumption of, 214. Arson, 291. Libel, 467. MALICIOUS MISCHIEF, Defined, 382. Distinguished from larceny, 346, 3S3. Property subject to, 383. The malice, 383. Justification for injury, 384. 570 INDEX [Tte figures refer to pages] MANSLAUGHTER, Defined, 218. A felony, 218. Voluntary, defined, 21S. Passion necessary, 218, 227 et seq. Cooling time, 22Q, 228. Provocation, 213, 214, 218 et seq. Adequacy of, in general, 220, 221 et seq. Assault and battery, 221. Injuries to relatives or friends, 221 et seq. Mutual combat, 228. Cnlavyful attempt to arrest, 223, Unlawful imprisonment, 222. Wife's adultery, 224. Seduction, 221. Breacbes of contract, 225. Insulting and abusive words or gestures, 224, 225. Insults to female relatives, 226. Trespass on property, 225. Question of fact, 225, 226. Effect of drunkenness on question of provocation, 80. Effect of mistake of fact, 225. Distinguished from self-defense, 227. Involuntary, defined, 229. Unlawful act, "229. Attempt to commit suicide, 231. Assault and battery, 280, 231. Immoderate correction of cbild, 231. In committing abortion, 231. In games, 230. Negligence, in doing lawful act, 229, 232. Failure to perform legal duty, 229, 234. Contributory negligence, 238. Principals and accessaries, 238. Statutory degrees, 239. Assault with intent to commit, 2.59. See, also. Abortion ; Homicide ; Murder ; Suicide. MARRIED WOMEJN, See Husband and Wife. MASTER AND SERVANT, Ctommand of master no defense, 101. Assault by master on servant, 271. Larceny by servants, 324. Obtaining property from servant, 324, 333. See Principal and Agent. INDEX 571 [The figures refer to pages] MAYHEM, Denned, 240. What constitutes, 240. Felony or misdemeanor, 240 When justifiable, 241. Consent of person maimed, 2, 11. Intent in, 241. MEETING, Disturbance of, 453. MENTAL/ CAPACITY, As element in crime, 61. , See Corporations ; Drunkenness ; Infancy ; Insanity. MENTAL ELEMENT, In general, 4S, 61. See Criminal Intention; Malice; Motive; Will. MERGER, Of civil remedy, 9, note. Of offenses, 45. MINORS, See Infancy. MISCEGENATION, Defined, 420. MISCHIEF, See Malicious Mischief. MISCONDUCT IN OFFICE, What constitutes, 450. Extortion defined, 450. Fraud and breach of trust, 450. Nonfeasance, 451. Oppression defined, 450. Refusal to accept office, 451. MISDEMEANOR, Civil and criminal proceedings, 8. What are, 42. Distinguished from felonies, 42, 44. Merger in felony, 45. Solicitation to commit, 152. See Felonies. MISFORTUNE, See Accident. MISLAID PROPERTY, See Larceny. 572 INDEX [Tb« flgurea refer to pages] MISPRISION, Of felony, 440. Of treason, 469, 472. ^ MISTAKE, Of law, as grouna of exemption from responsibility, 87. Of fact, as ground of exemption from responsibility, 81, 90 et seq. Overpayments by, larceny, 336. Insane delusions, see Insanity. MONOPOLIES, Conspiracy, 159, 164, note. Forestalling, regrating and engrossing, 473. MORAL INSANITY, See Insanity. MORALITY, As part of common law, 25. OfCenses against, see Adultery ; Bigamy and Polygamy ; Fornica- tion ; Illicit Cohabitation ; Incest ; Miscegenatiou ; Nuisance. MORALS, See Public Morals., MOTIVE, Defined, 50. Bad motive not punisnable. 51. Good motive no defense, 51. When material, 52. MUNICIPAL ORDINANCES, Indictment under, as jeopard.v, 300. See Statutes. MURDER, Defined, 206. Acts showing malice In law, 206 et seq. Actual intention to kill, 206, 209. A felony punishable by death, 207. In committing another crime, 206, 211. In resisting arrest, 206, 213. In resisting attempt to suppress riot or affray, 207, 214. Intention to inflict bodily injury, 206, 201). In attempting suicide, 212. In committing abortion, 212. In omitting to act, 234. Malice explained, 206 et seq. Presumption of, 214. Cruel and wanton acts, 209. Statutory degrees, 217. Drunkenness as affecting degree of crime, 80. INDEX 573 rnie figures refer to pages] MDBDEB.— Continued, Assault with intent to commit, 259. See, also. Homicide;, Manslaughter; Suicide. MUTUAL COMBAT, As a crime, 11. As provocation for homicide, 222. MUTUAL FAUL/T, , No defense, 2, 14. N NATIONS, LAW OF, Offenses against, 475, 493. NAVIGABLE WATERS, ■ Obstruction of, 402. NECESSITY AND COMPULSION, As ground of exemption from responsibility, 98, 99, 104, 47L Coercion of wife by husband, 102 et seq. Irresistible Impulse from mental disease, 68, 77, 82. Abortion to save life of mother, 430.. Negligence as affecting, 106. NEGLIGENCE, Of person injured, 14. In homicide, 169, 193. May supply criminal intent or malice, 59. Insane delusion as result of negligence, 68. Negligent Ignorance of fact, 90, 91. Involuntary manslaughter by, 232. Causing battery, see Assaults. Causing death, see Manslaughter. NEUTRALITY, Violation of, 476, 493. NONFEASANCE, In office, 451. NUISANCE, Defined, 398. What acts constitute, 398 et seq. Intent, 403. Corporation may be punished for, 82, 83. Liability of principal for acts of agent, 133. , Justification and prescription, 403. Acts vsrithout, taking effect within, state, 488. 574 INDEX [The fleures refer to pages] o OBSCENE LANGUAGE, As a nuisance, 401. OBSCENE LIBELS, Explained, 468. OBSTRUCTING JUSTICE, How and when a crime, 435. See, also, Bribery ; Compounding Crime ; Embracery ; Es- cape; Misprision of Felony; Perjury; Prison Breach;. Rescue. OBSTRUCTION, Of highways and navigable waters, 402. OFFICE AND OFFICER, Refusal to accept, 451. Embezzlement by public officer, 357, 450, 451. See Misconduct in Office. OHIO, No common-law crimes, 37. OMISSION, Crime of, 16, 403. ONCE IN JEOPARDY, Explained, 497. OPPRESSION, By officer, 450. OVERT ACT, Essential, 54, 60, 138, 254. Solicitation as overt act, 153. In conspiracy, 154, 155. P PARENT AND CHILD, Parental authority as justification, 98, 101. Neglect of parent, manslaughter, 234. Immoderate correction, as an assault and battery, 270. Manslaughter, 231. False imprisonment of child by parent, 279. PARTIAL INSANITY, See Insanity. PARITIES TO CRIMES, Classification, 109. Effect of joining in criminal purpose, 108 et seq. See Principals and Accessaries. INDEX 575 [The figures refer to pages] PASSION, See Insanity ; Manslaughter. PASSPORT, Violation of, 476. PEACE, Breach of, 453 et seq. PENAL CODES, In general, 37. * PENAL STATUTES, 17. PERJUKX, Defined, 441. The oath, 441. Jurisdiction, 442. The proceeding, 442. Falsity of testimony, 444. Intent, 444. Materiality of testimony, 445. By corporation, 84. Subornation of, 441. PERSON, . Offenses against, 166. PETIT LARCENY, , See Larceny. PETIT TREASON, See Treason. ' PIRACY, Defined and explained, 475. A felony, 475. POLICE REGULATIONS, Ignorance or mistake of fact, 95. POLYGAMY, See Bigamy and Polygamy. POSSESSION, See Embezzlement; Larcehy. POST OFFICE, OfCenses against, 473. PRESENT ABILITY, To commit crime, see Assaults ; Attempts. PRESUMPTION, That consequences of act were intended, 52. As to mental capacity of infant, 62. Of sanity, 74. That every one knows the law, 88, 391. 576 INDEX [The figures refer to pages] PRESUMPTION— Continued, Of wife's coercion by liusband, 102 et seq. Of malice, 214. PItEVENTION OF CRIME, As justification of criminal act, 98. See Homicide. PRINCIPALS AND ACCESSARIES, Classification, 109. Distinction recognized in felonies only, 43, 109. Principals in the first degree, defined, 110. Acting through agent in another state, IIL Acting through innocent agent, 110. Punishment and procedure, 118. Principals in second degree, defined, 112. Constructive presence, 112. Aiding and abetting, 113, 127. Community of unlawful purpose, 115. For what acts liable, 115 et seq. Withdrawal, 117. Punishment and procedure, 118. Accessary before the fact, defined, 119. For what acts answerable, 120. Punishment and procedure, 122. Repentance and withdrawal, 122. Accessaries after the fact, defined, 124. The assistance, 124. Persons in family relation, 126. Punishment and procedure, 126. Use of terms "aider and abettor" and "accomplice," 127. Liability of co-conspirators, 162. In manslaughter, 238. In rape, 251. Abortion, woman not an accomplice, 430. See, also. Conspiracy. PRINCIPAL AND AGENT, Principal's liability for agent's acts, 128. Agent's liability for his own acts, 136. Agent's act as evidence of authority, 130. Negligence, 132. Statutory offenses, 133. Obtaining property from agent, 323, 333. PRISON BREACH, Defined and explained, 437, 438. PRIVATE WRONGS, iSee Torts. INDEX B77 [The Sgurea refer to pases] PROFANITY, As a nuisance, 401. PROPERTY, Offenses against, 30!^ et seq. Defense of, 188, 273. See Larceny. PROSTITUTION, See Abduction; Adultery; Bigamy and Polygamy; Disorderly House ; Fornication ; Illicit Cohabitation ; Incest ; Lewdness ; Miscegenation ; Nuisance. PROVOCATION, In general, 107. . As exemption from criminal responsibility, 107. Burden of proving, 215. For homicide, see Manslaughter. PUBLIC AUTHORITY, As justification for criminal act, 98. PUBLIC HEALTH, See Nuisance. PUBLIC JUSTICE, Offenses against, 432. PUBLIC MORALS, See Adultery; Bigamy and Polygamy; Fornication; Illicit Co- habitation; Incest; Lewdness; Miscegenation; Nuisance. PUBLIC PEACE, OfCenses against, 453 et seq. PUBLIC POLICY, As the ground of punishment, 2, 4, 5. PUBLIC SAFETY, See Nuisance. PUNISHMENT, Ground of, 1, 4, 6. Punishability not an absolute test of crime, 16. PUNITIVE DAMAGES, Action for, dvil not' criminal, 16. PURPOSE, See Criminal Intent. R RAILROAD COMPANIES, Criminal liability of, 82 et seq. RAPE, Defined, 242. A felony, 242. Clark Ce.L.3d Ed. — ^37 578 INDEX rnie figures refer to pages] RAPE — Continued, Essentials of the crime, 242 et seq. Force, 243. Consent, actual force, 11, 243, 245. Consent obtained by Intimidation, 242, 243, 247. Woman incapable of consenting, 242, 245, 261, 277. Carnal Imowledge of children, 12, 242, 246, 261. Fraud In obtaining, 247. The act, penetration and emission, 244, 248, 250. The woman, 250. Who may commit, 251. Distinguished from seduction, 427. From adultery, 414. From iBcest, 419. Condonation of crime by woman, 9, 245. Attempt to commit, 146, 147, 149, 151, 276. Assault with intent to commit, 260, 261, 266. Homicide in self-defense, 179. Carnal knowledge of infant, 11, 246. Of drunken woman, 245. Of insane woman, 245. Of sleeping woman, 245. Of Imbecile woman, 245. REASONABLE DOUBT, As to sanity, 74. RECEIVING STOLEN GOODS. At common law, 37S. Elements of the crime, 378. Husband and wife, 380. Character of goods as stolen, 378. The receipt, 380. Receiving from receiver, 379. Character of possession, 380. Ratification of receipt by agent, 380. By one partner of receipt by the other, 381. By husband of receipt by wife, 380. Fraudulent intent necessary, 381. Goods stolen In another state, 382, 490. Receiving embezzled goods, 380. Goods obtained by false pretense, 380. Knowledge necessary, 381. RECKLESSNESS, See Negligence. RBGRATING, Explained, 473. INDEX 679 [The figures refer to pages] RELIGIOUS BELIEF, No defense, 50, 410. See Adultery; Bigamy and Polygamy. REPEAL, Of common law by statute, 38. See Statutes. REPENTANCE, Effect, 122. See Abandonment RESCUE, Defined and explained, 437, 438. Homiieide to prevent, 174, 176. RETREAT, See Assault; Homiclda RETROSPECTIVE LAWS, Ex post facto laws, 31. RETURN, Of stolen property, 342. RIOT, Defined and explained, 456. Suppression of, as justification for criminal act, 98, Homicide to suppress, 177. Homicide by rioters, 214. ROBBERY, Defined, 373. Distinguished from larceny, 373. A felony, 373. Elements of the crime, 373. Property subject to, 373. Ownership of property, 376, 377. Manner of taking, 374. Consent to talang, 12, 276, 377. Intent, 373, 376. Threats, 375, 377. Violence or intimidation, 374, 375. Assault with intent to commit, 259. See, also, Piracy ; Receiving Stolen Goods. ROUT, Defined and explained, 456. SAFETY, See Public Safety. SEDITIOUS LIBELS, Explained, 468. 580 INDEX [The figures refer to pages] SEDUCTION, Defined, 423. Distinguished from rape, 427. The seduction, promises and persuasion, 425. Condition and character of female, 423. Marriage of the parties, 428. See, also. Abduction. SELF-DEFENSE, See Assaults; Homicide. SERVANT, See Larceny; Master and Servant; Principal and Agent SETTLEMENT, With person Injured by crime, 2, 9. By embezzler, no defense, 359. SHIPBOARD, Offenses on, 480. SIMPLE LARCENX, See Larceny. SLANDER, See Libel. SODOMY, Defined, 420. Essentials, 421. Felony or misdemeanor, 422. SOLICITATION, To commit crime, 152. SPECIFIC INTENT, See Criminal Intention. SPRING GUNS, Right to set, 399. STATES, Powers of legislature as to crimes, 28. See Jurisdiction. STATUTES, EfEect of repeal as to prior offenses, 3. As revival of former law, 36. Power of state legislatures, 27. Statutory crimes, in general, 27. Powers of congress, 28. Restrictions of federal constitution, 29. Powers of territorial legislature, 30. Ex post facto laws, 31. Construction of, 34. Common law In connection with, 35, 37. INDEX 581 [The figures refer to page*] STATUTES— Continued, As repeal of Qommon law, 38. Penal codes, 37. Municipal ordinances, 38. STEALING, See Larceny. STRIKES, Conspiracy, 159, 163, note. SUBORNATION OF PERJ URX, See Perjury. SUICIDE, As a crime, 215. Homicide In attempting, murder, 231. Manslaughter, 231. SUNDAY, Disturbance of public rest, 400. T TEACHER, Authority of, 271. TERRITORIAL LIMITS, See Jurisdiction. TERRITORIES, Powers of territorial legislature, 30. THEFT, See Larceny. THREAT, In false Imprisonment, 278. In kidnapping, 280. See Duress. TORTS, Distinguished from crimes, 6, 9, 15. TRADES UNIONS, Conspiracy, 159, 164, note. TRAP, Laying trap to catch offender, 117. See Entrapment. TREASON, ' Defined and explained, 469. What constitutes, 41, 469. All concerned are principals, 109. Misprision, 469. Petit, 41, 469. Punishment, 471. 582 INDEX [The figures refer to pages] TRESPASS, See Forcible Entry and Detainer; Larceny ; Malicious Mischief. TRIFLING OFFENSES, Not noticed, 5. TRUSTS, Conspiracy, 159, 163, note. u UNIONS, Conspiracy, 159, 163, note. UNITED STATES, No common-law crimes against, 19, 26. Powers of congress as to crimes, 27. Crimes against, 469, 472. See Jurisdiction. UNLAWFUL ASSEMBLY, Defined and explained, 455. UTTERING, Of forged Instrument, see Forgery. V VOLENTI NON PIT INJURIA, Application of maxim, 10. VOLUNTARY, See WUL VOLUNTARY MANSLAUGHTER. See Manslaughter. W WANTON ACT, Murder, 209. WIFE, See Husband and Wtfet WILL, Exercise of will essential, 48. Irresistible impulse from Insanity, 65, 68. WEST PUBHSHXNG 00., PEINTEH8, ST. PAUL, UlNM.